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Admissibility of Deceased Driver’s Statement to Insurance Company: Suggestions and Tips Defense attorneys may come across the situation in a car accident case where their client’s insured, the driver, has passed away at some point after the accident and is not available to testify as a witness. In such cases, the driver may have given either a written or oral recorded statement to the insurance company shortly after the accident, creating a potential hearsay issue. A deceased driver’s recorded statement may contain significant and, indeed, crucial information regarding liability and the circumstances surrounding the collision, such as the driver’s speed, evasive measures, at what point the driver saw the other vehicle, and the color of the driver’s light in an intersection accident, among other important information. In the vast majority of car accident cases, counsel will have the opportunity to talk to the driver and present him or her for deposition, so that the drivers’ sworn testimony about the material facts surrounding liability issues will be available to cite in a dispositive motion, for example.[1] There may be no other witnesses who can testify as to those material facts, so when a driver passes away before being deposed, the insurance company’s recorded statement of the dead driver is a critical piece of evidence. However, in these circumstances, the deceased driver’s statement is hearsay and inadmissible – unless it meets at least one of the specific hearsay exceptions found in the Wisconsin Statutes.[2] This article will discuss potential arguments that defense counsel may make in a pretrial motionto admit the statement into evidence and other issues that may arise. While counsel may classify this as a motion in limine, it is actually a motion to include evidence, rather than exclude evidence. As with every evidentiary issue, a strategy decision must be made as to whether to raise this in a pre-trial motion or simply wait for the time of trial, being amply prepared for the arguments needed to support its admissibility.
Wisconsin defines “hearsay” as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”[3] Generally, if an individual is deceased and no longer able to testify, any statement attributed to him or her and offered for the truth of the matter asserted is hearsay. As a general rule, hearsay is not admissible in a court proceeding; however, there are exceptions, and in order to be admissible, the statement must fall under a specific exception to the general rule.[4] The admissibility of a hearsay statement is within the trial court’s discretion,[5] and the court must exercise discretion regarding admissibility of evidence “in accordance with accepted legal standards and in accordance with the facts of the record.”[6] Generally, in personal injury actions, a statement or writing made or signed by an injured party within 72 hours of an accident is inadmissible.[7] The rule expressly applies to statements of any injured party—not just plaintiffs—and was created based on the policy that admission of statements made within 72 hours was “unfair because the physical and mental condition of the injured person might prevent him from properly safeguarding his rights.”[8] Thus, an insurance company’s recorded statement of a driver who later dies may be admissible if it is taken after 72 hours and meets at least one hearsay exception. (If the driver was not injured, the other side may well argue that the above statute is inapplicable.) When a declarant is unavailable to testify due to death, Wisconsin recognizes a handful of hearsay exceptions in Wis Stat. §§ 908.03 and 908.045. Generally, the exceptions in Wis. Stat. § 908.03 apply whether or not the declarant is available to testify, and the exceptions in Wis. Stat. § 908.045 apply only when the declarant is unavailable.[9] Thus, if a deceased person’s statement to an insurance company meets an exception under either of those sections, it is not excluded from evidence by the general hearsay rule. Defense counsel may argue that the following hearsay exceptions apply to a deceased driver’s statement to an insurance company.
Wis. Stat. § 908.03 contains hearsay exceptions that may apply whether or not the declarant is available to testify as a witness.[10] Under that section, counsel may argue that a deceased driver’s statement is admissible under the recorded recollection hearsay exception: (5) Recorded recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made when the matter was fresh in the witness's memory and to reflect that knowledge correctly.[11] A recorded recollection is defined as a “record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately.”[12] To fall under this exception, the statement must have been made when the matter was fresh in the witness’s memory and reflect the witness’s knowledge on the matter correctly.[13] On its face, it may seem like this exception applies to a deceased driver’s statement, as the declarant is unable to testify fully and accurately, and the statement likely reflects that it was made when the declarant’s memory was fresh, and the knowledge was recorded accurately. However, while this hearsay exception is listed in the category where the availability of the declarant is immaterial, the exception actually requires that the declarant is available to testify about the record but cannot remember fully or accurately.[14] It applies where a witness is testifying on the stand and cannot recall something well enough to testify “fully and accurately.”[15] The attorney examining the witness may then have the witness read into evidence the memoranda or record regarding the matter about which the witness had personal knowledge but no longer has sufficient knowledge to testify about the record.[16] The hearsay exception is similar to the practice of refreshing a witness’s present memory while testifying, but it essentially substitutes the record for the witness’s failed memory.[17] Thus, in the deceased driver scenario, the recorded recollection hearsay exception would probably not apply.
