HOW TO HANDLE THE MIDNIGHT CALL: A PANEL DISCUSSION
HOW TO HANDLE THE MIDNIGHT CALL: A PANEL DISCUSSION Presented and Prepared by: Edward M. Wagner [email protected] Urbana, Illinois • 217.344.0600 Stephen J. Heine [email protected] Peoria, Illinois • 309.676.0400 Mark D. Hansen [email protected] Peoria, Illinois • 309.676.0400 Michael J. Denning [email protected] Rockford, Illinois • 815.963.4454 Ann C. Barron [email protected] Edwardsville, Illinois • 618.656.4646 Heyl, Royster, Voelker & Allen PEORIA • SPRINGFIELD • URBANA • ROCKFORD • EDWARDSVILLE • CHICAGO © 2014 Heyl, Royster, Voelker & Allen G-1 HOW TO HANDLE THE MIDNIGHT CALL: A PANEL DISCUSSION FACT PATTERN ........................................................................................................................................................ G-4 INVESTIGATION OF CATASTROPHIC ACCIDENTS (materials prepared by Joseph G. Feehan, Peoria Office) I. INTRODUCTION........................................................................................................................................... G-5 II. COORDINATION OF THE INITIAL INVESTIGATION ........................................................................ G-5 III. THE INITIAL INVESTIGATION .................................................................................................................. G-6 A. B. C. The First Call ................................................................................................................................... G-6 Immediately Notify Insured’s Management or Employer............................................. G-6 Gather Data and Evidence at the Accident Site ................................................................ G-6 1. 2. 3. 4. 5. 6. D. E. F. G. H. I. J. K. L. M. N. IV. Time and Location ........................................................................................................ G-7 Accident Scene ............................................................................................................... G-7 Parties Involved .............................................................................................................. G-8 Witnesses, Law Enforcement, and Emergency Responders .......................... G-8 Vehicles Involved and Property Damage ............................................................. G-9 Injuries and Fatalities .................................................................................................G-10 Respond to the Injured ............................................................................................................G-10 Secure the Accident Scene .....................................................................................................G-10 Accident Reconstructionist and Other Experts ...............................................................G-11 Alcohol and Drug Testing .......................................................................................................G-11 Care and Support for the Insured Employee(s) ..............................................................G-11 Obtain Witness Statements ....................................................................................................G-13 Secure Documents .....................................................................................................................G-13 Secure Vehicle Data Recording and Computer Devices..............................................G-14 Obtain Reports and Evidence from the Authorities ......................................................G-15 Internet Resources-Social Media .........................................................................................G-15 Monitor Local News Media ....................................................................................................G-16 CONCLUSION .............................................................................................................................................G-16 G-2 BUILDING A SOLID FOUNDATION FOR DEFENSE: STATEMENT TAKING TECHNIQUES (materials prepared by Heidi E. Ruckman, Rockford Office) I. THE FIRST BATTLE .....................................................................................................................................G-17 A. B. II. Introduction..................................................................................................................................G-17 What Kind of Statement to Take ..........................................................................................G-17 THE TACTICAL DECISIONS .....................................................................................................................G-18 A. Why Take a Statement .............................................................................................................G-18 1. 2. 3. B. Fact Finding Mission ..................................................................................................G-18 Lock in Parties’ and Witnesses’ Version of the Incident ...............................G-18 Assist With Initial Case Assessment .....................................................................G-18 Whose Statement Should Be Taken ....................................................................................G-19 1. 2. 3. Plaintiff/Claimant .........................................................................................................G-20 Defendant/Insured .....................................................................................................G-20 Witness ............................................................................................................................G-20 C. When to Take the Statement .................................................................................................G-20 D. How to Take the Statement ...................................................................................................G-21 1. 2. 3. 4. Prepare an Outline, But Do Not Feel Like You Can’t Deviate From It .................................................................................................G-21 Medical Treatment/Injuries .....................................................................................G-22 Determine the Current Status ................................................................................G-23 Closing Out the Statement ......................................................................................G-23 The cases and materials presented here are in summary and outline form. To be certain of their applicability and use for specific claims, we recommend the entire opinions and statutes be read and counsel consulted. G-3 FACT PATTERN The insured is Don Driver. Driver is a truck driver for ACME Trucking Company, Inc. He is hauling a load of hogs to a meat packing plant. He is driving a 2008 semi-truck. He is within the scope of his employment at all times. There is adequate insurance coverage for Driver and ACME Trucking. The semi-truck Driver is driving was recently in the shop because of issues with the brakes. ACME sent the truck to an independent dealer for the specialized repair/replacement work on the brakes. This is the first time Driver has driven the truck since it was put back into service. At approximately 10:30 a.m., Driver is driving down a busy four-lane highway through a small midwestern city. He is in a busy commercial area. There is a large mall, fast food restaurants, gas stations, and other similar businesses on either side of the highway. There is a charity car wash for a local church youth group in the mall parking lot near the point of the accident. The mall parking lot where the car wash is taking place is on Driver’s left. As Driver enters an intersection near the mall, his cab is struck by a car from his right. Both drivers claim to have had a green light. The impact causes Driver’s truck to careen to the left toward the area where the car wash is taking place. He claims to have hit the brakes, but the truck does not stop. He crashes into the area where the car wash is taking place. There are two fatalities and numerous injuries at the car wash. Additionally, as Driver’s truck is bouncing over the curb toward the area of the car wash, the rear doors of the trailer break open. The hogs in the trailer are freed