Whether you are subrogating or defending on a liability policy, the importance of taking statements soon after a loss cannot be overemphasized.
In a recent trial, the plaintiff, a young woman, was injured in a farm accident and argued that it was our insured, the farmer, who was negligent and responsible for her injuries. However, we had the written statement of her best friend who indicated that the day following the plaintiff's injury, she spoke to the plaintiff at which time the plaintiff admitted "that the accident was all her fault" and that she "did not know what she was doing." Based upon the indicated statement, we believed that our chances for a defense verdict were greatly enhanced. Nonetheless, on the day of trial, the plaintiff's attorney brought a Motion in Limine, seeking to bar the best friend's testimony pursuant to s904.12 of the Wisconsin Statutes.
Sec. 904.12 (1) of the Wisconsin Statutes states:
"In actions for damages caused by personal injury, no statement made or writing signed by the injured person within seventy-two hours of the time the injury happened or accident occurred, shall be received in evidence unless such evidence would be admissible as a present sense impression, excited utterance or a statement of then existing mental, emotional or physical condition. . ."
On its face, Rule 904.12 appears to bar all post-accident "statements" made by an injured party within seventy-two hours of the day of the accident, unless the statement would qualify as an exception to the hearsay rule in the form of being a present sense impression, an excited utterance, or one evidencing a then existing state of mind. However, it should be noted that such statements are barred only if the statement itself was obtained from an injured person for potential use in defending a future claim brought by the injured person. In addition, when the injured person's physical or mental condition was such that he or she could not intelligently answer questions and protect his or her own rights, the statement may also be excluded.
However, the statement will not be excluded, even though taken within seventy-two hours of the accident, if the person who either took the statement or heard the injured person make verbal statements, was a disinterested person and/or the plaintiff had volunteered the statements to his or her acquaintance. If the person who heard or took the statement is simply relaying testimony or receiving a statement without an eye toward future litigation, then the statement will likely not be found to be improperly procured. Examples of such an exchange would be a medical professional questioning an injured party for the purpose of medical treatment or diagnosis, etc.
Also, if the person were shown to be under the influence of medications, was clearly affected by the extent of pain and suffering from the accident to the extent that they "could not think straight," then the statement may be objectionable. Even so, it would seem prudent to treat the "incapacity" as affecting the weight to the afforded statement, not its admissibility.
Even if a statement is obtained within seventy-two hours and also with an eye toward future litigation, if the statement was a present sense impression, an excited utterance or a statement of the declarants then existing mental state, then pursuant to the exception to the hearsay rule, the statement would still be admissible. However, if the statements were made long enough after the accident, and not within the seventy-two hours following the accident, it may be more difficult to argue for the statements admissibility. Absent proof that the injured party was deranged or severely traumatized by the accident, damaging, spontaneous statements that a person may make shortly thereafter are likely to come into evidence.