Accident Investigation in Personal Injury Cases

Brien Roche

Ordinary Course of Business

Carriers investigate accidents in the ordinary course of their business. Also they take statements and photos as part of the ordinary course of their claims business.  Can those statements and photos and other material of the insurer be obtained?

Accident Investigation Personal Injury-The Rules

The pertinent rules are Rule 4:1(b)(1) and (b)(3).

Rule 4:1(b)(1) sets forth the broad parameters of discovery. Those broad parameters are that the material not be privileged, is relevant and is reasonably calculated to lead to the discovery of admissible evidence. If those 3 criteria are met, then the information requested is probably discoverable.

Rule 4:1(b)(3) then provides a limitation. That rule is entitled, “Trial Preparation: Materials”. Virginia Code § 1-217 says that headlines of Code sections are mere “catch words” and do not constitute part of the act of the General Assembly. That Code section is limited to Code sections. However there is nothing in the rules that says that the headlines are not intended to have meaning. This headline or header of “Trial Preparation: Materials” presumably means what it says. Only an attorney can try a case. Trial preparation may be engaged in by persons other than an attorney. However the fact that there is trial preparation involved means that the attorney must be involved.

4:1(b)(3)

As a result if you’re going to read Rules 4:1(b)(1) and (b)(3) together, it means that (b)(3) applies only to material wherein there is attorney involvement.

It’s well established that the work product doctrine and items prepared in anticipation of litigation may be prepared by people other than attorneys. However to come under the overall rubric of subsection (b)(3), there has to be an attorney involved.

That interpretation has led many courts to establish what is a “bright line rule” as to investigative material undertaken by carriers in the early stages of case handling.

Burden of Proof

If the insurer objects to providing that material based on some privilege, it has the burden of proving that. Privilege is an exception to the general rule to disclose. In addition it is an obstacle to the investigation of the truth and should be strictly construed. Walton v. Mid Atlantic Spine Specialist, PC, 280 Va. 113, 122 (2010). To meet this burden of proof, there must be some evidence.

The mere assertion that the matter is confidential and privileged does not suffice. Robertson v. Commonwealth, 181 Va. 520, 540 (1943); Creasy v. Medical Associates of Southwest Virginia, Inc., 98 Va. Cir. 332 (Roanoke, 2018) (Failure to file privilege log and provide any evidence supporting a claim of privilege results in waiver);  Fleming v. Mountain States Health Alliance (W.D. Va. 2012), 2012 U.S. Dist. LEXIS 72795 (Privileges not proved without evidence); Snovell v. Williamsburg Facility Operations, (York, 2015) 2015 Va. Cir. LEXIS 56 (No privilege where there is no evidence) Dudley v. Cash, 82 Va. Cir. 1,14 (Augusta, 2010) (Defendant must either provide a basis for finding that his statements are work product or he must produce them);

Accident Investigation Personal Injury-Bright Line Rule

The “Bright Line Rule” says there must be attorney involvement before there can be any trial preparation that involves anticipation of litigation. Those so-called “bright line cases” are many in number.

A statement made by an employee to his employer in the ordinary course of business and before suit has been threatened, is not privileged even if given to the employer’s attorney.  Virginia-Carolina Chem. Co., v. Knight, 106 Va. 674, 679 (1907); Robertson v. Commonwealth, 181 Va. 520, 540 (1943). Any statement made by a party or to a party’s agent other than an attorney acting in the role of counselor which has not been requested by nor prepared for an attorney nor which otherwise reflects the employment of an attorney’s legal expertise must be conclusively presumed to have been made in the ordinary course of business. McKinnon v Domain 72 Va. Cir 547 (Norfolk 2007) (Application of Rule 4:1(b)(3) calls for production of statement made to carrier)

Likewise claim statements, reports and other material collected in the ordinary course of business are not prepared for litigation. They are prepared as part of the business of the insurer. As a result they are not privileged.   Overton v. Dise, 35 Va. Cir. 177 (Fairfax 1994) (statement taken the day after the accident is discoverable); Estabrook v. Conley, 42 Va. Circ. 512 (1997) (involvement of counsel is a prerequisite to the privilege); Monterrozo v. Sandridge, 98 Va. Cir. 372 (2019) (any statement given before counsel is retained or suit filed is not work product); Riverside Hospital, Inc. v. Johnson, 272 Va. 518 (2006) (Privilege does not apply to a Hospital Incident Report).

