An automotive event data recorder (EDR), commonly referred to asa black box, is a device installed on most passenger vehicles thatis usually a function of the airbag control module. It records fromtwo to 25 seconds of collision-related data that may help determinespeed, braking activity, stopping distance, impact severity,occupant kinematics, steering, avoidance measures, number andsequence of collisions, seat belt usage, airbag deployment, andmore. The devices are designed to store data following airbagdeployment, and non-deployment events where the change of velocity(Delta V) of the event is severe enough to “wake up” the system(usually 2-4 mph).

Public Availability

While current commercial or “public” access to such data islimited to some GM, Ford, and Chrysler models (about one third ofvehicles on the road), the National Highway Traffic and SafetyAdministration (NHTSA) recently finalized regulations requiring allmanufacturers to make such data publicly accessible by September2012 and set minimum data element recording standards. Severalmodels exceed and will continue to exceed these minimum standards.Manufacturers also will be required to publish a notice of thepresence of an EDR device in all vehicle owner manuals

Although regulations do not require the installation of EDRs,NHTSA stated that a mandate was not imposed because of the strongvoluntary trends toward installation. NHTSA estimates that about 64percent of 2004 models have EDRs, and that about 85 percent of the2010 models will have them. However, should those trends bereversed, NHTSA made it clear that it would reconsider mandatoryinstallation. In addition, several more manufacturers are expectedto meet standards and provide public access ahead of the NHTSAdeadline in order to “practice” compliance before the regulationsgo into effect, thereby averting the risk of not being allowed tosell a non-compliant model. Given these factors, it is reasonableto assume that within the next few years, the commercialavailability of EDR data will increase dramatically and will becomestandard evidence in the investigation and reconstruction ofpassenger vehicle collisions.

Current Legal Environment

Currently, there are 12 states that have statutes governing theretrieval and use of EDR data. Those states include Arkansas,California, Colorado, Connecticut, Maine, Nevada, New Hampshire,New York, North Dakota, Oregon, Texas, and Virginia. While some ofthe statutes are more restrictive than others, they all deem theowner of the vehicle to be the owner of the data, and they allallow access by third parties via the owner's written consent orcourt order. More legislation is expected to follow. While use ofEDR data in court cases has thus far been infrequent, its use isbecoming more common, and it has been admitted into evidence byevery court represented in the published cases. In addition, thehistory of its general acceptance and use by governmental bodies,engineers, and the automobile industry suggests that EDR data willcontinue to be easily accepted into evidence. Several courts haveeven suggested that expert testimony may no longer be necessary forits admission.

Insurance Industry Considerations

There is concern in the insurance industry that while the datawould be helpful in the determination of liability in a collision,retrieving the data could end up proving liability against aninsured that would otherwise not have been proven, and in somecases, could potentially result in exposure in excess of coverage.These risks tend to encourage a wait-and-see attitude among mostinsurance carriers. However, growing public availability andawareness of EDR data may create a greater risk in ignoring it.

Duty to Investigate

Insurance carriers have a duty to properly investigate claimsfiled under their policies. Given the relevance of EDR data inaccident reconstruction, not obtaining available EDR data could bedeemed a failure to properly investigate, which carries its own setof liabilities. As public awareness of the availability of EDR databecomes common knowledge, questions about why data was notretrieved will follow. Expectations of EDR data collection oncontested cases will eventually become standard given theobjectivity and reliability of EDR data over subjectivedriver/witness statements or police reports.

On claims where liability is not contested but the severityand/or injury potential of an accident is, EDR data may provideconvincing evidence of the accident's severity. Currently, mostEDRs record events with a Delta V of at least 2-4 mph. NHTSA'sminimum standards require the recording of EDR data on events witha Delta V exceeding 4.9 mph. Therefore, retrieval of EDR data couldyield the actual Delta V experienced in a given event, or by theabsence of any stored data, evidence that the Delta V was less thanthe minimum threshold, thereby confirming a “low severity”collision.

Duty to Preserve

All parties have a duty to preserve evidence in their possessionor control when they have reason to believe it may be relevant to apotential claim. Therefore, when a carrier takes possession of avehicle as part of a property claim settlement, if injury claimsexist or could develop, the carrier has a duty to preserve anyevidence, including EDR data that could be relevant to theresolution of those injury claims. While some state laws preventthe retrieval of EDR data on vehicle's purchased by a carrier aspart of a property settlement without first obtaining the requisiteoriginal owner consent or court order, such laws may not relievethe carrier of the responsibility to take action to preserve thedata. Therefore, carriers that wish to sell such vehicles followinga property settlement should consider removing and storing the EDRunit (without “reading” it) until all existing or potential injuryclaims are concluded.

Most states recognize spoliation claims for failing to preserveevidence. Even unintentional loss or destruction could give rise toa spoliation claim when the party in possession is aware or shouldhave been aware of the existence of a potential claim. Given thegrowing awareness of EDR data and the new NHTSA regulationsrequiring notice of the presence of EDRs in all vehicle owners'manuals, it will be difficult for an insurance carrier to arguethat it was not or should not have been aware of available EDRdata.

