Today, data is used everywhere. The latest example is insurance companies gathering driver performance data to defend motor vehicle cases, data that in some cases were volunteered to them by car owners. A recent article from the New York Times, titled Automakers Are Sharing Consumers’ Driving Behavior With Insurance Companies1 shows how that data can present serious questions for personal injury lawyers and their clients in motor vehicle accident cases.
Automakers Share Driver Performance Data With Insurers
The recent Times article reports that some automakers are now sharing very detailed data with insurance companies about drivers’ performance behind the wheel. That data (part of overall “automotive telematics”) includes instances of speeding, hard braking or sharp accelerations. It is all compiled in detailed reports (sometimes exceeding 100 pages) on a particular driver’s performance over hundreds of trips.
The data is collected using software installed in vehicles. Insurance companies promise car owners lower premiums in exchange for software installed to show “safe” driver performance. Automakers also partner with so called “data brokers” to gather this information from other software in vehicles and sell that data to insurance companies.
Is Driver Performance Data Admissible Evidence?
A significant concern for personal injury lawyers is how this automotive data will be used in motor vehicle accident cases, both at trial and in settlement negotiations.
One obvious concern is that this data does not necessarily measure safe driving habits. Instead, it is simply a collection of discrete instances of hard braking, high-speeds, and steering direction that occurred at varied times and locations, and in varied circumstances. Thus, it would seem seems that a historical record of such data should not be admissible to establish that a plaintiff is a bad driver generally, or that a plaintiff was more likely to have been driving negligently around the time of the accident.
Nevertheless, insurers gathering this data will almost certainly use it to reconstruct an accident, and draw conclusions about fault and exposure, by focusing on a plaintiff’s specific driving behavior shortly before and at the time of the incident. That specific data showing speeding, hard braking, or steering at a particular time and location can then be characterized as erratic, overly aggressive, insufficiently skillful, or even just driver fatigue based on the length of time behind the wheel.
This type of data at the time of the accident could be employed for impeachment purposes to rebut a driver’s testimony that is inconsistent with the data (e.g., the witness testifies that they weren’t speeding the day of the accident, or “always” drove cautiously).
More affirmatively, this type of data could be admitted through experts who are competent to interpret and show the legitimacy and reliability of the data. Similar types of data, compiled from “event data recorders” (or “EDRs”) in motor vehicle airbag control systems, have been admitted that way to show various aspects of a car’s operation seconds before a crash, including its speed, whether the brakes were applied, and the position of its gas pedal.2 (Note that EDR data is quite different from general automotive telematics data – EDR data belongs to the car owner, is stored in temporary memory, and is continuously updated and overwritten at regular intervals; the data only becomes permanent if the airbags deploy in an accident.)
Conclusions
Even though data is used everywhere, not all of it will be employed disadvantageously for personal injury lawyers and their clients. Cartiga employs data every day for a productive purpose: To provide consumer legal funding designed to maximize outcomes for lawyers and their clients on personal injury claims. As partners in the business of optimizing personal injury outcomes, we will all have to be increasingly aware of information like driver performance data being used by insurance companies, which could have a significant impact on liability and exposure in motor vehicle cases.
This article is for marketing purposes only, does not constitute legal advice, and should not be relied upon as legal advice.
- https://www.nytimes.com/2024/03/11/technology/carmakers-driver-tracking-insurance.html
- See, e.g. Matos v. State, 899 So.2d 403 (Fla. Dist. Ct. App. 2005) (trial court did not err in admitting EDR evidence through two experts, an accident reconstructionist trained in EDR technology, and an industrial engineer who was the chairman of the Society of Automotive Engineers); Commonwealth v. Zimmermann, 873 N.E.2d 1215 (Mass. App. 2007) (affirming admission of EDR evidence provided by expert in accident reconstruction, who had taught courses in accident reconstruction, had published in the field, and had participated in almost 1,000 crash tests); State v. Shabazz, 946 A.2d 626 (N.J. Super. 2005) (granting State’s motion to introduce EDR data based on testimony from expert in accident reconstruction and EDR devices who had conducted crash tests and worked with automotive engineers).
