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Auto Accidents

Will Police Check My Phone If I Get Into An Accident?

Cell Phone Privacy RightsThe Massachusetts distracted driving law bans drivers from using cell phones and other electronic devices while driving, unless the devices are in hands-free mode. Breaking this law is a primary offense, and police can pull over drivers who are breaking the rules. But what if you get into an accident? Can police check your phone to see if you’ve been texting or making calls?

What if another driver causes the accident? Can the police look at their phone for signs of activity? Keep reading for a look at police car search rights and how they affect cell phone privacy for drivers and accident victims.

Police Car Search Rights

Generally, police cannot search your home or other personal property unless they have a search warrant — the fourth amendment guarantees this right. But there is an exception for vehicles. If the police have probable cause to believe you have contraband in your vehicle, they can do a search without a warrant.

This exception only exists to reduce the threat of people driving off with contraband in their vehicles, but police car search rights do not apply to phones.

Even if the police arrest you and seize your phone, they cannot search the phone. Police are also not allowed to search your phone’s contents while doing a legal search of your vehicle. They can only search your phone in the following situations:

  • If they have a warrant
  • If you consent to them searching your phone
  • If the information is in plain view

The plain view rule simply means that the police can use information they see in plain view on the phone. For example, if the home screen of your phone shows that you just sent a text, the police can take that piece of evidence into account. They cannot pick up the phone, unlock it, and look through your message history unless they have your consent or a warrant.

Limitations With Phone Records May Make Way For New Textalyzer Technology

If you’re a victim in an accident and you believe the other driver was using their phone, you need to establish that fact as you build your case. Ideally, you want law enforcement to obtain a warrant so that they can check the driver’s phone, but often, phone records only show calls and texts. They don’t reveal if the driver was using other apps.

Relatively new technology called the Textalyzer may be able to help. Similar to a breathalyzer, a Textalyzer allows law enforcement to check people’s phones at the site of the accident. At the time of writing, the technology is not used by police in Massachusetts.

Privacy vs. Enforcement

When making decisions on whether or not to provide police with technology such as textylzyers, lawmakers take into account both privacy and enforcement issues. On one hand, if police have this technology, they can easily assess if someone was illegally using their phone. Similarly, if you’re trying to bring forward a personal injury claim, these details can be essential.

On the other hand, everyone has a right to a certain amount of privacy, and privacy advocates argue that giving police these tools may compromise privacy. In response, proponents of the technology claim that the Textalyzer respects privacy because it only captures time-stamped swipes and taps. It doesn’t download content.

What You Should Do After An Accident

If you have been in an accident in Massachusetts, use these tips to protect yourself:

  • Move vehicles and people off the roadway and to a safe location.
  • Do not get out of the vehicle unless it is safe to do so.
  • Call the authorities — always create a police record. Do not just exchange details and leave the site of the accident.
  • Take notes about the accident including location, vehicles involved, and what happened.
  • Get contact details from authorities, other drivers, and witnesses.
  • Do not admit fault.
  • Remember that police cannot search your phone without a warrant. Do not consent to them checking your phone. Even if you didn’t cause the accident, you may be held partially responsible in a civil lawsuit if the police see that you were using your phone.
  • Reach out to your insurance company to start a claim.
  • Contact an attorney. If you’ve been injured due to another driver’s negligence (including using their phone while driving), you may be able to bring a personal injury case against them.

Get Help After an Accident With a Distracted Driver

If you have been injured in an accident, you may be entitled to compensation to cover your medical bills and other damages. Dealing with the physical and mental toll of an accident can be hard, but we may be able to help.

To set up a no-cost case evaluation, contact us at (978) 744-8000. At Mazow | McCullough,PC. We will carefully examine your case and discuss your options.

Massachusetts Hands Free Law: What Drivers Need to Know

Massachusetts Hands Free LawAs of February 23, 2020, Massachusetts has a hands free driving law. This law bans drivers from using mobile phones or any other electronic device unless the device is in hands-free mode. Do you wonder how this law will affect you? Keep reading for a brief overview of the details from Mazow | McCullough, PC.

What Does the Massachusetts Hands Free Law Change for Me?

Massachusetts’ new hands free driving law provides explicit details on how drivers may use electronic devices while driving. Under the hands free cell phone law, you can only touch electronic devices to activate hands-free mode while operating a motor vehicle. You can only do so if the device is mounted to your windshield, dashboard, or center console.

You cannot hold or support your phone to enable hands-free mode or to do anything else. If your phone is mounted in a way that does not impede operation of the vehicle, you can use its GPS features. You cannot text, email, use apps, or touch your phone for any other reason. You can use voice-to-text only if the phone is mounted.

