Most automobile accidents that end up in litigation are disputed liability.

Most automobile accidents that end up in litigation are disputed liability. These accidents sound like this: the subrogated carrier’s insured is adamant that he had the green light; or, the other driver defendant is adamant the insured merged into his/her lane. Of course, the other driver defendant disputes the insured’s account and states the complete opposite. This is a regular occurrence. Both drivers cannot be correct. What do you typically do? You look to see if a police report was prepared.

Under Ohio law, a police report is hearsay (in other words inadmissible) unless it meets one of the exceptions enumerated in the rules of evidence.

You get the police report and to your delight, you see the investigating police officer determined the defendant driver was as fault and cited him/her. The investigating police officer interviewed each driver and determined the defendant driver merged into the insured’s lane. The investigating officer cites the defendant driver with failure to operate his/her vehicle in the marked lanes. The subrogated carrier believes they have the “smoking gun” to prevail. Unfortunately, the citation in the police report is a red herring and is not admissible. Unless, of course, the defendant driver pleads guilty or is found guilty after a trial. For sake of this article, the defendant driver pleads no contest.

Insurance carriers must refrain from relying on the information found in the police report and the citation.

Under Ohio law, a police report is hearsay (in other words inadmissible) unless it meets one of the exceptions enumerated in the rules of evidence. First hand observations of the investigating officer making the report fall within the public records exception to the hearsay rule and are admissible. Hearsay statements contained in the police report that do not have independent sources of admissibility are inadmissible. Therefore, the citation and any comments or information included in the police report is inadmissible unless there is an independent source of admissibility. Thus, the subrogated carrier must assess the credibility of the insured driver and defendant driver when assessing liability and facts of the case. In most instances, the correct facts of how the accident took place is somewhere between both versions. Insurance carriers must refrain from relying entirely on the information found in the police report and the citation. The police officer did not see the accident and can only go off what he is told from the drivers and witnesses.