Written by Robert Worst, Esq.
Edited by Bill Pfund, Esq.
Does anyone remember that Ethan Hawke, Uma Thurman, Jude Law futuristic movie from the 90’s “Gattaca”? In it, humans could purchase select genetic characteristics for children if they had enough money. The outcasts were the children born naturally without genetic enhancement. One particular threat in the movie was that insurance companies had begun basing insurance coverage and rates on a person’s level of genetic enhancement and would not insure natural, non-modified persons due to the perceived higher risk of illness, injury or death. The movie tapped into our collective fear over the loss of control of our private information and big business’s ability to use that information against us. One area of Virginia insurance and motor vehicle law codified that fear by protecting another form of personal information: the way we drive. The result is that potentially useful information recorded by the Airbag Control Module after an accident may be difficult or impossible to obtain.
The Virginia General Assembly introduced House Bill 816 in 2006 amending Virginia’s insurance and motor vehicle laws to prohibit insurers from using data recorded by motor vehicles against the vehicle’s owner. Va. HB 816 added a new subsection “s” to Va. Code §38.2-2212. This statute already prohibited insurers from refusing to renew a motor vehicle insurance policy solely because of constitutionally protected status such as age, gender, and race. The new section “s”, however, also included “the refusal of a motor vehicle operator … to provide access to recorded data from a recording device” in the vehicle. A new section, Va. Code §38.2-2213.1, further prohibits reducing coverage, increasing premiums, applying surcharges to a policy, refusing to apply discounts generally offered to others, refusing to place an insured in the company’s best tier, and failing to place an insured in the most favorably priced of multiple companies available within a group of insurers “solely because a motor vehicle owner refuses to allow an insurer access to recorded data.” In response to the “Gattaca” threat, then, insurers cannot base rates or coverage solely on an insured driver’s refusal of give up the ACM data.
HB 816 went even further, though, by adding a new section in the motor vehicle code which codified who owns the data recorded by a vehicle. Under Virginia Code § 46.2-1088.6: “Recorded data may only be accessed by the motor vehicle owner or with the consent of the motor vehicle owner or the owner’s agent or legal representative.” Five exceptions to owner consent are limited to (1) third-party subscription services that require access to the data to perform the contracted services, (2) car dealers and service personnel who need to access the data to perform vehicle maintenance or repair, (3) emergency response personnel who may need to access the data to determine the need for or to facilitate an emergency response, (4) upon authority of a court, and (5) law enforcement officers in the course of investigation where constitutionally permissible and in accordance with laws regarding searches and seizures where there is probable cause to believe the recording device contains evidence relating to the violation of a law. Because the exceptions do not allow subsequent disclosure of the data to others, the only exception available to a defense insurer is number 4: “upon authority of a court.”
Even if the vehicle is totaled in an accident and title is transferred to an insurance carrier and subsequently to a salvage company, Virginia law preserves the ownership of the recorded data in the person who owned the car at the time of the accident:
When the recording device and recorded data are not removed or separated from the motor vehicle, the ownership of the recording device and recorded data survives the sale of the motor vehicle to any non beneficial owner such as an insurer, salvage yard, or other person who does not possess and use the motor vehicle for normal transportation purposes.
Va. Code § 46.2-1088.6(E). It is not clear who might be allowed to remove or separate a recording device from a totaled motor vehicle or if removal of the device would terminate the prior ownership of the data.
“Owner” under this statute includes not only title owners, but “persons entitled to possession of a vehicle as the purchaser under a security agreement” and “a person entitled to possession of the vehicle as the lessee pursuant to a written lease agreement, provided such agreement at inception is for a period in excess of three months.” Va. Code § 46.2-1088.6(E).
Given the useful data recorded by newer vehicles, these statutes create issues for investigating a motor vehicle accident, especially critical when there is evidence a potential personal injury plaintiff was speeding or not paying attention and may have contributed to or solely caused the accident. The most immediate threat is the loss of the evidence because the vehicle is salvaged, moved to a different location and dismantled. Tracking down a totaled vehicle after it has been sold to a salvage company is challenging at best and may be impossible.
A second issue is when the driver was not the “owner” of the vehicle under the statute, and therefore also does not own the recorded data. Virginia Code § 8.01-379.2:1 provides that “A party or potential litigant has a duty to preserve evidence that may be relevant to reasonably foreseeable litigation.” There is no such duty on an owner of a vehicle who was not the driver at the time of the accident and therefore is not a “party or potential litigant.” Nodding to the spoliation issue, the General Assembly added protection to the insurer of the vehicle from a claim of spoliation under these new statutes, by providing: “The failure of an insurer to obtain access to the recorded data shall not create, nor shall it be construed to create, an independent or private cause of action in favor of any person.” Va. Code § 46.2-1088.6 (F).
Given the threat that favorable evidence may easily be lost, a claim handler put on notice of an accident has several options. If the initial information indicates that the recorded data could be favorable to the claim, the insurer should immediately send out spoliation letters to the other driver, to the title owner of the vehicle if not the driver, and to the insurer covering the vehicle demanding preservation of the recorded data. These may not be totally effective in creating a spoliation issue if the “owner” is not the driver, but they are good practice to at least put the other driver and the insurer on notice. Second, the claim handler should try to obtain the consent of the owner of the vehicle to download the data. A prompt request for the data could at least secure the data for later analysis and could potentially dissuade a subsequent personal injury claim if the data is favorable to the defense. If consent is not forthcoming and there is a pending traffic case, the insurer could engage counsel to represent the insured driver in that traffic case and seek an order from the Court compelling production of the data for use in the defense of that case.
Because our science fiction fears morphed into privacy protection laws, getting access to useful ACM evidence can be challenging. Engaging legal counsel to draft spoliation letters or to represent the insured driver in the traffic case may help to overcome some of those challenges if the right steps are taken promptly.