Making Old Cars Safer

You’ve probably seen news reports about comedian Kevin Hart’s car crash and his extensive injuries. Despite Internet reports that all involved have “lawyered up” and that a “lawsuit’s almost certain,” we haven’t seen an actual lawsuit filed.

Maybe it’s getting filed as you read this, but the lack of a lawsuit doesn’t mean we can’t use this as an example of how insurance and legal liability work.

In case you’ve missed the hubbub, Hart is a very popular 40-year-old actor and comedian. He owns a 1970 Plymouth Barracuda that has been restored and converted into a resto-mod. SpeedKore Performance Group did the work, and the car was nicknamed “Menace.”

Among its many modifications are a 6.4-L Hemi V8 Hellcat crate engine that makes 720 hp, a Whipple supercharger, a SpeedKore cold-air intake and SpeedKore custom headers and exhaust. Hart purchased the car two months earlier as a birthday present to himself.

Serious oversteer

Hart let his friend Jared Black drive the car. Black made a right turn onto Mulholland Highway in Calabasas, CA, then got on the throttle too hard and lit up the rear tires. That caused him to lose the rear end, leave the road on the left, crash through a fence and roll down a steep embankment. The car came to a very hard stop when it crashed head-on into a tree, with the rear lifting up and the roof hitting and uprooting the tree before the car ended up in a ditch.

Hart was riding in the passenger’s seat and suffered extensive injuries — including three spinal fractures that required back surgery to fuse three of his vertebrae. It will take him many months of therapy to recover. It’s hard to believe, but reports claim he was picked up at the crash site and taken home by his security team.

Black suffered serious back and chest injuries. He was cited for reckless driving.

Black’s fiancée, Rebecca Broxterman, was riding in the back seat. Actually, it wasn’t really a back seat, as that had been removed in the restoration and replaced with a shelf and two storage compartments. In spite of her perch being loose in the rear and and the fact that she was seriously tossed about, she was reported to not have sustained any serious injuries.

Neither Black not Hart were wearing their seat belts. Broxterman did not have one to wear.

Love for all

Hart has made public statements about the crash, professing, “I have nothing but love for Jared and wish him and Rebecca a speedy recovery.” Hart has also said he does not intend to sue Black or even make a claim on his own auto insurance policy. Instead, he will let his medical insurance cover his injuries.

Neither Black nor Broxterman have made any public comments, but press reports indicate they have both retained counsel, as has Hart, and they are “certain to sue.”

Insurance protocol

As generous as Hart’s statements may be, we should know that insurance is not a buffet where you get to pick which of several policies is going to pay for your losses. There’s a lot of protocol that allows the insurance carriers involved to make that decision for you.

McKeel Hagerty, CEO of Hagerty, explains, “There is a well-trodden path behind the scenes among insurance carriers that dictates how such losses are shared. It is usually not public, and they don’t all just hire lawyers and sue each other. The process plays out in subrogation claims between the carriers, and how that works often depends upon the actual policy language.”

While Hart has chosen to use his medical insurance to cover his medical bills, the carrier will most certainly present the claim to Hart’s automobile insurance carrier, which provides the primary coverage under the rule that insurance follows the car.

Hart’s auto insurance will likely also cover claims against Black as a permissive driver of the car. If Hart’s coverage is exhausted, secondary liability will fall against Black’s auto insurance policy, assuming he has one. If that is exhausted, the search for coverage gets a little murkier. Umbrella policies come next, and possibly homeowner’s policies.

Is Hart liable?

There seems to be little doubt that Black is liable for everyone’s injuries. The more interesting question is whether Hart is liable.

Hagerty sees little doubt that Hart could be held liable for Broxterman’s injuries since he allowed her to ride in the back of a car that did not have seats. This is much the same as people riding in the bed of a pickup. It’s fun, but the driver is not supposed to allow it to happen.

Could Hart and/or SpeedKore also be liable for Broxterman’s and Black’s injuries because of the lack of safety features? That is the most interesting question of all.

