When the Offending Driver Suddenly Changed Her Story – We Demanded to Review the File

The standard car accident case often involves one or two plaintiffs against one or two defendants.  Frequently, the other car (i.e., the offending vehicle) was owned by one person and driven by a different person.  In this scenario, it is common to start one lawsuit against two people: the driver of the other car and the owner of the other car.  Usually, the other driver denies any wrongdoing, and the owner of the other car also denies any wrongdoing, but acknowledges that the driver of her car operated her car with her permission,

Recently, we had such a case, which progressed along in the courthouse for about six months.  Then, out of the blue, the owner of the other vehicle suddenly asked the Court for permission to change her position in the case.  Suddenly, the other driver claimed that during the car crash, her car had been operated without her permission.  Out of the blue, the other driver suddenly made a motion to the court for official permission to change her posture in the case.  In her supporting affidavit, which she filed in support of her application to the court to change her legal position in the case to claim that the driver of her car did not have her permission, the other driver stated:  “I never told my insurance company or my original attorneys that my son had permission to drive the car and have always insisted that he did not have my permission or consent.”

What was our response?  We filed a cross-motion demanding that the Court order the other driver’s insurance company to disclose the entire insurance file to us, so we could see for ourselves if and when she made such a statement, as she now claimed.

Here’s the motion:

SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF WESTCHESTER
—————————————-x
MAURA G. DAVIS,                         AFFIRMATION IN
                                                  SUPPORT OF
                         Plaintiff,          MOTION TO COMPEL
-against-

DONALD W. WALLACE and DONNA P. WALLACE,     Index No. 02888/2012

                         Defendants.
—————————————-x

WILLIAM MARTIN, an attorney duly admitted to practice law before the Courts of the State of New York, affirms the following under the penalties of perjury:

  1. I am an attorney with the law firm of Martin + Colin, P.C. representing the plaintiff, Maura G. Davis, and as such I am thoroughly familiar with the facts and circumstances herein.

  2. I submit this affirmation in support of Plaintiff’s motion to compel non-party Progressive Insurance Company to turn over: such portions of the relevant claim file for Claim No.: 12-1818654, Loss Date: April 25, 2012 as specifies or contains materials, records, information concerning Donald Wallace’s use of the subject vehicle including but not limited to documents, notes, electronic recordings, etc.

  3. The subject car accident occurred on April 25, 2012 at the intersection of Aqueduct Road and Russell Street in the City of White Plains, County of Westchester, State of New York.

  4. At the time of the accident, both defendants lived in the same home. Both Donna P. Wallace and Donald W. Wallace gave the same address according to the Police Accident Report. (see MV-104A Police Accident Report annexed hereto as Exhibit “1”).

  5. The MV-104A Police Accident Report’s accident description states that the defendant, Donna P. Wallace, took her son, Donald W. Wallace, to the police station soon after the accident and that she gave a statement to the police. Her statement to the White Plains Police Department was that her son was driving her car.  She did NOT at any time tell the police that her son was driving her car without her permission.

  6. As a result of this accident, Donald Wallace was arrested, charged, convicted and served one year in jail (see Certificate of Conviction annexed hereto as Exhibit “2”).

  7. Unauthorized use of motor vehicle does not appear anywhere in the police documents surrounding this accident and the arrest arising therefrom. The White Plains Police did a thorough investigation.  They did not just arrest him and charge with DWI.  They did a thorough investigation, lasting over a month.  They took statements from several critical witnesses.  Among others, they took a statement from Donna Wallace.  She told police her son Donald was operating her vehicle.  Once again, she did NOT tell police that he was operating her vehicle without her consent (see supporting deposition of Donna Wallace, dated May 1, 2012, annexed hereto as Exhibit “3”).

  8. This action was commenced by the filing of a Summons and Verified Complaint on December 31, 2012 (see Summons and Complaint annexed hereto as Exhibit “4”). That is over three years ago.

  9. Defendant Donna P. Wallace’s insurance company, Progressive Insurance, requested ten (10) adjournments prior to serving their answer. Our office did not receive an answer from the defendants until April 4, 2014.  Thus, Progressive Insurance took approximately fifteen (15) months to investigate this claim prior to filing their answer (see Answer filed April 4, 2014 annexed hereto as Exhibit “5”).  As part of that answer, Progressive attorney Joan A. Ramirez admitted that Donald Wallace operated the vehicle with the owner Donna Wallace’s consent (see that Complaint par. 5 is not expressly denied).

  10. Subsequently, by motion to this Court, Donna Wallace was permitted to change her answer to deny permissive use of her vehicle. In her supporting affidavit, sworn to on June 18, 2014, more than two years after the accident, she stated:  “I never told my insurance company or my original attorneys that my son had permission to drive the car and have always insisted that he did not have my permission or consent” (see Affidavit of Donna Wallace annexed hereto as Exhibit “6”).

  11. At Examination Before Trial, defendant Donna Wallace herself testified that she contacted Progressive on the day of the accident and told them that her son drove her car without her permission and that he did not have a license or insurance. She further testified that she thinks she put the same in writing to Progressive, and that she has no objection to Plaintiff looking at that file.  (see EBT Transcript pages 29-31 annexed hereto as Exhibit “7”).

  12. Thus, as testified by Donna Wallace herself, there must be entries, notes and possibly documents in the Progressive claim file to that effect that Donna did not give her son consent to operate her vehicle on the date of the accident. That was Donna Wallace’s testimony.

  13. As the contents of the Progressive claim file has been placed into issue by defendant Donna Wallace herself, Progressive cannot assert a claim of privilege as a sword to cover up Donna Wallace’s prior statements. If, in fact, defendant Donna Wallace has recently changed her story, she cannot now use the privilege as a basis to deny plaintiff access to her prior statements; those prior statements to her insurance company are important evidence in the search for the truth.  Plaintiff cannot obtain the Progressive Insurance File by any other means, as only Progressive Insurance has the only copy of the file.

  14. Several months ago, this Honorable Court issued a “so ordered” subpoena on Progressive Insurance to produce its file (annexed hereto as Exhibit “9”). Progressive refuses to do so.

  15. For the many reasons set forth above, and based on the legal arguments set forth in the accompanying Memorandum of Law, it is respectfully requested that this Honorable Court grant this motion in its entirety.

WHEREFORE, it is respectfully requested that the plaintiff’s application be granted in its entirety, and that this Court grant plaintiff’s motion to compel non-party Progressive Insurance Company to turn over immediately to plaintiff such portions of the relevant claim file for Claim No.: 11-2727654, Loss Date: April 25, 2012 as specifies or contains materials, records, information concerning Donald Wallace’s use of the subject vehicle including but not limited to documents, notes, electronic recordings, etc., and that this Court grant such other and further relief as to this Court seems just and proper.

Dated: White Plains, New York
September 4, 2015

__________________________________
WILLIAM MARTIN

Well, there you have it.  That was the sworn statement in support of our motion for disclosure of the relevant portions of the insurance company file.  We hope you find it helpful.

If you or a member of your family has been hurt in an accident due to the negligence of another person, the experienced personal injury lawyers at Martin + Colin, P.C. may be able to help.

CALL US NOW AT (914) 771 7711 AND LET US APPLY OUR EXPERTISE TO YOUR CASE.