You may talk on the phone, but you can only do so in hands-free mode. For instance, if your phone connects to your vehicle’s stereo through Bluetooth, you can talk to someone. However, you cannot hold the phone up to your ear to have a conversation. You can legally wear headphones attached to your phone, but only in one ear.

The only time you can have your phone in your hand is if your vehicle is stopped and not in a public travel or bicycle lane. For example, if you pull into a parking lot or park on the side of the road, you can use the phone in your hand. However, the law bans you from using electronic devices at red lights or stop signs.

Fines Associated With the Hands-Free Law

Drivers who get caught breaking the new Massachusetts hands free law face the following penalties:

  • 1st offense — $100 fine
  • 2nd offense — $250 fine and a required educational program about the dangers of distracted driving
  • 3rd offense — $500 fine, mandatory completion of a distracted driver course, and a surcharge on the driver’s car insurance policy

Drivers Under 18

If you are under 18, you cannot use your phone or any other electronic devices at all while you are driving. Even if the device is in hands-free mode, you cannot use it.

Which Devices Are Impacted by the Hands-Free Law?

Massachusetts’ hands-free law applies to all electronic devices. This includes e-readers, GPS systems, music players, and all other electronic devices. As indicated above, the law also explains that you can use earbuds as long as they are only in one ear.

You can use a dedicated GPS system as long as it’s mounted to your vehicle. If you have the system in your hand or in your lap, you cannot legally use it. If you have an iPod, you can set up your playlist and hit play before driving but cannot touch the device while driving.

In the Event of an Emergency

The hands-free law has a caveat for emergencies. If you need to call 911, you can have your phone in your hand, but ideally, you should try to pull over before making the call. First responders are also allowed to use cell phones with their hands as needed to deal with emergencies and do their jobs.

Research Supporting the Hands-Free Cell Phone Law

While drafting this law, Massachusetts legislators took into account research on the dangers of distracted driving. If drivers use a hand-held device, they increase their risk of crashing by 2.5 to 3 times.

Essentially, when drivers do activities that involve visual or manual demands, their reaction times slow down. They then become more likely to get in an accident. For example, if drivers are texting, they look away from the road for a significant amount of time. This greatly increases the risk of a collision.

In contrast, when drivers use a hands-free device, they are engaging in a cognitive secondary task. Research indicates that this does not increase the risk of a crash. In fact, when researchers compared drivers using a hands-free cell phone to a group of control drivers, they discovered that the cell phone users had a lower risk of being involved in an accident.

Researchers speculate that this happens for a few reasons. When drivers talk on a hands-free phone, they tend to look forward and notice things more clearly. Conversations can also reduce driver fatigue on long trips. However, research also indicates that doing multiple cognitive secondary tasks slightly increases the risk of an accident.

If you’re having a hands-free phone conversation, changing radio stations, and talking with a passenger, you are multitasking. This increases your collision risk. The risk is still negligible compared to doing anything that requires you to look at the phone in your hand.

This risk is especially high for inexperienced drivers. The law bans drivers under 18 from using devices at all while driving to ensure their focus is on the road. Young drivers in Massachusetts cannot have passengers under 18 in their cars until they have a year of driving experience.

Now that there is a hands free law Massachusetts residents must abide by, the roads should become safer. Unfortunately, however, the risk cannot be eliminated and distracted drivers still cause injuries and deaths every day.

If you or a loved one has been hurt by a distracted driver, contact Mazow | McCullough, PC. We work hard to help our clients get the justice they deserve.

How Are Drunk Drivers Penalized for Fatal Accidents?

Drunk DriversEach year, over 10,000 people die in drunk driving accidents in the United States. A drunk driver who causes the death of one or more people typically faces serious consequences, which vary based on state laws and accident specifics. Here is a general overview of fatality statistics and possible penalties for drunk drivers who cause a fatal accident in Massachusetts and New Hampshire.

Drunk Driving Causes Deadly Accidents in Massachusetts and New Hampshire

Around 137 people die in vehicular accidents involving a drunk driver in Massachusetts every year. In New Hampshire, approximately 40 people die in these accidents annually. Both states have lower rates of fatal crashes involving alcohol when compared to the national average.

Nationwide, 3.3 people per 100,000 people die at the hands of drunk drivers. New Hampshire’s rate is lower – 2.4 per 100,000 people. In Massachusetts, 1.8 per 100,000 people are victims of drunk driving fatalities.

