In the United States, the biggest auto insurance carriers such as Progressive, Allstate and State Farm, have all begun offering optional potential policy discounts if the covered driver agrees to insert a tech device into their car that can gauge driving habits – either for limited periods of time or indefinitely. People are signing up to insert this device in droves, with promises of up to 30% savings in potentially lower insurance rates. Snapshot by Progressive is probably the most well known by name in the U.S., but they're all essentially the same.

The way this information is gathered is through the use of the UBI device, which looks similar to a thumb drive; just a harmless looking small module that you plug into the On-Board Diagnostics Type 2 (OBD-II) port on your car. The OBD-II system was designed to allow automotive technicians to diagnose vehicle problems with ease. This device can use this "smart port" to record driver activities and driving habits through its ability to access virtually every (sub)system within a user's car. This includes engine, drivetrain, brakes, transmission, electronics.

I am examining how Usage Based Insurance (UBI) data collection devices are changing the landscape of how litigants will meet or oppose the burden of proof in wrongful death and personal injury litigation as it relates to the negligence component of car accidents claims.

The public policy element relates to whether legislatures should (or do?) create a "privilege", or a statutory ban on the use of this data as evidence. This corresponds to the insurance industry's claims that having these devices in a driver's car can help curb dangerous driving practices like hard breaking or rapid acceleration.

These ends are almost unarguably good things if they promote and curb potentially dangerous driver behavior. Some of the UDIs beep if you are breaking too hard, while others have this effect by the very presence of someone "watching". Most people do not know, however, that this information can be used against them in the event they get into an accident. Further, many of these companies do not allow their customers to view the disclosures about what information is collected or how it can be used until after they've signed up. They collect a lot of data that they claim is not used in their policy pricing, but certainly could be used in a court of law without legislation to limit it.

In any civil action arising out of alleged negligence (any car accident personal injury case), the Plaintiff must always establish three key elements: negligence, causation, and damages. In these cases, if you cannot prove negligence, the other two elements are moot. So proving the defendant driver was negligent is crucial lest the case fails.

Evidence of negligence, before the advent of these devices, has largely been limited to either witness testimony or "expert" testimony, which is based on either people's memories or some degree of supposition that can be rebutted.

With the advent of these UBI devices, if allowed into evidence, no longer is there going to be much question as to exact location (they report via GPS), speed, how hard some brakes, how fast someone accelerates, and when they brake in relation to impact (assuming the airbag deploys) – among other data. The problem is, the data can be misconstrued (e.g., tires spinning on ice can read out as rapid acceleration and when the tires catch pavement, rapid "hard" breaking).

Of course, this UBI evidence can be rebutted but a juror's propensity to rely on it as scientific or hard fact will be overwhelming and likely override the fact that this data can be taken out of context (or misconstrued in context). These discrete facts will detrimentally prejudice defendants and could be falsely construed (the example above is one of many where the device misconstrues the data as an "unsafe" act). This type of evidence, quasi-scientific in nature, is almost necessarily going to be given more weight by a jury, despite its potential for painting a false picture.

Public policy-wise, if it makes the roads safer, one would think legislatures would want to ensure they protect drivers from these things being used against them; lest they stop using them altogether. There won't need to be too many front page stories of multi-million dollar verdicts based on this evidence to have a chilling effect.

I equate the public policy argument to limit its use to the rule that protects peer review from being used as evidence in medical malpractice claims, or any other "safe harbor" provision. In hospitals, peer review is used to examine mistakes/bad outcomes of doctors/patients, but due to the public policy implications, this is not usable evidence of negligence. This is because of the overriding benefit to the public, such that if doctors have a safe place to have their work reviewed by their peers, for their actions to be monitored if appearing unsafe, and so on, that the net result keeps patients safer. But, if it could be used against a doctor to end their career or irreparably blemish their reputation, they'd never openly submit to the process.

My premise is that the same consideration should be given to drivers using these devices; because if they are going to be used against people, they will stop using them.

Finally, to my question(s):

  1. Since this is an international community, I began thinking that someone on here may know of legislation that limits the use of these devices for evidence in civil matters. If anyone has this information, please indicate the country (if the legislation is national/federal or if is location specific), whether it is statutory or regulatory, and what the limits are to the "safe harbor" provision. If you can provide a link to the law or a case, even better.

  2. If someone has any information on this type of legislation pending in any U.S. jurisdiction, please advise.

  3. Have any nations (either nationally or states or counties within its borders) outlawed the use of these devices and if so, any links or citations to the legislative history pertaining to why, would be great.

  4. Has anyone heard of any verdicts outside of the United States, or unpublished opinions in the U.S., where these devices have been accepted as evidence of negligence (or ongoing cases in the U.S. where these data are being used). Anything on this that could lead to a source would be great.

  5. Any other legal information regarding the use of UBIs in court, or rules, regs, statutes pertaining to disclosure requirements, local or regional legislation limiting their use, or legislative sessions debating their use would be welcomed.

  6. I'm also interested in knowing if the use of UBIs for rate setting is a phenomenon mostly limited to the U.S. or if this is offered all over. However, I'm aware that this may be less a legal question than an insurance policy inquiry.

  • Here are some relevant search terms to help anyone who might want to research this question: telematics, black box insurance and IoT (Internet of Things) – Alexanne Senger Sep 8 '15 at 16:30
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    Be aware that heavy-duty truck fleets in the US have been logging this sort of information for more than a decade (but not necessarily in this level of detail). There must have been cases where this information was used in a court case. "Prodriver" and "DDEC Reports" are one engine manufacturers system. – Martin Bonner supports Monica Jun 22 '17 at 15:23

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