Author: Collin J. LeBlanc

Is Texting While Driving The New Drunk Driving?

Earlier this year, Apple was sued in the California class action of Ceja v. Apple, BC #647057, Superior Ct. of California, County of Los Angeles. In the Ceja suit, it was alleged that Apple is liable for automobile-related injuries and death. The “theory of recovery” against Apple is fairly straight-forward: 1) since 2008, Apple has possessed the “lock-out” ability to prevent texting while driving; and, 2) it is liable because it failed to do so. Whether or not the plaintiffs prevail against Apple, the national trend is toward stricter anti-texting laws and harsher consequences for those who text and drive. While this post does not intend to suppose a moral equivalence between drunk driving and driving while texting, the building momentum against texting while driving is reminiscent of the development of the anti-drunk driving laws and message.

It was not until 1938 when 0.15 became the first commonly-used blood alcohol level for intoxication (nearly two times today’s legal limit).  Today, driving with a .08 will land you in a Louisiana jail. Many states such as Louisiana have enacted punitive damage statutes that allow for substantial money awards against drunk drivers. For instance, under Civil Code Article 2315.4, punitive damages (a.k.a. “exemplary” damages) are available against any driver whose intoxication causes injury. The message has been heard: drunk driving is illegal and may costs you your freedom, your money, or both.

The prohibitions against texting while driving (and even the broader category of “distracted driving”) are expanding. The State of Washington was the first state to ban texting while driving in 2007. Almost every state has since followed suit. Attitudes are also changing, perhaps in response to public service announcements and targeted media campaigns.

While once legal here, Louisiana, at least on paper, now completely bans texting while driving under La. R.S. 32:300.5. This law was later expanded to prohibit driving while accessing, reading, or posting to a “social networking site.”  Last year, related fines and penalties were increased.

The practice of texting while driving has been said to involve three forms of distraction:

           1. Manual distraction- taking your hands away from the wheel;

           2. Visual distraction- diverting your eyes away from the road;

           3. Cognitive distraction- taking your attention away from safely driving.

In the last few years, at least two drivers (one in New Jersey and one in Pennsylvania) have been sued under allegations that they are liable for injury because they sent texts to persons they knew or should have known were driving. Kubert v. Best, 75 A.3d 1214 (2013) and Gallatin v, Gargiulo, #10401 of 2015, Lawrence County, PA.

At some point, auto manufacturers and phone/electronics suppliers may choose or be forced to render texting while driving impossible. Until such a time, the trend against texting while driving continues.

Uninsured Motorist Coverage: Making Smart People Feel Dumb

I have met smart, sophisticated “business” people whose eyes glass over when they try to explain their understanding of “UM” coverage. The picture becomes murkier when discussing “economic-only UM,” a form of UM coverage many people purchase without even knowing it. Through many years and conversations, I have come to conclude that there is a general fogginess that obscures this entire subject with many, if not most, people. This blog is an effort to improve understanding on the subject.

What is “UM” Coverage?

“UM” signifies “uninsured motorist” insurance coverage, but is more properly described as “uninsured/underinsured” motorist coverage. A person, family, business, or group purchases UM coverage to respond to damages caused in an accident by someone who has either no insurance or not enough to cover the loss. You purchase UM insurance to protect yourself or those connected to you. Without UM, you are gambling that the person who caused the accident (the “tortfeasor”) will have insurance coverage, and enough coverage, to respond to the injuries and damages they have caused.

Why UM?

This question is simply answered in a two-part response:

#1- The roads are dangerous

Unless you are a crop duster or an undercover agent, the most dangerous thing you will likely do on any given day is to drive on a public road, even more so in the age of “smartphones” and distracted-driving.

#2- Many drivers lack sufficient liability coverage- 

An unhealthy portion of drivers have either no insurance on insufficient insurance coverage to address an accident involving severe injuries or damages. The State of Louisiana requires motorists to obtain at least the minimum insurance of $15,000 “per person,” $30,000 “per accident,” and $25,000 to address property damage. If you do not purchase UM, you are trusting that these limits will be enough, as they might be in a minor accident. But what if the injuries are severe or you have multiple passengers in your car, van, or suburban?

Often, the same people who reject UM, will buy “collision” coverage on their car to make sure they are not left paying for a car note after the car is destroyed in an accident. In this limited way, you can think of UM insurance as collision coverage on you, your family, passengers, or employees.

While perfect statistics are not available, many drivers on the road have no insurance. Frequently, drivers will obtain minimum limits insurance through a “premium finance” arrangement, but will have stopped paying the premiums (thereby losing coverage) by the time of an accident.

What is “Economic-Only” UM?

In Louisiana, UM coverage will be afforded to you unless you “waive” the coverage under La. R.S. 22:1295. Louisiana residents are presented with a form that allows them to waive or select UM coverage. They are also allowed to select “economic-only” UM. People often choose this option because it is cheaper, but economic-only UM coverage will only pay for economic damages such as lost wages, medical bills, funeral costs, and other monetary damages. Economic-only UM will not pay money to compensate for pain and suffering/mental anguish, scarring and disfigurement, or other non-economic damages.

