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Attorneys seeking punitive damages against drivers who were talking on their cellphones at the time of an accident need to show a little more than just cellphone use, attorneys who spoke with the Law Weekly said.

“I think it’s at the point where courts are taking a look at, first off, whether just being on a cellphone can be considered reckless,” attorney Joseph G. Price of Dougherty, Leventhal & Price said. “It seems to me at least that the courts are coming down, saying, ‘Just one cellphone? That’s not enough.’”

Price is plaintiffs counsel in Gugliotti v. O’Rourke, a case that involves a defendant who allegedly attempted to answer two cellphones at once while driving. Price is seeking punitive damages in the case, and on May 27, Luzerne County Court of Common Pleas Judge Thomas F. Burke Jr. issued a one-page order overruling the defendant’s preliminary objections seeking to dismiss the claim for punitive damages.

The Gugliotti case is one of three recent cases in which judges ruled on whether to allow juries to hear claims for punitive damages against drivers who were using their cellphones at the time of collision.

On June 6, Philadelphia Court of Common Pleas Judge Mark I. Bernstein allowed three plaintiffs to seek punitive damages against a truck driver they claim was talking on his cellphone when he collided with their vehicle. In Simmons v. Lantry, Bernstein granted the plaintiffs’ unopposed motion for leave to amend their complaint to include a claim for punitive damages against a truck driver the plaintiffs claim was talking on his cellphone when the collision happened.

Also on June 6, Lehigh County Court of Common Pleas Judge Douglas G. Reichley ruled in Pietrulewicz v. Gil that the plaintiff’s claim that a driver was talking on her cellphone when an accident occurred did not “constitute reckless conduct sufficient to support a claim for punitive damages.” Reichley struck the punitive damages claim from the complaint without prejudice, and granted the plaintiff leave to amend the complaint.

Attorneys who spoke with the Law Weekly said trial courts are still looking at the claims on a case-by-case basis, and have generally held that there needs to be an additional sign of reckless conduct before allowing the punitive damages claim to stand.

“The conduct of the person involved [is key],” Charles J. Fonzone of Gross McGinley said. “Just on the face of it, with a person having a cellphone, you’re talking about a negligence claim.”

Fonzone was defense counsel in Pietrulewicz.

In his opinion in that case, Reichley noted that in the 2011 federal case Gaddis v. Hegler, the U.S. District Court for the Southern District of Mississippi found punitives were appropriate against a driver because, along with talking on a cellphone, the defendant driver was speeding, failed to observe two stop light warning signals, ran a red light that was red for more than 10 seconds and crossed two lanes of traffic.

The reasonableness standard, according to Price, is important when assessing the facts of a case involving cellphone usage.

“Pretty much all we did was quote the police report and said that’s the type of conduct a judge may permit a jury to decide if it’s reckless,” Price said about forming the claim for punitive damages in the Gugliotti case. “When we saw that police report, we thought, ‘That’s a little unusual.’”

Although attorneys agree that there is little case law so far, the courts have generally outlined the type of vehicle and whether the driver is a professional driver as important factors when determining whether a claim merits punitive damages, attorneys said.

Robin Schleifer of Haggerty, Goldberg, Schleifer & Kupersmith in Philadelphia, counsel for the plaintiffs in Simmons, told The Legal in June that while her research turned up little Pennsylvania case law on the issue, a few Pennsylvania federal court rulings allowed the claims in cases where defendants were professional truck drivers.

Attorney Daniel E. Cummins of Foley, Comerford & Cummins said his research turned up similar results.

“Courts have been more lenient [for plaintiffs] if a tractor trailer is involved, which would seem to be more dangerous, with such a large vehicle,” Cummins said. But “you’re going to have different results based on different facts with different courts and judges.”

King of Prussia, Pa.-based Patrick J. McDonnell questioned whether the courts should make a distinction between commercial and individual drivers, and said he felt that punitives should not be allowed in circumstances where drivers are merely talking on their cellphones in either case.

“You’ve got a device or devices that are ubiquitous, and punitive damages are supposed to be reserved for outrageous conduct,” McDonnell said. “Talking on a cellphone is not criminal. There is nothing unlawful about it. It’s a common feature of everyday driving. While some use may be negligent, I’m not sure, if it’s a cellphone versus looking at a map or some other device, if there’s a distinction.”

Defense attorneys who spoke with the Law Weekly indicated that plaintiffs have grown increasingly likely to include claims for punitive damages if a cellphone was involved in an accident.

According to McDonnell, plaintiffs almost universally include punitive claims in cases involving tractor trailers, noting that, by law, tractor trailers must carry more insurance than individual drivers.

“Every case becomes a punitive case,” McDonnell said.

Cummins said he has not seen the specific distinction between commercial and individual drivers, but he agreed that punitive claims are on the rise.

“Overall, in cases where there’s an allegation of cellphone use, more and more plaintiffs have been attempting to pursue punitive damages,” Cummins said. “That’s why we’re seeing more cases on it.”

Price, however, disagreed that punitive claims have become so ubiquitous in cellphone cases.

“We look at every case individually, and all the facts individually,” Price said.

McDonnell said he is concerned that if the courts begin to allow more punitive damages claims for cellphone use, it could create problems with insurance, as policies typically cover everyday use of a vehicle, including talking on cellphones, but do not cover for punitive damages.

“Does that mean, for all intents and purposes, that we’re voiding our insurance coverage?” he said.

While judges may be more willing to allow punitive claims to proceed against commercial drivers, most attorneys who spoke with the Law Weekly said they were not worried about courts becoming more lenient for punitive damages against individual drivers.

“It has to be more than just talking on the phone the way the law stands now,” Fonzone said. “If the state legislature wanted to have simply having it in your hand amount to punitive damages, they would have to pass some sort of law.”

Max Mitchell can be contacted at 215-557-2354 or mmitchell@alm.com. Follow him on Twitter @MMitchellTLI.