September 2013 Archives

The Letter of The Law: September 2013

IN THIS ISSUE:

PERSONAL INJURY: Event Data Recorders and Automobile Accident Litigation

INSURANCE: An Unpaid Self-Insured Retention

Event Data Recorders and Automobile Accident Litigation

By: Robert L. Thompson

As technology continues to develop, cars are increasingly more computerized each year.  One of the main developments over the past decade has been the installation of "Event Data Recorders" (EDR) in modern motor vehicles.  EDRs are commonly known as the car's "black box."  They are actually small silver boxes attached to the floor of the car that house a variety of sensors from throughout the vehicle.  (Doug Newcomb, "Car Black Box Recorders Capture Crash Data", December 18, 2012.)  In fact, the National Highway Traffic Safety Administration is currently proposing that all new consumer vehicles be equipped with them by September, 2014.  49 CFR Part 571.  Furthermore, the NHTSA estimates that as of 2011, 91.6% of light motor vehicles are already equipped with these EDR devices.

EDRs are extremely useful because at any moment they record the car speed, engine speed, steering angle, throttle position, braking status, force of impact, seatbelt status, and airbag deployment.  When there is an automobile accident, they can be much more reliable for determining the cause of the accident over the recollection of the drivers, witnesses, or police reports.  As such, they have increasingly become the subject of investigation by attorneys, insurance companies, and accident reconstruction experts during lawsuits.

Nevada is one of thirteen states that have passed laws governing the disclosures of EDR data.  NRS 484.485 states that if a car is equipped with a black box, it must be disclosed in the owner's manual.  The owner of the vehicle retains sole control of the EDR and the statute requires that the owner give consent to any party that wants to download the data of the box.  Id. However, subsection 2 states that the data can be retrieved by a non-owner pursuant to a court order.  Id. As such, if the owner is the subject of a lawsuit relating to an accident involving the vehicle, the attorney may subpoena the box and have an accident reconstruction expert download the data.  The data may only be disclosed to the expert solely for the purpose of litigation and the box must then be returned to the owner.  Id.

For a lawsuit involving an automobile accident, getting access to the black box data should be an early priority of opposing counsel.  The first step is to determine whether the car even has a black box.  This can easily be done by checking the owner's manual of the vehicle, but the information should nevertheless be requested by the attorney in the first round of written discovery.  Once that is determined, the attorney should issue a subpoena for the black box in order to download its data.  Typically, both parties may have accident reconstruction experts and so after the subpoena is issued, a time and place to inspect the box can be scheduled for the convenience of all parties.  Once the data is downloaded the box should be returned to the owner. This information could prove to be crucial to the defense of any claims made as a result of a motor vehicle accident.

An Unpaid Self-Insured Retention

By: Brendan J. Coughlin

Earlier this year the United States District Court, Southern District of California, issued a decision that will undoubtedly influence the issue of self-insured retentions ("SIR's") and insurance coverage in our state.  In Phillips v. Noetic Specialty Insurance Co. (2013) 919 F.Supp.2d 1089, it was held that under certain circumstances the failure to pay a SIR, which is the amount paid before there is coverage, did not prevent the insurance from being triggered.

In August 2006, a representative of Electric Mobility Corporation ("EMC") visited Mr. Phillips' home and sold him a motor scooter.  In 2008, while he was riding the motorized scooter, it toppled over.  Among other injuries, Mr. Phillips' hip was crushed in the accident.

Noetic Specialty Insurance Co. ("Noetic") insured EMC.  When Mr. Phillips filed a lawsuit, Noetic assumed control of EMC's defense.  However, in 2011 EMC became insolvent.  Defense counsel's subsequent motion to withdraw as EMC's counsel was granted.  Thereafter, EMC's Answer was struck and default was entered.  On June 16, 2011, the Court entered judgment against EMC and in favor of Mr. Phillips for $1,052,982.10.

Then Mr. Phillips died.  The judgment against EMC became an asset of his estate, with his wife as executor and sole trustee of their joint revocable trust.  Mrs. Phillips submitted the judgment to Noetic for payment, less EMC's unpaid $500,000 SIR.  Noetic refused to pay the judgment.  The widow sued Noetic.

interpreting California insurance and contract law, the federal Court denied Noetic's Motion to Dismiss.  The Court found that the insurance contract between EMC and Noetic did not include terms sufficiently specifying payment of the SIR as a condition precedent to coverage.  The Court further found language stating that EMC's insolvency would not relieve Noetic of its policy obligations.

We must anticipate that California state courts will be mindful of this federal interpretation of California laws as issues of coverage and SIR's continue to be litigated.  One lesson to be learned from this case is that small variations insurance contract language can have million dollar differences in litigation results.  Prompt engagement of experienced, knowledgeable legal counsel, and safe use of motor scooters, are two good ways to proceed.

New Associate Joins Kring & Chung's Irvine, CA Office
Kring & Chung is pleased to announce that Richard W. Park has joined its Irvine, CA office as an Associate attorney. Park's practice focuses on business litigation. Prior to joining Kring & Chung, Park worked as a judicial law clerk for the Honorable James R. Lambden of the California Court of Appeal, 1st District.

The 2013 Kring & Chung Newport Beach Triathlon is Approaching!
The Kring & Chung Newport Beach Triathlon will take place on October 20, 2013 in the Back Bay of Newport Beach, California. The course includes a 1/2 mile swim, 15 mile cycle, and a three mile run.

Visit www.newportbeachtriathlon.com for more information and to register.

Event Data Recorders and Automobile Accident Litigation

By: Robert L. Thompson

As technology continues to develop, cars are increasingly more computerized each year. One of the main developments over the past decade has been the installation of "Event Data Recorders" (EDR) in modern motor vehicles. EDRs are commonly known as the car's "black box." They are actually small silver boxes attached to the floor of the car that house a variety of sensors from throughout the vehicle. (Doug Newcomb, "Car Black Box Recorders Capture Crash Data", December 18, 2012.) In fact, the National Highway Traffic Safety Administration is currently proposing that all new consumer vehicles be equipped with them by September, 2014. 49 CFR Part 571. Furthermore, the NHTSA estimates that as of 2011, 91.6% of light motor vehicles are already equipped with these EDR devices.

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