What Did the Defendant Tell the Insurance Company?

Author: David M. Irvine, Charlottesville, VA Personal Injury Attorney

In the days following an automobile collision, it is common for the at-fault driver to provide a recorded statement to his or her insurance company, describing how the incident occurred.  The insurance company can then use this statement in deciding how to handle the matter, if and when the not-at-fault driver makes a claim for damages sustained in the collision.

Once the injured party asserts his or her claim, the insurance company has no obligation to share the recorded statement of the at-fault driver, and typically it has no reason to do so.  This is the case even though the defendant’s account of the incident may be vitally important to both sides, particularly where there is a dispute over who was to blame for the collision.

Once a lawsuit has been filed in court, however, the question of whether the liability insurance company must share with the plaintiff the recorded statement previously taken from the defendant becomes much more complicated.  Fortunately, there are several rules which guide the analysis an experienced personal injury attorney can use in arguing to the court that the defendant’s statement should be disclosed.

In general, during the discovery process in civil litigation, all materials which are “reasonably calculated to lead to the discovery of admissible evidence” must be produced to the opposing party prior to the trial.  One important exception to this rule is the “work product doctrine,” under which materials prepared in anticipation of trial by a party or his or her attorney or other representative are protected from disclosure.

Accordingly, when the plaintiff requests the defendant’s recorded statement given to liability insurance company during the discovery phase of litigation and the defendant objects, the court must decide whether or not this statement was made in preparation for trial, and therefore is protected.

There is no controlling authority from the appellate courts in Virginia providing a clear answer to this question.  One federal court has explained that the answer depends on whether the statement was gathered in the insurance company’s “regular course of business,” or whether the circumstances of the statement were such that the probability of litigation was already “substantial and imminent” or “fairly foreseeable.”

Many Virginia circuit courts have interpreted this language in particular cases and issued written opinions, which has provided general guidelines as to whether the defendant’s statement must be produced in any given case.  For example, the courts look to the some of the following factors:  [1] whether the insurance company had been placed on notice of a claim by the plaintiff’s attorney prior to the date the statement was given; [2] how long after the collision the statement was taken; and [3] the severity of the plaintiff’s injuries.  The court interprets these factors in connection with the specific facts of the case before it will control whether or not the defendant will be ordered to produce his or her recorded statement in the discovery process.

Particularly in situations where there is a dispute between the parties on the issues of negligence and/or contributory negligence, the account given by the defendant to the insurance company shortly after the collision occurred can be a critical piece of information.  For this reason, it is important to have an experienced personal injury on your side who is knowledgeable and committed to obtaining all discoverable evidence in your case.


[1] Va. S. Ct. R. 4:1(b)(1).

[2] Id., at 4:1(b)(3).

[3] State Farm Fire and Casualty Co. v. Perrigan, 102 F.R.D. 235 (W.D. Va. 1984).

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