Black Box Implications for Auto Insurers

Though event data recorders (EDR) have been around since the 1970s, the number of vehicles equipped with the devices, also known as black boxes, has increased over the last decade.

While data recorded on an EDR can greatly enhance an auto accident investigation and subsequent liability determination, privacy, data retrieval, and even spoliation issues still need to be addressed, according to W. Scott Palmer, president and chief executive officer of Injury Sciences LLC in San Antonio.

The National Highway Traffic Safety Administration (NHTSA) reported that as of 2008, 65-90 percent of the vehicles manufactured today have EDRs. Despite this, the data is not consistently available to third parties.

According to Palmer, the Bosch technology crash data retrieval unit is one that offers consumers this option because the unit can plug into a variety of makes and modules.

“For example, the Bosch unit can download data from GMs, Fords, Chryslers, and Toyotas. There are other manufacturers that have EDRs but the data is not available to third parties yet. Those manufacturers are able to use their own special tools to plug into the vehicle and download the data,” said Palmer, who has 20 years of experience in the forensic evaluation of auto accidents.

In 2006, NHTSA started requiring that 2013 vehicle models equipped with black boxes must capture the same data in the same format. In addition, NHTSA mandated the availability of a commercial tool to access the data.

Palmer said that while the location of EDRs varies by manufacturer; in most cars, the EDR is located under the driver’s seat and is wired to various other parts of the vehicle, like the air bag. That’s because the primary purpose of the EDR is to trigger the airbag in the event of accident.

The type of data recorded also varies by manufacturer and even by model. As a result, NHTSA mandates that all vehicles that capture and record data must have minimal data sets recorded and available to third parties.

“That really applies to all 2013 model year vehicles, but since you can get a 2013 model year late in…the preceding year, that’s when the law goes into effect,” said Palmer.

The Insurance Institute for Highway Safety (IIHS) lists the data required to be recorded by EDRs as of 2013. The list includes:

• Change in forward crash speed

• Maximum change in forward crash speed

• Time from beginning of crash at which the maximum change in forward crash speed occurs

• Vehicle speed prior to impact

• Percentage of engine throttle, percentage full (how far the accelerator pedal was pressed)

• Whether or not brake was applied

• Ignition cycle (number of power cycles applied to the EDR) at the time of the crash

• Ignition cycle (number of power cycles applied to the EDR) when the EDR data were downloaded

• Whether or not driver was using safety belt

• Whether or not frontal airbag warning lamp was on

• Driver frontal airbag deployment: time to deploy for a single stage airbag, or time to first stage deployment for a multistage airbag

• Right front passenger frontal airbag deployment: time to deploy for a single stage airbag, or time to first stage deployment for a multistage airbag

• Number of crash events

• Time between first two crash events, if applicable

• Whether or not the EDR completed recording

“Now, the misnomer is that these event data recorders are tracking driving behaviors and patterns,” said Palmer. “That couldn’t be further from the truth. What these technologies are capturing is accident-related data.”

There are two ways to access the data.

One is a plug-in port, which is a standard connecting plug that’s typically located under the steering wheel of the vehicle. “If the vehicle post-accident has power you can download the data by plugging into that port,” Palmer said. “If the vehicle does not have power, you have to directly plug into the event data recorder itself, usually.”

The EDR does not need to be in the vehicle in order to download the information.

Given the number of vehicles on the road already equipped with EDRs, there is a good chance that at least one of the vehicles involved in an accident will have recorded accident data.

“In a two car collision there’s almost a certainty that one of the vehicles is going to have downloadable data,” said Palmer. “Given the laws of physics, if you know the kind of information that we’ve talked about that’s downloaded from one vehicle, you can calculate a lot of the similar information for the other vehicle.”

With any collection of personal information comes a privacy concern. That’s where state government has stepped in and enacted procedural guidelines for extracting the data. Thirteen states – Arkansas, California, Colorado, Connecticut, Maine, North Dakota, New Hampshire, Nevada, New York, Oregon, Texas, Virginia, and Washington – have already enacted legislation that requires obtaining the vehicle owner’s permission in order to download the data.

“Now what’s different in those 13 states is who the owner of the vehicle is. In California, the legislation says it’s the registered owner of the vehicle. In Texas, it just says the owner of the vehicle,” said Palmer. “In Arkansas, it says it’s the owner of the vehicle at the time the accident occurred and the data was collected. In that, subsequent lien holders or insureds, if they take possession of the salvage cannot assume that ownership role, whereas they can in California or in Texas.”

Palmer advises that an auto carrier should be concerned with two primary issues relating to data collected by EDRs: the applicable state legislation and the development of data collection procedures.

The data recorded by an EDR may be definitive enough to establish liability in an auto accident claims investigation. If not, Palmer said it will lead the claims adjuster to ask more specific questions while investigating the claim.

“Clearly, this data can point to liability on one party versus the other. It can identify when injuries being claimed are consistent or inconsistent with the physics of the accident for one vehicle or the other, because what you’re getting is a scientific snapshot of what actually happened,” he said.

One caveat is that during the claims process, damaged vehicles get repaired. Sometimes those repairs result in the replacement of the EDR.

“So when…that component is being replaced in that vehicle, what are insurance companies doing with the box that has that information on it? Today, they’re throwing it away. Does that create risk to them in the loss of claim facts,” asked Palmer.

A discarded EDR isn’t the only spoliation concern. The data contained within an EDR is only temporarily stored, based on the number of times the ignition key is turned on and off.

“So, for 200 ignition cycle counts, that data is temporarily stored, which applies to about six to eight weeks of normal use of the vehicle. If the vehicle has been in a severe jolt…it will record that data and keep it for six to eight weeks,” Palmer said.

Permission is not needed to save a unit, rather permission is needed to read it. Thus, insurers should think about the type of claim scenarios that would justify collection and preservation of an EDR, according to Palmer. In addition, they should consider how the evidence is acquired and saved.

Despite privacy, data retrieval and spoliation issues – the data captured by an EDR will alter current auto accident claims investigation practice.

Palmer said that today, it is a very reasonable for a claims adjuster when evaluating any claim to ask, if the vehicles involved have either original equipment or aftermarket event data recorders or telematics devices that will give me some indication of the speeds and braking related to the subject vehicles in the particular collision.

W. Scott Palmer presented on the subject at the 2011 PLRB national Claims Conference held in Nashville, Tennessee.