9 Tips After a Car Accident Caused By Texting While Driving: Liability and Compensation

How to maximize your compensation from a texting and driving accident. Build a strong personal injury claim and get a fair insurance settlement.

Texting while driving is perhaps the most dangerous form of driver distraction.

According to the National Highway Traffic Safety Administration (NHTSA), six percent of all drivers involved in a fatal crash were distracted.¹ And more than 480,000 people use cell phones while driving every day.²

Most car accident claims settle out of court with a payout from the at-fault driver’s auto policy. If you’re seriously injured by a distracted driver, you may need to file a lawsuit to get the evidence you need and the compensation you deserve.

9 Tips to Boost Your Claim After a Texting Crash

The other driver’s insurance company won’t pay your claim without proof their insured caused the accident. In most cases, it’s up to you to prove your claim by providing evidence of fault and your injuries.

1. Call 911 to notify police and ask for help.

Tell the dispatcher if you or anyone else is injured. Describe your location and report if anyone is trapped, or if there are dangers at the scene.

2. Get prompt medical treatment.

Never refuse medical attention at the scene. If you aren’t taken directly to the hospital, plan to see a doctor the same day. Refusing or delaying medical treatment can ruin your chance at compensation. The adjuster won’t hesitate to deny your claim, arguing that your injuries weren’t caused by the accident.

3. Take pictures and videos at the scene. 

If you’re able, take as many photographs and videos as possible. Pictures are very effective evidence. They can show the point of impact, skid marks, and stop signs or traffic signals the driver missed while texting.

Photographs of the driver’s cell phone and open containers of alcohol are exceptionally effective evidence. Video with sound might capture the at-fault driver admitting fault for the crash.

4. Look for witnesses who saw the accident.

Witness statements are crucial, especially when the witness saw the driver texting right before the accident. A witness confirming they heard the driver say, “I was on the phone with my girlfriend,” or “I was texting my mother,” is strong evidence of fault.

5. Order the police report.

The investigating police officer will talk to the drivers and others involved in the crash. Tell the officer if you believe the other driver was on a cell phone.

After the investigation, the officer will file a police accident report. The report will include information about the drivers, diagrams of the crash scene, witness statements, citations issued, and the officer’s opinion of fault. Police reports are taken very seriously by claims adjusters.

6. Request medical records and bills. 

Medical bills and treatment records can directly link the accident to your injuries. Your medical expenses will be an important part of your claim’s value. Keep receipts for all out-of-pocket expenses and track your mileage for medical and therapy appointments.

7. Verify your lost wages.

Ask your employer for a statement of your lost wages, and any vacation or sick leave used during your recovery.

8. Take notes after the crash.

Write down everything you recall about the day of the accident, how it happened, and the aftermath. Keep detailed notes throughout your recovery to document your pain, physical limitations, sleep problems, bad dreams, and anything else related to your injuries.

Your journal will be convincing evidence of your pain and emotional distress.

9. Get professional legal advice. 

Serious injury claims should be handled by an experienced attorney. Most car accident attorneys offer a free consultation. Your attorney will be able to discover the other driver’s phone records, insurance limits, personal assets, and other information you can’t get on your own.

Establishing Liability for Texting While Driving

Most state cell phone laws ban texting while driving, and many states have additional restrictions for young or inexperienced drivers.

Evidence related to the accident will help establish the driver’s liability, even if you don’t have conclusive proof they were texting at the time of the crash. Texting is only part of the sequence of events that set the accident in motion.

For example, cell phone use may have caused the driver to:

  • Run a red light and T-bone another vehicle in the intersection
  • Drift left of center, crashing head-on into an oncoming car
  • Fail to notice traffic stopping before rear-ending the car ahead

Driving laws related to auto accidents, like failing to keep a lookout, disregarding traffic signals, and following too closely are all acts of negligence.

Police reports, witness testimony, and other evidence of traffic violations are often enough to establish liability, even without conclusive proof the driver was texting when the accident occurred.

Keep in mind that cell phone records are only conclusive if the at-fault driver was traveling alone or other occupants are willing to testify that the driver was texting. A cell phone used for texting at the time of a car crash could arguably have been in the hands of a passenger.

Other Potentially Liable Parties

The negligent driver may not be the only legally liable party in your car accident case. For example, in some states, parents may be liable for injuries caused by their children.

All too often, the texting driver was on the job, either operating a company vehicle, or driving their personal car while on company business. Employers are generally liable for harm caused by their employees.

Case Example: $43.5 Million Award to Woman Injured by Texting Driver 

Jenny Hennes was driving her car in heavy city traffic when she was rear-ended by a large SUV driven by JC Fodale Energy Services safety manager, Mikey Hunt.

Hennes suffered significant injuries in the crash. Records presented at trial indicate Hunt had texted more than 2,000 times while driving for the company in the months leading up the the crash.

The jury determined the accident was caused by Hunt’s failure to drive safely, and the company’s lack of safety management.

The verdict against the at-fault driver’s employer included $30 million in punitive damages. It also included almost $7.3 million for physical pain and mental anguish, $2.9 million for physical impairment, almost $1.3 million for medical expenses and $1.1 million for loss of past and future earnings. The employee, Mickey Hunt, was directed to pay $2.5 million in punitive damages.

