After a serious crash, insurance companies often investigate quickly. An adjuster or an investigator may locate witnesses and take recorded or written statements describing what those witnesses saw. When litigation follows, a party may want to introduce one of these statements into evidence. A common theory is that the statement is part of the insurer’s records and should come in under the business records exception to the hearsay rule. Georgia law allows that theory in some situations but limits it in important ways.
The hearsay problem
A witness statement is an out-of-court assertion. When it is offered in court to prove that what the witness described actually happened, it is hearsay. Under Georgia’s evidence code, hearsay is generally not admissible unless it falls within a recognized exception. So the question is not simply whether the statement is in an insurer’s file, but whether an exception applies to it.
The business records exception
The business records exception appears in O.C.G.A. § 24-8-803(6). It allows the admission of a memorandum, report, record, or data compilation of acts, events, conditions, opinions, or diagnoses if certain foundational requirements are met. The record must have been made at or near the time of the matters described. It must have been made by, or from information transmitted by, a person with knowledge. The person supplying the information must have had a business duty to report it. The record must have been kept in the course of a regularly conducted business activity, and it must have been the regular practice of that activity to make the record. These foundational facts are established through testimony from a qualified witness, often called a custodian, or through a proper certification.
An insurer’s claim files can themselves qualify as business records, because an insurance company regularly creates and maintains claim documentation in the ordinary course of its business. The harder question is whether a witness statement contained within that file shares the same protection.
The double hearsay problem with witness statements
A witness statement gathered by an insurer presents what is sometimes called a layered or double hearsay problem. There are two separate out-of-court communications. One is the insurer’s act of recording and keeping the statement. The other is the witness’s own account of the crash.
The business records exception can address the first layer. The insurer’s regular practice of documenting an investigation can cover the recording and retention of the document. The exception does not, however, automatically cover the second layer, which is the truth of what the witness said. This is because the witness is generally an outsider to the insurer’s business. The witness has no business duty to the insurer to report accurately. The reliability that the business records exception assumes comes from the routine, duty-bound nature of business record-keeping, and that assurance does not extend to a statement made by a member of the public who simply described an event to an investigator.
A long-recognized illustration of this principle is the police accident report. The officer who writes the report acts in the regular course of duty, but a bystander quoted in the report does not. Courts have held that the bystander’s statement within the report is not admissible for its truth on the strength of the business records exception alone, even though the report itself may qualify as a record. The same reasoning applies to a witness statement inside an insurer’s claim file. The file’s status as a business record covers the existence and contents of the document, but not the truthfulness of an outside witness’s account.
When the witness statement may still be admissible
The double hearsay barrier does not necessarily end the inquiry. A layered hearsay statement can be admitted if each layer is covered by an exception or an exclusion. The insurer’s record can come in under the business records exception, and the witness’s statement can come in if it independently fits an exception or is excluded from the hearsay definition.
Several possibilities exist. If the witness testifies at trial, a prior statement may be usable for impeachment, or in some circumstances as a prior consistent or inconsistent statement under the rules governing prior statements of a testifying witness. If the statement was made under conditions that fit another exception, such as a present sense impression or an excited utterance, the content may be admissible on that basis. If the statement was made by a party to the case, it may be admissible as an admission of a party opponent, which Georgia treats as not excluded by the hearsay rule. And if the witness is unavailable, a different set of exceptions may apply depending on the circumstances.
Each of these routes depends on its own foundational facts. The point is that admissibility turns on a specific exception for the witness’s statement, not on the general business-records status of the insurer’s file.
Other admissibility considerations
Even when a hearsay route exists, other rules apply. The document must be authenticated under O.C.G.A. § 24-9-901 and following. The statement must be relevant under O.C.G.A. § 24-4-401, and the court may still exclude it under O.C.G.A. § 24-4-403 if its probative value is substantially outweighed by unfair prejudice, confusion, or undue delay. Materials prepared by an insurer in anticipation of litigation may also raise questions of work product protection during discovery, which is a separate issue from trial admissibility.
Summary
In Georgia, a witness statement taken by an insurer is not automatically admissible simply because it sits within the insurer’s claim file. The business records exception in O.C.G.A. § 24-8-803(6) can establish that the insurer’s record is a regularly kept business document, but it does not, by itself, make the truth of an outside witness’s account admissible, because the witness owes no business duty to the insurer. This is the classic double hearsay problem. The witness’s statement can reach the jury only if it independently satisfies a separate hearsay exception or exclusion, such as a party admission, a present sense impression, an excited utterance, or a permitted use of a testifying witness’s prior statement, and only after the usual authentication, relevance, and prejudice rules are satisfied.
Disclaimer
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