Virginia Vehicle Accidents & Premises Liability – a Lawyer’s Discovery
The Virginia Supreme Court long has held that routine accident reports and statements are not privileged under Virginia’s “work product” doctrine." A statement made by an employee to his employer, in the course of his ordinary duty, concerning a recent accident, and before litigation has been brought or threatened, is not privileged either in the hands of the employer or in the hands of the latter’s possessed by insurer attorney to whom it has been transmitted. We so held in Virginia-Carolina Chem. Co. v. Knight, 106 Va. 674, 679, 680, 56 S.E. 725 [1907]." Robertson, 181 Va. at 539 (emphasis added). “The trial court correctly ruled that the [statement] was not a privileged communication.” Id. at 541. In Virginia-Carolina, “the [written accident] report was made by an official of the defendant in the course of his ordinary duty immediately after the accident, before any action had been brought or threatened. A report made under these circumstances . . . is not a privileged communication within the reason of the rule under the authorities.” 106 Va. at 680 (emphasis added).
The spirit of Virginia-Carolina and Robertson has been embodied by the clear majority of Circuit Courts. Internal premises liability “accident reports” prepared contemporaneously have been ruled “not work product immune from discovery.” See, e.g., Assaid v. Food Lion, Inc., No. 95-1201-R, Order at 1 (W.D.Va., May 7, 1997)(“Notice to Counsel form”); Lott v. Food Lion, Inc., (E.D.Va.); Blough v. Food Lion, Inc., 142 F.R.D. 622, 624 nn. 1-3 (E.D.Va. 1992)(Virginia), vacated and remanded on other grounds, No. 93-1169 (4th Cir. 1993)(unpublished opinion) (“General Liability Claim Notice to Counsel”); Lewis v. Ukrop’s Super Markets, Inc., No. CL01-9480, Bench Ruling (Williamsburg Jul. 30, 2001)(7 fall victims’ statements); Clark, 40 Va. Cir. at 230 (material captioned “prepared in anticipation of litigation”); Moore v. Farm Fresh, No. CL94-20624-RF, Order (Newport News Oct. 30, 1995); Whitehead v. Harris-Teeter, Inc., 28 Va. Cir. 367, 368 (Amherst 1992).
Virginia’s modern trend is vehicle accident, insurer and other investigative statements and claim materials collected routinely are in the “ordinary course of business,” not “prepared in anticipation of litigation” and, thereby, not privileged. See, e.g., Nat’l Union Fire Ins. Co. v. Murray Sheet Metal Co., 967 F.2d 980, 983-984 (4th Cir. 1992)( Virginia law); McDougall v. Dunn, 468 F.2d 468, 473 (4th Cir 1972)(Virginia law)(insurer’s statements); Goosman v. A. Duie Pyle, Inc., 320 F.2d 45, 52 (4th Cir 1963)(Virginia law); RLI Ins. Co. v. Conseco, Inc., 477 F.Supp.2d 741, 749-750 (E.D. Va. 2007)(Virginia law)(insurer’s investigation); Front Royal Ins. Co. v. Gold Players, Inc., 187 F.R.D. 252, 256-259 (W.D. Va. 1999)(Virginia law)(insurer’s internal claim file documents, correspondence and reinsurer information, sans reserves set); State Farm Fire and Cas. Co. v. Perrigan, 102 F.R.D. 235, 238-239 (W.D. Va. 1984)(Virginia law)(investigator and adjuster reports and opinions); Henson v. Wyeth Labs, Inc., 118 F.R.D. 584, 586-587 (W.D. Va. 1987)(Virginia law)(risk management information); Burr v. R.C. Paving, No. CL08-595, Opinion and Order (Suffolk Dec. 2, 2008)(insurer’s statements of defendants and third-party); Hawkins v. Vann, 74 Va. Cir. 263, 263-264 (Portsmouth Oct. 16, 2007)( accident report) McKinnon v. Doman, 72 Va. Cir. 547, 547-548 (Norfolk Mar. 1, 2007)(insurer’s statement of defendant); Massenburg v. Hawkins, 70 Va. Cir. 13, 16 (Greensville Jun. 27, 2005); McDonald v. Sentara Med. Group, 64 Va. Cir. 30, 37 (Norfolk Mar. 4, 2004)(investigative reports and photographs); Wood v. Barnhill, 52 Va. Cir. 274, 275 (Charlottesville May 23, 2000)(insurer’s statements); Thompson v. Winn Dixie Raleigh, Inc., 49 Va. Cir. 115 (Chesterfield May 28, 1999); Whetzel v. McKee, 44 Va. Cir. 315, 316-17 (Rockingham Jan. 20, 1998)(insurer’s