Negligence in Auto Accidents

All people in the United States have a duty of care (obligation) to take reasonable actions to avoid causing harm to others. This duty extends to anyone behind the wheel of a car. Every driver must look out for the safety and well-being of their passengers and anyone else on the road.

Texting or talking on a hand-held cell phone while driving are dangerous behaviors that violate (breach) the driver’s duty of care. That breach of duty is negligence. When negligence results in an accident, the driver becomes liable for the damages caused to others.

How negligence works in texting accidents:

  1. Texting while driving puts other people in danger. That failure to look out for others is a breach of the driver’s legal duty of care.
  2. When a driver breaches their duty of care by texting and driving, they’re negligent.
  3. When the texting driver’s negligence results in a car accident, they are liable for the accident victims’ damages.
  4. Accident victims are entitled to compensation for damages directly resulting from the collision.

How Texting Causes Accidents

Drivers of all ages tend to underestimate the time it takes for a car accident to happen. The fact is, at 55 miles per hour your car will have traveled the length of a football field in the five seconds it takes you to read a text message.

The few seconds it takes a driver to send a text is all the time it takes to have devastating consequences for people who are injured or killed in the crash. Researchers estimate that 8 percent of fatal crashes involve distracted driving.

Types of Distractions Caused by Texting:

  1. Manual Distractions: Drivers move attention away from the road and take one or both hands from the steering wheel while texting.
  2. Visual Distractions: Texting drivers are not looking where the car is going. Drivers often drift out of their travel lane while reading or sending text messages. Shifting attention back to the road takes a few seconds of “switching time” for your brain to register the change.
  3. Cognitive Distractions: Glancing up while texting isn’t enough. Even drivers who are looking straight ahead experience “inattention blindness” while talking or texting on their phone.

Who Pays for A Distracted Driving Accident?

Accidents caused by texting while driving can result in devastating and sometimes fatal injuries. What if the negligent driver is a teenager or an unemployed college student? How will you get compensation? See a case example of an accident caused by a texting teenager.

There may be multiple sources of compensation available for catastrophic injuries or wrongful death claims, but you’ll need an experienced car accident lawyer to run them down.

Accidents in No-Fault States

In no-fault claims, each driver must seek compensation from their own insurance first, no matter who caused the accident. Your medical bills will be covered up to the limit of your Med-Pay or Personal Injury Protection (PIP) coverage. No-fault coverage does not pay for pain and suffering.

Injured passengers in a no-fault state can usually file a PIP claim with their driver’s insurance carrier.

Most no-fault states allow injured victims to pursue compensation from the negligent driver when the victim’s medical expenses exceed the PIP coverage limit, or if the victim’s injuries meet the “serious injury threshold” for that state.

Accidents in Traditional Liability States

Outside of no-fault states, your injury claim will go to the at-fault driver’s insurance company.

Liability claims against the negligent driver can be made by:

  • The driver of the car that was hit
  • Injured passengers from either car
  • Pedestrians or bicyclists injured by the texting driver
  • The estate or family of a fatally injured victim

Insurance claims or lawsuits against the at-fault driver can be handled by the attorney representing the injured person.

Additional Sources of Compensation

Anyone can file an auto insurance claim, but not everyone can track down other financial sources to cover catastrophic injuries or wrongful death. To successfully discover additional compensation, you’ll need an experienced personal injury attorney.

Other Sources of Compensation Include:

  • Parents’ Policies: If the at-fault driver is a teenager or college student, they may be insured under other insurance policies in their primary residence, even if they are living on campus while attending school. Teen drivers of divorced parents with shared custody are often considered residents of both households.
  • Personal Assets: If the at-fault driver’s insurance won’t be enough to cover your damages, your attorney can run an asset check on the driver before your claim is settled. Not all motorists guilty of texting and driving are teenagers. The driver who is liable for your injuries may have valuable personal assets.
  • Umbrella Policies: The at-fault driver may have an umbrella policy or live in a household covered by a personal umbrella policy. Umbrella policies are designed to pay for large liability claims that exceed the person’s auto or homeowner’s policy limits.
  • UIM Coverage: Finally, your attorney will look for underinsured motorist coverage under your household’s auto insurance policies.

Help to Maximize Your Compensation

If you’re lucky enough to walk away from a motor vehicle crash, you may not need an attorney to get a fair settlement. When you’ve fully recovered from minor injures and liability is clear, you may decide to handle the claim on your own.

Your estimated compensation will be the total of your medical bills, out-of-pocket expenses, and lost wages. If you’re not filing a no-fault claim, you can add one or two times that amount for pain and suffering.

You’ll begin negotiations by sending a demand letter for the texting accident to the insurance company. After a few rounds of negotiations with the claims adjuster, you should reach a compromised settlement agreement.

If you or a loved one suffered severe injuries, or you aren’t comfortable dealing with the insurance company, hiring a good injury attorney is your best option. Most reputable attorneys offer a free consultation to review your case.

Texting While Driving Accident Questions

Charles R. Gueli, Esq. is a personal injury attorney with over 20 years of legal experience. He’s admitted to the NY State Bar, and been named a Super Lawyer for the NY Metro area, an exclusive honor awarded to the top five percent of attorneys. Charles has worked extensively in the areas of auto accidents,... Read More >>