A court order won’t be necessary for video of a fatal accident outside Fletcher Elementary School to be preserved.

Earlier in March, the Progressive Casualty Insurance Company filed a pre-action discovery motion in state Supreme Court in Mayville seeking the video from the school district. The insurance company filed the motion in court on Monday. Leanna Herrera, a 4-year-old, was killed after she was struck by a Panama Central School bus making an out-of-district drop-off Nov. 17 outside Fletcher Elementary School.

The company’s Order to Show Cause was withdrawn on Tuesday after the school district answered that the video was already being preserved, making the court action unnecessary.

“Finally, Progressive does not even contend that the subject video is at risk of being destroyed or lost to support its request for preservation,” wrote attorney Kevin G. Cope of Bond, Schoeneck & King PLLC, the school district’s attorney.”This is because Progressive has no basis for such a contention. In fact, the district has already pulled the subject video and is preserving same. No court order is necessary to mandate such preservation as the video is already being preserved.”

While the district is preserving the video, Cope didn’t agree it should be turned over to the insurance company yet. In his answer, Cope argued state law provides for pre-action disclosure in limited purposes: to aid in bringing a lawsuit, to preserve information or to help in arbitration. Cope argued those conditions have not yet been met as well as saying the Family Educational Rights and Privacy Act and state Education Law preclude school districts from producing student information, including videos of students, to third parties without express permission from the student’s guardian or a court order. Cope argued the action should be brought in the name of its insured party, not the company, while better explaining why it needs the video.

“Progressive essentially seeks the video to ‘see what it shows’ which is precisely the sort of impermissible fishing expedition CPLR 3102(c) forbids,” Cope wrote.

Progressive insured a vehicle that was facing south on Whitehill and Cole avenues at the time of the accident, with the driver named in an insurance claim for damages brought by the girl’s family because the driver was mentioned in the police report. The vehicle was not involved in the accident, but the bus driver told police he was distracted by the vehicle just prior to the accident. The police report states the unnamed woman’s vehicle was “slowly moving into the intersection as if it was attempting to see and look for traffic.” The bus driver, according to the police report, said he was looking at the vehicle to make sure it did not come out into the intersection in front of him when the girl ran across Cole Avenue from the other direction.

“The estate of infant L.H. has brought a claim for damages for this incident including a claim against (the unnamed driver’s) insurance carrier, the petitioner, Progressive Casualty Insurance Company. “The video of this incident is clearly material and necessary to the petitioner’s investigation of this incident, and they would be severely prejudiced if the video was not maintained and produced to them by respondents.”

The Panama school bus was in the midst of dropping off a Panama student for an out-of-district placement at the time of the accident. The area around the school was closed for several hours while Jamestown police and the New York State Police investigated the accident.

So far, the insurance claim is the only known claim related to November’s accident.