However, under Wis. Stat. § 908.03, defense counsel may also argue that a deceased driver’s recorded statement falls under the “business records” hearsay exception and is a record of the insurance company’s “regularly conducted activity.” That exception provides: (6) Records of regularly conducted activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, all in the course of a regularly conducted activity, as shown by the testimony of the custodian or other qualified witness, or by certification that complies with s. 909.02 (12) or (13), or a statute permitting certification, unless the sources of information or other circumstances indicate lack of trustworthiness.[18] According to the statute, to meet this exception, the statement at issue must be a record of events, made at or near the time of the events by, or from information transmitted by, a person with knowledge, all in the course of a regularly conducted activity, as shown by the testimony of the custodian or other qualified witness.[19] It may be “in any form,” which would arguably cover a recording. In order to qualify to testify to the requirements of this exception, the “qualified witness” must have personal knowledge of how the records were made so he or she may testify that they were made “at or near the time [of the event] by, or from information transmitted by, a person with knowledge” and “in the course of a regularly conducted activity.”[20] Wisconsin courts have held that the business records hearsay exception applies where affidavits establish the affiants’ personal knowledge that certain documents recorded events that occurred at the times recorded, in the course of regularly conducted business activity.[21] Thus, defense counsel may present testimony, or obtain an affidavit, from the insurance representative who took the statement to establish the requirements under the statute. Generally, each declarant involved in making the “business record” must be part of the organization that prepared the record,[22] but ultimately, it is up to the trial court’s discretion—courts often admit into evidence records involving non-business declarants, like bank records and police reports.
Defense counsel may also argue that a deceased driver’s statement falls under the identically worded hearsay exceptions found in Wis. Stat. §§ 908.03(24) and 908.045(6), Other Exceptions, which are considered the “residual” hearsay exception.[23] These are frequently referred to as “catch-all” provisions. Wis. Stat. § 908.045 is similar to § 908.03 but contains hearsay exceptions that apply only when the declarant is unavailable to testify, like in the scenario with a deceased insured driver. Both Wis. Stat. §§ 908.03(24) and 908.045(6) provide an exception to the general hearsay rule for statements “not specifically covered by any of the foregoing exceptions but having comparable circumstantial guarantees of trustworthiness.”[24] Under this exception, courts must consider the facts of each particular case to determine trustworthiness, and “no single factor [should] be dispositive of a statement's trustworthiness.”[25] In cases with a deceased driver, the driver is clearly unavailable to testify, so the parties unfortunately do not have the opportunity to depose the driver or call him or her to testify at trial. Yet, the driver’s version of events is likely critical, and he or she may even be the only driver involved in the accident who remembers the collision. If the deceased driver’s statement is crucial for the defense’s argument, and the statement meets the requisite standard of trustworthiness, a judge will likely admit the insurance company’s recorded statement under the residual hearsay exception. Trustworthy statements under this hearsay exception are statements whose authenticity and truthfulness are proven by facts on the record, and trial courts consider factors that may indicate the statement’s untrustworthiness[26] Thus, defense counsel may argue that a statement is sufficiently trustworthy especially where it is corroborated by other evidence on the record, like the sworn testimony of a reliable and impartial eyewitness to the accident, for example. To establish authenticity, an attorney may find someone who can testify and confirm the identity of the deceased driver’s voice making the statement and to testify as to the chain of custody of the statement, including whether it was transcribed and if so, by whom. It may also be beneficial to play the actual recording of the statement for the judge because hearing the declarant’s voice and own words may have an impact on the judge’s decision about trustworthiness. Essentially, proponents of the statement’s admission should cite as many factors that go to the statement’s trustworthiness as possible.
Unfortunately, opposing counsel may argue that an individual’s recorded statement to an insurance company is inadmissible because it is does not meet the requirements of the hearsay exception found in Wis. Stat. § 908.045(2), which states: (2) Statement of recent perception. A statement, not in response to the instigation of a person engaged in investigating, litigating, or settling a claim, which narrates, describes, or explains an event or condition recently perceived by the declarant, made in good faith, not in contemplation of pending or anticipated litigation in which the declarant was interested, and while the declarant's recollection was clear. A recorded statement of a deceased driver, taken by an insurance company, generally would be prohibited by this exception because it would have been taken by the insurance company for the investigation of a claim (although in some circumstances, defense counsel can argue that the statement was taken before any legal action was taken or any lawyers were involved). However, just because an insurance company’s recorded statement of the driver may not fall under this specific exception, that does not mean that every recorded statement given to an insurance company is inadmissible. Counsel can (and should) argue that the statement is admissible under the other hearsay exceptions previously discussed. In fact, a party objecting to the admission of evidence need not specify the rule under which the evidence does not fit, but rather, it is the proponent who has the burden to specify the exceptions under which the evidence does fit and to show why the evidence isadmissible.[27] Any argument that a piece of evidence is inadmissible because it does not fall under one specific hearsay exception fails.[28] It is worth noting that in a recent case where this issue arose, the trial court noted that the insurance adjuster did not elicit an understanding from the driver that the statement “may be used in a court of law.” Insurance personnel should therefore be instructed to include that language in statements that they take of witnesses or participants in an accident. While it does not convert to sworn testimony, it could help in situations like this.
