2012 Va. Cir. LEXIS 193
Surry Cir. Ct.2012Background
- Mindy Insley sues Patrick Walsh for injuries from a June 14, 2009 motorcycle crash involving a deer in Surry County.
- Plaintiff rode with Walsh; others on the group rode separately; speeds alleged to be well over the limit by plaintiff and others.
- Plaintiff’s mother contacted State Farm about Walsh’s liability coverage; Plaintiff later spoke with a State Farm agent about the crash.
- Plaintiff’s statements to an insurer were contradicted by later complaint and deposition testimony.
- Issue arises whether insurer statements can impeach or be admitted under Virginia Code § 8.01-404, and whether the insurer and related testimony are admissible.
- Court weighs admissibility of prior inconsistent statements, refreshing recollection, and implications of insurance testimony on liability evidence.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| May insurer testimony impeach plaintiff on inconsistent statements? | Insley can be impeached by a prior inconsistent statement from insurer. | 8.01-404 bars use of written statements to contradict a witness; transcript not admissible. | Yes, can impeach orally; transcript not admissible; may refresh recollection. |
| Is the transcript admissible to contradict plaintiff or for refreshing recollection? | Transcript could be used to impeach or refresh memory. | Transcript may not be entered to contradict; can be used to refresh. | Transcript may refresh recollection; not introduced as evidence to contradict. |
| May plaintiff call insurer or related testimony about liability or insurance to prove defendant liable? | Insurance-related testimony could be probative of liability. | Insurance testimony and related testimony inject insurance and are prejudicial. | No, plaintiff may not call insurer or mother to testify about liability or coverage. |
Key Cases Cited
- Harris v. Harrington, 180 Va. 210 (1942) (impeachment of adverse witness via prior statements acknowledged)
- Gray v. Rhoads, 268 Va. 81 (2004) (party admissions may be used against party when not contradicting testimony)
- Ruhlin v. Samaan, 282 Va. 371 (2011) (refreshing recollection allowed; not a contradiction)
- Scott v. Greater Richmond Transit Co., 241 Va. 300 (1991) (written statements after conversations may be read as past recollection recorded, not exhibit)
- Lombard v. Rohrbaugh, 262 Va. 484 (2001) (collateral source rule; insurance evidence generally limited)
- Fleming v. Highway Express Lines, 185 Va. 666 (1947) (bias/interest of a hostile witness admissible upon cross-examination)