Surveys report that 1.9% of nationwide respondents say that they have driven while under the influence of alcohol in the last month. The rate is slightly lower at 1.8% in New Hampshire, and surprisingly higher at 2.2% in Massachusetts.

Vehicular Homicide and DUI Manslaughter Penalties in MA

Vehicular homicide can be a misdemeanor or a felony in Massachusetts. With a misdemeanor charge, drunk drivers can face up to 30 days in jail or 2.5 years in prison. They may have to pay fines of $300 to $3000.

When drugs or alcohol are involved, the criminal charge is often a felony. Drivers face a minimum of one year in the house of corrections, up to 15 years in state prison, and fines up to $5,000. Manslaughter by motor vehicle leads to a minimum 5-year jail sentence or up to 20 years in prison, and as much as $25,000 in fines. License revocation for 15 years is another consequence.

Fatality Penalties for Drunk Drivers in NH

In New Hampshire, drunk drivers who cause fatalities may be charged with homicide, manslaughter, vehicular assault, or murder. The penalties vary based on the charge and other factors related to the case.

If convicted of negligent homicide, drivers may face up to seven years in prison and up to $4,000 in fines. They may lose their licenses for life. Manslaughter charges can lead to up to 30 years in prison and permanent license revocation. If a fatal drunk driving accident leads to a second-degree murder charge in New Hampshire, the driver may face life in prison.

Establishing Prohibited Acts and Mental States

When trying to establish that someone is guilty of a crime, drunk driving wrongful death lawyers generally need to establish that the accused committed a prohibited act and had a particular mental state while performing that act.

With deadly drunk driving accidents, the prohibited act is driving while under the influence of alcohol. The mental state refers to the driver’s reasons for taking that action or decisions that indicate negligence or intent. In some cases, state laws don’t require attorneys to establish that the drunk driver had any specific mental state.

Some states have strict liability DUI manslaughter laws. In these cases, drivers automatically assume liability for injuries or deaths that occur while they operate a vehicle under the influence.

If strict liability laws are not in place, prosecution attorneys must establish that the driver was grossly negligent or acted recklessly in extreme disregard for human life.

To establish intent, lawyers often point to some of the following issues:

  • The drunk driver’s blood alcohol concentration (BAC) levels
  • How the drunk driver was operating their vehicle
  • Whether or not someone told the driver not to operate a vehicle

The penalties detailed above are criminal. Drunk drivers may also be civilly liable for damages related to these accidents. Even if a driver is not charged with a crime, they can still be held liable in civil court through a wrongful death lawsuit.

Get Help with Your Drunk Driving Wrongful Death Case

If you have lost a loved one to an accident caused by a motorist who was under the influence, contact us at Mazow | McCullough, PC. We can start with a no-cost case evaluation and help you decide if you want to move forward with a lawsuit.

Drunk Driving Cases (Podcast)

Victims of drunk driving accidents have multiple avenues to explore when seeking a lawsuit. Don Bumiller, from Mazow McCullough law firm, discusses how to get fairly compensated for a drunk driving accident. Listen or read more to learn about your options when pursuing a drunk driving case.

John Maher: Hi, I’m John Maher and I’m here today with Don Bumiller of the law firm of Mazow McCullough, a personal injury law firm with offices in Massachusetts and New Hampshire. Today, we’re talking about drunk driving cases. Welcome, Don.

Don Bumiller: Hi, glad to be with you.

John: So, Don, how often is drunk driving a factor or do you see that drunk driving is often a factor in fatal accidents in Massachusetts and New Hampshire?

Don: Certainly in fatal collisions, but they’re also much more prevalent in other cases as well. A lot of people simply get injured in a case caused by a drunk driver. They don’t necessarily die, but oftentimes they are seriously injured.

Legal Options for Families of Drunk Driving Victims

John: Okay, and what legal options does the family of a person who has died in a drunk driving accident, what kind of options do they have?

Don: The same basic statute covers all types of wrongful death cases. Drunk driving cases often bring in complicating factors of whether or not punitive damages should be assessed against the defendant. If the person’s barely drunk, punitive damages wouldn’t come in. If they’re very drunk, and for example, a case we’re handling now, if the drunk defendant is driving down a divided highway in the wrong direction, that’s a case that may qualify for punitive damages.

John: Okay, and how are all those factors determined?

Don: Just by aggravation of the conduct, the aggravating nature of the defendant’s conduct.

Investigating Drunk Driving Accidents

John: Okay. Who does an investigation when an accident like that occurs? Does the law firm do their own investigation, is it the police reports that you’re relying on?

