As the prevalence of sending emails, texting, posting on social networks, and making calls from smartphones while driving has increased, the legal implications for doing so has increased as well. One government study found that more than two-thirds of adult drivers in the United States reported talking on their cell phones while driving and nearly one-third of United States adult drivers sent or read a text or email while driving in the preceding thirty days.1 In 2014, the National Safety Council reported that cell phone use while driving causes distractions that result in over 1 in 4 car accidents in the United States.2 Not surprisingly, a simple internet search reveals a number of plaintiff’s attorneys who advertise that it may be possible in some cases to make a punitive damages claim against a driver when use of a cellular device at the time an accident becomes evident.
Florida’s Criteria for Making a Punitive Damage Claim
In 1994, the Florida Supreme Court held that punitive damages are only appropriate when a defendant engages in conduct that is “fraudulent, malicious, deliberately violent or oppressive, or committed with such gross negligence as to indicate a wanton disregard for the rights of others.”3 Later, in 1997, Florida’s Legislature set forth the criteria necessary to plead a punitive damages claim and the pertinent burden of proof in civil cases. These are found in Section 768.72(1) & (2), Florida Statutes.
In order to state a claim for punitive damages, the plaintiff must first seek leave of court in accordance with the statute. Section 768.72(1), Florida Statutes. When considering whether or not to grant leave to amend, our courts must first ask whether the plaintiff has demonstrated “a reasonable showing by evidence in the record or proffered by the claimant which would provide a reasonable basis for recovery of such damages.” Id. Thereafter, if the court permits the punitive damages claim, then the trier of fact must find the defendant driver personally guilty by clear and convincing evidence of “intentional misconduct” or “gross negligence” in order to warrant an award of punitive damages.4 Section 768.72(2), Florida Statutes. Then, after the plaintiff proves entitlement to a punitive damages award, the jury must apply the “greater weight of the evidence” burden of proof in determining the amount of the punitive damages award. Section 768.725, Florida Statutes (1999).
The Case Law
In 2011, a trial court in Collier County, in Florida’s Twentieth Judicial Circuit, allowed a punitive damages claim against a defendant whose conduct, i.e. texting while driving, allegedly resulted in a death.5 Although the defendant denied that he was texting, the plaintiff relied on cellular data, which revealed that the defendant had checked his voicemail and sent a text message within one minute of the accident.6 News reports at the time indicated that this ruling was possibly a case of first impression. Clearly, Florida courts need to address the question of whether the use of cellular devices while driving constitutes punitive damages where evidence exists that a driver was using a cellular device at or near the time of an accident.7 However, to date no Florida appellate court has addressed whether a punitive damages claim can be made against an at-fault driver where there is evidence of cell phone use. In addition, several appellate courts in other states have considered the issue and have declined to impose punitive damages in this context, including the following:
Opposing the Punitive Damages Claim
Even though the fact that Florida’s appellate courts have yet to decide whether a claim for punitive damages based upon a driver’s cell phone is viable, there is certainly increased awareness, research, and reports of such drivers causing accidents that result in damages and injuries. Therefore, until Florida’s law is clear, we should anticipate that plaintiff’s attorneys and their experts will likely request leave to plead punitive damages in cases where there is evidence of unlawful cell phone use while driving with catastrophic injuries. Counsel and their experts will analogize cell phone use while driving to that of driving under the influence of alcohol, for which Florida law does allow the imposition of punitive damages.8 Experts can easily support the analogy since, according to the National Highway Traffic Safety Administration, driving a vehicle while texting is six times more dangerous than driving while intoxicated.
For example, in Ingram v. Pettit, the Florida Supreme Court held that a defendant driver, whose blood alcohol level exceeded the legal limit, could be subjected to an award of punitive damages. The Court reasoned that the defendant’s level of intoxication was equivalent to that required to establish criminal manslaughter.9 Notably, the nature of the offense in cases such as Ingram, allowing a punitive damages claim for driving under the influence of alcohol, differs from that of cases involving cell phone usage while driving. 10 Specifically, while it is a criminal offense to drive when a “person’s normal faculties are impaired” in Florida, it is not a criminal offense to use a cell phone while driving.11 However, defense counsel should remain cognizant of the fact that the evidence of “intentional misconduct” or “gross negligence” required to establish entitlement to a punitive damages claim does not have to constitute a criminal act.12
Florida’s Ban on the Use of Certain Cell Phone Features While Driving
While there is currently no law in Florida that makes cell phone use while driving a criminal act, the Florida Legislature did enact the Florida Ban on Texting While Driving Law in 2013.13 Section 316.305, Florida Statutes, forbids the operator of a motor vehicle from “manually typing or entering multiple letters, numbers, symbols, or other characters into a wireless communications device or while sending or reading data on such a device for the purpose of non-voice interpersonal communication, including, but not limited to, communication methods known as texting, e-mailing, and instant messaging.”14 Violation of this statute constitutes a traffic infraction, not a criminal offense.15 However, in asserting a claim for an award of punitive damages, plaintiff’s attorneys will likely argue that violation of Section 316.305, Florida Statutes, or the unlawful use of a cell phone, is evidence of intentional misconduct or gross negligence.