Popina

In Popina v. Rice-Steward, 86 Va. Cir. 402 (Cir. Ct. City of Va. Beach, 2013), the court ruled that the routine taking of statements by an auto insurance adjuster is work in the ordinary course of business which fails to qualify as work product.  As pointed out in Popina, supra, seeking protection of statements taken by the insurance adjusters  prior to retention of counsel would mean a failure to read 4:1(b)(1) and 4:1(b)(3) together.  Also see Janice Prince v. Ponderosa Steakhouse, Inc., 40 Va. Cir. 466, 470 (Albemarle County, 1996) citing State Farm Fire & Cas. Co. v. Perrigan, 102 F.R.D. 235, 237 (W.D.Va., 1984) (ordering insurance company to produce documents which were prepared prior to receipt of representation letter from opposing party’s attorney). In Lyles v. Calloway, 2013 W.L. 10869997 (Gloucester, 2013), the defendant was ordered to provide any statement of the defendant or other potential witnesses taken prior to legal counsel being retained.

Bright Line Cases Post 2005

Schwarz & Schwarz of Virginia, L.L.C. v. Certain Underwriters at Lloyd’s, 2009 U.S. Dist. LEXIS 33019, *5-14 (W.D. Va. Apr. 17, 2009) (all investigative and other materials before insurer officially disclaimed coverage 2 years post-incident discoverable); Front Royal Ins. Co. v. Gold Players, Inc., 187 F.R.D. 252, 256-259 (W.D. Va., 1999) (insurer internal claim file documents, correspondence and reinsurer information discoverable); Collins v. Mullins, 170 F.R.D. 132, 134-136 (W.D. Va., 1996) (internal investigation witness statements discoverable since lawsuit not imminent and internal rules call for investigation.); Burr v. P.C. Paving, 78 Va. Cir. 56, Order (Suffolk, Dec. 2, 2008) (statements of defendant and witness discoverable plus there is showing of substantial need);

Post 1996

Wood v Barnhill 52 Va. Cir. 274, (Charlottesville, 2000) (insurer statements discoverable); Thompson v. Winn Dixie Raleigh, Inc. 49 Va. Cir. 115 (Chesterfield, 1999) (pre-litigation statements discoverable); Whetzel v. McKee, 44 Va. Cir. 315 (Rockingham, 1998) (insurer statements 3+ months post-accident discoverable); Clark v. Winn-Dixie Raleigh, Inc., 40 Va. Cir. 228 (Henry, 1996) (insurer accident reports, internal memoranda, correspondence, handwritten notes, and typewritten notes discoverable); Kanchanayothin v. Stancell, 39 Va. Cir. 189, 189-190 (Loudoun, 1996) (Nationwide statement of defendant 28 days post-accident discoverable); Carroll v. Blackwell, 1996 Va. Cir. LEXIS 591, *5 (Richmond, 1996) (all pre-suit insurer factual documents discoverable);

Post 1993

Whitehead v. Harris-Teeter, Inc., 28 Va. Cir. 367(Amherst, 1992) (employee statements discoverable); and Brugh v. Norfolk & W. Ry, 4 Va. Cir. 477 (Botetourt, 1979) (6 employee and other statements discoverable based on substantial need.).

Involvement of Counsel

Insurers may argue that because these documents came into the hands of counsel that therefore they are protected by the attorney work product doctrine.  However that is not so.  Not every document generated by an attorney is protected by the work product doctrine. Likewise not every document delivered to or prepared by counsel is protected. It must be prepared in anticipation of litigation. Commonwealth v. Edwards, 235 Va. 499, 510 (1988).  Sandberg v. Virginia Bankshares, Inc., 979 F.2d 332, 355 (1992).

Accident Investigation Personal Injury-Case by Case and Multi-Factor

Some courts have moved away from the bright line rule and instead have adopted a case by case or multi-factor analysis in terms of determining whether recorded statements or other claims investigation material is discoverable.

A thorough analysis adopting that approach is found in Hicks v. Pruden, 93 Va. Cir. 409 (Norfolk 2016) where Judge Lannetti applied 8 factors. Other courts have added other factors: (1) the apparent severity of the plaintiff’s injuries; (2) whether it is immediately apparent that any negligence would likely lie solely with the company’s insured; (3) whether the plaintiff notified the defendant that the plaintiff would pursue a claim (or that the plaintiff lacked the resources to pay for his medical expenses); (4) whether defendant was notified that plaintiff had retained counsel; (5) whether the person who took the statement is charged with safety responsibilities, or whether the investigation was made pursuant to policy, statute, regulation or other non-litigation purpose; (6) whether a statute clearly implicates the insured with liability; (7) whether the insurer investigated the plaintiff’s claim in the manner he investigated all other claims with normal procedures; (8) whether the documents were produced before an insurer formally denied a claim; (9) timing of the statement in particular was this an initial statement or a subsequent statement; (10) was the statement taken at the direction of counsel and (11) who initiated the call? If it was the defendant, then it is more likely simply for the purpose of reporting something, but if it was the adjuster, then it could be as part of an investigation in anticipation of litigation. Lowe v. Norfolk So. Ry. Co., 81 Va. Cir. 221 (Hopewell, 2010) (In-house investigative documents including superintendent’s internal memorandum to general manager, district claims agent’s diagram, and undated computer diagram discoverable)

Substantial Need-Accident Investigation

Whether the bright line rule or the multi-factor analysis is applied there may be a substantial need for the plaintiff to obtain these documents.   Such things as witness statements that are taken shortly after the event are unique.  In other words there is no substitute for these types of statements taken within a short time of the event. There are few things of greater value than statements taken of a witness when that witness’ memory is fresh. Therefore a finding of substantial need is well within the trial court’s discretion.  Rakes v. Fulcher, 210 Va. 542, 546 (1970).

