(Transcript)

Cindy Speaker:  Good afternoon, and welcome to our Facebook Live broadcast today. My name is Cindy Speaker. I have with me as my guest attorney Bill Kenny of Berger and Green, and he’s going to talk with us today about a common topic that affects us all, distracted driving. We’re going to talk about the dangers of it, and how to protect ourselves from it. Bill, thanks for being with us today.

Bill Kenny:   Thanks for having me, Cindy.

Cindy Speaker:  Bill, let’s talk first of all about what qualifies as distracted driving.

Bill Kenny: Well, distracted driving covers anything that would keep you from remaining focused on the task of driving. Today, we talk an awful lot about texting, or using our cell phones when we’re driving as being distracted driving, but quite frankly changing the radio station, or just becoming inattentive is distracted driving. Regardless of the cause, it can have catastrophic consequences for people around you, as well as yourself.

Cindy Speaker:   Yeah, it really can. Unfortunately, I think you see that all too often.

Bill Kenny:  Yeah, we do. We see an awful lot of it. I have several cases where, in the police report itself, the driver who’s at fault is acknowledging they were distracted by their phone, or they dropped their phone, or they took their eyes off the road. I have one guy admitting he was messing with his phone.

Cindy Speaker: Wow.

Bill Kenny:   The real problem with this, particularly with cell phone use, more so than anything else, is that people have become so accustomed to using their cell phone, it’s somewhat of an addiction. The accidents we begin to see are unfortunately happening at a high rate of speed, and therefore much more catastrophic. People are more severely injured. Cars have gotten a lot better, they’re a lot safer, so oftentimes absent some kind of quirk in the physics of the action, of the accident, low impact accidents don’t cause a lot of harm, and the cars survive well. But distracted drivers have a tendency to be distracted at full speed.

Flying down a highway that they’re accustomed to driving on, they take their mind off the road. They’re either looking at their phone, changing the radio or they just get tired. Those full speed accidents can be horrible for the people involved.

Cindy Speaker:  Yeah. One of the things, I was driving with somebody. I was a passenger in a vehicle yesterday, and the driver had one of those little, you know they have all kinds of gadgets now that’ll help you prop your phone up right on your dashboard. I’m thinking, “I don’t know that this is such a good idea.” It’s almost irresponsible to sell those things because every time a text comes in, she immediately sees it. That can’t help but distract you.

Bill Kenny: No, and it is a distraction. You’re constantly, in this day and age with the electronic devices that we have. When I started out as a lawyer, we were still, faxing stuff was a big deal. Email wasn’t as ubiquitous as it is now, and things moved at a slower pace. With electronics, people have an expectation, quite frankly, of immediacy, instant gratification. The text comes in, they’re actually concerned that if they don’t respond timely, the person is going to be offended.

Cindy Speaker:  Right.

Bill Kenny:  These things are a draw away from everything that you need to be focused on when you’re driving, which is driving. I have a 16-year-old son, just got his permit, and the thing I told him was, “Your phone is in your pocket. That’s it.”

Cindy Speaker:  That’s good advice.

Bill Kenny:  There’s two rules you need to know on the road, beyond the actual rules, is that you have to do everything you can to drive predictably, and you have to anticipate and expect everybody about you not to be driving predictably. When somebody is distracted, their predictability goes out the window. They’re not going to stop when they’re supposed to stop, or they’re not going to stay in their lane when they’re supposed to, or they’re just going to swerve off the road. They’re not going to respond to the traffic conditions around them, and so responding, and having that stuff up in front of you that is drawing your attention away from the task at hand can be a huge problem.

Cindy Speaker:  It really is. I think it was so well-stated, what you just said, and the advice that you gave your son, I think was great. Talk a little bit about how we can avoid being impacted by distracted driving, not only as drivers, but also as passengers.

Bill Kenny: Sure. As a passenger, if you’re in a car with somebody, I want to disavow our viewers of the notion that it’s only young people that are texting and driving. That’s not the case.

Cindy Speaker:  It’s not.

Bill Kenny:  I drive north of the city every day on a main thoroughfare. Lots of lights, lots of traffic, and all I have to do is look around and see all the people returning from work, and half of them are looking at their phones while driving. When you’re in a car with somebody who’s engaged in that behavior, it’s in your best interest obviously to tell them to knock it off. They’re putting you at risk, and if you’re a passenger in a vehicle driven by a distracted driver, whatever the distraction is, and that distraction leads to an accident, and you’re injured, your claim is against that driver.

