The role of cell phone use as a distraction is becoming an increasing issue in motor vehicle accident litigation. While allegations of distracted driving are usually associated with the at-fault driver, insurance carriers often request cell phone records or data to determine if inattention by an injury victim might constitute comparative negligence. This issue is important because the damage award to an injury victim will be reduced by the percentage of fault assigned to the plaintiff under Florida’s pure comparative negligence doctrine. This issue is especially significant in trucking accident litigation because of the devastating nature of injuries commonly suffered in such collisions. A recent case serves as a warning to motorists that trucking companies and their insurance carriers might well be able to search the data on your cell phone despite the impact of such a search on your privacy rights.
In Antico v. Sindt Trucking, Inc., a large truck operated by a driver employed by Sindt Trucking slammed into a car driven by Ms. Antico causing her death. The insurance company for the trucking company denied liability in the wrongful death action filed by Ms. Antico’s estate based on the claim that she was partially or totally at-fault for causing the crash. The trucking company claimed that the decedent was distracted because she was using her iPhone prior to the crash. To prove their position, the carrier sought discovery of the cell records of Ms. Antico related to her texting and calling activity. The insurance carrier also requested that its expert be allowed to inspect data in the cell phone because certain information was not provided by the cell company for the day of the crash, including information posted or reviewed on social media, GPS location, emails accessed/sent/received, and web search history.
The estate of the decedent objected to the request to have the cell phone inspected based on the decedent’s privacy rights under the Florida Constitution. The trial court granted the request of the insurer. The decedent’s estate appealed and claimed the request amounted to “an improper fishing expedition in a digital ocean.” (Citations omitted).
The appellate court reversed the trial court, citing the trial judge’s efforts to balance the discovery rights of the trucking company against the privacy rights of the decedent. The court cited a three prong test for allowing inspections of cell phones: (1) evidence of destruction of evidence or thwarting of discovery; (2) the device likely contained the relevant facts; and (3) absence of a less intrusive means to obtain the information.
The court pointed out that the information was highly relevant to the defense’s theory that the inattention of the deceased caused or contributed to the crash. Further, the court also emphasized the request was based on corroborating evidence rather than simply the unsupported assertion by the insurance company that the decedent was distracted. The court cited the following evidence: (1) testimony from two witnesses indicating that the decedent was on the phone; (2) trooper testimony supporting the claim the decedent was using her cell phone; and (3) cell phone records revealing cell phone activity at the time of the crash.
Along with the high degree of relevance and the likelihood that the cell phone data would lead to relevant evidence, the court emphasized the safeguards imposed by the trial judge to protect the decedent’s privacy. The order permitting the expert to review the cell phone data was restricted to a nine-hour period immediately surrounding crash. The judge also authorized the decedent’s attorney to be present and to make objections before the insurer was allowed to obtain any specific data. The court specifically distinguished this case from a prior case where the trial court permitted a “review, without limit or time frame, all of the information on [a] mobile phone SIM card without regard to [privacy rights and privileges].” [Citations omitted].
This case demonstrates the importance of avoiding the use of a cell phone behind the wheel. Even if you are the injury victim in a collision, the at-fault driver’s insurance carrier will typically seek discovery of cell phone records and data on your phone. If the insurer can establish that you were surfing the web, reading a message, or talking on the phone, the insurance company will seek to have your financial recovery reduced based on comparative negligence. Our experienced Florida trucking accident attorneys protect our clients from violations of their privacy and overly broad discovery.
If you or a family member has been injured or killed in a tractor-trailer accident, the Miami Trucking Accident Lawyers at Greenberg, Stone & Urbano offer the assistance you need to obtain the results you desire. With over 130 collective years of experience representing truck accident victims across South Florida, our firm provides legal representation of unmatched excellence. Contact our firm as soon as possible to start on the road to protecting your legal rights. Our firm received an AV rating from Martindale Hubbell and was ranked as a top firm in South Florida by the Miami Herald. Put our exceptional personal injury attorneys to work on your case. Call us at (888) 499-9700 or (305) 595-2400 or you can visit our website to schedule your initial consultation.