The driver that hit me was on the phone! Time after time I hear clients emphatically claim the driver of the vehicle that hit them was talking on or otherwise using a cell phone. Sometimes the client actually sees the other driver on the phone, other times the client simply assumes the other driver was on the phone as they cannot fathom how another driver could possibly slam into the rear of their car at 55 mph without being distracted by a phone. Regardless of why the client believes the other driver was on a phone, he/she always wants to know IF and HOW we can figure it out. The good news is, it is definitely possible to discover whether an at-fault driver was using a phone at the time of a collision. However, the bad news is, it may not be quite as simple as one might expect. That’s why you should get in touch with the Tallahassee Car Accident Lawyers at Barrett Nonni & Homola today so that we can help you with your car accident claim.
How do I Get a Record that the Other Driver was on Their Phone?
Sometimes the investigating officer of a motor vehicle collision will make mention in the Florida Crash Report that the at-fault driver was utilizing and/or looking at his/her phone at the time of the collision. Slam dunk, right? Not so much. Unfortunately, any statements made to an officer by an individual involved in a traffic collision while that officer is investigating the collision is inadmissible in a court proceeding. Additionally, the Florida Crash Report that is generated by the investigating officer is also inadmissible in a court proceeding. I’ve actually had cases where the officer puts in the crash report that the at-fault driver was distracted by his/her phone at the time of the collision and then testify under oath that they were NOT using the phone at the time of the collision. Unfortunately, those statements made to the officer are not admissible in a court proceeding, even in attempting to impeach the at-fault driver. (Sidenote: if my client happens to overhear the at-fault driver tell the investigating officer he/she was distracted by the phone at the time of the collision, my client CAN testify regarding what was overheard).
What’s the Best Way to Determine if Someone was on Their Phone?
The best way to conclusively determine whether an individual was utilizing his/her cell phone at the time of the collision is to subpoena the phone records from that individual’s cell phone service provider. An attorney does not have the power to issue a subpoena until a lawsuit is filed. Unfortunately, there are numerous personal injury attorneys who are not willing to file lawsuits and will suggest accepting the last best pre-suit settlement offer from an insurance company. The attorneys at Barrett Nonni & Homola WILL file lawsuits and will aggressively pursue the acquisition of cell phone records in cases where there is an allegation a phone was involved. As soon as it is determined who the cell phone service provider is for the at-fault driver, an attorney is able to send a non-party subpoena to the cell phone service provider. The subpoena is a court order which requires the service provider produce the documentation requested by the attorney. Of course, attorneys for the at-fault party and sometimes attorneys for the service providers can make this process more difficult. Nonetheless, the records are nearly always secured by our attorneys when they are requested.
What Happens After the Record is Obtained?
Once the records are obtained, they are examined and the at-fault party is questioned in his/her deposition regarding the contents of the records. When attempting to determine whether the at-fault party was using a feature on the phone such as email, internet, or social media, an expert is sometimes required to decipher the information. However, most often the information is easy to understand and the use of an expert is unnecessary.
New studies suggest the use of cell phones while driving is actually more dangerous than driving drunk. As a result, there is a trend among Florida courts to allow for the imposition of punitive damages on drivers who have caused collisions due to cell phone use. If you or a loved one has been involved in a collision and you believe the collision was caused by a driver distracted by a cell phone, do not hesitate to call one of our attorneys today.
“I have full coverage” – if I had a nickel for every time I’ve heard a client or prospective client utter those words I would be a millionaire – well, not a millionaire, but I would at least have a couple hundred dollars. What I mean to say is a majority of drivers on Florida’s roadways have no idea what type of insurance coverages they have. And sadly, most people I talk to assume if they have purchased “full coverage” they have insurance that will cover any expenses they incur in an automobile collision regardless of fault. This could not be further from the truth.
What Does Full Coverage Insurance Mean in the State of Florida?
So, what exactly does “full coverage” mean? In Florida, typically purchasing “full coverage” auto insurance means nothing more than purchasing the minimum coverage required by Florida’s No-Fault Statute (Fla. Stat. § 627.736). And, if that is the case, the so-called “full coverage” insurance policy has several gaping holes which could leave an unsuspecting consumer holding the bag for damages thought to be covered. In Florida, the only insurance a motorist is required to have is:
- Personal Injury Protection Coverage (also known as “no fault benefits” or “PIP”)
- Property Damage Liability Coverage
The glaring deficiency of the minimum required insurance coverages in Florida is the lack of “bodily injury liability” coverage. Florida is one of only two states in the nation that does not have some form of mandatory injury liability coverage (New Hampshire is the other). This means that if you cause an automobile collision resulting in injuries to another person your insurance may not cover your liability for those injuries. This can be financially devastating in the event you cause serious injuries to another and can result in civil judgments that can force you into bankruptcy or cost you dearly for the rest of your life. Luckily the experienced Tallahassee Car Accident Lawyers at Barrett Nonni & Homola are here to help you with your case.
What Happens if the Person Who Hit Me Doesn’t Have Insurance?
