From the trench warfare that often characterizes litigation of small-dollar auto subrogation disputes — in some states heard by clerks instead of judges in proceedings that more resemble a hearing than a trial, per se — comes a case from Ohio that might serve you well some day. This is one of those “stick it in the briefcase” cases or, I suppose these days, scan to your mobile device. The issues presented included what foundation is required to get appraisals and collision photos admitted into evidence and whether the subrogating insurer’s employee, an ‘auto estimatics inspector,’ was competent to testify as to what damage occured when in a multiple vehicle, multiple impact collision.
The case is State Farm Mutual Ins. Co. v. Anders, Court of Appeals of Ohio, Tenth District, Franklin County, No. 11AP-511.
At a bench trial the testimony revealed that State Farm’s insured, Mark Poland, was traveling in the right lane of westbound I-270 in Dublin, Ohio. Poland attempted to brake when he noticed brake lights ahead, but he lost control of his vehicle on the wet road, and the front, passenger side of his vehicle collided with the barrier wall along the right side of the freeway. Upon impact, Poland’s vehicle spun, and the front, driver side of his vehicle reentered the right lane of travel, so that his vehicle was facing south, perpendicular to the lane of travel. Ann Miller, who was driving the vehicle behind Poland, came to a complete stop. The defendant, Brian Anders, who was driving a semi tractor-trailer in the right lane, two vehicles behind Poland, collided with Miller’s vehicle, which spun in front of Poland’s vehicle, and came to rest with its driver’s side against the barrier wall. The semi then collided with Poland’s vehicle, and, as a result, the rear of Poland’s vehicle struck the barrier wall.
Not unexpectedly, defendant argued that most of the damage to Poland’s vehicle was caused by Poland himself when he lost control of his vehicle and not when Anders came along and struck him. The central disputes then involved who and what State Farm used at trial to prove up its damages. State Farms’ employee, Thomas Showalter, had a lot of experience writing estimates for damaged autos and managing and owning auto body shops. He did not have any particular expertise in accident reconstruction and in this case he never did get a chance to actually physically inspect the subject vehicle. In this instance, he received estmates and photos of the damage from Tansky’s Automotive, a body shop in State Farm’s network.
The defendant argued that somebody from Tansky, not somebody like Showalter from State Farm, should have provided the foundational testimony to establish the shop’s documents as business records and thus exceptions to the hearsay rule. State Farm argued that it incorporated the Tansky estimate into its own business records and that its own employee could, therefore, lay an adequate foundation for admission of the estimate. The court agreed under the ‘adoptive business records’ doctrine.
Next, the defendant argued that Showalter’s expert testimony should not have been admitted because his opinion lacked reliable, scientific information. With a nod to Daubert and Kumho Tire, the court affirmed the trial court’s finding that Showalter “has the training and expertise and knowledge enough to give an estimate and then take away what the first contact with the wall was.”
Here’s the case if you care to read it: