Opinion
46860 Record No. 900857
April 19, 1991
Present: All the Justices
Since, under the circumstances, a witness' potential bias as the result of her employment was not a collateral matter and bore directly upon the weight to be given her testimony, the trial court erred in refusing to allow the plaintiff to inquire into her employment. The judgment of the trial court is reversed and the case remanded.
Practice and Procedure — Insurance — Potential Bias — Disclosure of Employment
Plaintiff was injured when the car in which she was riding went out of control and struck the front of a house. She sued the driver who died shortly before trial. His administrator was substituted as defendant. At a jury trial, the plaintiff called the investigating officer who testified that the deceased had told him that he had lost control because the plaintiff had grabbed his neck and was shaking him. The plaintiff denied that she was arguing with the driver. She called as an adverse witness an insurance adjuster who testified that the driver had told him that he lost control because he had swerved to miss a dog. The trial court refused to permit the plaintiff to show the adjuster's potential bias by inquiring into his employment. As a part of the defendant's evidence, the administrator called another insurance adjuster who testified that the deceased driver had given her the same story he had given to the investigating officer. The trial court refused to permit the plaintiff to show the adjuster's possible bias by asking her if she was employed by the deceased's insurer. The jury returned a verdict for the administrator on the issues of negligence, contributory negligence, and damages. The plaintiff appeals the trial court's judgment.
1. A litigant ordinarily has a right to establish facts and circumstances tending to show the interest, bias or prejudice of a hostile witness. Evidence may be admitted, under certain circumstances, to show the bias of an insurance adjuster as the result of the adjuster's employment.
2. The insurance adjuster was called by the plaintiff as an adverse witness, but he was not a hostile witness since his testimony was favorable to the plaintiff. Therefore, the trial court properly refused to allow the matter of insurance coverage to be injected into the case through examination of the investigator.
3. Since the insurance adjuster called by the defendant was clearly hostile to the plaintiff, her potential interest, bias, or prejudice as the result of her employment was not a collateral matter but bore directly upon the weight given to her testimony.
4. The trial court erred in refusing to allow the plaintiff to inquire into the insurance adjuster's employment.
Appeal from a judgment of the Circuit Court of the City of Portsmouth. Hon. William H. Oast, Jr., judge presiding.
Reversed and remanded.
John W. Eppler (Bangel, Bangel Bangel, on brief), for appellant.
J. Barbour Rixey (Rixey Rixey, on brief) for appellee.
In this personal injury case, we decide whether a plaintiff can show the potential bias of two witnesses by requiring them to disclose that they were employed by or on behalf of the defendant's insurance company. One witness was presented by the plaintiff and the other by the defendant.
On October 31, 1987, Shirley Sullivan, a front-seat passenger in a car driven by Louis Brightman, was injured when Brightman lost control of the car and it struck the front of a house in Portsmouth. On November 21, 1988, Sullivan sued Brightman, who was insured by Colonial Insurance Company of California (Colonial). A short time before trial, Brightman died, and J. Barbour Rixey, administrator of Brightman's estate, was substituted as a party defendant.
At a jury trial, the plaintiff called the investigating officer, Dean Rodriguez, as a witness. Rodriguez testified on direct examination that Brightman told him he lost control of the car because the plaintiff "was arguing with him while driving [and] she grabbed his neck and started to shake him. He was trying to get her off him when he lost control of the vehicle and ran off the road and hit the front side of the house." When the plaintiff testified, she denied that they were arguing, and said that she could remember only that Brightman "had looked away" before the collision. The plaintiff further testified that Brightman later told her that "he had looked away and wasn't paying attention to what he was doing. He saw [a] dog, and when he swerved, that's how he hit the house."
The plaintiff also called William T. Hawkinson as an adverse witness. Hawkinson was employed by Crittenden Adjustment Company, an insurance adjusting company that Colonial contacted to get a statement from Brightman. Hawkinson testified that Brightman told him that "at the time of the accident he had momentarily taken his eyes off the road, and when he looked back he lost control when he swerved to miss a dog." The trial court refused to permit the plaintiff to show Hawkinson's potential bias by inquiring into his employment.
Additionally, the plaintiff showed that Brightman pleaded guilty to a charge of reckless driving arising out of this accident.
As a part of the defendant's evidence, the administrator called Karen Artrip, an insurance adjuster for Colonial, who testified that Brightman had given her essentially the same account of events as that he had given Rodriguez. The trial court refused to permit the plaintiff to show Artrip's possible bias by asking her if she was employed by Brightman's insurer.
The jury returned a verdict for the administrator upon issues of negligence, contributory negligence, and damages. The plaintiff appeals the trial court's entry of judgment on the verdict.
A litigant ordinarily "has a right to establish facts and circumstances tending to show the interest, bias or prejudice of a hostile witness." Highway Express Lines, Inc. v. Fleming, 185 Va. 666, 672, 40 S.E.2d 294, 298 (1946). This principle permits evidence to be admitted, under certain circumstances, to show the bias of an insurance adjuster as the result of the adjusters employment. Id.
The plaintiff argues that, under this rule, she should have been permitted to question both Hawkinson and Artrip about the nature of their employment. We disagree as to Hawkinson but agree as to Artrip.
Hawkinson, though called by the plaintiff as an adverse witness, was not a hostile witness; his testimony was favorable to the plaintiff. Therefore, the trial court properly refused to allow the matter of insurance coverage to be injected into the case by the plaintiff through examination of Hawkinson.
[3-4] On the other hand, Artrip was called by the defendant and was a witness clearly hostile to the plaintiff. Under these circumstances, Artrip's potential interest, bias, or prejudice as the result of her employment was not a collateral matter. It bore directly upon the weight to be given her testimony. Therefore, the trial court erred in refusing to allow the plaintiff to inquire into her employment. Henning v. Thomas, 235 Va. 181, 188-89, 366 S.E.2d 109, 113 (1988).
Accordingly, we will reverse the judgment of the trial court and will remand the case for further proceedings.
Reversed and remanded.