California Court Upholds Jury Award to Plaintiff Injured in Motorcycle Collision, Determines Plaintiff’s Statement to His Insurer was Privileged

An unpublished opinion issued by a California Appellate Court addressed issues concerning confidentiality and privileged statements made by accident victims to their own insurance companies. Generally, a recorded statement made to the policyholder’s automobile insurance company following anmotorcycle accident is protected under the attorney-client privilege and cannot be used in trial.  In this case, after the jury awarded the plaintiff damages for the defendant’s negligence in causing the collision, the defendant argued that the statement should have been admitted to court.

Before trial, the plaintiff made a statement to his own insurance carrier concerning the accident.  The trial court determined that this statement had been protected by the attorney-client privilege, and this privilege was not waived. The jury returned a verdict in favor of the plaintiff.

The defendant appealed, arguing the trial court erred when they excluded the plaintiff’s statement to his insurer.  The appellate court looked at whether the defendant’s arguments and the statement were properly before the court for consideration.  They also analyzed the facts as they relate to laws concerning privilege and trial court error.

In this case, the plaintiff was riding a Harley-Davidson on Beach Boulevard in Orange County in the evening when the defendant’s vehicle apparently came into his lane, from his left, and forced the plaintiff to apply the brakes. The plaintiff fell to the ground and managed to maneuver his body to the curb.  He spoke to the police at the scene of the incident and underwent surgery on his leg.

The officer at the scene determined that the defendant made an unsafe lane change, in violation of the Vehicle Code. At trial, a traffic collision expert testified that the skid marks and damage to the vehicles indicated that the defendant’s vehicle approached from the left. Ten days following the accident, the plaintiff made a statement to his insurance company that the vehicle that caused the accident approached from his right.

At trial, the plaintiff moved to exclude the statement he made to his insurer, and the court granted the motion.  Stating that California law clearly states the presence or absence of insurance is irrelevant to a case, the trial court also stated the statement was privileged under Evidence Code 954 (attorney-client privilege).

In their discussion, the appellate court stated that the defendant contended the lower court should not have excluded the plaintiff’s recorded statement made to his insurance carrier.  The appellate court stated that on a fundamental level, the defendant had not raised these issues at trial, so the court did not have an opportunity to rule on them.

First, the court stated the rule that to preserve an issue for review, the appealing party must make a timely and meaningful objection in the trial court. This rule applies to evidence as well as procedure.  Here, the court stated their task on review is to review the record for legal errors. It cannot be a legal error when there was no opportunity to rule on a particular matter.  As a result, the defendant’s claim was forfeited.

Regarding the privilege that applies to the plaintiff’s statements, the defendant argued that this privilege was waived because the trial court did not know the substance, purpose, and relevance of the evidence by an offer of proof. An offer of proof, according to the trial court, takes place when legal counsel describes proposed evidence or what the evidence intends to prove if it is admitted.  The intention is to give the trial court an opportunity to change its ruling.  Offers of proof must be specific and set forth the evidence to be produced.

The court stated that the defendant’s counsel did not make an offer of proof as to the substance of the plaintiff’s recorded statement in order to establish a waiver, as required by law.  The court stated that an example of the offer of proof, for example, could be that during the conversation, the plaintiff agreed that the adjuster could provide the defendant’s insurer with a copy.

It was undisputed that the plaintiff’s recorded statement was privileged. But since the defendant’s counsel did not make an offer of proof concerning the statement and what had occurred during discovery, the evidence supported a finding that the plaintiff’s attorney-client privilege was not waived.

The court affirmed the judgment.

At Sharifi Firm, victims of motor vehicle collisions receive legal advice and representation from skilled motorcycle accident attorneys. Throughout Southern California, we negotiate, litigate, and pursue compensation for those hurt by the carelessness of others. We offer a complimentary consultation and can be reached by calling 866-422-7222 or using our online form.

More Blog Posts:

California Court Holds Defendant was not an “Affiliate” Entitled to Summary Judgment on Negligence and Premises Liability Claims After Tragic Vehicular Accident, Southern California Injury Lawyer Blog, March 27, 2017

California Court Upholds Determination that Plaintiff Caused Collision when Trial Court Made Findings of Fault and Credibility Based on their Observation and Evaluation of Testimony, Southern California Injury Lawyer Blog, March 16, 2017

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