Our clients ask us this all the time following a motor vehicle accident in Massachusetts: “The insurance company called and wants a statement, what should I do?” The answer is a function of whose insurance company is calling and why they are calling.
Typically, it is your own motor vehicle insurance company and, under the insurance agreement, you are obligated to provide information following a collision in Massachusetts where you, or the other party, needs to make a Massachusetts insurance claim. Usually, they ask basic questions to assist them in their investigation. Considering they are obligated to pay legitimate claims, it is usually fine to give them a basic statement. We would recommend you talk to an experienced Massachusetts accident attorney first, however.
What if the other party does not have insurance? You may need to make a Massachusetts uninsured personal injury claim. In which case, you need to be careful because you are, in a sense, making a claim against your own company. Anything you say will, eventually, be used against you. Again, we would recommend you retain experienced Massachusetts counsel.
Unfortunately, there are other scenarios. The easiest one to respond to is when do you talk to the other party’s insurance company? The answer can be complicated. If you have insurance, you do not need to talk to them at the outset. However, our clients frequently say that while they have insurance, they do not have collision, or rental. Or, they were a pedestrian or bicyclist in a Massachusetts accident. Thus, they want to give a statement so they can “prove” it was not their fault and get the benefits. Many times that works. Many times it does not.
But when can you get the other driver’s statement? In a case that was decided by respected Massachusetts Superior Court Judge John S. Ferrara, it was determined that those statements, given to the other side’s insurance company, are “protected work product” and cannot be “discovered” in the event of a lawsuit. See Johnson v. Bertonazzi.
In other words, a copy of the other driver’s statement to his or her insurance company does not have to be provided to you in the course of a lawsuit against them! The reasoning was that because you have the police report, which is public, and you have the right to take the other driver’s deposition, you have all you need.
The problem, as we see it, with this lower court decision, is that it is not clear where you draw the line as far as what is discoverable in litigation, and what is not. Judge Ferrara says that the insurance company was taking the statement of its insured driver “in anticipation of litigation” and therefore it is protected from discovery. But since most cases don’t get litigated, using the judge’s logic, everything an insurance company is doing is in anticipation of litigation and not discoverable. And, really, wouldn’t the defendant driver’s statement right after a collision be more accurate than a year or two later in a deposition, after he talks to his lawyer?
Nevertheless, the judge in this case said that the test is to determine if the statement was taken “because of” existing or expected litigation. A factor could also be that the plaintiff’s attorney requested the document in a motion just a few weeks before trial and failed to demonstrate a “substantial need” for the document. However, we disagree. Being able to cross examine the defendant on the differences between his statement and his deposition testimony, to us, is a substantial need towards finding the truth! It could also be that an independent witness gave testimony that was similar to the defendant’s.
The good news is that a Superior Court judge’s ruling is not law. Only the Appeals Court and Supreme Judicial Court’s rulings form law. On the other hand, the judges of the Superior Court read each other’s rulings, and they can be persuasive.