<
>

Judge asked to reverse protective order

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.