Hearsay Evidence

[YAI]

My question involves court procedures for the state of: WA

I have the following documents.

1. A written estimate of the vehicle damage prepared by a collision estimator
2. A letter from the other drivers insurance adjuster. In the letter the adjuster writes about a conversation with their insured where their insured admits to having caused damage to my vehicle and the locations that were hit. Liability is clear because my vehicle was parked when hit.

Can these documents be used as evidence in small claims or would it be considered as hearsay?

[flyingron]

From the other thread on this subject:

How much time do I have to file a small claim case for property damage in WA?

Three years.

As for the evidence. The damage estimate is likely going to be accepted. The second is going to be problematic. You've got two problems there, it's sort of double hearsay.
First, you're going to be testifying about what someone else said about someone else saying. Now if you had the adjuster appear, his testimony about the defendant's statements might be an admissible exception to the hearsay prohibitions.

[YAI]

From the other thread on this subject:


Three years.

As for the evidence. The damage estimate is likely going to be accepted. The second is going to be problematic. You've got two problems there, it's sort of double hearsay.
First, you're going to be testifying about what someone else said about someone else saying. Now if you had the adjuster appear, his testimony about the defendant's statements might be an admissible exception to the hearsay prohibitions.

flyingron - Thank you for the quick reply. I also have a voice mail recording from the claim adjuster who said it looks like our insured hit your vehicle while trying to park and indicates the insurance company wants to pay for my damages. This was before the letter was sent out. Would this recording be acceptable as evidence and can this recording help the letter to also be accepted as evidence?

[PayrolGuy]

flyingron - Thank you for the quick reply. I also have a voice mail recording from the claim adjuster who said it looks like our insured hit your vehicle while trying to park and indicates the insurance company wants to pay for my damages. This was before the letter was sent out. Would this recording be acceptable as evidence and can this recording help the letter to also be accepted as evidence?

The recording would also be hearsay. Should you get the adjuster on the stand as a witness to testify that about, in his expert opinion that the accident was his insured's fault and then he stated that it wasn't the recorder might be able to be used to impeach his testimony.

[llworking]

flyingron - Thank you for the quick reply. I also have a voice mail recording from the claim adjuster who said it looks like our insured hit your vehicle while trying to park and indicates the insurance company wants to pay for my damages. This was before the letter was sent out. Would this recording be acceptable as evidence and can this recording help the letter to also be accepted as evidence?

If the insurance company paid for the damages why do you feel that you need to sue the driver?

[adjusterjack]

I was going to ask the same question as Ilworking.

Instead I'll make two points.

1 - I can guarantee that the other driver's insurance company will not allow the adjuster to testify. Any subpoena will be quashed.

2 - Your voice mail recording of the adjuster will be inadmissable because the parties to a lawsuit have a right to face and question those testifying against them. Without the adjuster's presence the insurance company attorney will make short work of your attempt to enter the recording as evidence.

[pg1067]

1. Yes.
2. As described, the document is double hearsay. The other driver's statement to the adjuster can be admissible as a party admission, but the letter itself is still hearsay. That said, sometimes, small claims courts are lax about hearsay evidence and would allow something like this.

I also have a voice mail recording from the claim adjuster who said it looks like our insured hit your vehicle while trying to park and indicates the insurance company wants to pay for my damages. This was before the letter was sent out. Would this recording be acceptable as evidence and can this recording help the letter to also be accepted as evidence?

This recording would be admissible for no purpose other than to prove the person made the statement. It seems to be nothing more than an expression of opinion, so it wouldn't be admissible to prove anything relating to the accident.

Regarding the adjuster's statement that "the insurance company wants to pay for [your] damages," if that's true, and unless the insurer changed its position, why would there be a need to sue?

[flyingron]

2 - Your voice mail recording of the adjuster will be inadmissable because the parties to a lawsuit have a right to face and question those testifying against them. Without the adjuster's presence the insurance company attorney will make short work of your attempt to enter the recording as evidence.