Presumptively, you’re in a car with a friend or an associate, and that’s the last thing you want, is to be making a claim against them for their poor judgment. As a passenger, you need to insist that if you’re going to drive, drive. Give me your phone. I’ll read you the text, you can tell me what to text back if it’s that important.

Cindy Speaker:  It’s interesting you said that, that was another one of my questions. If you’re a passenger in the car, the driver has an accident, was distracted, who pays for your injuries? Is it that driver’s insurance, your own insurance, health insurance? How does that all work?

Bill Kenny:  Sure. In Pennsylvania, let’s presume it’s a Pennsylvania automobile accident, okay? The Pennsylvania law that applies there. Pennsylvania’s a no-fault state, so you have essentially three potential levels of coverage, automobile insurance coverage come into play. The first is where we get the no-fault language in the act, and that first level of coverage is called first party benefits. It defines a minimum of $5,000 of medical benefits, really just $5,000 of health insurance, to pay for your accident related injuries. It comes from your own insurance coverage. If you’re in a friend’s car, but you own your own car and you insured it with an insurance company, the insurance on your vehicle, despite the fact you’re in your friend’s car, provides this first level of coverage.

If for some reason you don’t have your own car, or you don’t live with a family that owns vehicles, you will get that coverage from the vehicle you’re occupying. The second level of coverage that comes into play is that liability. If your friend was distracted, and you let them get away with it, their liability coverage is going to apply. It’s going to pay for your injuries and damages, depending first upon what kind of policy you bought. Let me address something that’s very important here. When you buy an automobile policy in Pennsylvania, you can select the full tort or limited tort options. If you select limited tort, you get a 20% reduction in your premium. That’s very appealing to people.

In exchange for that 20% reduction in your premium, you give up your right to collect or claim an entire category of damages in any claim you make. Under Pennsylvania law, when you’re injured, you have two basic categories of damages. You have economic loss, and you have noneconomic loss. Economic loss is pretty easy to understand, it includes lost wages, unpaid medical bills, medical liens. Things that are economic in nature, we can calculate down to the penny. Those noneconomic damages that you would be prohibited from collecting if you wear a limited tort claim and include everything like pain and suffering, and scarring and disfigurement, and loss of the enjoyment of life.

Let’s assume in the example we’re discussing that the person is a full tort claimant. They are not prohibited from making a full claim for their damages. You would make that full claim against a distracted driver if they were at fault for the accident.

Cindy Speaker: That’s interesting.

Bill Kenny:  If their distraction caused the accident. I can be a distracted driver, I can be sitting at a red light, waiting for the red light to change, looking at my phone and get rear-ended. I was distracted, but that distraction didn’t cause the accident. That’s very different than if I’m driving down the highway, I get a text, I go to respond to it. I look back up, the traffic has stopped and I’m plowing into a line of traffic. If the person is at fault, you collect against their liability coverage. Under Pennsylvania law, unfortunately, and this has been true since the 1990s, there’s a state minimum policy of what’s called a 15/30 policy.

That is, there’s no more than $15,000 per person in the accident, and no more than $30,000 in the aggregate. If there were five people in the car, all injured by this distracted driver, all five of them would be entitled to recover no more than $30,000, and not one of them could recover more than $15,000 individually. It’s a woefully inadequate coverage.

Cindy Speaker:   Wow.

Bill Kenny:   The Plaintiff’s BAR is working hard in the state legislature to try to increase that, to get with the times. I mean, when the auto law was passed, this was the state minimum, and that’s over 30, almost 40 years ago now. Then we get to the third level of coverage, which is essentially uninsured, underinsured. This coverage, again, comes from your own policy. Coverage you buy to protect you in the event that the person who is at fault has one of these state minimum policies, or has a policy that is inadequate to cover your damages. It’s called underinsured coverage.

It’s also uninsured coverage, in the event, God forbid, that the person who is at fault doesn’t have any insurance at all. That level of coverage is elective, and it’s important to note that it’s very inexpensive. You should have it, because it guards you against these people driving around with woefully inadequate state minimum policies that, very few claims that I see then end up in litigation or a claim that are worth less than $15,000. Those are the coverages that come into play if you’re a passenger in a vehicle that’s involved in an accident, caused by a distracted driver. Let me make one more point before we continue, Cindy.