FAQS      

  • Can UM protect me from a hit-and-run driver? Yes.
  • What if another driver’s negligence caused the accident, but there was no physical contact with that driver’s vehicle and they fled? In this scenario, UM may be available under La. R.S. 22:1295(1)(f); however, you will need to identify an “independent and disinterested witness” to establish the actions of the unidentified driver.
  • Will UM protect me if I am at fault in an accident? No. The law would consider that a “moral hazard” and invite unscrupulous individuals to cause an accident in hopes of recovering under the policy they purchased.
  • Will UM protect me if I am a pedestrian? It may, depending upon the terms of your insurance policy.
  • What if an object falls from a vehicle and causes an accident? UM may be available in this circumstance. The ultimate answer may depend upon whether the “falling object” had come to rest before the accident. Rener v. State Farm Mut. Auto. Ins. Co., 99-1703 (La.App. 3 Cir. 4/05/2000), 759 So.2d 214, 215.

CONCLUSION

Rational people may decide to reject UM to save money; and this decision may be the right one if they have health insurance, short-term disability, long-term disability, or others such protections. However, people often make such decisions with less than full information. Hopefully, you will make the smart choice.

When “Drone” Used to be a Boring Word

Webster’s top two definitions of the word “drone” are as follows:

1: A stingless male bee (as of the honeybee) that has the role of mating with the queen and does not gather nectar or pollen.

2: one that lives on the labors of others: parasite

While bees and parasites have their allure, Webster’s third definition of the word “drone” is the one with current intrigue.

According to Webster’s, a drone is also “an unmanned aircraft or ship guided by remote control or onboard computers.” Drones began as play things; but are now poised to revolutionize industry, retail, agriculture, journalism, art, and law at an ever-increasing pace.

Currently, drones are regulated by the Federal Aviation Administration which has for decades regulated flight by planes and helicopters; but not everyone can own an airplane or helicopter. Everyone can own a drone and many soon will.

The soon-to-be pervasive use of drones will stretch at the fabric of criminal and civil law and raises intriguing questions with hazy answers.  For example,

1: Without probable case, can the government park a drone over a house or building, or even a crime-ridden city block, and monitor for criminal activity with sensors that easily peer through walls?

2: Does one have a reasonable expectation of privacy within a fenced-in back yard?

3: Is following a personal injury plaintiff via drone considered stalking?

4: Can a business fly a drone over a competitor’s work yard to observe it processes without recourse?

5: Is it legal to use technology (which is now available) to disrupt or even crash drones flying overhead? Would that be a tort?

In an upcoming Keogh Cox blog, we will advise of pending changes to the law that may begin to answer some of these questions. For now, we will observe that the word “drone” is no longer a boring word.

Umm, Should I Buy UM?

 

It’s a question you will have to answer if you purchase automobile liability insurance in Louisiana. While the question may appear simple, many people, even sophisticated people, do not fully understand the purpose of uninsured motorist coverage. 

 

Uninsured motorist coverage (or “UM”) is a form of insurance that can be purchased to protect you, your family, your passengers and/or your workers in the event they are injured in an automobile accident when the at-fault driver is uninsured. Your auto liability policy will not cover your bodily injuries, lost wages and other damages caused by the fault of another. 

 

When the Phone Rings: Responding to the Workplace Accident

            Having a response plan in place before an accident is important. It can improve safety, save time, reduce distraction, and limit exposure.”

It will happen, maybe today, maybe tomorrow, maybe six years from now; but if you are an employer of any size, the call will come, and the co-worker, passerby, or caller- in a panicked voice- will inform you that there’s been an accident. You cannot control what has just happened. You can control what you do about it.

Supreme Court Emphasizes “Error-Correcting” as Proper Role of Appellate Courts

In a 68 page decision, the Louisiana Supreme Court in Hayes Fund for the First United Methodist Church of Welsh, LLC, et al. v. Kerr-McGee Rocky Mountain LLC, et al. forcefully explained the role of an appellate court. It is axiomatic that Louisiana appellate courts are courts of review.  Louisiana law specifically sets the standard of review an appellate court must apply when reviewing a trial court’s factual decisions (manifest error) or its legal decisions (de novo). According to Hayes Fund, a failure to faithfully apply the “manifest error” standard of review where applicable causes an appellate court to function as a “choice-making court” when its proper role is to serve as an “errors-correcting court.”

Now You See Us

Keogh Cox is proud to announce the placement of a new sign and logo on the exterior of our office building in Baton Rouge, Louisiana.

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Sudden Emergency Defense: Now More Dispositive

On August 28, 2015, the Louisiana Supreme Court denied a Writ Application in Leandro Carias v. Vernon A. Loren, et al. This denial signifies that the “sudden emergency” defense may be properly applied at the summary judgment level. The defense in the Carias litigation was handled by Keogh Cox attorneys Gracella Gail Simmons and Collin J. LeBlanc.

Six Little Letters

tenure (ten’yer) 

1. The status of holding one’s position on a permanent basis without periodic contract renewals; example: a teacher granted tenure on a faculty.

Were You Lying Then, Or Are You Lying Now?

Witness For The Prosecution was a 1957 film about the testimony of a German-born wife whose husband was on trial for murdering a rich woman. Based upon an Agatha Christie novel, the film gave a quote which has been parroted by attorneys ever since.

Sir Wilfrid: And when you said that he had accidentally cut his wrist, again, you lied? 

Helm: Yes!

Sir Wilfrid: And now today you’ve told us a new story entirely! The question is, Frau Helm, were you lying then, [or] are you lying now?