The lack of mandatory bodily injury coverage also has ramifications for the injured party. Think of it this way – if you are injured by another driver in Tallahassee who doesn’t have bodily injury coverage that person most likely doesn’t have the type of assets that will make it easy to collect money from a court judgment. Practically speaking, this means you could be stuck in a legal battle with the person for years, get a large judgment and then spend years trying to collecting it. Luckily, insurance companies in Florida offer what is known as uninsured motorist covered. This coverage will actually “step into the shoes” of the at-fault party and pay bodily injury benefits to you on that person’s behalf. Often times the existence of this coverage can mean the difference between getting a monetary recovery and getting nothing at all. This coverage also can help offset medical bills and lost wages not covered by the mandatory PIP benefits which will only cover a portion of those damages.
What Does Full Coverage Insurance Not Cover in Florida?
“Full Coverage” also does not include collision or comprehensive coverages. Collision coverage will pay for damages to your vehicle that resulted from a wreck with another vehicle or any other damage resulting from operation of the vehicle regardless of fault. Comprehensive coverage will cover damage to your vehicle resulting that occurs while the vehicle is not in use. For example, hail damage, vandalism, fire damage, etc.
Reach Out to Out Tallahassee Car Accident Attorneys Today!
The next time you renew your auto insurance policy do not assume you are completely covered when you are told you have “full coverage.” If you have questions, get a second opinion, shop around and, if need be, get a free consultation with an attorney in Tallahassee who is learned about these matters and discuss it with him/her. If you have any questions about your auto insurance policy please contact an attorney at Barrett Nonni & Homola today for a free initial consultation.
It’s no secret that Tallahassee is a college town. With three college campuses within its city limits, Tallahassee, FL, depending on the time of year, is home to tens of thousands of college students. It’s also no secret that college students, on average, tend to frequent bars and nightclubs no more often than any other demographic. For that reason, our Tallahassee car accident attorneys tend to see a more than average amount of automobile collisions involving the use of alcohol. Which inevitably brings up the question we are asked time and again: Is the provider of the alcohol in any way liable for damages brought about by the car accident?
Can a Bar be Held Liable in a Drunk Driving Case in Tallahassee?
The short answer to the question posed above is no, Florida Statute § 768.125 states, “[a] person who sells or furnishes alcoholic beverages to a person of lawful drinking age shall not thereby become liable for injury or damage caused by or resulting from the intoxication of such person . . . .” However, as with nearly every law, there are exceptions to the general rule. The very same statute goes on to carve out two narrow exceptions, which, if met, allow for liability to attach to the vendor or provider of the alcohol which led to the injuries. The two exceptions are:
Willful and Unlawful Service of Alcohol to a Minor – Florida Statute § 768.125 does not protect “a person who willfully and unlawfully sells or furnishes alcoholic beverages to a person who is not of lawful drinking age.” So a bar or vendor can be held liable in damages if an underage individual is served or permitted to drink alcohol and then causes injury to another. However, this exception requires more than just negligence on the part of the alcohol vendor. Under the statute, the vendor must “willingly” provide the alcohol to the minor. For instance, there will most likely be no liability in a situation where an underage individual is able to get alcohol by having an overage individual buy the drinks and pass them without the bartender’s knowledge.
Furthermore, if an underage individual furnishes an alcohol vendor false identification (fake id) indicating he/she is of legal drinking age and after “carefully” checking the identification and comparing it to the individual’s appearance there is a good faith belief the individual is of legal drinking age, there can be no liability on the part of the vendor for underage service. That rule is set forth in Florida Statute § 562.11(1)(d).
Knowingly Serving an Alcoholic – Additionally, Florida Statute § 768.125 does not protect “a person who knowingly serves a person habitually addicted to the use of any or all alcoholic beverages.” This exception is very hard to prove, because 1) it must be proven the individual was, in fact, habitually addicted to alcohol; and 2) the bartender must have knowledge the individual is habitually addicted to alcohol.
- The first hurdle of proving the person is an alcoholic is generally proven by hiring an expert to comb through the individual’s past medical and psychological records looking for evidence of alcohol addiction. Criminal records are also scoured in an attempt to determine whether the individual had been arrested in the past for things such as public drunkenness or driving under the influence and determining whether the individual was sent for counseling as a result. It is also sometimes beneficial to speak with those closest to the individual (if they will talk) to determine their positions with regard to the person’s alcohol intake.
- The second hurdle is often more difficult than the first because you must prove the bartender was aware of the individual’s addiction. This proves difficult because if the individual has never been to the bar before or never gotten drunk at that particular bar before, there is no case. This hurdle is often overcome by speaking with the bartender and the “regulars” at the bar to determine whether the individual regularly spent time at that bar getting intoxicated.
Are There any Exceptions to the Statute?
Interestingly, what you won’t see in the statute is liability for a bar or vendor “over-serving” an individual. Currently, Florida law does not hold a bar responsible for continuing to serve alcohol to a visibly intoxicated patron. Therefore, even if a guest is visibly intoxicated and the bartender continues to serve that individual alcohol, the bar will not be liable if that individual then causes a collision UNLESS it can be shown that the individual was underage or was a known alcoholic to the bartender.
At Barrett Nonni & Homola we have handled tens of thousands of car accident cases in Tallahassee throughout the years, many of which were caused by drunk driving. If you or a loved one has been injured as the result of a drunk driver please call our Tallahassee car accident lawyer today to get the justice you deserve.