Hite

In Hite v. Mary Immaculate Hospital, Inc., 105 Va. Cir. 121 (Newport News, 2020), the court dealt with a hospital fall where the risk manager met with members of the plaintiff’s family and made handwritten notes. However an outside attorney for the hospital had directed the risk manager to investigate the fall and report to the insurance carrier. The trial court found that the handwritten notes were prepared in anticipation of litigation but ruled that there had been a showing of substantial need for the documents and that the plaintiff was unable to obtain the substantial equivalent by other means.

In Larson v. McGuire, 42 Va. Cir. 40 (1997) the court noted that a statement of the defendant to the insurer taken shortly after the accident serves as a basis for understanding the defendant’s claim of contributory negligence and therefore is discoverable.   In addition it’s important that parties be able to explore inconsistencies in testimony.  Massenburg v. Hawkins, 70 Va. Cir. 13 (2005) (Good cause exists where statements are approximately contemporaneous with the accident and opposing counsel had no opportunity to question the witnesses until weeks or month later.)

Galloway

In Galloway v. Sunbelt Rentals, Inc. 2015 W.L. 176615 (W.D.Va., 2015) the court found that sworn court-reported contemporaneous eyewitness statements taken by defense counsel are fact work product and plaintiff had substantial need and no substantial equivalent…without undue hardship. There is no substitute for contemporaneous statements taken before memory fades as they aid in the truth seeking process

Memory or Inconsistency

Also in  Lopez v. Woolever, 62 Va. Cir. 198, the court noted that witnesses being unable to remember their own statement to the insurer created substantial need.  In Tabb v. Jackson, 2 Va. Cir. 406, counsel represented that the statement would show inconsistency was sufficient to create substantial need.

Prevent Fraud-Accident Investigation

Finally there is the issue of whether the defendant should be allowed to potentially play fast and loose with the facts.  If the defendant has a statement from a witness that is material and does not have to disclose it, that may allow the defendant to play fast and loose.   In other words the defendant may  present evidence contrary to that statement. Even though it knows that it has facts that would undermine that position.  Owens-Corning Fiberglass Corp. v. Watson, 243 Va. 128, 141 (1992) That should not be allowed.

Accident Investigation Personal Injury-Auto and Premises

As part of any accident investigation you should consider the following:

• Get a copy of the Crash Report from the police department that investigated. As part of that request, make sure that you ask for any photographs.
• Contact the investigating officer as identified on the Police Report and get the names and contact information of any and all witnesses. The officer may have notes of the investigation. If so, ask for those.
• If you do not have the address of the defendant in an MVA, then use Virginia Code § 46.2-208(B)(17)

FOIA and Google

• Do a FOIA request to the local emergency 911 service to get the recording of any phone calls and the text of any messages.
• Do a FOIA request to get any body and in car camera footage from the investigating officers.
• Do a FOIA request to the local government to get any aerial photographs of the scene of the crash as the scene existed on the date of the crash.
• Check with the local government website to see if they have any aerial photographs of the scene of the crash.
• Search Google Earth to see if there are any aerial photographs of the scene of the crash.
• Check Google Street View to get any photographs of the scene of the crash.

Premises

• If there are any issues relating to the ownership of private property, do a title search to determine who owns the land where the incident occurred. If there was some obstruction on nearby private property, do a title search as to that piece of real estate to determine ownership.
• If there are any issues relating to private real estate, check with the Zoning Office to see whether or not there is a Certificate of Occupancy or what may be called a Non-Residential Use Permit for that particular property.
• If there is an issue of real estate involved, do a FOIA request to the local Treasurer to find out who holds the business license for that address.
• Visit the scene to see if there are any fixed cameras in the area. Then contact the owner of those cameras to see if they might have any information about the crash.

In dealing with a premises liability case or any case where there is an issue of real estate see the blog on this site entitled, Premises Liability Finding the Occupant for an itemization of things that need to be done in any case involving real estate.

Accident Investigation Personal Injury-Contact Us

Call or contact us for a free consult. Also for more info on work product see the Wikipedia pages. Also see the post on this site dealing with work product issues.