By: Chelsea England Leonard, Associate, Orlando

Put that phone down! Answering emails, checking the headlines, and looking at dog memes while behind the wheel now comes with new consequences. A new, stricter law has gone into effect in Florida on July 1, 2019, banning texting while driving. Florida is on the tail end of states across the country implementing similar laws. Under the law “A person may not operate a motor vehicle while manually typing or entering multiple letters, numbers, symbols, or other characters into a wireless communications device or while sending or reading data on such a device for the purpose of nonvoice interpersonal communication, including, but not limited to, communication methods known as texting, e-mailing, and instant messaging.” Florida statutes §316.305(3)(a).”

While texting while driving was previously prohibited in Florida, it was not a “primary offense.” This means that previously, one would be have to pulled over for another traffic infraction before they could be cited for texting and driving. Under the new law, texting while driving is a primary offense, and offenders could be pulled over and cited for texting while driving alone.  A first offense for violating the texting while driving law comes with a $30 fine. A second offense comes with a fine of $60 and would add three points to your drivers’ license. The law applies to vehicles while they are in motion. Drivers are still able to hold the phone to talk while driving, although it would be wise to avoid this. An exception is that starting October 1, 2009, a driver may not hold a wireless device in their hands in a school zone or active work zone.

What does this mean for workers’ compensation? There has been an increase in the number of motor vehicle accidents caused by distracted driving over the years. So what happens when a Claimant is involved in a motor vehicle accident while in the course and scope of employment that is caused by their distracted driving, or texting while driving? Florida is a “no fault” state when it comes to workers’ compensation benefits. This means that it doesn’t matter for overall compensability purposes that the accident was caused by the Claimant’s carelessness.  But there may be some remedy to Carriers in these situations. Under section §440.09(5) of Florida Statutes, “If injury is caused by the knowing refusal of the employee to use a safety appliance or observe a safety rule required by statute…, the compensation…shall be reduced 25 percent”. As such, since texting while driving is against the law, Carriers may be able to take a 25% reduction in TTD, TPD and PPD benefits if the Claimant was involved in an otherwise compensable motor vehicle accident that was caused by texting while driving. Using the safety violation is an affirmative defense and the burden is on the Employer/Carrier to show that the failure to follow the rule caused the injury. As a practical tip, it is prudent to advise employees not to text and drive and to enforce that requirement. Also, for any work related motor vehicle accident that does occur, it is important to obtain the Florida Traffic Crash Report to see what the cause of the accident was and determine if there were any violations of a safety law, including texting while driving.