<
>

Judge grants public limited access

6/1/2005

LEXINGTON, N.C. – The public will be allowed to review an
edited version of Dale Earnhardt's contract introduced as evidence
in a lawsuit against an insurance company that denied a $3.7
million claim in his death, a judge ruled Tuesday.

But Superior Court Judge Kimberly Taylor, who has so far denied
public access to evidence introduced to the jury in open court,
ruled that attorneys for both Richard Childress Racing and insurer
United of Omaha can argue that other exhibits admitted into
evidence remain sealed.

"I think we can work out something to balance everyone's
needs," Taylor said.

RCR has accused United of Omaha of cheating widow Teresa
Earnhardt out of the payment after Earnhardt died in a crash in the
2001 Daytona 500. The racing team took out the policy and is
pursuing the matter on the family's behalf.

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

Testimony in the case ended early Tuesday to allow the judge to
consider a motion seeking access to the exhibits filed by The
Associated Press, The Charlotte Observer, NASCAR Scene and the
North Carolina Press Association.

During the 45-minute hearing Tuesday, Brad Kutrow, an attorney
for the media organizations, argued there is a constitutional
presumption that access to court records be limited only in
"exceptional circumstances."

"It's extraordinary to be at this stage of a trial when we are
still arguing for public access to exhibits," Kutrow said. "When
the parties began introducing the evidence is the proper time to
ask for them to be sealed."

Kutrow also said the jury saw an unedited version of Earnhardt's
contract before it was exchanged for the edited version.

"Normally, when a document is published to the jury and
admitted into evidence, it becomes a public record and the public
can have access to it during the trial," he said, adding that he
is looking to how the complete version was used in court and the
ruling that led to the substitution.

Kutrow said the judge's decision means RCR and the insurance
company, which so far has not presented any exhibits in open court,
can make an exhibit-by-exhibit argument over public access. The
ruling only covers exhibits presented in open court; other
documents, including those obtained during discovery, will remain
sealed, Taylor said.

John Morrow Jr., an attorney for the racing team, said he will
review the exhibits and determine if RCR has any objections to
their release.

"We may be able to come to a compromise on some of these
exhibits," said Morrow, who added that he believes the court has
the authority to seal the records. Attorneys for Richard Childress
Racing have argued some of the documents – including Earnhardt's contract – are proprietary.

During regular testimony Tuesday, a veteran life insurance agent
testified that United of Omaha conducted a mistake-riddled
investigation following Earnhardt's death.

"I think it was evident early on that the mistakes began with
the application, and the paperwork and process were flawed," agent
Dwight Carter said.