By Cory Bilton
Drivers, bicyclists, and pedestrians often disagree about how an accident happened. The damage to a bicycle or vehicle says something about the effect of a collision, but the events that precede a collision often need to be retold by the people involved or the witnesses nearby. In preparing a case, personal injury lawyers have to nail down all the specifics. In the near future, the car itself may be one of the star witnesses to events leading up to the accident.
Over the past few years, auto insurance companies have been developing programs, called “usage-based insurance” or UBI, to monitor driving habits. Most of these programs require a small electronic device, dubbed a “telematics” device, to be plugged into the car’s onboard computer. The telematics device records the car’s speed, acceleration, location, mileage, and fuel level, and then transmits this data back to the insurance company. If you drive slowly, avoid hard braking, stay close to home, and only drive in the morning, you’ll get a discount on your car insurance rates. Otherwise, the insurer will explain to you, with colorful charts and graphs, precisely why your driving habits make you a risky driver.
While telematics devices are currently optional, insurers are enticing drivers to opt in to the UBI programs by offering a discount on premiums. A recent report says that only about 2% of drivers currently enroll in these UBI programs in the US. But one estimate is that number will grow to about 25% of all drivers in the US by 2020. Auto insurance companies believe these telematics devices will lead to bigger profits by revealing the good drivers and the bad.
Since they are so new, telematics devices haven’t caused significant chatter yet among personal injury attorneys. Recorded data showing a vehicle’s speed, braking, direction, acceleration, and location have enormous potential in settling and litigating injury cases. For example, telematics data might lend credibility to one story over another when liability is disputed. Even when liability is not disputed, telematics data might help prove the severity of the crash that caused the victim’s injuries. While bad drivers may not participate in usage based insurance programs (there no discount on premiums if you are a bad driver), the telematics data could also come from the good driver’s car as well. Although most new cars have onboard computers that have been generating this data for years, insurance company telematics devices are making the data more accessible by transmitting it to insurance company computer servers.
Identifying UBI Program Participants
Telematics data only becomes an issue if one of the parties participated in a UBI program when the collision occurred. While it is simple enough to ask your own client about this, you’ll need to use the right language. Each insurer uses a special name for its own proprietary UBI program. Here are the major ones:
To determine whether the defendant driver was a UBI participant, you’ll probably have to wait until a lawsuit is filed. Since these programs are styled as “discounts”, the defendant’s policy declarations page will probably reveal the UBI program name if the defendant participated. Additionally, an interrogatory can be crafted or modified to discover whether the defendant was a UBI participant.
Getting the Telematics Data
After identifying whether a party participated in a UBI program, you’ll want to request the telematics data from the time of the collision. From reading over the terms and conditions of the major UBI programs, it appears that the insurance companies retain ownership of both the telematics device and data. So, pre-litigation access to the data seems unlikely. From what I’ve read about these programs, the data itself will need templates or forms to make sense of what you are seeing (but maybe Microsoft Excel will do the trick, too). Therefore, a request for the data should also include a request for any software, forms, template, labels, or explanations needed to interpret the data (dozens of columns of unlabeled numbers do you no good).
Using the Telematics Data
It’s been said that lawyers are not generally good with math. So you may be thinking, what good is this “data” going to do? Jurors might be just as spellbound as you are by accelerations and braking distances and compass directions. Basically, if you are going to use the data at trial, you’ll need an expert to explain it. As UBI programs take off, telematics data experts will certainly proliferate.
Some cases are too small to warrant hiring an expert to explain another aspect of the case. This doesn’t mean that telematics data should only be pursued in cases with significant damages. Insurance companies will likely be using the telematics data as part of the claims process, even in cases with less severe injuries. You will need to know what the data says, even if you aren’t going to hire an expert to present the data at trial. In the future, insurers will likely agree to a data standard, which will result in the telematics data always being kept in the same format and order. When this happens, lawyers can use simple software programs to load the data and help visualize what the car recorded during the collision. Knowing what the data says will save you from being at an informational disadvantage in pursuing your client’s case.
Telematics devices and UBI programs are still under development. Program names will change, the technology may change, and consumer’s attitudes and privacy concerns may change. This is an issue that personal injury lawyers need to put on their watch list. For the moment, it is easy enough to ask a client about it when you go over his case for the first time. It’s also not too onerous to ask about the defendant’s UBI participation in discovery. As UBI programs mature, I predict that telematics data will become a key part of every case involving a vehicle. It’s one of the ways that big data projects are going to impact personal injury law.
Please read my disclaimer.