PBCBA BAR BULLETINS pbcba_bulletin_Sept. 2019 | Page 19

PERSONAL INJURY CORNER
Discovery of Statements Made for the Purpose of
Completing an Accident Report
TED BABBITT
Fla. Stat. 316.066(4) provides:
Except as specified in this subsection, each
crash report made by a person involved in
a crash and any statement made by such
person to a law enforcement officer for the
purpose of completing a crash report required
by this section shall be without prejudice to
the individual so reporting. Such report or
statement may not be used as evidence in any
trial, civil or criminal. . . . The results of breath,
urine, and blood tests administered as provided
in s. 316.1932 or s. 316.1933 are not confidential
and shall be admissible into evidence. . . .
For years that statute has been referred to by
courts as the accident report privilege. In
Anderson v. Mitchell, 44 Fla. L. Weekly D899
(Fla. 2nd DCA April 5, 2019) the question was
raised as to whether statements made to a
police officer pursuant to this statute were
discoverable. The statements in question were
made by the plaintiff and his wife in a case
alleging the defendant negligently struck the
plaintiff in a cross walk with his motor vehicle.
His wife was a front seat passenger. During
their depositions, counsel for the defendants
asked what statements were made to the police
officer and the plaintiffs’ attorney instructed
his clients not to answer the question on the
grounds that those statements were privileged
under the above statute. On appeal the Second
District disagreed. At D899 the Court holds:
Parties are entitled to “discovery regarding any
matter, not privileged, that is relevant to the
subject matter of the pending action.” Fla. R.
Civ. P. 1.280(b)(1). Furthermore, “[i]t is not
ground for objection that the information
sought will be admissible at the trial if the
information sought appears reasonably
calculated to lead to the discovery of
admissible evidence.” Id. Thus, information
that is merely “inadmissible” is discoverable
while information that is “privileged” is not.
The question before this court is whether the
information protected under section 316.066(4)
is privileged or merely inadmissible. Section
316.066(4) provides:
(Quoting above statute and emphasizing the
words Such report or statement may not be
used as evidence in any trial, civil or criminal. . . .)
Under the plain language of the statute, the
only limitation on the information is that it
may not be used as evidence at trial. There is
no indication that the information is otherwise
protected from disclosure. Thus, the statute
makes the protected information inadmissible,
Not privileged.
The Second District distinguishes statutes that
specifically establish a privilege not to disclose
the contents of confidential communications
in such areas as §90.502(2) attorney client
privilege, § 90.503(2) psychotherapist-patient
privilege, § 90.504(1) spousal privilege.
There have been a number of cases holding that
this Florida Statute precludes the discovery of
information utilized in the preparation of an
accident report, but the Court points out that
those cases involve the interpretation of prior
versions of this statute which included the
term privileged language, language making
the information confidential, and language
prohibiting the disclosure of that information
outside the Department. The Court quotes the
1989 Legislative history that the statute was
amended “to make it clear that statements
made to an officer by a person involved in an
accident shall not be admissible in Court but
shall otherwise be public record.”
for the purpose of completing a crash report
required by this section shall be without
prejudice to the individual so reporting.” That
language immediately precedes the language
that “such reported statement may not be used
as evidence in any trial, civil or criminal,” seems
to be additive and rather all-encompassing
since the discovery of the information, if it
leads to evidence which can be used at trial
against the individual making the statement,
certainly seems to prejudice that individual
but that argument either wasn’t made or wasn’t
considered in the opinion.
NOTE: BECAUSE A NUMBER OF PEOPLE HAVE
REQUESTED COPIES OF PAST ARTICLES, A
COMPILATION OF THESE ARTICLES IS NOW
AVAILABLE TO MEMBERS OF THE PALM
BEACH COUNTY BAR ASSOCIATION, FREE OF
CHARGE, BY CALLING [phone].
In Memoriam
The Second District thus holds at D900
In conclusion, the current version of section
316.066(4) does not create a true privilege
precluding the disclosure of statements of
individuals involved in an accident for the
purpose of completing a crash report. Instead,
it is a law of admissibility that precludes
the use of these statements at trial. Thus,
the trial court did not depart from the
essential requirements of the law by ruling
that statements made by the Andersons for
the purpose of completing a crash report are
discoverable.
It is not clear how discovery of information
given to a police officer can be utilized since
it clearly is not admissible in evidence but as
the Second District points out it may well lead
to discoverable and admissible evidence as its
revelation may lead to admissible evidence. It
is interesting that the Court does not discuss
the words in the statute that “any statement
made by such a person to a law enforcement
PBCBA BAR BULLETIN
19
William E. Johnson
1958 - 2019