Unlikely. But Jennifer Smith, whose mother, Linda Doyle, was killed last year by another driver who was distracted because he was talking on his cell phone and ran a red light in Oklahoma City is testing the theory. The reason she can’t win the case is because Sprint-Nextel, whose cell phone service the defendant driver was using at the time, owed no direct duty to Jennifer Smith’s mother. The driver of the other car, 20-year-old Christopher Hill, owed a duty Mrs. Doyle, to operate his vehicle in a prudent and reasonable manner. We all owe that duty to each other when we are driving on the road. When that duty is breached, it gives rise to a claim for negligence. Without the duty, there is no negligence.
What’s really going on here is that the negligent driver didn’t carry enough liability coverage on his auto insurance policy, or failed to carry any coverage. As such, when Jennifer Hill made a claim to Hill’s auto insurance carrier for the death caused by Hill (ie: a personal injury case on behalf of the estate of Linda Doyle), assuming he had some coverage, the carrier probably paid their minimal policy limits. Jennifer Smith’s next step was to make an uninsured motorist claim (UM) through her mother’s auto insurance policy or underinsured motorist claim (UIM). That policy either didn’t carry any UM or UIM coverage, or carried a minimal amount.
The lawyer on behalf of Mrs. Doyle’s estate and on behalf of Jennifer Smith is clearly looking for another source of funds from which to compensate Ms. Smith for the death of her mother. It is an otherwise viable approach, but one that will ultimately fail.
I preach to consumers that they must maximize their UM and UIM coverage. The whole idea of any insurance investment is to use it as a tool to protect yourself and your family. If Linda Doyle had carried sufficient amounts of UM and UIM coverage, Jennifer Smith and her lawyer would not have had to make a tenuous claim against Sprint-Nextel.
We’re talking about personal responsibility here. Tort cases, (that is, negligence cases), are frequently targeted for discouraging lack of individual responsibility – the theory being that if the courthouse is open to all sorts of legal wrongs, the party suing can look to others for his injury before accepting responsibility for his own actions.
But in reality, the tort law system encourages personal responsibility for wrongs committed in the community. For instance, enforcing negligence claims against drivers using cell phones and being too distracted to operate a vehicle safely is by definition enforcing personal responsibility, on the defendant driver. So too is encouraging consumers to purchase sufficient amounts of insurance coverage, particularly UM and UIM benefits, so that they and their families are financially protected against the careless acts of negligent drivers.
Stuart A. Carpey, who has been practicing as an attorney since 1987, focuses his practice on complex civil litigation which includes representing injured individuals in a vast array of personal injury cases.