Danger Ahead

It’s hard to appreciate the extent to which cell phones have become an integral and accepted business tool since their introduction in the late 1980s. 2017 marked the 10th anniversary of the iPhone, and the effects of smartphone technology on our society have been far reaching and largely unforeseen. While we have benefited from instant video connections, social media and the proliferation of apps that make our lives easier and more efficient, such technological advancements have come at a high price. Research now shows that use of cell phones while driving significantly impairs driving skills and causes thousands of injuries and deaths each year. This impairment, and the epidemic of drivers using cell phones, greatly increases the risk of crashes.

It’s reported that in 2015 alone, 3,477 people were killed and 391,000 were injured due to distracted drivers. The trends are not encouraging, either. Deaths from motor vehicles in 2016 — many caused by distracted driving — increased 6 percent over the prior year, the most dramatic single-year increase in more than 50 years.

The monetary costs of distracted driving are staggering as well. A single insurer, State Farm, reported a single-year auto insurance loss of more than $6 billion. The estimated cost to society in lost work time, medical treatments, property damage and other costs, was $432 billion. As a leading insurer of pest control companies, HIIG-CRU loss experience is consistent with other personal and auto lines insurers.

According to insurance companies and law enforcement officials, the problem truly is an epidemic. To address the rising number of claims and costs from distracted driving, our company has created sample documents and provided training resources for company owners and drivers.

Pest control companies must create strong safety cultures and take action to reduce risk and protect their employees and the communities they serve. They need to commit to best practices in safety and understand that safety is a good investment that provides a great return.

PHONE BAN? Banning the use of cell phones while driving is an important risk reduction effort. Implementing a total ban policy, including company-issued and personal handheld and hands-free devices, is the best way to prevent distracted driving. This policy should be implemented with a signed acknowledgement by the employee and reinforced throughout the year with training.

Resistance to a total ban is understandable, as pest control is a route-based business and dispatch connectivity is critical. However, policies such as pulling off the road to return calls, using automated voicemail and text responses while driving, and the use of GPS technology makes a total cell phone ban a manageable policy.

Implementing and enforcing a total cell phone ban can help protect employees from crashes and injury, but it also helps protect employers from liability. A company may be held legally accountable for negligent employee actions if the employee was acting within the scope of his or her employment at the time of a crash. The key phrase “acting within the scope of his or her employment” can and has been defined broadly in cases of crashes involving cell phones.

COMPANY RESPONSIBIILTY. Following the law isn’t enough. Most states, including Florida, have made texting while driving illegal, but it hasn’t stemmed the growing number of text-related crashes. Employers are responsible for ensuring their employees adhere to applicable federal, state and local municipal laws. However, these regulations and laws are a minimum requirement and may not be enough to keep people safe.

Employers must realize the full extent of their exposure to liability. The legal theory of “respondeat superior,” or vicarious responsibility, means that an employer may be held legally accountable for negligent employee actions if the employee was acting within the scope of his or her employment at the time of a crash. The key phrase “acting within the scope of his or her employment” can and has been defined broadly in cases of crashes involving cell phones.

Juries are motivated to award large verdicts when they believe that such verdicts make themselves and their children safer, not out of some sense of retaliation. Crashes involving cell phone use appeal to a juror’s sense of self-preservation. Public opinion polls show that the majority of people believe it is very dangerous for other drivers to use cell phones while driving, and is viewed similarly to drinking while driving.

The claimant’s attorney will seek large jury verdicts, including punitive damages (where permitted), as a way to send the message to society that people shouldn’t take actions that are perceived as threatening to life and limb.

PMPs should understand that jury compensatory damage awards are covered by insurance. However, punitive damage awards are not covered by insurance. They are granted by a judge and awarded by the jury as a means of punishing a company and sending a message to prevent similar behavior. Punitive damages are appropriate when the act in question is committed with malice, moral turpitude, wantonness, willfulness, outrageous aggravation or in reckless indifference to another person’s rights. These acts are not covered by any type of insurance, so the payment of a punitive damage award is solely the responsibility of the defendant (in other words, the company owner, who failed to act responsibly and implement and enforce proper safety measures, such as a cell phone use policy).

