By Jeff Green,
and Patrick G. Lee
The death toll related to an ignition flaw in eight small car models that General Motors Co. sold a decade ago is likely to climb, say lawyers and safety advocates.
Automakers often make upward revisions to fatality figures related to recalls as they unearth fresh information, while attorneys are racing to line up plaintiffs seeking compensation for alleged wrongful deaths or injury. GM’s liabilities are also poised to rise as lawyers and safety advocates press the biggest U.S. automaker to pay restitution to victims even from before GM’s 2009 bankruptcy reorganization, which shielded the new GM from the old company’s liabilities.
GM, which said it has identified 12 deaths in connection with the recall of 1.6 million Chevrolet, Opel, Pontiac and Saturn models, has said it continues to review data and details related to the recall.
“For every incident that gets reported to the automaker, there are usually nine or 10 more,” said Clarence Ditlow, executive director of the Washington-based Center for Auto Safety, a consumer advocacy group. “You can expect the number of deaths associated with this recall to rise.”
That happened with Toyota. As allegations of unintended acceleration in some 2009 and 2010 vehicles generated publicity and Congressional hearings, the number of deaths the government tied to 10 million recalled Toyota and Lexus models rose from a handful to at least 59. More wrongful-death lawsuits have been filed since the hearings ended.
One lawyer has said he plans to challenge GM’s immunity for any prereorganization crashes, which would require asking the judge who oversaw the historic bankruptcy of GM to reconsider terms of the bankruptcy, including the liability shield.
The time to revoke court orders dating from GM’s bankruptcy “has long past,” said the automaker’s bankruptcy lawyer, Harvey Miller of Weil, Gotshal & Manges LLP. “They cannot be reopened at this point in time.”
This week, Ditlow and Joan Claybrook, a former National Highway Traffic Safety Administration administrator, sent a letter to new CEO Mary Barra asking her to establish a $1 billion fund to cover losses for victims and their families for any claims that have been extinguished by the bankruptcy, even beyond the ignition complaints. GM hasn’t responded to that request.
GM has settled claims for an undisclosed amount regarding a 2005 death in Maryland, prior to its bankruptcy, and last year in connection with a 2010 death in Georgia.
GM’s own reports to the government suggest the automaker may uncover additional claims, Ditlow said. Whenever GM is notified of a death related to one of its vehicles, often in the form of a lawsuit, it is required to notify the U.S. under the Early Warning Report system, he said.
Using data from the EWR system for Cobalt and Saturn models covered by the recall and looking for deaths related to airbags, researchers at the Center for Auto Safety identified 25 reports from GM to the EWR system, according to data shared with Bloomberg News.
More broadly, NHTSA’s Fatality Analysis Reporting System shows there were 303 deaths of front seat passengers in the 2005-2007 Cobalts and 2003-2007 Ion models where the airbag failed to deploy in a non-rear impact crash, Ditlow wrote in March 13 letter to NHTSA that was critical of the agency’s investigation of the deaths. The records don’t indicate whether an ignition switch was a factor.