Cindy Speaker:  Sure.

Bill Kenny: It’s important to remember in this limited tort, full tort selection, it’s very appealing to get a 20% reduction in your premium. Most people are working for every penny they get, and every penny counts. Getting a reduction is important, but it’s also important to keep in mind that if you own a vehicle registered in Pennsylvania that’s uninsured, the state punishes you. Let me repeat that. Punishes you, by making you a limited tort claimant. That 20% reduction in the premium is really a swap-out for a punishment.

Cindy Speaker:  Wow, interesting. You talked about the limited sort being about 20% less than the full tort, which based on what you just told us, it’s kind of a no-brainer decision to go with full tort. Let me ask you also, you said that uninsured and underinsured is relatively inexpensive. Can you give us an idea, in terms of?

Bill Kenny:  We were talking, generally when I look at a policy, all policies are based upon the risks of the insured. Somebody with a large accident record is going to pay a premium, regardless.

Cindy Speaker:   I see.

Bill Kenny: But the general public, who usually have one or two accidents in their lifetime, small fender benders, we’re talking about $25 to $50 for underinsured coverage. A 20% reduction in your premium over the lifetime of the policy on a one vehicle policy may be 200 bucks, on a year’s policy. Maybe 400 bucks. That’s spread out over 12 months. I think that you divide that by 12, that’s not that much a month, and it’s well worth keeping in mind that you’re actually taking a punishment to get that reduction. Is that a fair trade?

Cindy Speaker:  It’s great information. Really, I think a lot of people, I know I always carry a full tort now, but in my younger years, I had limited tort just because I really didn’t know the difference, and I thought if I could save the 20%. I think a lot of people don’t realize how important this decision is.

Bill Kenny:  No, they don’t. It’s very important. We get a lot of calls here at Berger and Green, and the number of people that I talk to that I say, “Do you have a limited tort or full tort policy?” I get generic answers, “I have full coverage.” Well, that’s not what I’m talking about. I explain the limited tort and full tort, and they’re dumbfounded. And sometimes people tell me, “Yeah, I have limited tort,” and they don’t understand what it meant. Let’s say they just had a soft tissue injury. They have whiplash, and they go to physical therapy for two months or three months. It’s an interference in their life.

It’s painful. It keeps them from sleeping. It keeps them from enjoying their life, but it’s not a serious impairment of bodily function, or as I like to tell my clients, there’s no permanency to it that would warrant you being treated as a full tort claimant even though you have limited sort. Consequently, these people, they call and I say, “Unfortunately, given the nature of your injuries, I don’t really think that I can make a recovery that I could add value to.” Because you can only recover your economic loss. You can say that you’ve lost wages, your co-pays, your deductibles, any out of pockets, and they’ll pay you for that, except your liability.

Cindy Speaker:   Yeah. Bill, who’s most at risk for these distracted driving accidents? Do you see any statistically significance in certain demographics?

Bill Kenny:   No, I don’t.

Cindy Speaker:  Across the board?

Bill Kenny:  Everybody. It’s across the board.

Cindy Speaker:  Across the board, yeah.

Bill Kenny: Distraction is chaos, and chaos doesn’t differentiate. It will hit a school bus, and it will hit grandma turning into a parking lot to get her weekly groceries. It doesn’t care. No, I don’t see a demographic of victims. Now, demographically speaking, and as I alluded to earlier, you would assume that younger people who were more “tech savvy,” though I’m on Facebook Live, so give me credit for that.

Cindy Speaker:   Right.

Bill Kenny:  You would assume that they would be the ones more likely to be involved in causing distracted driving accidents. That’s just not the case.

Cindy Speaker:  Yeah, interesting.

Bill Kenny:  Statistically speaking, it’s usually the people who are between 30 and 45.

Cindy Speaker:   How about that?

Bill Kenny:  Who are causing these accidents.

Cindy Speaker:  How about that?

Bill Kenny:  I would think that, that would be really a function of, they’re not as adept. They’re not savvy with their tech.

Cindy Speaker:   That’s right.

Bill Kenny:   They are not responding as quickly. You need to only look at my children, like I said, I have a son that’s 16. I send a text, and it could take me 10 minutes. He sends a text, and it’s a three second endeavor. There’s all sorts of factors, but it’s not what you would expect.

Cindy Speaker:  Yeah.