Florida courts have provided a landmark case in employer vicarious liability: Caskey Jr. vs. Astellas Pharma and Lawrence Daniels. This is one of the many circuit courts of Florida that have permitted punitive damages against the driver who was texting at the time of the accident.

In August of 2008, Astellas Pharma pharmaceuticals salesperson Lawrence Daniels struck and fatally wounded 80-year-old James Caskey Jr. while he was riding his bicycle. Daniels was driving a company vehicle and using company phone at the time of the fatal accident. The company vehicle, in legal terms, was defined as a “dangerous instrumentality,” which is an object that is known to have the potential to cause injury. This legal definition of the company vehicle elevated the responsibility of the company to ensure it was used in a safe manner. Phone use records subpoenaed by the plaintiff’s attorney showed Daniels made and received calls and texts just moments before the accident. The phone usage in the records appear to be a contributing factor in the accident. Phone records are discoverable by plaintiffs’ attorneys and can show juries that companies have been negligent in protecting the public with enforced cell phone use policies. The Astellas Pharma cell phone use policy expressly allowed use of cell phones: “use of a cellular phone in a company vehicle is permissible,” but use should be “restricted as much as possible while driving.” The company policy made no penalty for violations and nor was there any evidence of enforcement of this policy. The court found that Astellas Pharma condoned and did not prohibit the use of cell phones by its sales staff in company vehicles.

At-fault drivers have a financial incentive to cooperate with the plaintiff in these cases. Punitive damages can alleviate an at-fault driver’s personal financial responsibility by providing access to company assets, which normally exceed the driver’s.

PHONE USE POLICY. As a pest control company owner and employer, you should develop and implement a comprehensive cell phone use policy and must demonstrate that a policy has been enforced. Further, you should not in any way develop a culture where employees feel that they need to use cell phones, including answering your calls, while driving. You can identify weaknesses in your policy by using the free National Safety Council Cell Phone Policy Assessment Tool (http://nsc.org/policytool). OSHA also provides sample distracted driving documents that can be used in your business. Installing a GPS system to manage driver behavior and make corrections before they have accidents is a good way to demonstrate company dedication to safety and prevent claims. Operational costs for GPS systems have fallen to a level where there really isn’t a financial obstacle any more. There are now affordable, mobile device-based smartphone applications that require no hardware, and turn cell phones into GPS devices that report speeding and hard braking incidents. Most importantly, it deactivates keyboards and reroutes incoming calls and texts while devices are in motion, eliminating the temptation to talk, text and drive.

Regular driver training is essential to reinforcing your cell phone use policy and reminding drivers of the dangers of distracted driving. There are many no-cost training resources available, and auto insurance carriers also may provide pest control companies this training for free. I encourage you to ask your insurance agent about training and other loss control resources.

Other company initiatives that can reduce auto claims include:

• A driver recruitment process that includes pre-employment screening services (MVR, criminal and work history, drug screening).
• A written policy signed by drivers that prohibits the use of cell phones while driving.
• A written vehicle use policy that addresses take home use, cell phone use, alcohol/drug use and non-employee passengers.
• Company employment policies that:
  1. Require drivers to pay for deductibles for at-fault accidents or other financial penalties such as time off with no pay.
  2. Suspend without pay or terminate drivers after two moving violations or accidents.
  3. Require pre-employment criminal background checks and drug screening.
  4. Require post-accident drug/alcohol screening.

In today’s increasingly litigious climate, companies have to “play defense” to protect themselves from accusations of negligence and the specter of punitive damages. As a route-based service business, a comprehensive auto loss control program is the best way to protect your company against the largest exposure to claims and lawsuits.

The author is director of risk management for Xterminator Pro, a Division of Houston International Insurance Group (HIIG) Xterminator Pro. Loss control resources can be found in the “Client Area” of the Xterminator Pro website. He can be reached at afugler@hiig.com or 407/241-3037.