Driven to Distraction

Incidences of distracted driving have dramatically increased over the last decade, rising to the level of a national epidemic. According to the National Safety Council, 4.6 million people were injured in automobile accidents in 2017—requiring over $413 billion in medical treatment—and the National Highway Traffic Safety Administration reported in April 2019 that distracted driving was cited as the cause for nine percent of fatal accidents that occurred in 2017, a trend that we expect will increase.

The sources of distracted driving are both internal and external. Making calls and texting from smartphones is a major factor, as are eating/drinking, adjusting climate or audio controls, grooming, daydreaming, rubbernecking, and accessing or following directions on a navigation system. Therefore, it is critical that employers take a proactive approach to control these risks and the associated exposure by going beyond state laws to minimize the impact and effect of distracted driving. This can include zero-tolerance policies, providing guidance and training to all employees, and implementing a distracted-driving prevention program.

Additionally, to curb claims caused by distracted driving, employers must institute best-practice hiring guidelines (including minimum age requirements and road experience); investigate motor vehicle driving records; establish accountability programs for drivers; and install devices to block cellphones from calling, emailing, and texting while the vehicle is in motion.

Furthermore, employers should have formal written policies for distracted driving and regularly communicate these policies in company-wide meetings, newsletters, and bulletins. The policy should include language that requires employees to pull over and park in legal parking spaces when using technologies that are distracting. To be effective, employers must commit to ongoing education of employees, monitor compliance, and enforce policies by addressing violations.

Defending Distracted-Driving Claims

When claims arise, the role of the workers compensation system in distracted-driving incidences varies from state to state. Determining whether an incident arises out of the course and scope of employment is fact-specific and is the exclusive remedy precluding an employee from filing other actions against the employer. In most states, it is the injured worker’s burden to prove that she has suffered a compensable work injury (i.e., an injury occurring in the course and scope of employment and arising out of employment).

With the significant rise in the use of personal vehicles for business activities, the line has been blurred as to the compensability of the claim under the workers compensation laws of each state. The best practice is to create a vehicle safety plan that accounts for personal vehicle use. The fact that an injury occurs in the course and scope of employment does not automatically result in an award of workers compensation benefits.

From a liability perspective, the employer must not only address injuries sustained by their workers, but also injuries caused to third parties as a result of the employee’s distracted driving. Injured parties will look to a negligent driver for compensation for property damage and personal injury. Liability against the driver is based on common law, and liability against the employer is based upon respondeat superior doctrine (in which a plaintiff will look to hold both the employee and the employer liable). Plaintiffs’ attorneys will also look at the possibility of improper training, policies, and procedures. Claims professionals must ensure that the injured party’s own negligence or distraction did not contribute to the loss, or that there were no intervening or superseding events or circumstances unrelated to either driver that may have contributed to the cause. Various defenses may be available that can help mitigate or even eliminate the claim against the distracted driver.

Another important step in mitigating and eliminating exposure in both the workers compensation and liability arenas is to establish an emergency claims response management plan. A well-built plan, beginning with the initial claim response guided by a triage team, ensures that the claim proceeds on the right path.

Once the team is established, all contact information for team members should be documented and distributed, and a 24/7 response line should be established. The team should be comprised of the right mix of personnel with expertise in all phases of a claim response, including the following players:

Insurance Broker: This person takes the lead to coordinate the response; ensures the claim and the employer receive prompt attention; and provides claims advocacy, technical support, regulatory intervention, accident investigation, and an overall safety presence.

Defense Counsel: Defense counsel provides legal advice and oversight of the investigation to protect privilege; ensures that the appropriate legal procedures are followed for the jurisdiction; assesses liability; and preserves evidence. All members of the team work under the direction of defense counsel.

Independent Adjuster: The independent adjuster provides “boots-on-the-ground” assistance that enables the insurance carrier to respond on-site immediately in order to document and gather evidence (e.g. witness statements) and protect an employer’s interest against liability claims.

Insurance Carrier/TPA Adjuster: This professional adjusts the claim and provides oversight to the independent adjuster.

Employer: The employer facilitates communication with senior leadership, human resources, and employees; and coordinates all claims and risk-management efforts.

Forensic Consultant/Accident Reconstructionist: These professionals provide forensic investigation and accident reconstruction to assist in determining the cause of an accident.

A key element in the investigation is assessing the cause of the injury and accident as well as any contributing factors. It is critical to gather all cellphone and texting records; statements and photos from electronic devices; event data recorders; police reports; cell tower records; GPS/hard drive data; dash camera video; company policies/handbooks; and witness reports.

Determining whether the employee was at a place she might reasonably be expected to be while performing job duties and whether she was performing those duties in the furtherance of the interest of the employer’s business when the incident occurred is also paramount. This will help in assessing the compensability of the injury and the likelihood of third-party liability to others injured in the accident.

Now is the time to recognize that distracted driving applies to all of us in some way or another. Society must work together to control these preventable actions that have a rippling effect on individuals, corporations, employers, and insurance carriers/TPAs. Given the risks and exposures, employers must be proactive in assembling key personnel to address distracted-driving incidences. A company plan for maintaining safety and a strategy for adequately enforcing the applicability of the workers compensation and general liability laws is critical to limiting potential claims.