and begin to run through the parking lot and onto the highway. This causes a number of additional car accidents with minor injuries and property damage. One witness claims to have overheard Driver say that he was texting his wife at the time of the first collision. Driver denies texting or otherwise using his cell phone while he was driving. Several weeks before the accident, Driver received a card from his doctor allowing him to use medical marijuana for anxiety. Driver admits to smoking marijuana the night before the accident. However, he denies being under the influence at the time of the accident. The truck is in relatively good condition after the accident. A representative of ACME Trucking is present at the scene of the accident and wants the truck to be put back into service as soon as possible. G-4 HOW TO HANDLE THE MIDNIGHT CALL: A PANEL DISCUSSION INVESTIGATION OF CATASTROPHIC ACCIDENTS (materials prepared by Joseph G. Feehan, Peoria Office) I. INTRODUCTION When a catastrophic accident occurs, prompt and efficient collection of evidence is critical to minimizing liability exposure. Within 24 hours of the incident, if the fieldwork has not begun, the evidence begins to fade away. Weather conditions, emergency personnel, law enforcement, and other factors can quickly change the accident scene and may remove critical pieces of evidence. Witnesses’ memories of specific details begin to fade as the accident is no longer fresh. As time elapses following the accident, the who, what, when, where, why, and how of a catastrophic accident become unattainable. With proper planning and coordination, accident investigators can maximize the collection and preservation of critical pieces of evidence. At the same time, prompt action can minimize the potential for making common investigation errors. The key is to develop a thorough method for collecting reliable, clear, and comprehensive information about an accident which will allow for an early evaluation of liability and damages. II. COORDINATION OF THE INITIAL INVESTIGATION It may be advisable to designate an “investigation coordinator” to oversee the initial investigation in order to eliminate confusion and redundancy. It is often prudent to promptly retain the services of an attorney and a law firm with experience in handling the initial investigation, as well as the defense of catastrophic accidents. The benefits of involving an attorney from the very beginning of the investigation include: Coordination of investigative efforts to reduce duplicate and unnecessary investigation during the critical initial stages; Assistance with the assignment and hiring of claims reconstructionists, and other specialized investigators or experts; Undertake necessary action to ensure the preservation of helpful evidence at the accident scene and to avoid spoliation of evidence; Protection of all communications concerning the investigation via the attorney-client and attorney-work product privileges; and G-5 adjusters, accident Formulate an initial evaluation of the potential liability issues and gear the investigation toward the defense of impending litigation. It is helpful to have a list of attorneys and law firms prepared in advance by state and locality, along with contact information. Retain a law firm that has the resources which are required to promptly coordinate the investigation and the experience to ensure that the necessary components are in place to successfully complete the initial investigation, including retention of highly qualified experts. III. THE INITIAL INVESTIGATION A. The First Call The first call usually comes from the insured driver, employee, company, or law enforcement officials. Obtain preliminary facts from these individuals and entities, such as: Whether the accident involved any injuries or fatalities. Extent of property damage – to vehicles, equipment, buildings, and products. Location, type, and configuration of accident scene. Accident conditions, i.e., weather, time of day, lighting, road and traffic conditions, etc. Details of the accident, i.e., location of vehicles, equipment, buildings, or products involved, identification of witnesses, nature and extent of physical evidence, etc. Existence of photographs, cell phone images or videotapes. B. Immediately Notify Insured’s Management or Employer Compile a list of home, office, fax, e-mail, pager, and cell phone contacts for the insured company officials who will serve as contacts and assist throughout the investigation. C. Gather Data and Evidence at the Accident Site Depending on the severity of the accident, promptly retaining an accident reconstructionist, engineer, or other experts/investigators can aid tremendously in determining exposure, event chronology, and necessary additional investigation. After obtaining the preliminary facts, the investigation moves to the scene of the accident where there are crucial pieces of evidence that must be secured and preserved as soon as possible. G-6 1. Time and Location Date and time of the accident Precise location: state/county/township/city; route or street, street address; building identification or name; intersection or junction of routes; distance from nearest community; distance from mile markers, utility poles, highway bridges, etc. 2. Accident Scene (a) Get to the scene as soon as possible to determine the physical factors and/or traffic conditions that may have played a role in causing the accident. (b) Time is of the Essence Construct a Chronology Obtain statements from witnesses to determine the sequence of events. If the incident was a car or truck accident, obtain information on the directions of travel of each vehicle to the point of impact and from the point of impact to its final resting place. (c) Measurements Width of the traffic lanes or highway, clearance between parked vehicles, buildings, traffic islands, or other obstructions. Distance of the site of the accident or point of impact from identifiable stationary objects, such as telephone poles, fire hydrants, mile posts, etc. Length of skid marks and direction the vehicles traveled after the point of impact. Distance from the point of impact to detached parts of vehicles and to the point all vehicles came to rest. (d) Photographs/Videotapes Scene from various angles. Resting position of vehicles, equipment, products or other physical evidence involved. Damage to all vehicles, property, buildings, equipment, products or other physical evidence involved. Pre-accident paths of the vehicles, i.e., tire tracks, skid marks, fluid trails, etc. G-7 Area where debris landed. Avoid gory photographs of injured parties and ambulance crew and vehicles. Determine existence of security video. Potential Police/Fire Department computer evidence and vehicle generated video. Cell phone photographs/video. (e) Record Road, Traffic, Weather, and Lighting Conditions (f) Electronic Data Potential computer forensic expert. Preserve cell phones, laptops, tablets and all mobile devices. Preserve any type of computer and their memory. 3. Parties Involved Names and addresses of: – – – Injured party(ies), co-workers, supervisors, other potential witnesses. Owners, drivers, and passengers of all vehicles involved. Owners of all other property involved. Determine the location and activities of each party before and after the accident. Determine which parties sustained injuries. Identify fatalities and try to determine whether they survived the accident for any period of time. Identify name of insurance company for any possible adverse driver. 