Don: The primary investigation is always done by the police, especially in a drunk driving situation where the defendant’s often arrested. If there happens to be a fatal collision, the State Police Accident Reconstruction Team is sent to the scene. They analyze the scene, [and] prepare a report. Anytime there’s a drunk driver, [there’s] usually a police report. Then, we will use our own investigative team to go out and supplement that if we need it.

John: How often does a typical case involving drunk driving take?

Don: Well, I can’t say that in terms of months or years, but I can say that cases against drunk drivers take longer than the average case, primarily for two reasons. If the drunk driver is arrested, then we’re prevented from immediately getting information about that person because the person is charged with a crime and the person can take advantage of the Fifth Amendment protections that person has to refuse to answer questions. So, in a drunk driving case, we usually have to wait until a conviction has happened before we’re able to depose the defendant and that defendant’s insurance counsel will throw up a lot of road blocks to prevent us from obtaining medical records, insurance information, and location of where they’ve been.

John: Okay.

Don: Drawing on a case I’m working on right now where we are not able to find out where the defendant got drunk because we can’t ask that question. We know the person was drunk, we know they killed our client, we know they have very limited insurance, but we’re not able to find out where it was they got intoxicated. Where they got intoxicated is important because that’s potentially an extra defendant if they negligently over-served that person and should have shut them off before they got drunk or before they got on the road.

Determining Liability in a Drunk Driving Case

John: So, is that a difference with drunk driving cases versus other cases, is you could potentially have two different people involved there? You have the person who caused the accident, who was driving the vehicle, and then you have the person who served them alcohol.

Don: That’s right. There’s an extra defendant, extra insurance company you have to deal with, extra insurance lawyers you have to deal with, and it often takes longer to find out where they got drunk.

John: Okay. Any other final thoughts on drunk driving accidents, whether it caused an injury or it was a wrongful death type of case, any other final thoughts?

Don: Oddly enough, we find that some of our clients aren’t aware that they can sue a drinking establishment for over-serving a defendant. Sometimes, we get cases that have come in from other attorneys who don’t have as much experience and they haven’t even pursued the aspect of that second defendant — and that’s important because here in Massachusetts, you can have as little as $20,000 in bodily injury protection on your insured motor vehicle. Whereas, a drunk driver can easily cause a lot more damage than that and you don’t get full compensation unless there is another defendant you can go after.

John: Okay. That’s all really great information, Don. Thanks again for speaking with me today.

Don: My pleasure.

John: And for more information on personal injury cases and drunk driving cases, visit the firm’s website at helpinginjured.com or call 855-693-9084.

Who Is Liable When You Get into an Accident with an Intoxicated Driver?

Accident with an Intoxicated DriverIf you or a family member has been in a car accident, you may be dealing with all kinds of serious injuries or even the death of your loved one. Dealing with the expenses related to an accident can be frustrating, especially when you’re also trying to heal both physically and emotionally. Fortunately, you may be able to get compensation for your, or your loved one’s, injuries.

First, however, you need to find out who is liable for the accident. In situations involving drunk drivers, a number of different parties may be liable, including the following.

1. The Driver

When you are in an accident, the at-fault driver is usually liable for your damages, regardless of whether they are intoxicated or not. Generally, you make a claim against the at-fault driver’s insurance. Note that in no-fault states, such as Massachusetts, your damages need to be over a certain threshold, or you must sustain serious injuries to make a claim against the other driver’s policy.

If the driver is uninsured or underinsured, you may be able to hold them civilly liable for your damages and make a claim against their personal assets. Your own coverage for uninsured or underinsured motorists may also apply in these situations.

2. The Driver’s Employer

If the driver was working when they caused the accident, their employer may be liable for the damages. For example, ridesharing services may also be liable if one of their drivers causes an accident while intoxicated. Often, businesses have more insurance and assets than individual drivers, and for that reason, holding employers liable can be advantageous in many situations.

3. Liquor Stores, Bars, and Caterers

Massachusetts, New Hampshire, and many other states have dram shop laws which apply to liquor stores, bars, restaurants, and any other entity with a liquor license. Dram shop laws allow businesses that sell or serve alcohol to someone who is already intoxicated to be held responsible for any damages or injuries caused by that individual.

4. Party Hosts

Social host laws are similar to dram shop laws, but rather than holding businesses liable, they hold party hosts liable for their guests’ behavior. States have a variety of different social host laws, and sometimes precedents from lawsuits can affect the scope of these laws.

For instance, Massachusetts has criminal laws against serving alcohol to anyone under 21 years old at a party, but the state does not have social host laws on the books. However, in one case, although the court decided not to hold a host liable for injuries caused by a drunken guest leaving the party, it specified in its decision that it wasn’t holding the host responsible because they didn’t provide the alcohol. However, the court asserted that if a host provides alcohol to a clearly inebriated guest, then the host could potentially bear liability.

For that reason, it’s important not to assume that one party is or isn’t liable for your injuries based on the laws you can find. Instead, you should consult with a personal injury attorney. They understand the nuances of personal injury law as well as the potential for different outcomes based on previous similar cases and the specifics of your situation.

5. Parts Manufacturers or Installers

When faulty parts cause, contribute to, or worsen the injuries from an accident, the parts manufacturer may be liable. Similarly, mechanic shops or dealerships can also be liable if their employees installed the part incorrectly. For instance, if the intoxicated driver hit you due to faulty brakes and an investigation reveals that the brakes were installed incorrectly, you may also be able to hold the mechanic or their employer liable for your injuries.

In these situations, the liable party can be held civilly responsible for all costs incurred as a result of the accident, which can range from car repairs and chiropractor appointments to wheelchairs and lost wages. The liable party may also be required to compensate you for damages such as pain and suffering that aren’t pegged to a set dollar amount. These amounts can vary drastically from several thousand to millions of dollars depending on the severity of your injuries. To ensure you get the fairest settlement possible, you should work with an attorney who understands the ins and outs of making personal injury claims after drunk driving accidents.

At Mazow | McCullough, PC, we work with many clients who have been injured in automobile accidents. If you have been hurt by a drunk driver, we can help you get justice and compensation from liable parties. Contact us today and set up a no cost case evaluation.

What to Do if You are Injured by a Drunk Driver Leaving a Party

Drunk Driver Leaving a PartyTwenty-nine percent of car accidents are caused by drunk drivers. If you have were injured by a drunk driver who is leaving a party, you may be wondering what you should do. To protect yourself legally and financially, check out these essential tips.

1. Get to Safety

Before doing anything after a car accident, make sure that you are in a safe position. If you are in a vehicle, move it out of the road if possible. Trust your instincts — don’t get out of your vehicle if you are worried about the other driver becoming physically violent or if passing traffic presents a potential danger.

2. Contact Your Local Authorities

Whenever you are in an accident, it’s important to contact your local authorities. If the other driver tries to convince you that you can settle this matter between the two of you, don’t respond. In most cases, you need a police report in order to make a claim to the insurance companies, and in situations with drunk drivers, the authorities can ensure that the driver doesn’t get back behind the wheel and cause another accident.

3. Collect Information from the Scene

If possible, try to collect as much information as you can from the scene of the accident. Ideally, you want the driver’s contact information, insurance details, and license plate number. If they have just left a party, you should ask for the host’s information as well. You should also get contact details for witnesses and bystanders who may have seen the accident happen.

When the police officer makes a report, ask for their card or some documentation related to the report. Keep in mind that it’s likely you’re dealing with injuries or shock, so collecting information may not be possible. Try to gather as much as you can without putting yourself in further danger.

4. Go to the Emergency Room

Many injuries suffered after a car accident take some time to show up. Regardless of how you feel immediately after the accident, you should still visit your local ER to protect your health. The ER physicians will evaluate you for a concussion, internal bleeding, or any other hidden injuries that are commonly seen after car accidents.

By seeing a doctor immediately, you also establish a connection between the injuries and the accident. That can be essential if you eventually need to make a claim against the drunk driver.

5. Reach out to a Personal Injury Attorney

After an accident with a drunk driver, they or their insurance company may offer you a settlement. As a rule of thumb, you shouldn’t accept any offer without first consulting an attorney. You need to ensure the settlement truly covers all your damages.

Many insurers offer lowball settlements that may cover damage to your vehicle or immediate medical costs, but most victims of drunk driving crashes suffer more than that. Depending on the specifics of your situation, you may lose wages, experience pain and suffering, develop PTSD, or deal with a variety of other financial, physical, and emotional costs.

6. Work with Your Attorney to Identify Other Liable Parties

An attorney can help you negotiate with the at-fault driver’s insurance company to ensure you get the fairest settlement possible. They may also be able to identify other liable parties. They may be able to hold the host of the party liable under social host laws or dram shop laws if a caterer or anyone else with a liquor license was responsible for serving alcohol to the driver.

7. Be Aware of Your Own Liability Concerns

Generally, when you are hit by a drunk driver, that individual or any other liable party may be responsible for your damages. As indicated above, that can include damage to the vehicle, medical expenses, lost wages, and any other expenses incurred as a result of the accident. At the same time, they may be liable for pain and suffering, disfigurement, or other non-economic damages. Depending on the specifics of the accident, the damages can total thousands or even into the millions.

