Written by Kevin Kennedy, Esq.
Edited by Bill Pfund, Esq.
Most companies that employ a fleet of vehicles have internal policies in the event of an accident. Drivers are often required to fill out an accident report describing how the incident in question occurred. While it is good practice for companies to gather as much information as possible and preserve evidence from an accident, incomplete accident descriptions contained in a driver’s report can become a sore spot in litigation. Plaintiff’s attorneys frequently attempt to use a limited written description of the accident as proof that additional accident details relating to the plaintiff’s actions or some other affirmative defense are invented facts. If a driver’s initial report omits a significant aspect of the defense’s theory of the case, it is worth exploring avenues for prohibiting use of the statement at trial.
A preliminary question for the defense is whether the accident report is discoverable or privileged. Virginia courts have not provided a bright line rule that dictates when efforts by a defendant or the defendant’s insurer to preserve evidence related to an accident are deemed to be action taken in anticipation of litigation, and therefore privileged. Instead, a Virginia court will ask if “it was reasonably foreseeable that litigation would ensue at the time the statement was taken.” Whitehurst v. Lloyd, 37 Va. Cir. 224 (Loudoun 1995). This analysis depends on the facts of each case, but as a general rule “routine investigatory reports made and prepared without some minimal involvement of counsel are not protected.” Thompson v. Winn Dixie Raleigh, Inc., 49 Va. Cir. 115 (Chesterfield 1999). This precedent gives incentive for companies to involve an attorney immediately, particularly in the event of a catastrophic accident. If an attorney is used for collecting information at the scene or soon thereafter, any statements made to the attorney should be protected as work product or action taken in anticipation of litigation. However, for minor accidents when a lawsuit may not be likely, initial reporting is likely discoverable. For these minor accidents, unless a defendant has previously received notice that an accident victim has retained counsel, a report from a driver made in keeping with company policy will be provided with responses to requests for production.
Simply because a document is produced in discovery does not make the document admissible as evidence at trial. Virginia has enacted a specific statute for personal injury and wrongful death actions limiting the use of a witness’s (party or non-party) written statement about an accident. Pursuant to Va. Code § 8.01-404, and preserved in Virginia’s Rules of Evidence 2:613(B)(ii), “[N]o… statement in writing other than a deposition… made at any time other than simultaneously with the wrongful act or negligence at issue… shall be used to contradict… a witness in the case.” Ironically, this statute was enacted as a supposed check on practices by insurance companies. The legislature was concerned by situations where “adjusters would hasten to the scene of an accident and obtain written statements from all eye-witnesses. Frequently, these statements were neither full nor correct and were signed by persons who had not fully recovered from shock and hence were not in full possession of their faculties.” Gray v. Rhoads, 268 Va. 81, 87, 597 S.E.2d 93 (2004). However, the precedent established can now be used to prevent plaintiff’s use of a written statement by the defendant at trial. If the plaintiff’s attorney is cross-examining the defendant driver, he should be barred from introducing the driver’s written statement as an exhibit to prove a prior inconsistent statement. See Ruhlin v. Samaan, 282 Va. 371, 718 S.E.2d 447 (2011).
An attorney can show the witness a copy of the written statement in an attempt to refresh the witness’s recollection while he is on the stand, but the actual written statement cannot be introduced as evidence. This limitation is significant as oral testimony about prior statements is more easily explained and the oral testimony does not become a physical exhibit that the jury can review in its deliberations. When confronted with a plaintiff’s attorney who indicates that a prior written statement about the accident will be key evidence for defeating an affirmative defense to the claim, the attorney may be over-selling the value of the evidence as the physical document is likely not to be admissible as an exhibit at trial. If a claim file includes a problematic written statement, be sure to consult with defense counsel about the extent of its potential use at trial and impact on the jury’s evaluation of the claim.