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 (561) 684-2500. 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