As the driver of the other vehicle, however, you may be held responsible under comparative liability laws. In this situation, the courts assign a percentage of the accident that was your fault, and your settlement gets reduced accordingly. For instance, if you were texting and driving when a drunk driver ran a red light and hit your car, the courts may decide you are responsible for 20% of the accident and may reduce your settlement by that figure.

If you have been injured by a drunk driver, we may be able to help you. To set up a no-cost case evaluation, contact us today. At Mazow | McCullough, PC, we are committed to helping victims deal with the aftermath of drunk driving accidents.

How an Operator Exclusion Form Can Reduce Your Car Insurance Premium

Operator Exclusion FormTypically, your auto insurance policy must list all licensed drivers in your home who are related to you by blood, marriage, or adoption, and in some cases, your insurer may even require you to list roommates on your policy. This rule even applies to drivers covered by their own insurance policies, and you must list any and all persons even if they only drive your car occasionally.

However, in Massachusetts, you can get around this requirement by using the Operator Exclusion form. Keep reading to learn more about this form and how to use it.

Drivers With Their Own Insurance Policies

Drivers who have their own insurance policies are usually listed on your policy as “deferred operators” and garner no additional charge. In these situations, you can simply list the driver, and you don’t have to worry about paying higher premiums. Additionally, if that driver ever borrows your car, you can rest assured that they are fully covered by your policy. Note, however, that in some cases, their own coverage may come into play in the event of an accident.

Drivers Without Their Own Insurance Policies

If you have a driver in your home who does not have their own insurance policy, you are usually obligated to list them on your policy. In this situation, the insurer will take that driver into account when calculating your premium. Luckily, you don’t usually have to include drivers with their learner’s permits, until they are fully licensed.

Unfortunately, however, adding some drivers to your policy can drive up costs. If you want to save some money, you may want to consider filling out the Operator Exclusion form. That formally excludes the driver from your policy, but then, you need to ensure that driver never operates your vehicle.

When to Use the Operator Exclusion Form

Generally, it makes sense to use the Operator Exclusion form if you have a young driver in the home who would be listed as an inexperienced driver or if you have a driver who would increase your premiums.

For instance, you may choose to exclude a teen driver, but remember by signing the exclusion form, you promise to exclude your child from driving your vehicle under any circumstances. If your child drives your vehicle and you attempt to make an insurance claim, your claim moves to a misrepresentation of your agreement. As a result, your insurance company is absolved of paying any of your optional liability.

In some cases, policyholders also opt to exclude drivers when they leave the home to go to college, but you need to be careful with that as well. If you let the driver use your car when they are home on vacation, that negates your agreement. Before resorting to using this form, contact your insurer and see if a college student is still considered to be living in your home, check if you need to insure them, and ask about potential student discounts to help offset the cost of coverage.

What Happens If an Excluded Driver Operates Your Vehicle

If an excluded driver operates your vehicle and gets into an accident, you can lose your optional bodily injury coverage in an auto policy. In other words, if you allow an excluded driver to operate your vehicle, you may become liable for hundreds of thousands of dollars, even millions, if the insurance company refuses to pay the claim. When you fill out the Operator Exclusion form, you agree to these terms, and it is perfectly legal for the insurer to deny your claims.

The Operator Exclusion Form

The form itself is relatively short and easy to complete. You simply note the excluded driver and a description of your vehicle. Then, you add your name, the policy number, and the date, and both you and the excluded driver must sign the form. When you sign the form, you agree to the following points:

  • If you make false, incomplete, or deceptive statements, the insurer can refuse to pay claims related to any part of your insurance policy.
  • Massachusetts state law requires insurers to withhold payments related to collision losses if an excluded household member operates your vehicle.
  • You agree that the excluded driver will not operate the listed vehicle or any replacements you buy for the listed vehicle.

If you don’t use the Operator Exclusion form and you fail to list any “customary” operator or licensed household member, your insurance company might refuse to pay your claim, even if you were driving at the time of the accident.

If you have been in an accident with someone who was listed on an operator exclusion form, you may face additional struggles trying to make a claim. In that situation, you need an experienced car accident attorney, and we can help you. To learn more, contact us today at Mazow | McCullough, PC.

Car Accident Liability for Junior Vehicle Operators

Junior Vehicle OperatorsIn Massachusetts, young drivers generally obtain a junior operator license after their learner’s permit. This license gives drivers ages 16.5 to 18 years of age the opportunity to operate a motor vehicle. Similarly, New Hampshire drivers between the ages of 16 and 21 years receive a Youth Operator license. In both cases, these drivers are subject to a few extra restrictions and obligations. Here’s a closer look at the junior and youth operator licenses and liability issues.