Bill Kenny:  Oftentimes, actually Cindy, in the cases I’ve seen, it’s more often than not working people who are responding to working texts that have jobs that take them out on the road, and they’re not just putting it aside and getting point A to point B. They’re trying to do too many things at one time. Ultimately, that’s the distraction. It’s taking you away from the task at hand, and exposes you and everybody on the road to a great deal of risk.

Cindy Speaker:  Let me ask you this. How is distracted driving impacting accidents in the Pittsburgh area? What are you noticing there?

Bill Kenny:  I wouldn’t have anything to compare it to. Most of my practice is in western Pennsylvania. I see more distracted driving in the urban areas, rather than in the countries.

Cindy Speaker:   That makes sense. I know what you mean.

Bill Kenny:  Country folk, they’re used to driving longer distances to get to things. They’re not involved in as much traffic. I think that there’s less of a tendency to think that the stop and go traffic, which lends itself to long stop and look, then traffic picks up and you continue with that looking despite the traffic going. That’s kind of my personal experience. I don’t have any kind of statistical analysis on that.

Cindy Speaker: Bill, if someone is in an accident that involves distracted driving, what should they do?

Bill Kenny:   Whether it’s distracted driving, or any kind of accident, the first thing you need to do is you need to contact a lawyer. That sounds self serving, and I know that as a lawyer, but I’m telling you, the first thing you need to do is contact a lawyer. If you’re listening to this broadcast, I probably told you things you weren’t aware of. It’s that lack of awareness that can lead you into trouble. The insurance company, even your own, is not necessarily on your side like some people claim. They’re in the business of mitigating their cost, and if you don’t get an attorney involved at the outset, you can compromise your claim unwittingly, because they can be kind of sneaky about it.

Look, the fact of the matter is this. I have people who, three weeks after an accident, call me because they’re frustrated, because they’re not getting anywhere. They’re not getting anywhere with the insurance company, or the insurance company is taking an unreasonable stand. I get the name of the adjuster from that person, and they retain us, and I contact that adjuster, and the first thing out of that adjuster’s mouth is, “Well, this claim is now going to be handled by somebody else.”

Cindy Speaker:  How about that?

Bill Kenny: Because they have adjusters for consumers, who are unrepresented, and then they have adjusters who deal with us.

Cindy Speaker:  Interesting.

Bill Kenny: They can’t get away with as much.

Cindy Speaker: Right. That makes sense.

Bill Kenny: After you call a lawyer, this is assuming of course you’ve gotten the initial medical treatment you needed, if you’re taken by ambulance from the scene. Obviously, as soon as you’re able to, contact your lawyer before you talk to any insurance company, you are also going to go about the business of collecting what evidence you can collect. You want to make sure that you take any pictures of your vehicle, even take pictures of the scene if, for instance, the dynamics of the accident are an issue. That contemporaneous collection is really important.

Skid marks are more important than you can imagine. It really defines the way accidents happen. It can really lead to a conclusion about who’s at fault. Beyond that, after collecting evidence and contacting a lawyer, you retain that lawyer. If you retain a lawyer at Berger and Green, certainly that puts you in the position of being able to focus on your treatments, on getting better. Focus on getting your life back on track, and the attorneys here at Berger and Green, including myself, will do everything else. We will take care of it all, and keep you informed, so you don’t have to worry about it. That’s how we’re going to earn our fee. We’re going to earn our fee because you’re going to be able to put aside all the concerns about insurance company, money, and all that sort of thing.

Let us focus on sorting it all out, and establishing exactly what it is you can or cannot recover.

Cindy Speaker:   Yeah. These are very complex issues, they really are. I think we see a lot of that by what you told us today. There’s a lot of complexity here. Bill, if someone does want to speak to you, or someone in your office, how’s the best way to reach you?

Bill Kenny: Well, they can call us at our toll-free number, which is 1-800-999-2626, or they can reach out to us on the web at www.BergerandGreen.com.

Cindy Speaker:   Okay, very good.

Bill Kenny:  If you type in personal injury in Pittsburgh, you going to find us. We’ve been here a long time. We’ve been doing this a long time, we know what we’re doing. We’ve helped an awful lot of people, so that’s how they’re going to find us.

Cindy Speaker:  Excellent. Listen, Bill, thanks a lot for your time today. Good talking to you.

Bill Kenny:   You too, Cindy. You take care.