It is the middle of the night, and you receive a phone call that one of your vehicles has been involved in an accident. With everything that starts racing through your mind, one of your first thoughts should be—I need to get a statement about what happened from my driver. And, while that seems simple enough, details of that statement may significantly impact whether it’s discoverable during litigation. The Circuit Court of Spotsylvania County took up this topic in an opinion issued on April 27, 2018.
The case involved a motor vehicle accident between two parties. Soon after the accident, the defendant gave a recorded statement to State Farm, his insurer, explaining his version of what happened to cause the accident. Plaintiff sought to compel production of the statement because the defendant was unable to remember or articulate many facts about the accident during his deposition. In that deposition, he did remember giving a statement to State Farm, and he stated that his recollection of the accident was better at that time than it was at the deposition. The statement at issue was made to the insurance agent before receiving notice that the plaintiff was filing a lawsuit and before the defendant retained counsel.
The Court pointed out that the Supreme Court has yet to rule on whether these types of statements were subject to disclosure in discovery. The defendant argued the statement was protected by the work-product doctrine because it was taken in anticipation of litigation. This centers around the fact that potential defendants and/or their insurers sometimes take statements for the purpose of determining liability, with the understanding that litigation may ensue. The Court observes that Virginia courts have differed in their determinations of whether these types of statements are made in anticipation of litigation.
To determine whether the statement is privileged, courts have adopted the “bright-line rule” test. This test states:
Any report or statement made by or to a party’s agent (other than to 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.
The Circuit Court applied this test to the statement at issue. It was persuaded by the fact that the statement was taken before there was any notice of the plaintiff filing suit, before the defendant retained counsel, and was not made directly to defendant’s counsel. Lastly, insurance agents are not in the business of giving legal advice—they merely investigate accidents, so the statements to insurance agents are made in the regular course of business and not in anticipation of litigation. As such, the statement needed to be provided to the plaintiff.
This case highlights the importance of getting an attorney involved as soon as possible when an accident occurs! As the “bright-line rule” test cited by the court indicates, statements retrieved at the request or direction of an attorney are far more likely to be protected from disclosure. This is also not limited to driver statements. Consulting with an attorney after an accident can help many accident investigation steps be protected from disclosure during the pendency of the lawsuit.
Therefore, when an accident happens (and, unfortunately, they will happen), one of the first calls you make should be to your attorney. The attorney can coordinate the response and subsequent investigation thereby widening the application of the attorney-client privilege and work-product doctrines.
For any and all questions about accident investigation and response, in general, or attorney-client privilege, and work product doctrine, please contact Steve Setliff at (804) 377-1260 or at firstname.lastname@example.org.