The Butler Law Firm recently obtained an order compelling an insurance company to produce the recorded statement of its insured in a car accident case.  

Car Accident Facts

The facts of the case are similar to many disputed liability car accident cases. The firm’s client entered an intersection after her traffic light changed green.  Seconds later, another car blew through the red light into the same intersection, causing a serious collision.  The investigating officer found the other driver to be at-fault, but did not issue a citation.

The firm filed a lawsuit against the at-fault driver.  After obtaining the at-fault driver’s cell phone records, we took her deposition. During the deposition we locked down the specific times the at-fault driver was operating her car, as well as the time of the accident.  Importantly, the at-fault driver testified that she was not texting while driving and that she called her mom about fifteen minutes after the accident.

The records told another story.  The records confirmed that the at-fault driver made a phone call to her mom about fifteen minutes after the accident, but they also showed that the driver was consistently sending and receiving text messages during the time leading up to the accident.  In fact, the text messages stopped exactly at the time of the accident.

Insurance Company’s Recorded Statement

After locking down the timeline, we requested the at-fault driver’s recorded statement from the insurance company.  We explained—and the insurer ultimately conceded—that the recorded statement was relevant to Plaintiff’s claims for “bad faith” and “stubborn litigiousness” under O.C.G.A. § 13-6-11.  Specifically, the recorded statement would support a claim of bad faith if it showed that she was texting while driving and would support a claim of stubborn litigiousness if the recorded statement contained facts tending to show liability, but the insurance company, nonetheless, denied liability.  However, the insurance company refused to provide the recorded statement and asserted protection under the “work product doctrine.” 

The work product doctrine protects materials that were prepared in “anticipation of litigation.”  We explained to the insurance company that the recorded statement could not be work product because it was not taken in anticipation of litigation, but rather, as part of the insurance company’s routine investigation of the claim. The insurance company still refused to provide the recorded statement, so we filed a motion to compel.

Court’s Ruling

The Court refused to accept the insurance company’s position that all recorded statements of insureds are protected from disclosure by work product.  Instead, the Court found that “[s]tatements routinely obtained as a standard practice of investigating accidents are not protected.” 6/29/20 Order.  The Court found that the recorded statement in our case was not taken in anticipation of litigation since it was taken as part of a routine investigation. Specifically, the insurance company’s records showed that it took its insured’s recorded statement before the firm’s client even contacted the insurance company to open a claim.

The recorded statement of the at-fault driver is relevant in every case for a number of reasons. Whether the recorded statement is protected by the work product doctrine is a question of fact based on whether the insurance company anticipated litigation.  Generally, a statement is not made in anticipation of litigation where it was taken before the insurance company hears from the claimant.  Plaintiffs should request the at-fault driver’s recorded statement in every case.

A copy of the Court’s Order is available online here.

-Matt Kahn

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