Accident Investigation
Brien Roche
Ordinary Course of Business
As part of most injury cases there is an investigation done by the insurer if there is one.
Certainly most insurers take statements and photos as part of the ordinary course of their claims business. In injury cases, the issue is whether those statements and photos and other material of the insurer can be obtained.
If the insurer objects to providing that material based on some privilege, it has the burden of proving that. Rule 4:1(b)(1). Walton v. Mid Atlantic Spine Specialist, PC, 280 Va. 113, 122 (2010).
Work Product
The insurer may assert a work product protection. However a statement made by an employee to his employer in the ordinary course of business and before suit has been threatened, is not privileged. Virginia-Carolina Chem. Co., v. Knight, 106 Va. 674, 679 (1907); Robertson v. Commonwealth, 181 Va. 520, 540 (1943).
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. Sandberg v. Virginia Bank Shares, Inc., 979 F.2d 332, 355 (4th Cir. 1992). Also this is the way that most of the Circuit Courts that have addressed that issue have ruled. Overton v. Dise, 35 Va. Cir. 177 (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.
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 counsel is protected. In other words, if the document was not prepared with an eye to litigation, then it is not so protected. Commonwealth v. Edwards, 235 Va. 499, 510 (1988). The document must be prepared because of the prospect of litigation. Sandberg, 979 F.2d at 356.
In Ruhlin v. Samaan, 282 Va. 371, 375-380 (2011) the court upheld the use of accident-related statements at trial where it was taken by defendant’s insurer. This was allowable to refresh recollection on cross-examination.
The defendant may rely upon a trial court decision of Veney v. Duke, 69 Va. Cir. 209. That court disallowed discovery as to a statement taken on the day of the crash.
In Popina v. Rice-Steward, 86 Va. Cir. 403, 404 (Cir.Ct. City of Va. Beach, 4/5/2013), 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. 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).
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Substantial Need-Accident Investigation
Furthermore there is a substantial need for the plaintiff to obtain these. Such things as witness statements that are taken shortly after the event are unique. 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. A finding of substantial need is well within the trial court’s discretion. Rakes v. Fulcher, 210 Va. 542, 546 (1970).
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.)
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 allows the defendant to play fast and loose. That is, the defendant may now present evidence contrary to that statement. Even though it knows that it has facts that would undermine its position at trial. Owens-Corning Fiberglass Corp. v. Watson, 243 Va. 128, 141 (1992) That should not be allowed.
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.