Back to the future: Accident reports

Accident report cases were a big deal about eight or 10 years ago, as plaintiffs’ lawyers duked it out with insurance companies over access to accident reports or statements taken by adjusters after an incident. Cases came in frequently and from all over the state. The results went both ways, so everyone could stay tuned and have a rooting interest.

The accident reports issue never made its way to the Supreme Court of Virginia. The cases often are fact-based, turning on whether the report was "prepared in anticipation of litigation." That is, if the carrier was getting ready for suit, the plaintiff couldn't have it. And practically speaking, there usually wasn't enough at stake to merit a trip to the Supremes. But you can believe that both the plaintiff's bar and their defense colleagues were keeping tally and reading the facts of each decision closely.

A new one came down last week. Judge Everett A. Martin Jr., who seemed almost surprised to find an accident report case on his desk, ruled in McKinnon v. Doman that a carrier must fork over the taped statement its adjuster took of its insured driver following a wreck. A bicyclist is claiming that the guy caused her to collide with a truck as she sought to avoid hitting his car.

Martin dusted off the prepared-in-anticipation test. It boiled down to whether the insured had hired a lawyer before talking (he had not) or whether the plaintiff’s lawyer had notified the carrier before the statement was taken. In the McKinnon case, the plaintiff’s lawyer, Buz Gilbert, signed on three days after the tape was made. Motion granted.