4. Witnesses, Law Enforcement, and Emergency Responders Witness Statements: The most important information about an accident usually comes from witnesses. Therefore, witness statements are vital to the investigation. Allow the witness to tell his/her own story and then ask clarifying questions. Interview witnesses separately. G-8 Do not reveal the name or testimony of one witness to another. Determine the source of the witness’ information, whether it is from first-hand observation or hearing from another witness. Obtain a signed or recorded statement from each witness, if appropriate. Information to obtain: Names and addresses of individuals first on the scene. Interview investigating police officers and any state or federal agency officials (i.e., OSHA, DOT, State Fire Marshal, EPA, etc.) to determine their initial opinions, if they photographed the scene, their level of expertise in accident reconstruction, and if they surveyed the area. Also, obtain the name, badge numbers, and address of each law enforcement or agency official. Identify the ambulance service and emergency technicians. Identify fire and rescue personnel on the scene. Identify wrecker or towing service and their employees to determine the condition of the vehicles/cargo/equipment/debris transported and whether further damage was sustained during transport. Describe witnesses who refuse to identify themselves, i.e., license plate info, physical characteristics, etc. 5. Vehicles Involved and Property Damage Insured vehicle: – – Make, model, year of manufacture, serial number, body type, type of cargo, and gross weight. Identify each vehicle in a combination unit, i.e., tractor, trailer, etc. For any vehicles operated by a motor carrier, obtain the certificate or permit number issued by the U.S. Department of Transportation or state agency. For any leased vehicles, record the names and addresses of both the lessor and lessee. If a vehicle is a bus, obtain the information listed above, as well as the number of passengers on board, a list of the passengers, and a diagram showing where each G-9 passenger was sitting or standing. It is important to obtain an immediate count of passengers. If a vehicle is a passenger car or other small vehicle, record the make, year of manufacture, VIN number, body type, and current license number. Describe and photograph the damage: – – – sustained by each vehicle involved; to any cargo in any vehicle; and to any real property. Estimate the dollar value of damage to each vehicle, its cargo, and other property damage. Determine the cause of damage to each vehicle and related property. 6. Injuries and Fatalities Obtain name, address, sex, age, marital status, number of dependent children, and employment status of each injured person. Describe the nature and extent of injuries. Obtain the name of the doctor and hospital involved in the initial treatment. Describe the nature of the treatment administered. If possible, identify the treating physician(s). For fatalities, obtain the clinical cause of death and events that established the cause of death. Obtain the date and place of death for each person killed, including persons dying at a later date from injuries sustained in the accident. Possible sources of information include obituaries, newspaper articles, and autopsy or medical examiner’s reports. D. Respond to the Injured Respond to the injured by determining the extent of the injuries and obtaining appropriate medical care. E. Secure the Accident Scene Secure the accident scene in coordination with local law enforcement to prevent further accidents, injuries, damage, and to preserve the evidence. G-10 F. Accident Reconstructionist and Other Experts The retention of an accident reconstructionist, engineer, or other appropriate expert should be made by or with the defense attorney so that any potential privileges will be preserved. G. Alcohol and Drug Testing In trucking accidents, Federal Motor Carrier Regulations require that employers must conduct alcohol testing within eight hours of the accident and drug testing must occur within 32 hours of the accident. If the tests are not completed within the time requirements, the trucking company must maintain a file with documentation of the reasons why the tests were not administered. Testing must be completed for the truck driver if: The accident involved the loss of human life or The driver received a citation within eight hours of the accident under state or local law for a moving violation, if the accident involved: – – bodily injury to any person who immediately receives medical treatment away from the scene of the accident; or one or more of the vehicles involved in the accident incurred disabling damage such that the vehicle had to be towed or transported away from the accident scene. Federal law sets forth the requirements for drug testing in the Code of Federal Regulations, 49 C.F.R. § 382.303. Proper procedures should be in place that go to great lengths to complete these tests in order to avoid later accusations and allegations by potential plaintiffs. Alcohol and drug testing should also be considered in other catastrophic accidents. Frequently, law enforcement or other governmental officials may request that the plaintiff or the insured’s employees undergo testing. Even if such tests are not always required, it may be helpful to show that your insured’s employee or driver was not under the influence. H. Care and Support for the Insured Employee(s) By the time the attorney or the claims adjuster comes into contact with the insured, the employee(s) involved frequently has already given a statement to the police or other governmental agency. Unfortunately, employees involved in accidents are often in a high level of mental and emotional distress. As a result, their statements or representations are often incoherent, full of remorse, or distorted by their state of mind. For better or worse, statements made by such employees often become the most significant version of events due to their proximity in time with the accident. Other than the information required by law enforcement, it G-11 is imperative that the insured employee(s) should not give any written or recorded statements. An experienced claims handler and/or attorney can work to protect the employee(s) from making spontaneous, emotional and discoverable admissions and speculations. Also, in the event of possible criminal charges, the attorney can retain criminal defense counsel to protect the employee(s) rights. Consider the following in dealing with the insured’s employee(s): Determine whether the employee needs medical attention. Contact the employee immediately and assure them that you are on their side. Arrange for the employee to authorize and submit to alcohol and drug testing. Determine if the employee needs counseling; refer him to his employer’s Employer Assistance Program. Evaluate the content of any statement given by the employee to the investigating law enforcement authorities and to any other parties. Obtain the employee’s own account of the accident, including the chronological events leading up to the accident, and facts leading to the cause of the accident; and, if feasible, retain defense counsel to obtain privileged statement. Determine the location of documents related to the vehicle, equipment or product involved. Obtain authorization from the employee for release of their medical records, determine if he suffers from any medical conditions or wears glasses or contacts. Obtain employee’s personal contact information. Advise employee on how to deal with and refer all inquiries from the media. Explain to the employee what to expect if a civil suit is filed or if criminal charges are made against him. Determine if the employee received a citation or ticket and if so, make arrangements to respond to the citation or ticket. Determine if criminal charges have been filed and make arrangements for a defense, if appropriate. G-12 Determine if there were any maintenance, mechanical, or operational problems experienced before the accident with the vehicle, equipment, or product involved. Review employee personnel file for any prior discipline or similar conduct. I. Obtain Witness Statements Often, the most important source of information comes from persons who were involved in investigating or responding to the scene. Preliminary facts that may not be ascertainable at a later date, such as condition of injured parties, initial statements, physical evidence, roadway and weather conditions, status of the vehicles, equipment or product, etc. are essential. Statements should be obtained from the following persons: Insured employees Company employees on the scene Law enforcement Emergency responders: fire and EMT Eyewitnesses J. Secure Documents Documents often serve as key pieces of evidence in litigation. They contain information that may reveal confidential information or information that may lead to liability. Some documents may be protected by a privilege, which would prevent disclosure to plaintiffs. However, many documents are not privileged, and may later be subject to a spoliation claim if the documents are not secured from the very beginning of the investigation and then preserved. Even if litigation is uncertain, it is still worthwhile to secure the following documents: Driver’s logs for 30 days prior to the accident. Equipment inspection reports for 30 days prior to the accident. Dispatch records relating to the driver for a week prior to the accident. Bills of lading and shipping documents for the trip involving the accident. Fuel receipts for 30 days prior to the accident. G-13 Weight tickets for at least one week prior to the accident. Toll receipts for at least one week prior to the accident. All maintenance files for the vehicle, equipment, or product involved. Employer’s investigation file, including photographs and statements, secured by its own employees. Employer’s policies, procedures, and training materials in force at the time of the accident. Information relating to the insured’s employees: – – – – – K. licenses, qualifications and credentials. drug and alcohol testing results. payroll records for 30 days prior to the accident. cell phone records for the month of the accident. any disciplinary record in personnel file. all prior IDOT Physical Examination results. Secure Vehicle Data Recording and Computer Devices Heavy trucks manufactured after the mid-1990s are likely to be equipped with on board electronic control modules (“ECM”), which record the truck’s movements prior to the accident. Similarly, some trucks may be equipped with global position systems (“GPS”), which can calculate the exact positioning of a truck. Passenger cars also have technology that can provide useful accident information. Some newer cars contain a car data retrieval (“CDR”) system that downloads information from the air bag control system. All these computer devices can provide critical information such as the speed of the vehicle, the driver’s actions leading up to, during, and after an accident. Likewise, many other types of products and equipment (i.e., tractors, combines, large machinery) contain similar types of computer generated information stored in devices on the equipment. In order to preserve this type of evidence, consider the following steps: After the vehicle, equipment or product is released by the authorities, secure it until a technician can download the ECM data. During the retrieval of the information, have a videographer record the effort and a court reporter present to swear in the technician to establish on the record his qualifications and procedures in downloading the data. G-14 After downloading, secure a digital and hard copy of the data. Contact the insured company to determine if they have any GPS or other digital data. Contact the owner of any cars or other passenger vehicles involved in the accident and try to reach an agreement to preserve and obtain the CDR information. Deliver and serve upon any other drivers, and their insurers, a request and demand to preserve all data recordings and the recording devices, as well as all vehicles. L. Obtain Reports and Evidence from the Authorities Another source of critical evidence and data is the investigating law enforcement agencies. Beyond the police report, documents from state agencies and other authorities may provide important information. Obtain the following documents from the appropriate authorities: Any commercial motor vehicle inspection reports regarding the working condition of the equipment. Any citations issued by IDOT, other state agencies, or other local law enforcement officials. Preliminary, final, and supplemental accident reports. Any photographs or diagrams of the scene and the objects involved in the accident. Local authorities often collect and preserve nearby surveillance video which can be obtained by proper request. Any accident reconstruction files generated by authorities with such expertise. Official weather reports. Death certificates, autopsy reports, inquest hearing transcripts and coroner’s photographs. M. Internet Resources-Social Media Investigate parties and witnesses through Facebook, MySpace, Twitter, Snapchat, Instagram, and other online resources and social media sites. G-15 N. Monitor Local News Media Check, preserve and duplicate any print and on-line news articles and photographs for this news story from local newspapers and radio stations. Obituaries should also be reviewed and preserved. IV. CONCLUSION A catastrophic accident can occur at any time. Conducting a thorough initial investigation is critical to preserve the evidence which will serve as the foundation of the ongoing investigation and potential litigation. In order to conduct the initial investigation, claims handlers should prepare and plan the procedures for conducting the investigation in advance. It is advisable that claims adjusters compile emergency contact information for their insureds. A roster of attorneys and independent adjusters by state and locality should be kept to allow for immediate access to investigation coordinators and investigators after a major accident. A prompt and thorough investigation will allow you to gain an advantage in avoiding mistakes – which could otherwise result in unfavorable factual surprises later on, during litigation. Investigating and preserving the evidence will enable you mitigate damages by settling the case early; laying the foundation for a defense to avoid prolonged litigation; and the opportunity to reduce the risk of a negative outcome in the event the case goes to trial. G-16 BUILDING A SOLID FOUNDATION FOR DEFENSE: STATEMENT TAKING TECHNIQUES (materials prepared by Heidi E. Ruckman, Rockford Office) I. THE FIRST BATTLE A. Introduction Many plaintiffs’ firms warn their potential clients about providing a recorded statement to insurance companies. One firm wrote on its website, "never give an adjuster a recorded statement.” “They will use it against you." It went on to inform would-be clients that insurance companies will not even give them a copy of their own statement until they litigate against them. Another website called settlementcentral.com, informed readers that an insurance company will try to get their statements “under the ruse” that it needs their version of the accident for its records to confirm liability against their insured and that the insurance company will claim it needs their medical information and records to make the injured a fair settlement offer. However, it warned people not to give a recorded statement to anyone. It explained on the website that this is because “most people” do not "think very well on their feet" and "tense up under the pressure of answering questions for a recording." It warned individuals that they may forget important things that should be included in the statement. Likewise, it warned them that “the adjuster is your adversary" and should always be treated as such. Furthermore, there are advertisements which coach people on how to provide written statements to insurance companies. At ehow.com, the site informs the injured party that he/she should always talk to an attorney first, never admit guilt, do not apologize as it may be used against them, do not give specifics about their injuries, and do not inform insurance companies about their doctor's name or location. It advises the person to present factual, but general information as "going into detail could give the insurance company ammunition to use against you." B. What Kind of Statement to Take An adjuster can obtain a written statement or a recorded statement. Although there are benefits and drawbacks of both, a recorded, transcribed statement is preferred. First, you have more control over the statement being provided. You can ask the questions and follow up on matters which are not clear or you feel may need further explanation. Second, you are ensuring the statement will be completed. Many times when an individual is asked to provide a written statement, even if it consists of answering questions about the incident, they will fail to complete all of the questions, may not return it, or may be getting "assistance" or coaching from others, including an attorney. Therefore, a recorded statement will allow you to obtain G-17 information about the accident, potential witnesses and alleged injuries within a relatively short period of time. II. THE TACTICAL DECISIONS A. Why Take a Statement When a new file is assigned to an attorney, the key documents used to assist with the initial development of a defense strategy frequently includes the transcribed statements of the parties and witnesses. This is especially true when a police report has not been generated, no medical records have been obtained, or the alleged damages consist of property damage. 1. Fact Finding Mission A statement allows the defense to gather information about the claim. Statements are often taken soon after the accident, when the facts and/or memory of the accident is the clearest. Of equal importance, if the claimant has not consulted with an attorney, he or she may be more willing to speak freely about the accident and his/her injuries. This is an opportunity to obtain information about the claimant’s background, events leading up to the accident, the accident itself, property damages, whether any photographs exist, physical injuries, medical treatment the claimant has received, whether the claimant is unable to work as a result of the injuries, and whether there are any witnesses who could be contacted. 2. Lock in Parties’ and Witnesses’ Version of the Incident Although these statements are not provided under oath, they help "lock in" party or witness testimony. They can be used to challenge a party's recollection at a later date during the discovery deposition when testimony conflicts with information he/she provided in the statement. For example, during a deposition, if a plaintiff suddenly remembers that the defendant was driving 25 miles per hour at the time of the impact, but advised in his earlier statement that he did not know or did not see the defendant prior to impact, the statement can be used to press him on cross examination. Examination during the deposition can establish that the plaintiff did not know the speed when he first gave a statement, at a time which was closer to the accident, when his memory would be more clear. Likewise, if a plaintiff provides a statement that he was not injured or only injured a particular area of his body, but then claims additional injuries once suit is filed, the statement can be used to challenge these allegations. 3. Assist With Initial Case Assessment A statement also assists with formulating the initial assessments of the plaintiff's claim. You, as the adjuster, have the first opportunity to speak with the claimant and begin to assess his/her credibility. Is he/she an articulate individual who will make a good witness? What is his/her background? Is this person now unable to work due to his/her injuries or a parent who is now injured and unable to care for his/her children, etc. Based on the person's description of their G-18 injuries, one can evaluate if the injuries consist of soft tissue injury that may require conservative treatment and be resolved in four to six weeks or whether it is a cervical fracture which may require surgical intervention. The foundation for these initial determinations begins with the gathering of essential information during the statement taking. Conflicting statements offered by witnesses and parties as to who had a green light, whether the pedestrian darted out in traffic, outside of the cross walk, while wearing dark clothes at night, will assist with evaluating whether liability rests with the insured. These witnesses may be listed on the police report, but it is not until they are asked specific questions regarding their recollection of the accident or the speed of the vehicles that one will really be able to assess the potential issues pertaining to the insured's liability. Of equal importance, when obtaining a statement from the insured it is important to determine whether the insured was issued a citation as a result of the accident and whether he/she pled guilty. Although a guilty plea can sometimes be explained away, many times certified copies of the convictions are used by a plaintiff at trial as evidence of negligence. Again, all of this information provided prior to commencing with formal discovery can be used to determine liability. The information obtained in a statement will allow both an adjuster, and if suit is filed, an attorney, to assess the strengths and weaknesses of a claim. It will also help with determining a defense strategy. Is this a case which will be settled or litigated? Are there affirmative defenses which can be alleged with the answer? Affirmative defenses can be pled without leave of court when filed with the answer. The information contained in a statement often provides the initial basis for those affirmative defenses. The information contained in the statement also highlights to an attorney issues which should be further explored during discovery depositions so that testimony and/or admissions can be obtained in order to support potential counterclaims against co-defendants, possible third party complaints, or dispositive motions. B. Whose Statement Should Be Taken There are no hard and fast rules which dictate whose statements should be taken. An adjuster can use the information reported with the claim, the police report or the information provided by the insured to determine whose statement should be taken. A witness’ statement should be taken for several reasons. First, it allows the defense to learn what these witnesses will most likely testify about. This information can be used to assist the attorney in determining whether or not the discovery deposition of these individuals should be taken. Although this decision to take a discovery deposition typically does not apply to the parties, it is very important when it comes to deciding whether or not to take the deposition of a witness when there is a cost associated with doing so (i.e. attorney's fees, court reporter, etc.), when you have no reason to believe the witness' testimony will be any different from what was provided in the statement, or the statements will be harmful to the insured's position. As such, an attorney may decide the drawbacks of taking the deposition will outweigh any positive ground that may be gained and decide not to take the deposition. The information contained in the statements provide an attorney with a "snap shot" of what to expect and as such, will assist with framing issues and determining what information should be obtained from a witness or a party. G-19 1. Plaintiff/Claimant No matter what type of claim, the plaintiff's/claimant’s statement is extremely important. This is an opportunity to speak directly with the plaintiff/claimant shortly after the incident. You can obtain information regarding the alleged injuries and medical treatment plaintiff/claimant has received. Furthermore, it is an opportunity to begin to assess the plaintiff/claimant’s credibility and demeanor. 2. Defendant/Insured Although the defendant/insured is more accessible, it is still helpful to obtain a statement of his/her version of events when it is relatively close in time to the accident/incident. These statements can be used to refresh the insured's memory at a later time, possibly a few years later if the suit has been filed. Furthermore, if the insured provides information in the statement that he did not see the plaintiff before the impact, that he was exceeding the speed limit or looked away from the road for whatever reason, this information will help with evaluating the case. The insured's statements given to his insurance company are privileged from production. Monier v. Chamberlain, 66 Ill. App. 2d 472, 213 N.E.2d 425 (3d Dist. 1966) held that the statement given by an insured to his insurance company for the purpose of allowing the company to defend him under the terms of its policy is considered to be a privileged communication in the hands of the insurance company. It is clothed with the same exception from disclosure as if the statement was given directly to the attorney. Likewise, the first district determined that an insurer-insured extension of the attorney client privilege applies to a communication which is made by the insured to his insurance company for the predominate purpose of protecting the interests of the insured. Pietro v. Marriott Senior Living Services, Inc., 348 Ill. App. 3d 541, 810 N.E.2d 217 (1st Dist. 2004). 