Can the Threat of Punitive Damages Deter Serial Texting Indiana Drivers? (Part 1 of 2)

In 2011, Indiana joined the legions of States that made texting while driving illegal. Indiana Code 9-21-8-59 bans drivers from using a telecommunications device to type a text message or an email, transmit a text message or an email, or read a text message or an email. Excepted from the law is using the device in conjunction with hands-free or voice-operated technology, or to call 911 to report a bona fide emergency.

However, absent exceptional circumstances, the law also restricts police from confiscating cell phones and determining if the driver had been using it. Police cannot use the law to confiscate a phone and keep it as evidence or to extract or download information from the phone.

Although criminal enforcement of anti-texting laws is rare, when a car crash occurs as a result of texting, there may be civil remedies available to deter such conduct. Punitive damages developed under the law as a means of deterring particularly bad conduct.

Indiana does not allow insurance to cover a punitive damages award. So, in theory, the deterrent effect of a punitive damages award should be very effective. The wrongdoer against whom punitive damages are awarded has to pay for these damages out of his own pocket. Thus, a texting driver with a history of being cited for texting while driving or causing texting-induced crashes could theoretically face a punitive damage claim, which might make the reckless driver think twice. But, in practice, ironically, the injured and their attorneys are actually deterred from seeking punitive damages by the letter of the law passed by Indiana’s legislators.

Indiana (and federal) law places several obstacles in the path of those seeking to punish wrongful conduct. First, Indiana law deters such claims by statutorily awarding 75% of all punitive damages awarded at trial to a “Victim’s Compensation Fund” and not the injured party. So, if an injured party were to prove punitive damages and a jury awards $10,000 to punish the wrongdoer, Indiana collects $7500, leaving the remainder to the victim of the wrongful conduct, out of which she must pay any attorney fees and costs associated with pursuing and proving the claim. Indiana has declared the statute (Indiana Code 34-51-3) allowing for this result constitutional. Although disincentivizing a plaintiff from bringing a punitive damages claim by taking three quarters of the verdict that would not exist without their and their attorney’s efforts is controversial, the Fund serves a noble purpose by helping compensate victims of violence, including sexual assault, by paying out grants of up to $15,000 to a successful applicant. According to Indiana Criminal Justice Institute’s 2015 Annual Report, payments of $6 million dollars were paid out in 2015 and $7.5 million the year prior.

Part 2 of this article will be published next week. If you or a loved one has been injured by a distracted driver, it would be wise to consult with an attorney while information and materials can still be preserved and before any statute of limitations has barred the claim. Follow us on social media at the links provided and receive a link to this and other articles as they are published.