There's no confrontation right in civil courts. What we have, however, is basic rules of evidence that doesn't allow secondary evidence when the primary is available.

[YAI]

If the insurance company paid for the damages why do you feel that you need to sue the driver?

The insurance company is now playing hardball and will not pay for all damages. In the letter the insurance adjuster states the damage and even shares there own insured agreed to having caused the damage. The insurance adjuster in my opinion is unfairly adjusting the claim for refusing to pay for all of the damage.

There's no confrontation right in civil courts. What we have, however, is basic rules of evidence that doesn't allow secondary evidence when the primary is available.

I'm not sure I understand. What is a confrontation right? What is the secondary and primary evidence?

1. Yes.
2. As described, the document is double hearsay. The other driver's statement to the adjuster can be admissible as a party admission, but the letter itself is still hearsay. That said, sometimes, small claims courts are lax about hearsay evidence and would allow something like this.



This recording would be admissible for no purpose other than to prove the person made the statement. It seems to be nothing more than an expression of opinion, so it wouldn't be admissible to prove anything relating to the accident.

Regarding the adjuster's statement that "the insurance company wants to pay for [your] damages," if that's true, and unless the insurer changed its position, why would there be a need to sue?

What is a party admission?

As I understand in small claims court there can be no attorney. So it would be logical the rules are more relaxed.

Yes, the insurance company has changed positions.

I was going to ask the same question as Ilworking.

Instead I'll make two points.

1 - I can guarantee that the other driver's insurance company will not allow the adjuster to testify. Any subpoena will be quashed.

2 - Your voice mail recording of the adjuster will be inadmissable because the parties to a lawsuit have a right to face and question those testifying against them. Without the adjuster's presence the insurance company attorney will make short work of your attempt to enter the recording as evidence.

Why do you think a subpoena would be quashed?

[pg1067]

The insurance company is now playing hardball and will not pay for all damages. In the letter the insurance adjuster states the damage and even shares there own insured agreed to having caused the damage. The insurance adjuster in my opinion is unfairly adjusting the claim for refusing to pay for all of the damage.

If the insured does not dispute the claim, then there must be some policy-based reason why the insurer is denying the claim. What reason(s) has the insurer given for denying the claim despite the lack of dispute by the insured?

I'm not sure I understand. What is a confrontation right?

The "confrontation right" is a reference to the Sixth Amendment to the U.S. Construction, which states that, "in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." As "flyingron" explained (and as is obvious from the text), this isn't applicable to non-criminal matters.

What is a party admission?

Let me give you a terribly simple explanation of what hearsay is. Let's say that Adam witnesses a car accident between Brenda and Carl. Later in the day, Adam tells his co-worker Dana that Carl ran a red light. As it happens, Brenda and Dana are friends, and Dana tells Brenda what Adam told her. Brenda sues Carl and calls Dana to the stand to testify about what Adam told her. Dana's testimony will not be allowed because it is hearsay. Instead of having Dana testify, Brenda should have called Adam to testify because he was the one who witnessed the accident.

Now, let's change the facts slightly. Instead of Adam telling Dana something, Carl tells Dana that he ran the red light, and Dana then tells Brenda what Carl told her. Brenda calls Dana to testify about what Carl told her. Dana's testimony is still hearsay, but it is allowed because the underlying statement was made by Carl, a party to the action, instead of by Adam, a mere witness. This is the party admission exception to the hearsay rule (or, in some jurisdictions, a party admission is defined not to be hearsay).

Why do you think a subpoena would be quashed?

I can't speak for "adjusterjack." However, if the adjuster has knowledge of statements made by the insured, the adjuster could unquestionably be compelled to testify (i.e., no way a subpoena would be quashed) since, as explained above, those statements would be admissible party admissions. Outside of that sort of testimony, the adjuster wouldn't have anything relevant to testify about.