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Posted by Susan J. Levy

For insurance defense lawyers, the issue of driving while talking on a cell phone is ubiquitous. While many of us are probably guilty of talking on the cell phone, emailing, or even texting while driving, more and more cases involve drivers who have injured someone or been injured by someone using a cell phone.

What does this epidemic of driving (or operating equipment) while using a cell phone mean to us and the insurance companies we represent? It means we need to get a plaintiff driver’s cell phone records early in discovery before the carrier has purged their records. It means we must ask questions in depositions about a plaintiff’s use of a cell phone, headset, Blackberry, iPhone, and iPod. All can detract from the driver’s attention to the road and roadway environment and may spawn a successful defense of an insured. We should also encourage our corporate clients to have written policy guidelines prohibiting their employees from using cell phones while working with machinery or driving.

Consider a fairly recent case decided by the Georgia Court of Appeals. In Hunter v. Modern Continental Construction Company, 287 Ga. App. 689 (2007), the plaintiff was injured when she was struck by an employee of the defendant construction company while he was on his way to work. The law in Georgia is clear that absent special circumstances, an employee travelling to and from work is not acting in the course and scope of his employment, and the employer will not, therefore, be vicariously liable for the employee’s alleged negligent driving. Hargett’s Telephone Contractors v. McKeehan, 228 Ga. App. 168, 169-170 (1997).

However, in the Hunter case, evidence that the employee may have been on his cell phone at the time of the accident, talking to a co-worker about business, was enough to defeat summary judgment for the employer and raise “a jury question as to whether [the employee] was acting within the scope of his employment upon the existence of business-related special circumstances at the time of the accident and the potential for vicarious liability.” Hunter, 287 Ga. App. at 691.

Defense lawyers also must be aware of pending legislation regarding cell phone use. The National Safety Council, a leading consumer safety organization, is lobbying for a nationwide ban on cell phone usage while driving. Nationwide Cell Phone Ban for Drivers Urged (2009), Here, in Georgia, there are several bills percolating through the General Assembly, which if passed, would prohibit the use of cellular and other handheld devices by drivers under the age of 18 and penalize drivers involved in collisions while using a cell phone. GA H.B. 19; GA H.B. 21; GA H.B. 23.

And, finally, we must be prepared to defend our insureds who allegedly injure someone while driving and using a cell phone. This may present the most difficult challenge in the near future.