In situations where the carrier does not own or possess thevehicle, it may still be incumbent on the carrier to ensure thatEDR data is preserved on its insureds' vehicles. Since the carrierhas a duty to defend its insured, they consequently have a duty toavoid actions that would initiate further claims against theinsured, including spoliation claims. Therefore, even if a carrierdoes not take ownership of an insured's vehicle, it still may havea duty to take reasonable steps to preserve the EDR data to“defend” its insured against further liability.

Most EDRs are designed to permanently store data following anairbag deployment. While there should be no risk of the data beingoverwritten, there is risk of the EDR device itself being lost.Typically, airbag control modules (which include the EDR) arediscarded and replaced by auto repairmen when new airbags areinstalled. Care needs to be taken to ensure that the EDR is notdiscarded, and that proper chain-of-custody evidence is preservedwhen the device is removed. In addition, data stored on an EDRafter a non-deployment event may be overwritten after 250 ignitioncycles (250 on/offs) or if a subsequent severer event occurs.Therefore, in non-deployment events, quick action must be taken topreserve the EDR data by either promptly retrieving it or byremoving the EDR device itself. Retrieval of the data may bepreferred since removal of the device will require its replacementbefore the vehicle is returned to service.

Since EDRs do not date-time stamp the data, the longer a vehicleis driven following an event, the more difficult it may be toidentify the subject event on the device. The reduced ability toidentify an event on the device may be considered spoliation of theevidence necessary to identify the event. Again, prompt retrievalof the data is critical for evidence preservation.

Regardless of the method of preserving EDR data, it isimperative that the removal and/or retrieval be properly documentedwith admissible chain-of-custody proof. If proper chain-of-custodyevidence is not secured, the data will likely be inadmissible incourt, and the loss of the chain-of-custody evidence could likewiseform the basis of yet another spoliation claim. Consideration musttherefore be given to ensuring that whoever removes the EDR and/orretrieves its data follows proper procedures for documenting theprocess and chain of custody.

Bad-Faith Claims

If available EDR data is not retrieved, bad-faith claims mayarise out of allegations that the carrier: 1) failed to properlyinvestigate the underlying claim, 2) failed to preserve EDR datathat was relevant to the claim, and/or 3) exposed the insured toadditional liability via a spoliation claim.

Today, since retrieval of EDR data is still relatively new inthe insurance industry, how an insured might react to its retrievalis unknown. There is some fear that retrieving the data itselfmight give rise to a bad faith claim, if the data provesunflattering to the insured. Knowledge of the availability of EDRdata is quickly growing, particularly among attorneys, and willresult in more common and frequent requests and subpoenas for suchdata. Ignoring EDR data for fear that it might be negative is notan effective approach to defending a lawsuit. Ultimately, theopposing party will have the opportunity to discover the data, andonce they have it, managing the effect of unflattering data may bemuch more difficult. Retrieving the data before it can be“discovered” through the litigation process gives the carrier abetter idea of what the claim is worth and puts them in theposition of making a more appropriate offer based on the facts,without risking the other party's knowledge and exploitation of thedata, or the creation of a spoliation claim.

Contrarily, if a carrier does not preserve clearly relevant dataon behalf of the insured, such behavior could expose the insured tomuch more severe liability arising out of a spoliation claim, whichmay result in an additional lawsuit separate from the originalclaim, monetary, evidentiary, or “death penalty” sanctions, and/ora written instruction to the jury at the trial of the underlyingclaim stating the presumption that the “spoiled” evidence wouldhave been harmful to the insured. Perceived acts of hiding relevantevidence, whether by omission or otherwise, may carry a greaterrisk of inflaming a jury and creating excess liability than wouldthe capture of the data early while it is still within thecarrier's work product, and while the carrier is still in goodposition to reasonably resolve the claim.

Not developing a program for the regular capture of EDR data outof fear that the data could be harmful also has the obviousnegative effect of failing to secure evidence that could prove thefault of the opposing party. Consequently, the carrier risks thecreation of complaints against it for failing to gather EDRevidence that would have exonerated the insured driver and henceprevented premium increases for the insured. An innocent insured'scomplaint that their carrier did not properly secure relevantevidence may be much more compelling than as culpable insured'scomplaint that their carrier discovered the truth.

EDR data will inevitably become a mainstay in the investigationof passenger vehicle claims. Carriers that set policy and standardsnow will be in a much better position to avoid the pitfalls ofexcess and bad-faith liability that may follow the lack ofmanagement of EDR data. Since the access and availability of EDRdata is fast becoming common knowledge in the insurance and legalindustries, avoiding it is no longer a rational, thoughtfulapproach to dealing with it.

Samira Lineberger serves as general counsel for InjurySciences, LLC. She may be reached at 877-979-7378,www.injurysciences.com.