Don’t settle for less than you deserve after getting injured in a cell phone car accident. Here’s how to prove the other driver’s fault and get a fair settlement.
Cell phone use is implicated in over 27 percent of all car accidents in the United States, causing over 27,000 injuries each year.¹
The sad fact is the number of cell phone car accidents are under-reported. The explosion of technology in recent years means most American drivers carry a smartphone or similar device.
Local governments haven’t been able to keep up with ways to report the impact of cell phones on public safety. For example, less than half of American police crash report forms have a field to capture cell phone use or texting.²
The average American driver can expect to be in at least four car accidents during their lifetime. Now we know that at least one of those accidents will occur because of a distracted driver using a cell phone.
When you’re injured in an accident, you expect compensation for your injuries, lost wages, and pain and suffering. Here’s what you should know if you suspect the at-fault driver was using a cell phone.
How Cell Phones Cause Car Accidents
The number of injuries and death from car accidents caused by cell phone usage jumped 850 percent over a ten-year period. States and cities scrambled to enact traffic laws aimed at reducing the fast-rising number of fatalities.
Distracted driving has joined drunk driving and speeding as a leading cause of car accidents.
There are three critical ways drivers are distracted while using a cell phone:
Manual distractions: Drivers shift attention away from the road and take one or both hands from the steering wheel while reaching for a phone, dialing a phone number, or texting.
Visual distractions: Taking your eyes off the road for even a moment is enough time for your car to travel several car lengths – possibly into a stopped car ahead of you, or into oncoming traffic. Drivers often drift out of their travel lane while looking at their phone.
Shifting your attention back to the road requires a brief “switching time” for your brain to register the change. That’s time you won’t have to avoid a collision.
Cognitive distractions: Hands-free cell phone use is still distracting. Studies show that even drivers who are looking straight ahead experience “inattention blindness” while talking on their hands-free cell phone. Trying to multi-task while driving can be fatal.
The National Safety Council has compiled dozens of studies in support of the NSC recommendation to ban cell phone use while driving. While federal and state lawmakers are reluctant to outlaw all cell phone use, nearly every state restricts hand-held cell phone use while driving, including texting.
Find you’re your state’s Cell Phone Use and Texting While Driving Laws here.
Filing an Insurance Claim for Compensation
A distracted driver who caused an accident is legally responsible for compensating the accident victims. Most accident victims start by filing a damage claim with the at-fault driver’s insurance company.
Start the claims process with this sample Letter of Notification to an Insurance Company.
To insurance companies, there are two categories of damages:
Property damages are the costs to fix your car, a rental while your car is in the shop, or the value of your car if it’s a total loss. Property damage also includes personal items ruined in the crash, like glasses, clothing, or your trunk full of groceries.
Personal injury damages include your medical, dental, and mental health costs related to the accident; out-of-pocket expenses; lost wages; and pain and suffering.
You can always file a property damage claim with the other driver’s insurance company.
If you live in a no-fault insurance state, you must first look to your own auto insurance to pay personal injury damages, no matter who caused the accident. Med-pay or Personal Injury Protection (PIP) coverage will pay for your reasonable medical expenses, out-of-pocket expenses, and lost wages. PIP will not compensate you for pain and suffering.
No-fault states permit accident victims to pursue the other driver in cases of severe injuries or death, or when your injury expenses will exceed your PIP limit.
Filing your injury claim with the at-fault driver’s insurance company is just the beginning. You might think it’s perfectly obvious that the other driver caused the accident. However, you won’t see a dime in compensation unless you convince the adjuster their insured is to blame for the crash.
It helps to know some terms used in insurance claims:
Liability means fault or responsibility. The at-fault driver is usually liable for the damages you suffered in the collision.
Negligence happens when a driver fails to act responsibly or does something no reasonable driver would do, like texting while driving.
Damages can include property damages to your car, and personal injury damages like medical and therapy costs, out-of-pocket expenses, lost wages, and pain and suffering.
Direct and Proximate Cause is an action that leads to damages which wouldn’t have otherwise happened. You wouldn’t be suffering from whiplash if a distracted driver hadn’t rear-ended you.
Duty of Care means the obligation to be careful and avoid causing harm to others.
All drivers have a duty of care to other drivers on the road. When the other driver is distracted by a cell phone, they violate their duty of care.
When a distracted driver blows past a stop sign and broadsides your car, it’s negligence. The negligent driver is therefore liable for your damages.
What You Need for a Strong Injury Claim
You’ll not only need to prove the other driver caused the car accident, but you must also prove the accident caused your injuries. Proving negligence and damages requires evidence. Much of the best evidence for your claim will come directly from the accident scene.
Protecting Your Claim After a Cell Phone Accident
Call 911 to report the accident and ask for help. Tell the dispatcher the road you’re on and describe any nearby landmarks. Tell the dispatcher you’re hurt, and if you know of any other injured persons. The dispatcher needs to know if there are overturned cars, smoke or fire, or any other dangers at the scene.
