Guest article: Attorneys should be aware of data collection in 'usage-based insurance' programs

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By Brian Molde
Sinas Dramis Law Firm

Every major car insurance company in the United States now has what is referred to as a “usage-based insurance” (UBI) program.

Allstate calls its “Drivewise.” State Farm has “Drive Safe and Save.” GEICO – “Drive Easy”; Progressive – “Snapshot”; USAA – “Safe Pilot”; Liberty Mutual – “Right Track”; Nationwide – “Smartride”; Auto-Owners – “True Ride”; and Farmers somewhat ominously refers to its program as “Signal.” Industry market projections surmise that by 2024, up to two thirds of the auto insurance market will consist of insureds who are enrolled in a UBI program.

These insurance programs promise discounts in exchange for allowing the insurer to collect otherwise private information regarding the insured’s driving habits. The method of collection and data collected varies from insurer to insurer, but generally speaking the data includes phone usage, acceleration, deceleration (hard braking), time of day, and often speed. In some cases, the program lasts a few months, in some it is continual. In some cases the data is collected by a device plugged directly into the vehicle’s event data recorder, while in other programs the insurer uses a phone’s data, accelerometer, and GPS information.

Since these programs first appeared, they have steadily increased in both market share and sophistication. As phones and vehicles become more intelligent and interconnected, it is reasonable to assume that insurers will use the data collected to lessen the exposure and risk posed by poor drivers. The desire of the insurance companies to lessen risk in order to increase profits means that more data will be deemed necessary so long as more data can be collected. In other words, we can expect the type and amount of data these UBI programs demand to increase as the capability to collect the information also increases.

The secondary use of this information is likely to involve both criminal and civil legal processes. Just as private corporations have been willing to turn over DNA databases in order to assist criminal prosecutions, an insurance corporation is likely to be compelled to turn over UBI data in the event that a vehicular crime is suspected. Or, in some cases, perhaps even to prove that a person was in a certain location at a certain time (since the phone applications can track all movements in any car, not just the insured’s own vehicle). In fact, most of the privacy policies attached to these UBI programs state that data will be turned over “as required by law” and some even mention criminal or civil proceedings.

In the context of civil litigation, attorneys should be aware of and willing to use the UBI data to prove negligence in a personal injury case. Sending a pre-suit letter to the insurer demanding production or at least retention of any of this data is the first step. If it is not produced before a lawsuit is filed, a subpoena demanding production of the data and the software necessary to interpret the data should be issued. Any passengers in the suspect vehicle should also be questioned regarding whether they have a UBI application on their phone. In addition, questions should be posed to the client to determine if she or he was enrolled in a UBI program, and if so that data should be sought and reviewed well in advance of production to opposing counsel. In all cases, attorneys should be aware of the possibility that this data exists and is in the possession and control of an insurer.

The explosion of data collection in our society is continually expanding. Keeping track of all the sources of data that may be useful or damaging to a client’s claim for compensation is vital to successfully litigating in our current times. UBI data is only one potential source, but if trends continue, it is likely to become the dominant source of data. Prudent trial attorneys will put practices in place now so that they are prepared for the future.

Brian Molde is a member of Sinas Dramis Law Firm’s Grand Rapids personal injury and auto no-fault team. His practice is focused primarily on third-party automobile negligence, medical malpractice claims, and auto accidents in West Michigan.

Molde earned his degree from the University of Tennessee College of Law in 2000 and has been working as a dedicated attorney ever since. Molde joined Sinas Dramis Law Firm in 2018. A longtime resident of Rockford, Michigan, Brian enjoys time with his daughters, family, and friends.

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