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Can statements to my insurance company in Washington be used against me at trial?

Posted by Brian C. Zuanich | Apr 08, 2018 | 0 Comments

For many of us, dealing with our insurance company is a necessary evil—we know we have to, but it's rarely pleasant. 

But we can take some satisfaction in the fact that statements to our insurance companies generally can't be used against in a personal injury trial—the WA Court of Appeals reaffirmed this important legal principle in an opinion issued yesterday.  

In Figueroa v. Mariscal, a mom sued another woman for driving over and fracturing her son's leg when he was riding his bicycle. A police officer investigated the accident and wrote a report.

The mom contacted a law firm to get assistance in making a claim under her insurance company to pay for her son's medical expenses. A legal assistant had her fill out an application for Personal injury Protection (PIP) insurance, which covers medical bills, lost wages, and other expenses following a car accident regardless of fault.

Because the mom only spoke Spanish, the assistant filled out the application, which required the applicant to briefly describe how the accident occurred. The assistant just copied a portion of the police report into the PIP application. 

​At trial, the jury heard contradictory testimony about how the accident happened, and the defendant used the PIP application against the mom. The mom objected to its admission, but the trial court overruled the objection. The jury ruled that the defendant was not at fault for the boy's injuries. 

The Court of Appeals set aside the jury's verdict because the trial judge was wrong to have admitted the mom's PIP application. Because she had a contractual (i.e. legal) obligation to cooperate with her insured company—including, specifically, filling out a PIP application after an accident—she reasonably expected that her PIP would be kept confidential and not be shared with an opposing attorney.

Therefore, a PIP application is protected under the confidential work product doctrine, which prevents opposing attorneys from accessing documents prepared in anticipation of litigation. This includes insurance applications following car accidents.

About the Author

Brian C. Zuanich

I am the managing partner at Zuanich Law. I am a former prosecutor and insurance defense attorney, and have practiced law in state and federal courts for over a decade.

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