3. Witness Witnesses tend to disappear, move, or later on decide they do not want to be involved in the litigation. While taking a statement, the adjuster has the opportunity to confirm the witness’ address and telephone number and can also inquire as to where the individual is employed or if there are plans to move. All of this information is very helpful later when the phone number has been disconnected or the mail is returned with no forwarding address. This is particularly true when the witness’ version of the accident, as provided in the statement, bolsters the defendant’s version. As such, a witness can be the key to defending a case because they are independent third parties who typically do not have a bias. C. When to Take the Statement The earlier the statement can be taken the better. As mentioned above, an individual's recollection of the event may be the clearest when it is only a few days after the accident. G-20 Likewise, witnesses may later move, or a claimant may decide to retain an attorney who will prohibit his client from providing a statement. D. How to Take the Statement 1. Prepare an Outline, But Do Not Feel Like You Can’t Deviate From It An outline assists with ensuring that the areas which should be addressed will be covered. However, this should be used only as a guide. For example, an individual will provide a response to a question, but once it is reviewed one can see that it was not actually an answer to the question asked. Furthermore, the responses may lead to follow up questions which will provide more important information. That opportunity will be missed if the follow up questions are not asked. It is easy to spot an experienced adjuster who uses the individual’s answers to guide the next area of inquiry. In addition, one should not be afraid to ask a "dumb" question. For example, if the witness provides an answer that you do not understand or uses a term you are not familiar with, you should inquire further. Once those follow up questions are explored, having an outline allows you to come back to the issues which must be addressed and ensure that all of the key topics are covered. The key to taking a good statement is working to obtain as much information as possible about the witness' knowledge, closing as many doors as possible by getting the witness to commit to a version of events and/or the extent of his/her injuries, and obtain as many admissions as possible. (a) Start the Statement It is helpful to start the statement by explaining the process to the individual providing the statement. The individual usually does not know what they will need to do or what to expect. This also provides an opportunity to establish some ground rules. For example, advise the individual that if for any reason he does not understand a question, let you know and you will rephrase it. Likewise, if for any reason they do not hear your question they should let you know. This makes it more difficult for the claimant to attempt to change his answer at a later date during a deposition by claiming he did not understand the question. In addition, this is an opportunity to establish a courteous demeanor, which will provide you with the best opportunity for obtaining information. Also, take this time to explain that the conversation is being recorded. As such, ask the witness to allow you to finish your questions before he responds with an answer. This will ensure that the statement is clear. All too often a statement, when transcribed, consists of unfinished questions and vague answers. Likewise, try to ask simple questions that are open ended. This will give the claimant an opportunity to give answers based on what he believes is important and relevant. (b) Obtain Background Information During the statement taking process, ask questions which obtain identifying information such as a person's full name, date of birth, address, social security number, driver's license number, and telephone number (including a cell phone). Furthermore, it is important to ask if the individual has any plans on moving in the next few years and if so, where they may be moving to. If they G-21 will tell you, it is helpful to find out whether they are married, the name of their spouse, and whether they have any children. Try to establish if they are employed, and if so, where they work, how long they have worked there and what job duties they may have. This not only assists in attempting to locate potential witnesses in the future, but it also helps with assessing a witness’ credibility or, in terms of the claimant, determining if he will attempt to allege a wage loss claim. (c) Information Re: the Accident/Incident During the statement, try to obtain as much information as possible regarding a description of the accident or a premises injury, etc. The following lists are to be used as suggestions for possible areas of inquiry. However, they are not to be considered exhaustive. (1) Auto Areas of Inquiry: the events leading up to the accident, who the claimant may have been with, what the plaintiff or witness had been doing prior to the accident, the date, the time of day, the weather conditions, traffic conditions (light or heavy traffic), what lanes the vehicles were traveling in, the sequencing of traffic control devices, where the person had been traveling to and from, all of the occupants in each vehicle, a description of the accident itself, speeds, distances, where the vehicles impacted, the damage done to the vehicles, whether the vehicles were drivable, whether the parties were able to get out of the vehicles and walk around at the scene, were there any discussions at the scene (including with police officers and witnesses), names and addresses of any witnesses, whether claimant experienced any pain in any part of his/her body at the scene, whether anyone was transported by ambulance from the scene and whether they know if any photos exist. (2) Premises Areas of Inquiry: who was present at the premises when the incident occurred, activities leading up to the incident, description of the scene and specifically where the incident took place, how the incident occurred, the exact position of the claimant, did the claimant trip, stumble, miss a step, any other witnesses, was claimant carrying any objects, was he/she distracted (watching something, talking, looking somewhere else), who owned the premises, type of premises (one family-apartment), age of the premises, was the claimant there by invitation, any prior visits to the premises, physical condition of the claimant, the type of clothing claimant was wearing, the weather conditions, the lighting conditions, any conversations at the scene, any reports made, whether claimant experienced any pain in any part of his/her body at the scene, whether anyone was transported via ambulance for any treatment, and whether they know if any photos exist. 2. Medical Treatment/Injuries Use the statement to establish what injuries the claimant alleges he sustained as a result of the incident. Inquire as to when the claimant first realized he was hurt. It is important to inquire as to the claimant’s doctors, when the claimant first went to see the doctors, how many times the G-22 claimant has been seen and whether they have any appointments currently scheduled. If possible, in addition to the doctor’s names, attempt to obtain information regarding the facility each doctor is associated with so that medical records and bills can be requested. Information received during the statement from a claimant also assists with determining if there was a gap in treatment, i.e. the claimant waited three weeks after the accident before seeing his doctor for the first time. 3. Determine the Current Status While taking the statement, it is helpful to inquire as to whether or not the claimant is employed, if he/she has been able to work since the accident, if a doctor has placed any work restrictions on them, when the claimant plans to return to work, what hours/shifts the claimant worked prior to the accident, and how much money the claimant was making at the time of the accident. In addition, inquire as to any current pain complaints the claimant may have, a detailed description of the pain the claimant is experiencing, whether they are not able to participate in certain activities, and whether the claimant is taking any medications. 