The law in Florida as to whether a plaintiff may assert a punitive damages claim where evidence exists of the defendant driver’s unlawful cell phone use at or about the time of accident, therefore, remains uncertain. Attorneys and insurers should anticipate that plaintiff’s counsel will sometimes seek leave to plead a punitive damages claim where there is evidence of unlawful cell phone use. In evaluating and defending these claims, it would be wise to gather information that relates to cell phone use early during the investigation phase of a claim.
Nonetheless, even when the relevant conduct does not rise to the level of intentional misconduct or gross negligence necessary to proceed with a punitive damages claim, the defendant driver may still be found negligent. If a jury determines that the defendant driver was negligent as a result of unlawful cell phone use, an insurer may be obligated to provide coverage for any judgment against its insured that does not exceed the applicable policy limits. Therefore, whenever possible, insurers and defense attorneys should assess to what extent an insured’s unlawful cell phone use while driving might result in a determination of negligence. Not only may a jury determine that an insured’s unlawful cell phone use while driving constituted negligence, but such proof could possibly also result in a jury’s enhancement of a compensatory damages award irrespective of whether the court allows the plaintiff to assert a punitive damages claim.
1 See Gunning, Patrick, Seeking Punitive Damages against Drivers Distracted by HandHeld Electronic Devices, Journal of Consumer Attorneys Association for Southern California Advocate, April 2014 (citing Naumann, Rebecca B. et al. Mobile Device Use While Driving – United States and Seven European Countries). In this study, adult drivers are identified as drivers aged 18-64.
2 In 2014, the National Safety Council reported the annual estimate of cell phone crashes for the year 2013. The study shows that more than a quarter of all car crashes in America, or a minimum of 27%, are likely caused by drivers talking and texting on cell phones. The NSC model estimated that 21% of crashes in 2013, or 1.2 million crashes, involved talking on handheld and hands-free cell phones, and an additional 6% or more of crashes in 2013, or a minimum of 341,000 crashes, involved text messaging. See nsc.org. Also see Distracted Driving: Facts and Statistics at distraction.gov, the official US Government website for distracted driving; and see Injury Prevention & Control: Motor Vehicle Safety, Distracted Driving found at cdc. gov, the website for the Centers for Disease Control and Prevention.
3 See W.R. Grace & Co.-Conn. v. Waters, 638 So.2d 502, 503 (Fla. 1994).
4 The plaintiff’s burden of proof in making a claim for punitive damages must be satisfied by clear and convincing evidence, which is higher than the preponderance of the evidence standard required to prove negligence, but less than the beyond a reasonable doubt standard required in criminal cases.
5 Margaret S. Caskey, et al. vs Astellas Pharma US, Inc. et al., Collier County Case No.: 112010CA0005820001XX (Fla. Collier Cir. Ct. 2011). (Note that the Second District Court of Appeal denied appellants’ motion requesting issuance of a written opinion, Astellas Pharma US, Inc. v. Caskey, 88 So.3d 157 (Fla. 2DCA 2012)).
7 See Swift, Aisling, Collier Judge Allows Enhanced Damages in Suit Alleging Driver was Texting in Fatal Crash, Naples Daily News, November 6, 2011, available at http://www. naplesnews.com/news/crime/texting-driving-collier-punitive-damages-fatality.
8 Ingram v. Pettit, 340 So.2d 922 (Fla. 1976).
9 Id. at 923-924.
10 Id. at 924.
11 Fla. Stat. § 316.193.
12 Cf. Southstar Equity, LLC v. Lai Chau, 998 So.2d 625 (Fla. 2d DCA 2008) (upholding a punitive damages award for non-criminal conduct in action involving intentional misrepresentation and gross negligence in providing security).
13 Fla. Stat. § 316.305.
14 Id. § 316.305(3)(a).
15 Id. § 316.305(4)(a).
16 Id. § 768.72(3) (detailing the instances where punitive damages may be imposed against an employer, principal, corporation, or other legal entity for the conduct of an employee or agent).