Obtaining Youth and Junior Operator’s License

To obtain a junior operator’s license, you must have had a learner’s permit for at least six months, completed an approved driver education and training program, and driven a certain number of hours under the supervision of your parent or guardian. You must also pass a written test. During the first six months of having your junior operator’s license, you can’t transport any passengers under the age of 18 years unless they are immediate family members or you have a licensed driver over the age of 21 with you. You also cannot drive between 12:30 a.m. and 5:00 a.m. unless a parent or guardian accompanies you.

In New Hampshire, drivers must take a driver’s education course, complete a certain number of supervised driving hours, and pass a test to obtain a youth operator’s license. With this license, minors can’t drive alone between the hours of 1:00 a.m. and 4:00 a.m., and up to their 21st birthday, these drivers may have their licenses suspended for a variety of offenses, including building up demerits on their driving record.

Insurance Requirements

All Massachusetts and New Hampshire drivers are required to have car insurance. Youth and junior operators need liability coverage for bodily injury, property damage, personal injury protection, and uninsured motorists, but to be on the safe side, they may also want to have comprehensive and collision coverage as well as coverage for underinsured motorists. They should also consider getting bodily and property damage coverage above the legally mandated limits.

Statistically, teens are three times more likely to get into an accident than drivers over the age of 20. To protect your family financially, you should always ensure that teen drivers are well insured. As a general rule of thumb, insuring a teen driver is more expensive than insuring an adult driver. Parents can add teens to their own policies, and in fact, many insurers require you to add all licensed drivers who live in your home to your policy. The only way to get around this requirement is to buy the junior operator their own car and insure them just on that vehicle.

Were you injured? Call us today at (855) 693-9884. We can help.

Failure to List Licensed Drivers

If you fail to list licensed drivers on your insurance policy, your insurer may refuse to pay your claim in the event of a car accident. In fact, even if you are insured and you are driving, the insurer may still refuse to pay a claim if you have an uninsured junior operator in your home. In this situation, you may end up being personally liable for any costs incurred due to the accident.

However, some insurers will accept exclusions. You must submit an exclusion form to the insurer declaring that the junior operator will not ever drive your car and that you want them excluded from your policy.

Driving Without Insurance

If your teen driver takes your car and they are not listed on the insurance, you are responsible. In some situations, your insurer may cover the accident under the “guest driver” rules of the policy, but as indicated above, the insurer may not be legally required to cover these accidents. As a result, you may end up being personally liable. In other words, you may have to cover the cost of the accident with your assets and wages.

Even if your teen takes your car without permission, you can still be held responsible. Parents are often liable for their teens’ actions. The argument in these situations is that you are responsible for watching your child. If your child sneaks out, takes your car, and grievously injures someone, you may be to blame from a legal perspective. In some cases, you may escape criminal penalties, but you may still be civilly liable.

Finding the At-Fault Driver

Unfortunately, teens are often perceived to be irresponsible drivers regardless of how careful they are as individuals, and if a teen is in an accident, the other driver may rely on that stereotype to cast blame on the teen. However, if the teen didn’t really cause the accident, the other driver should be held liable. In these situations, you should consult with an attorney. They can find witnesses or proof of who was at fault, and they can help to ensure that the teen doesn’t have to bear the liability for an accident that they truly didn’t cause.

If you have a teen driver, you should take steps to help them be as careful as possible on the road. Remind them not to text and drive and to minimize other distractions. Also, keep in mind that you may be liable if they are in an accident. Make sure they have adequate insurance on your car or their own car, and if you decide to exclude them from your policy, make sure that you follow the rules of the exclusion and never let them drive the excluded vehicles.

Unfortunately, accidents can happen. If your teen has been in an accident or if you have been in an accident with a junior operator, you may need legal help. To set up a free case evaluation, contact us today. At Mazow | McCullough, PC, we help clients after auto accidents as well as after a variety of other types of injuries.

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Inherent Liability: Who’s Liable When a Driver Crashes Someone Else’s Car?

Driver Crashes Someone Else’s CarWhen a driver crashes someone else’s car, the liability isn’t always clear, and it varies based on the location and the specifics of the situation. To help you get a sense of who’s liable, here’s a brief look at inherent liability and an overview of who’s liable when a car accident occurs in someone else’s car.

Permissive Use

Most car insurance policies have a permissive use clause. This simply means that if the owner gives someone permission to use their car, their insurance covers that driver. To explain, imagine someone lets their brother drive their car and the brother crashes the car, causing property damage. In this situation, it doesn’t matter whether or not the brother has coverage because the owner’s policy covers the damages.

