White Crane Service v. Howell -
This case involves the availability of the workers’ compensation bar.
On a construction project in Southampton, the general contractor employed Crane Company to work on the project lifting steel. An employee of the general contractor was injured by an employee of the Crane Company due, allegedly, to the negligence of the crane operator. The employee of the general contractor received workers’ compensation from his employer and then tried to sue the crane operator. The crane operator is typically considered to be a statutory co-employee in this situation. The parties stipulated to this fact. However, counsel for the general contractor’s employee argued that the workers’ compensation bar should not apply in this case because the Crane Company had not purchased workers’ compensation insurance.
The issue before the Court was whether the crane company forfeited its protection under the workers’ compensation Act by failing to purchase coverage. The Virginia Supreme Court held that they do not forfeit their protection. A worker cannot sue a statutory co-worker even if that person’s employer did not purchase workers’ compensation insurance.
Ruhlin v. Samaan - Virginia Supreme Court - November 4, 2011
This case describes the limits of using the transcript of a recorded statement taken from a plaintiff in a personal injury case during cross examination of the plaintiff at trial.
The plaintiff was involved in an automobile accident and liability was admitted. The insurance company took a recorded statement from the plaintiff and had it transcribed. Apparently the question at trial was the extent to which the plaintiff’s injuries, in particular a left shoulder injury, were related to the accident or some other cause. The verdict was for the plaintiff in the amount of $5,000 and the plaintiff, evidently very unhappy, appealed.
The plaintiff alleged that he suffered a left shoulder injury in the accident. He had injured his left shoulder several years before the accident and indeed, had been operated on for the left shoulder at that time. The medical records from the emergency room on the day of the accident do not reference any injury to the left shoulder. Later on the same day as the accident but after the ER the plaintiff talked with a representative of the insurance company and described the accident and his injuries. The left shoulder was not mentioned in that conversation although other injuries were. This was the recorded statement at issue. The plaintiff testified at trial that his shoulder began to hurt shortly after the accident and but it was three weeks after the accident that he began to receive treatment for the shoulder.
At trial the defense lawyer cross examined the plaintiff about the conversation with the insurance representative. The plaintiff first suggested that all they talked about was liability. He said that he didn’t recall whether they discussed the injuries. The defense lawyer then presented the plaintiff with a copy of the recorded statement, without identifying it to the jury, and asked if that document refreshed his memory. This was done over objection and was permitted by the trial judge. The defense lawyer then cross examined the plaintiff on the fact that he did not tell the defense representative that his shoulder hurt and the plaintiff agreed with that.
After this testimony the plaintiff attempted to call his wife as a witness to his statements that he had hurt his shoulder, claiming admissibility as a prior consistent statement. The trial judge sustained the defense objection and the case proceeded to the small jury verdict.
The Virginia Supreme Court affirmed the trial judge. It is clear from prior case law that the substance of the conversation is admissible, but the recording or writing is not. The defense lawyer here did not use the writing, the transcript, to cross examine the plaintiff but merely to refresh the plaintiff’s memory. As long as the document was not identified to the jury this was permissible. The statute prohibits using the writing to contradict the plaintiff’s testimony, not to refresh it his memory.
The trial court also correctly refused to admit the prior consistent statements of the plaintiff’s wife. They are hearsay. A prior consistent statement may be admitted if there is a charge of recent fabrication and the prior consistent statement was made before there was a motive to fabricate.
Affirmed
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