4. Closing Out the Statement Once you feel that you have completed the statement, it is helpful to confirm with the claimant that he heard your questions and understood them. Likewise, at this juncture, you can give the claimant the opportunity to offer any other information about the incident that he may not have been asked about, but he thinks may be relevant. G-23 Edward M. Wagner - Partner Ed is the partner in charge of our Urbana office, which covers east central Illinois. He has spent his entire legal career with Heyl Royster, beginning in 1980. Prior to law school, Ed served in the United States Marine Corps from 1973 to 1977 and was discharged at the rank of Captain. Ed concentrates his civil litigation practice on defending healthcare providers in malpractice claims, employers in civil rights discrimination and termination claims, governmental entities and agencies in all areas of their operation, as well as professional liability claims. With extensive trial experience throughout central Illinois, Ed has successfully defended or skillfully negotiated over 700 medical, hospital, dental, nursing home, job discrimination, and legal malpractice cases. Ed has completed his third three-year term (2003-2011) as an appointed member of the Illinois Supreme Court Rules Committee which drafts, reviews and submits proposed rules and revisions to the Supreme Court on all areas of practice, procedure and ethics. He is a past co-chair of the Professional Liability Committee of the Illinois Association of Defense Trial Counsel. Ed has spoken and written for many civic organizations on the issues of employers' liability and rights in the workplace and has presented at an Illinois State Bar Association seminar on corporate internal audits and investigations in Employment Law. Ed has also lectured at the University of Illinois College of Law on the topic of federal civil discovery. He has been designated one of the "Leading Lawyers" in Illinois as a result of a survey of Illinois attorneys conducted by the Chicago Daily Law Bulletin. Ed has also been named to the 2014 Illinois Super Lawyers list. The Super Lawyers selection process is based on peer recognition and professional achievement. Only five percent of the lawyers in each state earn this designation. He has, on occasion, been appointed as a Special Assistant by the Attorney General's Office in extraordinary civil litigation against state officials. "Defense Update: Professional Liability" (2008) Public Speaking “Recognizing and Evaluating Damages in Emotional Distress Claims” HRVA Seminar (2007) “Discovery Under the Federal Rules of Civil Procedure” University of Illinois College of Law (2007) Professional Recognition Martindale-Hubbell AV Preeminent Selected as a Leading Lawyer in Illinois. Only five percent of lawyers in the state are named as Leading Lawyers. Named to the 2014 Illinois Super Lawyers list. The Super Lawyers selection process is based on peer recognition and professional achievement. Only five percent of the lawyers in each state earn this designation. Appointed by the Illinois Supreme Court to its Rules Committee and completed three terms (2003-2011). Professional Associations Illinois Supreme Court Rules Committee Illinois Association of Defense Trial Counsel (past co-chair of Professional Liability Committee) Defense Research Institute American Bar Association Illinois State Bar Association Champaign County Bar Association Court Admissions State Courts of Illinois United States District Court, Central District of Illinois United States Court of Appeals, Seventh Circuit Education Juris Doctor (cum laude), Creighton University, 1980 Bachelor of Arts-History, Marquette University, 1973 Publications "The Freedom of Information Act: Change is Here," Heyl Royster Governmental Newsletter (2010) G-24 Learn more about our speakers at www.heylroyster.com Stephen J. Heine - Partner Steve is the Chair of the Railroad Practice Group. He has tried many railroad, trucking, first party insurance, and a wide variety of other lawsuits in a wide range of venues. He is the Immediate Past President of the Association of Defense Trial Attorneys and a member of the Defense Research Institute Board of Directors. Steve served as the President of the Illinois Association of Defense Trial Counsel (2004-2005). Steve has published many articles on various trial practice and evidence issues. He served as the Editorin-Chief of the Illinois Defense Counsel Quarterly, the official journal of the Illinois Association of Defense Trial Counsel. He has spoken on a wide variety of subjects for local, state and national bar associations including the Illinois Association of Defense Trial Counsel, Illinois State Bar Association, American Bar Association and the Property Loss and Liability Insurance Research Bureaus. He has been named an Illinois "Super Lawyer," and designated one of the "Leading Lawyers" in Illinois as a result of a survey of Illinois attorneys conducted by the Chicago Daily Law Bulletin. Defense Research Institute State Leadership Award, 2007 Illinois Association of Defense Trial Counsel Distinguished Service Award, 1995 Defense Research Institute Exceptional Performance Citation, 2005 Named to the Illinois Super Lawyers list (20072013). The Super Lawyers selection process is based on peer recognition and professional achievement. Only five percent of the lawyers in each state earn this designation. Selected as a Leading Lawyer in Illinois. Only five percent of lawyers in the state are named as Leading Lawyers. Professional Associations Illinois Association of Defense Trial Counsel (Past President) Association of Defense Trial Attorneys (Immediate Past President) The National Association of Railroad Trial Counsel Illinois Appellate Lawyers Association Defense Research Institute American Bar Association, Tort and Insurance Practice Section Illinois State Bar Association Peoria County Bar Association Abraham Lincoln American Inn of Court Society of Trial Lawyers Publications "Reflex Sympathetic Dystrophy Defense," FELA Occupational Claims Litigation Course (1996) "The Admissibility of Expert Reconstruction Testimony Where There is Also Eyewitness Testimony, Sometimes You See It, Sometimes You Don't," Illinois Defense Counsel Quarterly (1996) Court Admissions State Courts of Illinois United States District Court, Central and Northern Districts of Illinois United States Court of Appeals, Seventh Circuit United States Supreme Court Public Speaking “The Defense of Closed Head Injury Claims” Presentation to Erie Insurance, East Peoria, IL (2005) “Automobile Policy: Application Fraud and Misrepresentation Defenses” PLRB, San Antonio, TX (2005) Education Juris Doctor (cum laude), Southern Illinois University School of Law, 1981 Bachelor of Science-Corrections, Illinois State University, 1978 Professional Recognition The Best Lawyers in America (2013-2014): Railroad Law Illinois Association of Defense Trial Counsel Distinguished Member Award, 2013 Martindale-Hubbell AV Preeminent G-25 Learn more about our speakers at www.heylroyster.com Mark D. Hansen - Partner Mark concentrates his practice in the area of civil litigation. Mark has been involved in the defense of cases involving catastrophic injury, including the defense of complex cases in the areas of medical malpractice, products liability, construction, and professional liability. He has defended doctors, nurses, hospitals, clinics, dentists, and nursing homes in healthcare malpractice cases. He has also been involved in the defense of numerous other insurancerelated matters. He has handled commercial litigation matters including contractual breaches, business torts, fraud and misrepresentation, commercial foreclosures, mechanics liens, replevin actions, trademark agreements, eminent domain (condemnation), real estate disputes, zoning issues, and business losses. He has also provided counsel on various litigation issues affecting corporate clients. Mark is a graduate of the International Association of Defense Counsel (IADC) Trial Academy. The IADC Trial Academy is held at Stanford Law School and is one of the oldest and most well respected programs for developing defense trial advocacy skills. Professional Recognition Selected as a Leading Lawyer in Illinois in the areas of Commercial Litigation; Medical Malpractice Defense Law; Products Liability Defense Law; and Professional Malpractice Defense Law: Including