Judge grants public limited access

Originally Published: May 31, 2005
Associated Press

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.


Copyright 2005 by The Associated Press

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