April 20, 2012
Any experienced lawyer will tell you that obtaining documents and information an insurance company obtains during their investigation of a personal injury case is very difficult, if not impossible in Nebraska. Very often this file contains invaluable information and documents vital to determining whether the other party (called the insured) was responsible for the accident. It also often contains additional information about the full extent of the injuries suffered by everyday people. This “insurance investigative file” is prepared long before a case is filed by an insurance adjuster and before any attorney gets involved to represent the other party.
One of, if not the, most crucial part of the investigative file is a recording the insurance company obtains from the other party immediately following the accident. This recording is often taken very shortly after the accident and contains the complete understanding of the events from that person’s point of view. Obviously, such a recording can be very useful to an injured party as they try to negotiate with the insurance companies, and/or the other side’s attorneys after a lawsuit has been filed, to reach a resolution for their clients. Although the reasons are almost limitless, three very important reasons make these recordings invaluable:
- These recordings are taken at, or near, the time of the accident. Lawsuits usually take years and, in virtually every case, injured persons’ attorneys (called “plaintiffs attorneys” or “plaintiffs lawyers”) will not be able to “depose” (question the other party) to obtain their statements until after a lawsuit is filed years later. It is almost guaranteed that the other party will forget something important and a recording could be used to help them remember the same. Without the recording though, it is possible the insurance company will be able to keep something buried due simply to the ability of people to forget. Worse, the other party may inadvertently have added details to their story over the years putting blame on the injured person in their own memory.
- Insurance companies always demand that injured persons’ attorneys have their clients give a recorded statement to them near the time of the accident. At the same time, an insurance company will tell the other party not to talk to the attorneys for the injured person. If an injured person’s attorney is lucky enough to get a recorded statement from the other side, the insurance companies will become outraged and try everything in their power to keep from paying for any injuries. Ask any injured person’s attorney if they will get a recorded statement from the other party before filing a lawsuit and they will assuredly tell you that it is impossible and, if done, is detrimental to their client’s case. Thus, insurance companies get to know what the injured person’s version of events are and what the other person’s version of events are up until the trial. This is an unfair system that prejudices injured persons, and their attorneys, by providing the defense with an unfair advantage. Injured persons’ attorneys need the recordings to level the playing field.
- It is very hard to see how any discovery (legal investigations) can realistically replace a prior recorded statement. This is especially true when witnesses pass away or otherwise can no longer provide testimony in a case.
Despite the need for these recordings, insurance companies have long hid behind a legalese known as the “work-product doctrine” to refuse to give injured persons’ attorneys these recordings. This rule protects, among other things, recordings between an attorney (or the attorney’s representative) and his/her client made to facilitate legal services to the client. Despite the fact recordings given to an insurance agent are not given to attorneys, Nebraska’s Supreme Court held in 1973 (based on older discovery rules) that the statements made to insurance agents were statements made to agents of an attorney and protected such statements in the case of Brakhage v. Graff.
Of course, many state and federal courts, and even one judge in the 1973 case, disagree with this line of thought and have held that statements made by the other party to an insurance agent are not protected because they are not acting at the direction of an attorney and, thus, are not “agents” of an attorney.
Recently, following a Motion to Compel drafted by myself, Drake Shunneson, and attorney Jeremy Jorgenson, the Nebraska District Court judge Timothy P. Burns issued an Order today wherein he blasted the reasoning of the 1973 Nebraska Supreme Court opinion as against “modern jurisprudence,” and, citing case law, argued that “[a] substantial and growing minority of state courts [and federal courts]…have concluded that statements made to an insurer by the insured are generally not protected by the attorney-client privilege” and that the recordings are “a routine part of an insurance investigation, and express a grave concern about the advisability of making such statements immune from discovery as a matter of policy, for fear of…creating a new privilege (insured-insurer).”
The judge agreed with our opinion that “a verbatim witness statement, even one solicited by counsel, is per se necessary to the full and efficient development of a case.” The judge even went a step further and indicated that the entire “investigative file” should be “subject to discovery without regard to any work product restrictions.” (The order is available in the District Court of Nebraska, Douglas County Case No. CI 11-4177. the case law cited is the Alaska opinion of Langdon v. Champion and 55 ALR 4th, and the Federal Case of Dobbs v. Lamonts Apparel).
This opinion by the Nebraska District Court judge could be the beginning of a major turning point in the fight against the insurance companies for injured victims everywhere. Even though the judge found our arguments “to be persuasive, even more so as to recorded statements, and believe [they] accurately reflect the purposes of the Nebraska Rules of Discovery” he was forced to rule against us on the basis that there was a Supreme Court decision to the contrary.
However, the order clearly indicates that the Nebraska District Court judge strongly disagrees with the unfairness of the current system, the logic that an insurance agent is an “agent” of an attorney before there is any attorney, and clearly believes the current interpretation of the rule is against the purpose of the Nebraska Rules of Discovery. Accordingly, Jeremy Jorgenson and I intend to appeal the decision to the Appellate Court in the hope that they too agree with Judge Burns and ourselves and hold that this 1973 rule is against modern jurisprudence. If we are successful, it will be a small victory in the constant battle to level the playing field against big companies for injured persons throughout the state and, if we’re lucky, throughout the nation.
At Shunneson Law I am devoted to demanding an at-fault party’s insurance company cover injuries following accidents. Call (847) 693-9120 for more information.
-Drake Shunneson (copyright 2012)
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