Legal/Technical/Financial. Newsletter Editor Service Award, Illinois State Bar Association (2009) President's Commendation, Illinois Association of Defense Trial Counsel (2006) President's Commendation, Illinois Association of Defense Trial Counsel (2005) Newsletter Editor Service Award, Illinois State Bar Association (2004) Illinois State Bar Association, Participant, 2004 Allerton House Conference on "The Quest for Justice: Cost, Efficiency, Fairness" Professional Associations International Association of Defense Counsel (member of Medical Defense and Health Law, Product Liability, and Trial Techniques and Tactics Committees) Defense Research Institute (member of Medical Liability and Health Care, Commercial Litigation, and Trial Tactics Committees) Illinois Association of Defense Trial Counsel (IDC Quarterly regular columnist, Tort Law Committee member, former ex officio member of the Board of Directors, and former co-chair of Young Lawyers Committee) Illinois Society of Healthcare Risk Management Abraham Lincoln American Inn of Court (Master) American Bar Association Illinois State Bar Association (former member of Civil Practice Section Council) Peoria County Bar Association (member of Courts and Procedures - Civil Practice Committee) Publications "Drafting a Consent to Treatment Form? Defending an Apparent Agency Claim? Consider the Appellate Court Third District's Decision in Steele v. Provena Hospitals," Illinois Defense Counsel Quarterly (2014) "Illinois Court Addresses Proximate Cause Defense in Case of Third-Party Intervening Physician," International Association of Defense Counsel Medical Defense and Health Law Committee Newsletter (2013) Public Speaking “Proactive Defense Strategies: The Benefits of Effective Deposition Preparation and Training of Defense Witnesses” Heyl Royster Claims Handling Seminar 2012 “Principles of Effective Cross-Examination” Abraham Lincoln American Inn of Court 2011, Mentoring Group Co-Chair Education Juris Doctor (cum laude), University of Illinois College of Law, 1994 Bachelor of Science - Finance (cum laude), Northern Illinois University, 1991 G-26 Learn more about our speakers at www.heylroyster.com Michael J. Denning - Partner Mike concentrates his practice in civil defense litigation, including medical malpractice and nursing home litigation; auto, premises and trucking litigation; and the defense of toxic tort and asbestos claims. In addition to defending long term care facilities in malpractice litigation and personal injury claims, Mike also handles a myriad of administrative issues for facilities, including involuntary discharge proceedings, licensure issues, fraud and abuse claims, and other litigation. Mike has represented the firm's clients in jury trials, high-exposure mediations and settlement conferences. He has represented Fortune 500 companies, local businesses, professionals and insurance companies in a variety of cases. Mike has also defended the firm's clients and their interests at depositions, including those of plaintiffs, codefendants, witnesses, treating physicians, and expert witnesses. He has presented physicians, nurses and nursing assistants for deposition in numerous professional liability cases. Mike is a certified arbitrator for the Seventeenth Judicial Circuit Court. He is listed on the Law Bulletin Publishing Company's 2013 list of "40 Under Forty" up-and-coming attorneys in Illinois, and has been recognized as a "Rising Star" by Illinois Super Lawyers (2012-2014). A native of Belvidere, Illinois, Mike began his career with Heyl Royster by clerking for the firm's Peoria office during law school. At Northern Illinois University, he served as the Editor-in-Chief of the Law Review and was awarded the NIU Scribes award in 2001 for legal scholarship. After graduating, he served as Senior Law Clerk to Justice Tom Lytton of the Illinois Appellate Court, Third District. Mike joined the Rockford office in 2004 and became a partner in 2012. Public Speaking “Civil Procedure Update” Illinois Association of Defense Trial Counsel (2013) “You’ve Been Served: How to Help Your Organization Understand and Defend a Lawsuit” St. Mary’s Occupational Health & Streator Chamber of Commerce (2013) Professional Recognition Named one of "40 Under Forty" attorneys to watch in Illinois by the Law Bulletin Publishing Company. This honor recognizes exceptional lawyering skills, significant contributions to the legal profession and substantial involvement in local community. Named to the Illinois Super Lawyers Rising Stars list (2012-2014). The Super Lawyers Rising Stars selection process is based on peer recognition and professional achievement. Only 2.5 percent of Illinois lawyers under the age of 40 or who have been practicing 10 years or less earn this designation. Professional Associations Winnebago County Bar Association Illinois State Bar Association Illinois Association of Defense Trial Counsel Defense Research Institute Federation of Defense & Corporate Counsel American Bar Association State Bar of Wisconsin Court Admissions State Courts of Illinois and Wisconsin United States District Court, Northern District of Illinois and Eastern and Western Districts of Wisconsin United States Supreme Court Publications "Liquor Liability: Social Hosts and Other Issues," 26th Annual Claims Handling Seminar (2011) "Illinois Courts Expand, Then Narrow Validity of Arbitration Agreements in Nursing Home Litigation," IDC Defense Update, Vol. 12, No. 14 (2011) Education Juris Doctor (cum laude), Northern Illinois University College of Law, 2002 Bachelor of Science-Business Administration, Bradley University, 1999 G-27 Learn more about our speakers at www.heylroyster.com Ann C. Barron - Of Counsel Professional Associations Illinois State Bar Association Association of Corporate Counsel Ann concentrates her practice in civil litigation, including environmental and business-related disputes and personal injury defense. Ann joined Heyl Royster in 2013. Before joining Heyl Royster, Ann served as in-house counsel at Valero in San Antonio, TX, where she managed complex environmental, commercial, class action and tort litigation. While at Valero, Ann also served on the Information Governance Committee, and was responsible for electronic discovery and electronic records implementation, retention and destruction. Ann communicated regularly with senior management and provided day-to-day business counseling and advice. Her experience at Valero has given Ann an unparalleled ability to effectively interact with inhouse counsel. Ann began her legal career in 1994, serving as a law clerk to the Honorable James D. Heiple of the Illinois Supreme Court. After her clerkship, Ann worked for two law firms in the St. Louis area. She represented clients in environmental, class action, commercial, and personal injury matters pending throughout the country. Her clients included railroads, refiners, utilities, municipalities, health care entities, franchisors, and auto manufacturers. Ann has represented clients before the Seventh Circuit Court of Appeals, the Illinois Supreme Court and various appellate courts in Illinois and Missouri. Court Admissions State Courts of Illinois, Missouri and Texas United States Supreme Court United States Court of Appeals, Seventh and Eighth Circuits United States District Courts, Southern District of Illinois, Central District of Illinois, Northern District of Illinois, and Eastern District of Missouri Education Juris Doctor (magna cum laude), University of Illinois College of Law, 1994 Bachelor of Science-Economics, University of Illinois College of Commerce, 1991 Significant Cases Glisson v. City of Marion, 720 N.E.2d 1034 Defeated challenge by plaintiff to halt construction of a new water supply for the City of Marion because of alleged presence of two animals listed on the Illinois Endangered Species Act. The Illinois Supreme Court ruled that plaintiff did not have standing to pursue the action. Wilson v. Norfolk and Western Railway Company, 718 N.E.2d 172 - The Illinois Supreme Court ruled in case of first impression that a railroad employee must prove physical contact or the threat of physical contact to recover damages for intentional infliction of emotional distress under the FELA. G-28 Learn more about our speakers at www.heylroyster.com
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