Safety and Health Reporter
Brien Roche Law > Blog > Personal Injury > Accident Investigation

Accident Investigation

Fairfax Injury Lawyer Brien Roche Addresses 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.  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.  

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.

As a result, incident reports and witness statements are not protected under the Virginia work product doctrine. For advice in regards to your own matter contact us

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). 

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.

Also for more info about personal injury matters see the pages on this site. In addition for info about accident investigation see the OSHA site

Leave a Reply

Your email address will not be published. Required fields are marked *

Contact Us For A Free Consultation

Accident Investigation

Fairfax Injury Lawyer Brien Roche Addresses 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.  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.  

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.

As a result, incident reports and witness statements are not protected under the Virginia work product doctrine. For advice in regards to your own matter contact us

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). 

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.

Also for more info about personal injury matters see the pages on this site. In addition for info about accident investigation see the OSHA site

Contact Us For A Free Consultation

Contact Us For A Free Consultation