If you are physically able, or if there is someone who can do it for you, begin to collect important information and evidence from the scene.
Photographs and videos: Photographs taken with a digital camera or, ironically, with a cell phone camera are very effective evidence. Take pictures of the vehicles and surrounding area from several different angles. Photograph any skid marks, stop signs, or traffic signals.
Video with sound may capture the other driver admitting fault or behaving as though intoxicated.
Witness statements: Although the police may take the names and contact information of some witnesses, they may not have the time to do any in-depth interviews. Witness statements can be very compelling evidence of liability. Ask the witness to write down what they saw and heard, along with their name, contact information, and the date.
It will help your case tremendously if a witness saw the other driver using a cell phone before the collision, or heard the driver make admissions like “I didn’t see anyone coming,” or “I was on the phone with my girlfriend.”
Cooperate with paramedics: Never refuse medical attention at the scene. Tell the paramedics about every symptom you have, no matter how mild. If paramedics want to transport you to the hospital, let them take you.
If you aren’t taken directly to the hospital, seek immediate medical attention on your own. Go to your doctor, the emergency room or an urgent care center.
Refusing or delaying medical treatment will seriously undermine your insurance claim. The adjuster will jump at the chance to deny your claim by arguing that the car accident didn’t cause your injuries.
Police report: When a car accident results in injuries, the police will come. They survey the accident scene, speak with both parties to determine the extent of injuries, and summon emergency medical care if necessary. Be sure you tell the officer if you saw the other driver using a cell phone when the crash occurred.
The investigating officer prepares an official police accident report. The official report will include diagrams of the accident, driver and witness information, driver statements, citations issued, and the officer’s professional opinion of fault. You can purchase a certified copy of the police report later for a nominal fee.
Continue Collecting Important Evidence
Cell phone records: Cell phone records can prove the at-fault driver was using their phone at the time of the crash. Phone records are powerful evidence of negligence.
Unfortunately the phone company won’t voluntarily release another person’s cell phone records, and the at-fault driver is unlikely to hand over incriminating evidence to support your claim. You’ll need legal tools to get your hands on the other driver’s phone records.
Discovery may be necessary to identify who owned the phone, and who pays the phone bills. The age group with the largest number of cell phone accidents are teens and adults under thirty. Teens and college-age students are likely using a parent’s cell phone plan. Then, a subpoena will be required to force the release of records.
You may not need phone record evidence to prove the driver’s negligence. For example, if the driver was ticketed for violating traffic laws, or the investigating officer’s opinion of fault rests squarely on the other driver.
If the other driver’s insurance company doesn’t accept full liability on behalf of the insured, you should contact a personal injury attorney to discuss how to proceed with your claim.
Medical records and bills: Medical records won’t prove negligence, but they can directly link your injuries to the accident. Request copies of all medical, dental, and physical therapy bills and provider records. Include out-of-pocket costs and track your mileage to medical appointments.
Your medical expenses will be a big part of calculating the amount of your compensation.
Lost wages: Ask your employer for a statement of your lost wages, and any sick time or vacation days used during your recovery.
Keep a diary: Write down everything you remember about the accident and its aftermath. Describe how you knew the other driver was using a cell phone. Continue making notes of your injuries, pain levels, and physical limitations from your injuries.
Maximizing Your Compensation
Your total compensation will depend on what type of injuries you sustained, the complexity of your case, and the available insurance limits.
When it comes to insurance claims, there are two types of injuries:
Soft-tissue injuries are primarily bumps, bruises, small cuts, and muscle or tendon sprains and strains. Most car accident victims will completely recover from soft-tissue injuries within a few weeks.
Hard-injuries are expensive and complex. Hard injuries include broken bones, spinal cord damage, traumatic brain injuries, and permanent scarring. Hard injuries may be life-threatening or disabling.
If you’ve fully recovered from soft-tissue injuries, you can probably negotiate a satisfactory settlement without help from an attorney.
Calculate a fair amount of compensation by totaling your medical costs, out-of-pocket expenses, and your lost wages. Add one or two times that amount for pain and suffering.
Send your demand letter with enclosed copies of your bills, costs, and a wage statement from your employer.
Look like a pro with this sample Demand Letter for Settlement of a Cell Phone Accident Claim.
Hard injury claims are complex, high-dollar claims. If you or a loved one are severely injured, you’ll need an attorney to get the full amount of all available compensation. Your attorney will explore every avenue for maximizing your compensation, such as:
- Verifying the other driver’s policy limits
- Discovering more insurance money, like from a divorced parent’s policy
- Defending allegations of comparative fault for the accident
- Pursuing underinsured motorist coverage from your insurer
There’s too much money at stake to face the insurance company legal experts on your own. Don’t wait. There’s no cost to find out what a skilled personal injury attorney can do for you.
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Cell Phone Car Accident Questions & Answers
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