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What do I do if I was hit by someone texting while driving?

Nearly everyone who owns a cellular phone has been guilty at one point or another of sending or receiving a text message while driving a motor vehicle.  Consider the following statistics from the CDC:

  • Each day in the US more than 8 people are killed in crashes involving a distracted driver.
  • Each day in the US 1,161 people are injured in crashes involving a distracted driver
  • At 55mph, the average text takes your eyes off of the road long enough to travel the distance of an entire football field.

Yet, despite the public awareness of the risks of distracted driving – and in particular texting while driving – the problem is still ubiquitous.  Walk down the sidewalk and watch people in their cars for 30 minutes, and you will see the problem first hand.  As parents of young children, we appreciate the risk and are frightened by it.

At D'Orazio Peterson we are dedicated to reducing the number of accidents related to distracted driving, and to helping those who have been hurt because of a distracted driving accident.

In fact, you may see our stickers around the Capital Region, encouraging drivers to Ignore the Phone.  If you'd like one for yourself, simply click on the image below.

Ignore 20horiz 20jpeg

So what do you do if you or someone you care about are the unfortunate victim of a texting while driving accident?

If you become a statistic?

First, if you need immediate assistance, contact us today.

In addition, here are 6 common questions and answers from accidents that were caused by texting while driving.  For answers to more questions request a copy of our free distracted driving ebook today.

  • Is texting while driving illegal in New York State?

Yes.  New York Vehicle and Traffic law prohibits the use of an electronic device while you drive, including:

  1. talking on a handheld mobile device
  2. composing, sending, reading, accessing, browsing electronic data such as email, text messages or websites;
  3. viewing, taking or transmitting photos or images;
  4. playing games on cell phones while driving.

New York has a minimum/maximum fine of $50/$200 for the first offense under the law, and the fines go up to $450 for multiple offenses.  The violation also carries 5 driver violation points.

For probationary and juniors with a class DJ or MJ license or permit the first conviction will result in a 120-day suspension, and a second conviction within six months will result in a minimum one year revocation.

  • How does the criminal or traffic case relate to a personal injury claim or lawsuit?

 The short answer is that a conviction or guilty plea for texting while driving may be admissible as proof of liability in a subsequent personal injury lawsuit. 

This means that if you are hit by a driver who is texting while driving, and are injured, you may be able to use that driver's guilty plea to help you in a lawsuit.  Practically, some courts allow violators (particularly first time offenders) to plea to a reduced charge, however some courts are becoming less and less tolerant of this dangerous behavior and are requiring either guilty pleas or trials.  

On some occasions the victim in an automobile accident is contacted by the prosecutor before the prosecutor offers a plea deal to the criminal defendant.  If you are injured by a distracted driver who was texting while driving you must let the prosecutor know this, and ask that the driver not be offered a reduced plea. 

  • Can I obtain the cell phone records of the driver?

Cellular phone records can be extremely helpful following a car accident involving distracted driving or texting and driving. 

Once a lawsuit has been started the attorney for the plaintiff can do two things: 1) send a demand to the driver for printouts of all text messages and call logs from the date of the accident as well as any and all records from the cell phone carrier; and 2) serve a subpoena on the cell phone carrier for copies of records from the date of the injury.    

Another tactic that we often employ when representing a car accident victim is sending a preservation letter to the driver of the other vehicle.  This letter demands that the driver preserve all cellular phones, including call logs and text messages, from the date of the accident forward.  This is helpful because if the driver later deletes the message that he was sending or reading at the time of the accident, you can make an argument that he is guilty of spoliation – or destroying evidence – which can go a significant way in helping you prove your case.  Timing, of course, is important, so it becomes critical to contact an attorney quickly following an accident.

  • Will insurance cover the injuries?

 One very common question from victims of texting while driving accidents is whether the insurance company for the other driver will pay for the injuries. 

The short answer is that yes, most often the liability insurance company for the other driver will still cover the claim for injuries even though its insured (the offender) was violating the law when he struck you or your vehicle.  Even though texting while driving is illegal, so is speeding and insurance companies nearly always cover claims in those circumstances as well. 

The important thing about insurance for the other driver is that there is enough coverage to make you whole.  Victims of texting while driving car accidents often suffer very severe injuries, and in some cases the insurance coverage is simply insufficient.  There are a couple of things to be aware of here:  1) it is critical to determine the available insurance coverage early on, and determine whether the other driver has any excess or umbrella coverage in addition to the primary liability insurance coverage; 2) it is just as important to notify your own insurance company that you may have a claim for SUM benefits under your own insurance policy.

SUM benefits are insurance benefits to help supplement the other driver's insurance coverage where you have been severely injury after a car accident.  SUM stands for Supplemental Uninsured/Underinsured Motorist, and it means just that – if the driver who hit you while texting is “underinsured” – meaning that they do not have sufficient insurance coverage to make you whole – your policy may kick in to pay you more.  SUM coverage is required in New York; however, the minimum required coverage is low so it is important to know what coverage is out there early on.

  • Who will pay for my medical bills if I'm hurt because of someone texting while driving?

Following an accident, the first thing you are and should be concerned about it ensuring that you or your loved one gets appropriate medical treatment.  Generally speaking, medical bills may be paid in one of a few ways: 1) through the New York State No Fault insurance system, where your carrier will pay for medicals and out of pocket losses up to $50,000; 2) through your own medical insurance company; or 3) through the other driver's insurance company. 

  • When should I contact a lawyer?

Sooner than you think.  The reality is that there are a number of decisions that you will make in the days and weeks after an accident that can have significant implications down the road; including decisions about medical treatment, bills, insurance, etc.  You will almost certainly receive a call from the insurance company for the other driver, and may receive some pressure to resolve the case quickly.  This could be a good idea, but it could also be a really terrible idea.  

There is absolutely no harm in reaching out to a lawyer.  We speak with and represent people in your situation every day, and would be happy to chat.  If you have questions, contact us today.

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