Retrofitting safety features

Press reports have been extremely critical about the car’s lack of safety features. Although nothing more than seat belts went into these cars in 1970, reporters have suggested that the restoration should have included airbags, ABS brakes, safety harnesses and a roll cage.

They have suggested that both Hart and the restoration shop might be held liable for the lack of these modifications, and that the California Highway Patrol might lobby the legislature to require some of them in restorations.

This car had seat belts, but many of our older cars never came with them. Are we required to install them? I was mildly surprised when I purchased my 1957 Alfa Romeo Giulietta Spider and saw it lacked seat belts. While I thought it was authentic and somewhat quaint, I wasn’t crazy enough to drive around without them and immediately installed a set of two-point racing belts. Whether it’s legally required or not, I strongly recommend everyone do the same.

Hagerty reinforces the wisdom of that: “We’ve already seen cases where restoration shops have been held liable by juries for not installing seat belts during a restoration — even where the objective was to be period-correct.” Whether the law specifically requires something or not, it is always wise to bear in mind that juries can be very sympathetic to injured persons. Because of that dynamic, Hagerty has “always advocated for caution.”

Suggestions that this car should have had airbags are probably off-base. You can’t just go down to your local Pep Boys and buy an airbag kit that you can install in any old car.

Airbags are part of a highly sophisticated safety system that involves crumple zones, sensors and extensive modern engineering. You can’t just add them in your next restoration. And even if you could, no sensible shop would ever be willing to do it because of the liability that would come from their failure to work when the need arose. You can probably say the same about ABS brakes. Four- or five-point safety harnesses would seem to make some sense, but they aren’t necessarily easy to add during your restoration because they need something to attach to behind the seat. There just aren’t many places in production cars where you can do that. Plus, they also have to be attached at the proper angle to avoid causing more injuries than they protect against.

It’s also hard to see anyone requiring a full roll cage in restorations. That makes getting in and out of the car very awkward. But it may make more sense to talk about roll bars in hot-rodded convertibles.

Pity the poor shop

These questions should make restoration shops nervous.

It isn’t hard to see that a judge or jury might hold them liable for not installing safety features that the customer did not even want. Say the customer wants a totally period-correct restoration of a car that did not originally come with seat belts, but the shop knows the car is going to be driven.

Can the shop comfortably leave them out of the restoration? Is a waiver from the customer enough?

Today, with relatively inexpensive crate motors that can fit into almost anything, it’s very easy to buy huge horsepower. With an old car that wasn’t very safe in its day, you can now have a very fast and very unsafe car. How much liability does the shop that builds it have to increase the safety of the car?

If nothing else, the shop better carry adequate insurance coverage. Without it, the shop likely won’t be able to afford the defense costs when the lawsuit is filed.

Trending?

Is this case an example of things to come? Our legal system often provides movement on a case-by-case basis, where a plaintiff wins for the first time, then a second one wins, and eventually it becomes common. Once the cases start to attract attention, legislatures can step in and adopt well-meaning legislation that often unintentionally goes too far.

But not every unusual case signals a trend. Sometimes they are just aberrations. Let’s hope that is the case here. ♦

John Draneas is an attorney in Oregon. He can be reached through www.draneaslaw.com. His comments are general in nature and are not intended to substitute for consultation with an attorney.

John Draneas

John Draneas - SCM Columnist - %%page%%

John practices law in the Portland, OR, suburb of Lake Oswego, where he focuses on tax and estate planning, business organizations and transactions, and representation of collector-car owners. He is a past president of the Oregon region of the Porsche Club of America and served as the chairman of the PCA’s 2006 parade. His collection includes two Porsches, a Ferrari, an Alfa, a Lotus, a BMW daily driver, a John Deere tractor — and one increasingly famous Jaguar E-type. This month’s “You Write, We Read” on p. 20 is full of SCMer advice on whether Draneas should restore his Jag.

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