statement 3+ months post-accident); Estabrook v. Conley, 42 Va. Cir. 512, 513 (Rockingham Jul. 25, 1997) (insurer’s statement); Rink v. Mikris, 40 Va. Cir. 528, 533-34 (Newport News Dec. 18, 1996); Prince v. Ponderosa Steakhouse, Inc., 40 Va. Cir. 466, 472-473 (Albemarle Nov. 18, 1996)(all statements, records, documents and things prior to notice of legal representation); Wyatt v. Bulgart, No. 35032, Order (Hampton Oct. 24, 1996) (insurer’s statement of defendant 2 months after plaintiff retained counsel and sent representation notice); Taylor v. McCallister, 40 Va. Cir. 327, 328 (Alleghany Sep. 19, 1996) (insurer’s statements of parties and third-parties); Shelton v. Blair, 40 Va. Cir. 237 (Pittsylvania Aug. 16, 1996) (insurance adjuster notes); Clark, 40 Va. Cir. at 228-230 (Henry)(insurer’s accident reports, interal memoranda, correspondence, handwritten notes, and typewritten notes); Ramsey v. Gordon, 39 Va. Cir. 409, 409-10 (Lynchburg Jun. 27, 1996) (insurer’s statements of parties and witnesses within 30 days post-accident); Kanchanayothin v. Stancell, 39 Va. Cir. 189, 189-90 (Loudoun Apr. 17, 1996) (insurer’s statement of defendant 28 days post-accident); Carroll v. Blackwell, 1996 Va. Cir. LEXIS 591, *5 (Richmond Jan. 23, 1996) (all pre-suit insurer factual documents); Tanner v. Evans, No. 95-335 (Charlottesville 1996)(insurer’s statements); Billups v. Hunter, No. 31127, Order (Hampton Nov., 1995); Pressy v. State Farm Mutual, No. 20693, Order (Portsmouth Sep. 14, 1995); Schoonmaker v. Rogester, No. CL-94-3969, Letter (Virginia Beach Aug. 17, 1995); Overton v. Dise, 35 Va. Cir. 177, 178 (Fairfax Nov. 9, 1994); Heischman, Inc. v. Reliance Ins. Co., 30 Va. Cir. 235, 243-244 (Albemarle Mar. 1, 1993); Whitehead v. Harris-Teiter, Inc., 28 Va. Cir. 367, 368 (Amherst Jul. 27, 1992); Malone v. Gill Mem’l Eye, Ear, Nose & Throat Hosp., Inc., No. 86-0307, Order #2 at 2 (Roanoke Nov. 6, 1986)(medical malpractice insurance adjuster’s recorded statements); and Brugh v. Norfolk & W. Ry., 4 Va. Cir. 477 (Botetourt Feb. 15, 1979).
Ramsey hits the insurance industry nail on the head in finding [auto accident] witness statements to be “obtained in the ordinary course of business rather than in anticipation of litigation”. “The gathering of such information is essential for the insurance industry to properly adjust claims and establish reserves, and the availability of statements obtained in the process is often essential to the integrity of the fact finding process when litigation ensues.” 39 Va. Cir. at 409-410.
Likewise, Whetzel explains and declines to fall into the fallacy of the “anticipation of litigation” bent. “As a practical matter, it creates a new and clearly-defined exemption from the normal rules of discovery for insurance carriers by effectively ruling that all information obtained by an insurance carrier, even when counsel is not involved and no litigation has been filed and when the injured party, in many cases, has not even retained a lawyer would be automatically exempt from discovery because of the very nature of the insurance company’s business.” 44 Va. Cir. at 317.
Similarly, Estabrook debunks the “anticipation of litigation” argument. "Although it may not be irrational in the litigious society in which we live to assume that litigation will follow any [auto] accident, this assumption cannot be the predicate for the sweeping product protection. To accept such a proposition would create a de facto new class of privileged material which would cover virtually all types of routine accident investigations. If there is going to be such a sweeping change in trial practice, in must come from a General Assembly." 42 Va. Cir. at 513. Hence the great divide between “routine and ordinary course of business” and “anticipation of litigation” reasonably is the insurer receiving a formal notice of claim or, at the least, being directed by counsel – neither of which occurred in the matter sub judice.
