Tina Jackson Insurance Services News

While it is clear that distracted driving can lead to traffic accidents and fatalities, the use of a cell phone for calling or texting while driving also could lead to claims that go beyond commercial or personal auto coverage. Arguments could be made that if the communication that caused the distraction, and subsequent accident, was part of a professional service provided by the driver, but for the negligent performance of the service the accident or bodily injury or death would not have occurred.
According to a National Highway Traffic Safety Administration study, distracted driving led to motor vehicle accidents that killed almost 5,500 people and injured close to 450,000 more during 2009. The 2010 study attributed about one-fifth of the accidents directly to cell phone use. Many firms have policies against the use of cell phones while driving unless the communication devices are "hands-free." Many auto insurance policies have similar prohibitions. The dangers of cell phone use, however, don’t seem to be limited to the manipulation of a handheld device. Studies have indicated that any cell phone use can negatively impact driving performance; one study indicated that a 37% increase in cognitive distraction is attributed to any cell phone use while driving.
In addition, texting while driving has become banned in the majority of states and usually is treated as a primary offense that leads to a civil penalty. Both cell phone use and texting while driving also could be, depending on the state, evidence of negligence or negligence per se.

Recently, the Coca-Cola Company was held responsible for $21.5 million in compensatory and punitive damages resulting from a motor vehicle collision involving a Coca-Cola employee who was using her cell phone at the time of the accident. Although the driver was using a hands-free cell phone for the business-related call—an activity that was allowed under the company’s cell phone use policy—the jury held her and her employer responsible based on studies that indicated that any cell phone use resulted in distracted driving and on the fact that Coca-Cola was aware of such studies and continued to endorse its policy as sufficient to protect its employees and the driving public.
Similar cases are proceeding against employers of professional service providers who conduct business while operating a motor vehicle. For instance, law firms are facing responsibility for harm caused by attorneys who charge billable time through cell phone use while driving. In most situations, commercial auto or other liability coverages would both respond to such allegations and provide sufficient coverage. Professional liability coverage also could be implicated in an attempt by a creative plaintiff attorney to recover compensatory and punitive damages in an egregious case. In most professional liability insurance policies there is no clear exclusion of coverage for harm caused by a vehicular accident if the accident was the result of negligently performed professional services.
Given the increased likelihood that distracted driving laws will result in an increase in liability, it is critical that employers adopt and enforce adequate cell phone and texting policies for every situation where a business device is used, a business issue is discussed, or a business function is carried out.
 This revelation appeared in a recent edition of Victor O. Schinnerer’s Risk Management newsletter (an excellent resource for all architects, engineers and other design professionals):