Madison v. Hawkins , 1994 Ind. App. LEXIS 1709 ( 1994 )

RILEY, Judge,

dissenting in part and concurring in part.

I concur with the majority as to Issue I, and dissent on Issue II.

The majority correctly points out that this court may not interpret a statute that is clear and unambiguous on its face. However, the clear and plain meaning of I.C. 9-26-34 indicates that the required accident report is "for the confidential use of the state police department" and not to be kept by the insurance company in its file. It is true that the statute contains no exceptions and the report may not be used by another individual or entity; however, this should include the insured who, in this case, retained a copy of the report and gave it to her insurance company. The statute provides only that the "person who has, or claims to have, made a report" be "furnish[ed] a certificate showing that a specified accident report has or has not been made to the state police department." It does not provide that the insured be provided a copy of the accident report to be shared with his or her insurer. Once Madison shared the report with her insurer the report was no longer for the "for the confidential use of the state police department" and should be discoverable from the insurer by the party seeking discovery.

The majority also holds that even if the police report was not protected by I.C. 9-26-3-4 it would be protected from discovery by Richey because it is a statement from Madison to Liberty Mutual concerning the accident. I disagree. The holding in Richey protects insured's statements given to an insurer concerning an occurrence which may be made the basis of a claim by a third party. The accident report was not made by Madison to her insurer, but to the state police for their confidential use for accident prevention purposes. Thus, the report is not an insured's statement given to his or her insurer which would be protected by Rickey. I would affirm the trial court and compel discovery of the accident report that was kept in the files of the insurer.