July 16, 2010

Texting While Driving: Willful Misconduct?

by David W. Willis, Esq.

Effective July 1, 2010 Georgia Governor Sonny Perdue signed two new "distracted driving" bills into law, Senate Bill 360 and House Bill 23. House Bill 23 prohibits persons under 18 years of age from any use of telecommunication devices while operating a motor vehicle. Senate Bill 360 (the Caleb Sorohan Act) impacts the general populace of Georgia and states: "No person shall operate a motor vehicle on any public road or highway of this state while using a wireless telecommunications device to write, send, or read any text based communication, including but not limited to a text message, instant message, electronic mail, or Internet data." Thus, drivers in Georgia are not prohibited from using mobile phones for talking. However, drivers are barred from writing, reading, texting or otherwise sending any text based communication (i.e. text message, email, internet data) while operating a motor vehicle. The fine for offenders is $150.00 and one point on their driver license.

The new Georgia legislation brings up an interesting question for employees injured while in the course of travel for their employer. As in most states, a Georgia employee injured while driving may have a viable workers' compensation claim,so long as the operation of a motor vehicle is part of their job. However, O.C.G.A.§ 34-9-17(a) can provide a defense to employers and insurers when the injury is due to an employee's "willful misconduct, including … the willful failure or refusal to use a safety appliance or perform a duty required by statute." Could a violation of the new Georgia law provide a defense under this statute.

Historically, Georgia courts have taken a narrow approach when asked to disqualify someone from workers' compensation benefits based upon willful misconduct. Even if the reason for an accidental injury is an employee's negligence or gross negligence this is often not sufficient as a defense. See, Travelers Ins. Co. v. Gaither, 251 S.E.2d 66 (1978). Instead, the courts have usually found that the violation must be a statutory one of a criminal or quasi-criminal nature. When it comes to traffic violations the State Board of Workers' Compensation and appellate courts have given varying decisions, finding that driving the wrong way up a one-way ramp and speeding qualify as acts of "willful misconduct" while improperly lane passing around another vehicle does not.

Whether an employee who is injured while texting (or sending emails, reading emails, instant messaging) and driving has a compensable claim will depend on the particular facts involved. However, given the wide publicity and coverage that accompanied Georgia's newest legislation an employee may be hard-pressed to say their violation of this law was not "willful misconduct." In the weeks and months ahead employers and insurers should be sure to examine this issue closely.

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