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Washington Appeals Court Finds PIP Application Is Confidential Work Product

When Washington car accident victims apply for no-fault benefits from their own insurer, they may not consider that the information contained in the application could affect their claim against the at-fault driver.  In a recent case, however, the information in the application played a significant role at trial.

bicycleThis case involved an eight-year-old boy who was struck by a van.  The defendant stopped and got out of her van when she heard a noise and felt the van jump.  An eight-year-old boy was lying on the ground near a pickup truck.  The van had run over one of his legs.

At issue in the appeal was the admissibility of an application for no-fault benefits.  The boy’s mother speaks only Spanish.  A law firm helped her apply.  She signed a blank application for PIP benefits, and a legal assistant filled it in later.  The legal assistant used the police report in completing the form and wrote that a “child on a bike rode into the road…”

The police report indicated the child had ridden his bicycle into the road from between two parked vehicles, but the officer had not spoken with anyone who actually saw what happened.

The mother sued the defendant on behalf of her son.  Although the child’s statements varied, he ultimately told the accident reconstruction expert his shoelace caught in the bike chain.  He said he was leaning over his bike with his leg out in the road when the van ran over it.

The plaintiff asked the court to exclude the PIP application, arguing it was privileged.   The trial court found the form was prepared by the plaintiff’s agent and was admissible as an admission against interest.  The court also found the application was not privileged but did not provide the analysis on which it based that conclusion.

At trial, the plaintiff’s expert opined that the child could not have been hit while riding the bike because of a lack of damage to the bike and a lack of impact or sliding injuries.  He concluded the child was stationary and adjacent to the pickup when the defendant’s vehicle ran over his leg.

The defendant’s accident reconstructionist testified that police reports are used by accident reconstruction experts.  The plaintiff objected to the police report being read into the evidence, but the court overruled this, stating there would be a jury instruction that the report was admitted for a limited purpose.  The defendant did not finish reading the police report but instead focused on the accident description in the PIP application.

The jury found the defendant was not negligent.  The plaintiff appealed.

The plaintiff argued the PIP application should not have been admitted into evidence because it was hearsay and confidential.  The appeals court found it was not hearsay, since it was completed by the legal assistant acting within the scope of her authority as an agent for the plaintiff.  The appeals court rejected the plaintiff’s argument that the legal assistant based the information on the police report instead of firsthand or direct knowledge from the party, finding personal knowledge is not required.

The plaintiff also argued the PIP application was confidential work product.  Previous case law has held an insured has a reasonable expectation that statements to his own insurer will be kept confidential because of the contractual requirement of cooperation.  Furthermore, it appeared the defendant obtained the PIP application through the insurance company because the plaintiff and the defendant shared the same insurance company.  The appeals court noted it would be an “injustice” to allow the defendant to use the PIP application against the plaintiff just because they shared the same insurance company.  The appeals court noted the injustice was even greater because the accident description came from the police officer’s speculation, which was not supported by an eyewitness and was inconsistent with the physical evidence.  The appeals court found the trial court erred in not giving the PIP application work product protection.

The appeals court also found that the admission of the PIP application was prejudicial to the plaintiff.  The appeals court noted the defendant repeatedly mentioned that the child had ridden his bicycle into the road.  The court pointed out this claim was primarily based on the PIP application.

Although a dissent disagreed with the majority’s finding that the PIP application was confidential work product, the appeals court reversed the verdict and granted the plaintiff a new trial.

Accident victims should try to ensure that all documents related to an accident are accurate.  If you have been injured in a car accident, an experienced Washington car accident attorney can help you deal with insurance companies and seek the compensation you deserve.  Call the attorneys at Blair & Kim, PLLC, at (206) 622-6562 to discuss your case.

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 Image: FreeImages.com / Thiago Felipe Festa