By David D. Thamann,
Prickly Liability Issues in 2014
Distract A Driver, Aid Adulterers—Will Coverage Apply?
Perusing various sources of information reveals some interesting developments that raises questions about insurance coverage. For example, the New Jersey Appeals
Court decided that sending a text to someone you know is driving—
and who will read said text at the same time—can lead to legal
responsibility for the sender if the driver has an accident.
responsible for the distraction.”
If this judicial reasoning becomes the
norm and the sender of the text is held legally responsible—at least partially—for an
auto accident, then is insurance coverage
available under the auto policy?
Texting and Auto Liability
Let’s say that a man named Mr. Smith
decides to text a friend or business associate when Smith knows the person is
driving and will read the text immediately.
How will Smith’s personal auto policy or
business auto policy respond if the friend
or associate has an accident because he was
distracted as a result of reading the text?
Both the personal auto policy and the
business auto policy declare the insurer will
pay damages for bodily injury or property
damage for which the insured becomes legally responsible because of an auto accident. Currently, there are no exclusions in
either policy that would prevent coverage
for the insured under these circumstances;
and at the very least, defense costs for the
insured would have to be paid if the insured
is brought into a lawsuit.
Of course, some states have passed laws
prohibiting drivers from text messaging
and this could possibly be used by an insurer to deny coverage; however, that is
just one of the many legal issues that lawyers and courts will have to tackle when the
claims reach the legal system.
Alienation of Affection
Another item to consider pertains to
alienation of affection lawsuits directed at
attorneys. A post I recently read tells of a
husband who is suing an attorney owned
website that assists married individuals
in their quest for an affair. The husband
claimed his wife left him for another man
she had met on the website. No doubt the
attorney has general liability and professional liability insurance, but would either
policy actually apply to such a claim?
The general liability (CGL) policy ap-
driver a text at that time.”
The court also noted that if the sender
of the text does this, then the sender “has
taken a foreseeable risk in sending the text,
has knowingly engaged in distracting con-
duct, and it is not unfair to hold the sender
The judge in that case said, “when a tex-
ter knows or has special reason to know
that the intended recipient is driving and is
likely to read the text message while driv-
ing, the texter has a duty to users of the
public roads to refrain from sending the