Louisiana Insurance Defense: Event Data Recorders and Other Technology
Written by Kristin Lausten
Technology is changing the way Louisiana insurance cases are litigated and defended. Take for example, event data recorders (“EDR”) also known as “automobile black boxes.” For at least five years, all new cars and trucks have been required to have event data recorders (“EDR”).
What is an Event Data Recorder?
Most cars and trucks have computer modules installed that, for example, make the engine run more efficiently. Included in the computer modules are sensing and diagnostic devices and tracking programs that gather various data and information. The most common type of EDR records for some length of time and re-records over the old data until there is a “crashlike event” (like sudden braking or swerving). The EDR saves the data for the five to 10 seconds before the accident occurred. The typical data that is recorded includes speed, when and if brakes were applied, steering angle, airbag deployment, seatbelt compliance, and other information.
However, the technology has become quite sophisticated and can now be used continuously via the wireless connections built into the vehicle. In other words, the information need not be stored physically in the car’s EDR, but rather can be continuously uploaded and stored remotely. Tesla is a leader here and other carmakers are following suit. About a year ago, it was reported that Tesla used internet EDR data to refute the claims of a Tesla Model X SUV owner who claimed that the SUV “suddenly accelerated on its own” and crashed. Tesla released a statement saying that “[d]ata shows that the vehicle was traveling at 6 mph when the accelerator pedal was abruptly increased to 100 percent.” In this way, Tesla used the EDR data to show human operation and error, not machine error — product liability litigation was successfully avoided (and the owner’s insurance carrier probably used the data to deny coverage).
Litigation Discovery: Requesting EDR Information and Other Data
Requesting EDR data is almost standard now with respect to interrogatories, document requests, and subpoenas. A good defense lawyers must also consider seeking discovery of other technology now routinely installed in vehicles. The mother-lode of data might come from internal and external cameras. Video could eliminate the need for eye-witness testimony about what happened and how an accident occurred. Likewise, internal video might show what the driver was doing just prior to the accident and might provide some evidence of impairment.
In addition, it may be useful to seek any evidence with respect to any internet-connected applications like music or video. While a majority of evidence obtained will prove fruitless, EDR data from internet-connected applications may provide some probative evidence that the driver was distracted, which might help prove negligence or comparative fault.
Obviously, cellphone data and other device data is needed, too. Do not forget to ask for the historical data. Remember that cell phones record historical geospatial location data. Thus, if there is a speculation that the driver who caused the accident was driving under the influence of alcohol, prescriptions or illegal substances, and the cell phone records show the driver was at one of these great Bourbon Street bars, that will be highly probative of possible alcohol impairment (and, thus, breach of duty).
Defending Negligence Claims With EDR Data
The essential elements of any negligence claim are:
- Duty
- Breach of that duty
- A causal relationship between the breach of duty and injury or loss and
- Actual injury or loss sustained by the plaintiff.
Common defenses include assumption of the risk and Louisiana’s pure comparative fault regime codified at La. Stat. CC 2323. As discussed above, EDR data has the potential to provide evidence on whether the duty was breached (e.g., exceeding the speed limit) and also any comparative fault. Such additional data might include whether the horn was sounded, turn signals were used, how close where the cars following, were the headlights on, etc.
Defending Against the EDR Data
Every case is unique. Sometimes to defend a case, a good defense lawyer must DEFEAT the EDR data. The case of LaBorde v. Shelter Mut. Ins. Co., 80 So. 3d 1 (La. App. 3rd Circuit 2011) reminds us that the recording device can be tampered with and the data potentially tampered with and modified. So, consider the “chain of custody” of the EDR device. In LaBorde, the trial court’s in limine exclusion of the EDR information was overturned. However, one of judges dissented arguing that the accuracy of the EDR printout was questionable because:
- Recorder remained in the car for two weeks following the accident
- Vehicle was not secured
- Police officer removing the recorder had no training
- Proper procedure — according to one expert — required photographing the recorder before removal which was not done
- Recorder was kept in officer’s car trunk for two weeks before printout was made
- Electronically stored data is subject to degradation if not stored and handled properly
Revising the Auto Insurance Policy
One final thought concerning possible changes/additions to auto insurance policies is that, given the increasing usefulness of EDR information, could the tampering with or the refusal to allow retrieval of EDR data be grounds for claim denial? Would a policy exclusion be worth considering?
Contact an Experienced Louisiana Defense Lawyer
If you want further information about the EDR and other insurance defense doctrines, an experienced Louisiana insurance defense lawyer can help you.
The author may be contacted at:
Kristin M. Lausten
New Orleans, Louisiana
Telephone: 504.377.6585
E-mail: kristin@kristinlausten.com
Web: www.kristinlausten.com
This article is provided as an educational service for general informational purposes only. The material does not constitute legal advice or rendering of professional services.