When arguing in favor of the admissibility of a deceased driver’s statement to an insurance company, it is best to argue that multiple hearsay exceptions apply—the statement is admissible if even one exception applies. Whether the statement is admissible is, of course, entirely a discretionary decision made by the trial judge. The decision may essentially come down to whether the judge believes that admitting the statement will prejudice the opponent of its admission more than it would prejudice the proponent to not admit the statement into evidence. For the highest chance of success, defense attorneys arguing for the admission of a deceased driver’s statement should offer multiple options to the court to prove the statement’s authenticity and trustworthiness. Author Biography: Kelsey Pelegrin is an associate attorney at Bell, Moore & Richter, S.C. in Madison. Her practice areas include general liability defense, insurance defense, and insurance coverage litigation. She earned her Bachelor of Arts degree from the University of Wisconsin-Madison in 2017, and she earned her Juris Doctor degree from Marquette University Law School in 2021. She is admitted to practice in Wisconsin state courts and before the U.S. District Court for the Western District of Wisconsin. [1] With special thanks to BMR shareholder, Patricia Epstein Putney. [2] See Wis. Stat. §§ 908.03, 908.045. [3] Wis. Stat. § 908.01(3). [4] Wis. Stat. § 908.02. [5] See Christensen v. Econ. Fire & Cas. Co., 77 Wis. 2d 50, 55, 252 N.W.2d 81 (1977). [6] State v. Hauf, 109 Wis. 2d 641, 642, 327 N.W.2d 170 (Ct. App. 1982) (citing State v. Baldwin, 101 Wis. 2d 441, 455, 304 N.W.2d 742 (1981)). [7] See Wis. Stat. § 904.12(1). [8] Zastrow v. Schaumburger, 210 Wis. 116, 245 N.W. 202 (1932); Musha v. United States Fidelity & Guaranty Co., 10 Wis. 2d 176, 102 N.W.2d 243 (1960). [9] Wis. Stat. §§ 908.03, 908.045. [10] Wis. Stat. § 908.03 (containing hearsay exceptions for which the availability of the declarant is “immaterial”). [11] Wis. Stat. § 908.03(5). [12] Id. [13] Id. [14] § 803.5 Recorded recollection, 7 Daniel D. Blinka, Wisconsin Practice: Wis. Evidence § 803.5 (4th ed.) (“At the outset one should observe that this rule requires that the declarant testify as a witness. Logically, the recollection recorded exception should have been grouped with prior statements by witnesses under § 908.01(4), but Wisconsin followed the lead of the federal rules, which miscast this exception among those where the declarant's availability is (otherwise) ‘immaterial.’”). [15] See id. [16] Id. [17] See, e.g., State ex rel. Huser v. Rasmussen, 84 Wis. 2d 600, 609, 267 N.W.2d 285 (1978). [18] Wis. Stat. § 908.03(6). [19] Id. [20] Palisades Collection LLC v. Kalal, 2010 WI App 38, ¶¶ 15-16, 324 Wis. 2d 180, 781 N.W.2d 503. [21] Cent. Prairie Fin. LLC v. Yang, 2013 WI App 82, ¶ 13, 348 Wis. 2d 583, 833 N.W.2d 866. [22] See Wilder v. Classified Risk Ins. Co., 47 Wis. 2d 286, 293, 177 N.W.2d 109 (1970); State v. Gilles, 173 Wis. 2d 101, 496 N.W.2d 133 (Ct. App. 1992). [23] State v. Mercado, 2021 WI 2, ¶ 55, 395 Wis. 2d 296, 953 N.W.2d 337. [24] Wis. Stat. §§ 908.03(24), 908.045(6) (emphasis added). [25] State v. Sorenson, 143 Wis. 2d 226, 246, 421 N.W.2d 77 (1988). [26] See Kuhlman, Inc. v. G. Heileman Brewing Co., 83 Wis. 2d 749, 762, 266 N.W.2d 382 (1978) (“The trial court's decision to admit or exclude the evidence should be based on its weighing of the factors showing untrustworthiness, e. g., existence of motive and opportunity to prepare an inaccurate record, and the factors assuring reliability of business records”). [27] State v. Jenkins, 168 Wis. 2d 175, 187–88, 483 N.W.2d 262 (Ct. App. 1992) (citing State v. Peters, 166 Wis. 2d 168, 174, 479 N.W.2d 198 (Ct. App. 1991). [28] Id. |