However, there are exceptions to this rule. In Massachusetts, for example, you are required to list all other regular drivers on your policy, and some insurers interpret this broadly to mean that you should list all drivers, even if they only use your vehicle occasionally. As a result, the insurer may deny the claim if the driver isn’t listed on the owner’s policy. To learn about the laws in New Hampshire, contact an auto accident attorney directly, as this state has unique laws.

Roommates and Family Members

Typically, every licensed member of a household has to be listed on the car insurance policy for that household. This applies to family members, but surprisingly, it can also apply to roommates. If you share a house with a few people, your car insurance company usually won’t require you to list them on your policy if they have their own vehicles and their own insurance coverage.

However, if one of your roommates is a licensed driver without a vehicle or insurance, your insurance company may assume that they are likely to borrow your car, and because of that, your insurer may require you to list them on your policy. In this situation, if that individual borrows your car, your insurance should cover any liability issues.

Excluded Drivers

Adding certain drivers to your policy can drive up your premiums, especially if the driver is young or has a bad driving record. To sidestep those extra costs, you can exclude certain members of your household from your auto insurance policy. Those people need to be expressly listed as excluded on the policy, and they should never drive the vehicle, as they are not covered.

Theft

Whether someone is an excluded driver or not, if they take a vehicle without permission, the owner is generally not liable for anything that happens. In that situation, the thief is exclusively liable for any accidents that occur. However, for this to hold true, the owner of the vehicle may need to charge the driver with theft. That helps to establish that the driver did not have permission to use the car and this step may be necessary to protect the vehicle’s owner from a liability standpoint.

Non-Permissive Use

If the owner of the vehicle isn’t claiming that theft was involved, non-permissive use rules may come into play in a different way. Typically, if someone takes a car without permission, their insurance kicks in first, and then, the owner’s policy fills in any gaps. Conversely, if the driver doesn’t have insurance, the owner’s auto insurance policy may cover the damages, but that is not always the case.

For example, in the case of Wayne Mahoney vs. American Automobile Insurance Company, the judge ruled that the insurer was not responsible when a driver caused an accident with a rental car because the rental company (the owner of the vehicle) had not authorized him to use the vehicle. However, this only applies to adult drivers, and the rules vary based on whether or not a child was involved.

Parental Responsibility

In some cases, parents exclude their teenagers from their policies, and if the teen takes the family car without permission, the parents can charge the teen with theft as explained above. However, with parents and children, the rules are a bit more complicated. Parents are expected to be responsible for their children, and if a teen takes a vehicle, crashes it, and hurts someone, the parent can be held responsible. That’s true whether the parent let the teen borrow the car or not. Similarly, parents often can be held criminally and civilly liable for allowing their children to commit a range of other crimes.

Company Cars

When someone is driving a vehicle for work, their employer is usually liable for any accidents that occur. For instance, if a delivery truck driver hits a pedestrian, the owner of that company is liable for the damages. In situations where the driver is an independent contractor, the inherent liability is not as clear. Ride-sharing services in particular, often try to absolve themselves of liability unless the driver is actively carrying a passenger, but the courts have held these companies responsible for accidents occurring between fares.

Liability is a complicated issue, and if you’ve been in a car accident, you need a professional who truly understands the laws inside and out. To get the justice you deserve, contact Mazow | McCullough, PC today. We will help you take a stand against the people who hurt you, regardless of whose car they were driving.

Distracted Driving – Safety for Drivers & Pedestrians (Video)

Kevin McCullough of Mazow McCullough discusses distracted driving, and some ways for both drivers and pedestrians to stay safe.

There’s a law here in Massachusetts against distracted driving. The purpose of that law is to prevent or avoid injuries. The problem is, people aren’t following the law. Way too many drivers nowadays are operating motor vehicles using their cell phones, eating food, drinking a beverage. If you’re driving a motor vehicle, whether it’s a highway or a side street, you need to pay attention to what’s going on around you. Whether it’s a motor vehicle in front of you, beside you, or that small child that could run into the street chasing that ball.

Pay attention to the roadway. If you’re a pedestrian, don’t assume that the driver of that motor vehicle is going to stop for you at that intersection. Take the time to hit the traffic signal. Wait for the light. Cross in the crosswalk. Make eye contact with that driver, give them a wave. Make sure that they know that you’re about to cross the street. There are a number of different things that we can all do to avoid collisions, incidents, and injuries. Be mindful of that, follow the law and do everything that you can to be safe.

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