Judge asked to reverse protective order

Updated: May 26, 2005, 8:23 PM ET
Associated Press

LEXINGTON, N.C. – Several news organizations asked a judge Thursday to unseal documents in a case that pits the widow of race car driver Dale Earnhardt against an insurance company that refused to pay up when he died.

Superior Court Judge Kimberly Taylor extended an earlier protective order in the case at the request of the attorney for Richard Childress Racing, who argued that some of the documents – including Earnhardt's contract – were proprietary.

The ruling came after an AP reporter asked Wednesday to review evidence that had been introduced to the jury in open court and was told it was under a protective order. The AP, joined by The Charlotte Observer, NASCAR Scene and the North Carolina Press Association, later filed a motion asking the court to reconsider.

"Trials are presumptively open to the public in North Carolina, and that includes the opportunity to inspect or examine trial exhibits," said Brad Kutrow, the attorney for the news organizations. "There's a procedure that courts must follow before sealing trial records and exhibits, and we're going to urge the judge to follow that procedure and reconsider her ruling.

"There should be no secret justice."

RCR, Earnhardt's employer, has accused insurer United of Omaha of cheating Teresa Earnhardt out of a $3.7 million payment after Earnhardt died in a crash at the Daytona 500 in 2001. RCR took out the policy on Earnhardt's behalf and made his wife the beneficiary.

The company counters that the policy was never valid for Earnhardt because he had not taken a required physical.

Taylor's protective order had not been signed as of Thursday afternoon, said Brian Shipwash, clerk of court. The court was expected to hear the motion for access to court records Tuesday morning, Kutrow said.

But Taylor also might rule Friday on a request made by the AP for specific exhibits, including Earnhardt's contract with RCR from 2001-2003, the application for the insurance policy, payment invoices, and correspondence between the insurer and RCR regarding the policy.

The $3.7 million was part of a $7.2 million benefits package in the driver's contract, which was sealed during testimony Wednesday. A $3.5 million policy with a second insurer, set up in 1996, was paid to Childress and signed over to Teresa Earnhardt.

Neither side is talking at Taylor's request, though the judge – through Shipwash – said Thursday there is no written gag order from the court.

"Technically it's not a gag order, but the parties have been asked and have agreed not to discuss the matter until the jury has reached a verdict," Shipwash said.

Also on Thursday, Bill Patterson, executive vice president of RCR, returned to the stand to testify. Patterson said he believed Earnhardt was covered by the policy because RCR had made two $5,000 payments – one after receiving an invoice the day after Earnhardt's death – toward the annual $21,645 premium.

"When you receive a letter [denying payment] two days after the man dies, you're a little confused as to what's going on," said Patterson, who said no one told him Earnhardt hadn't taken the physical.

During cross-examination, defense lawyer Stephen Coles focused on Earnhardt's second life insurance policy – which was applied for in April 1996 but didn't go through until October because Earnhardt was too busy to take a physical.

"You knew that a physical would have to be done before a policy could be issued," Coles said.

"When I paid money … I thought I had insurance," Patterson said.

Copyright 2005 by The Associated Press