THE LAW, INSURANCE AND CELL PHONE ROAD SAFETY

(by Tarran Dookie)

no-mobileTHE LAW

The Motor Vehicles and Road Traffic (Mobile Devices) Regulations 2010 came into effect on February 19, 2011.

One of the regulations states that “No person shall drive or have charge of a motor vehicle on any road while holding or using a hand-held mobile device.” Breach of this regulation renders a person liable to a fine of $1,500.00 or three months imprisonment.  However, the law is not broken if the phone is being used while in hands-free mode or if the vehicle is off the road/parked and not in motion and not impeding traffic. One prominent attorney is of the opinion that the law will still apply if the vehicle is stopped and off the road but is in motion (that is to say, the engine is still running) and recommends turning off the engine to ensure compliance with the law.

The law also makes provisions for persons viewing or sending text messages while driving. The regulation states “No person shall use a wireless communication device to view, send or compose an electronic message while driving or having charge of a vehicle.”

The law exempts the use of mobile phones when the vehicle is off the road or parked and not in motion and not impeding traffic.

While many persons have made use of the available hands-free devices, still too many continue to flout the law and talk and text while holding the phone.

The unfortunate reality is that very few persons pull aside to carry on their conversation on the phone or do their texting. It is simply not the norm at this time and would take many more convictions to encourage or persuade persons to adopt the practice of pulling aside when the phone rings.

If holding the phone and speaking while driving is risky, texting while driving is considered to be even more dangerous.

INSURANCE IMPLICATIONS

In a letter published in The Wall Street Journal, a writer suggested that insurance companies could curtail distracted driving if they simply refused to pay claims for accidents caused by texting. The letter received a fair amount of publicity but there was overall rejection of the idea, in particular by consumer advocates but even by insurance companies. The main consideration was that innocent persons (third parties) should not suffer the consequences of improper or even reckless action by motorists.

A check with some local insurers reflect the view that claims would be paid (both third party and own damage claims) since there is no policy exclusion dealing with cell phone texting. There is nothing to prevent an insurer from putting a restrictive clause or exclusion on a motor policy that would make the insurer not liable if the insured is in breach of the Motor Vehicles and Road Traffic (Mobile Devices) Regulations 2010. However, in the Trinidad and Tobago context it should be pointed out that the Motor Vehicles Insurance (Third Party Risks) Act Ch.48:51 states in Section 12 (1) “Where a certificate of insurance has been delivered under section 4(8) to the person by whom a policy has been effected, so much of the policy as purports to restrict the insurance of the persons insured thereby by reference to any of the following matters: (a) the age or physical or mental condition of persons driving the vehicle…… shall, as respects such liabilities as are required to be covered by  a policy under section 4(1)(b), be of no effect.” While this section does not specifically deal with cell phones, the intention of the section is that third party death or bodily injury and third party property damage claims must be paid even if a policy condition relating to the age or physical or mental condition of persons driving the vehicle was breached.

No condition on a motor policy should allow an insurer to deny compensating innocent third parties when the insured driver is the one causing the accident. Any such condition would be

against the spirit and intention of the legislation on motor vehicle insurance. Of course, own damage claims can still be denied. Insurers can, if drivers repeatedly get in accidents, whether due to drunken driving or texting or other reason, increase the client’s premium, or cancel their coverage.

It should be pointed out that most motor policies now have an intoxication clause which would mean that if the driver is under the influence of intoxicating liquor or drugs the insurer would not be liable under the policy (third party claims paid by the insurer solely because of the Legislation would be recoverable from the insured).

Employers are concerned that they might be held liable for accidents caused by their employees while driving and conducting work-related conversations on cell phones. Employers may also be found negligent if they fail to put in place a policy for the safe use of cell phones. In response, many companies have established cell phone usage policies. Some allow employees to conduct business over the phone as long as they pull over to the side of the road or into a parking lot. Others have completely banned the use of all wireless devices.

There have been several cases where an employer has been held liable for an accident caused by a driver using a cell phone. In the 2004 case of Yoon v. Wagner a Virginia jury awarded $2 million in damages to the family of a young girl who was killed by a driver using a cell phone at the time of the accident. The plaintiff also filed a suit against the driver’s employer after it became clear through an examination of phone records that the driver had been talking to a client when she hit the girl. In December 2007, International Paper Company settled a personal injury lawsuit for $5.2 million with an Atlanta woman who lost an arm after being rear-ended by one of the company’s employees. The International Paper employee was driving a company sedan and was on her company-issued cell phone at  the time of the accident. Even though the company had a policy in place that only allowed employees to use hands-free phones while driving for company business, the company still decided to settle the suit rather than let the case go to trial.

If the employer can be held liable to a third party when his employee causes an accident while using a cell phone on company business, it is obvious that the employer can be held liable for injury to the employee as well, since this would be deemed in the course of employment.

 

CELL PHONE ROAD SAFETY

 

In December 2011 the National Transportation Safety Board in the USA called for a nationwide ban on the use of cellphones and other “portable electronic devices” while driving. Trinidad and Tobago has joined a host of countries that has passed legislation to deal with the issue of cell phone road safety.

There are all sorts of other ways drivers can become distracted, whether by disciplining children in the back seat, eating lunch, tuning the radio, applying cosmetics, arguing with someone else in the vehicle and so on. However, cell phones, and particularly smart phones, are considered one of the leading driver distractions. A US study indicates that using a cell phone while driving, whether it is a hand-held or hands-free device, delays a driver’s reactions as much as having a blood alcohol concentration at the legal limit of .08 percent (the USA’s limit).

There are three main types of distractions according to the U.S. Department of Transportation (DOT): visual (taking your eyes off the road); manual (taking your hands off the wheel) and cognitive (taking your mind off what you’re doing). Texting on a cell phone involves all three.

The driver can take his eyes off the road while dialling or texting. Furthermore, the conversation can itself be distracting to the point where his mind is focused not on the road but on the discussion on the phone. Studies are showing that cell phone use is the most common cause of accidents due to a distraction. It is considered the leading cause of driver distraction.

The Motor Vehicles and Road Traffic (Mobile Devices) Regulations 2010 is intended to address the problem of driver distraction while using a cell-phone when not in a hands-free mode. One can only hope that greater compliance with the law will be witnessed, by more convictions taking place as well as by educating drivers of the benefits of compliance.