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R.I. Supreme Court Holds Business Records Exception Does Not Apply Unless Recordkeeper Testifies

The Rhode Island Supreme Court has held that the executor of the estate of a deceased plaintiff cannot introduce a written statement given by the decedent to her insurer without the testimony of the insurer's recordkeeper establishing the statement as its business record under Rule 803(6). The Court also rejected the argument that the statement was admissible under the so-called "residual" hearsay exception, Rule 803(24).

The decedent was in a car accident and was injured. She gave a written (and possibly unsworn) statement to her insurer on its form that supported an argument the other driver was responsible for the accident. The form was entitled "Notice of Injury-Proof of Loss." The decedent filed suit in 2007 and passed away in 2008, apparently without having been deposed. At trial, plaintiff attempted to introduce the statement under various hearsay exceptions, including so-called "business records," Rule 803(6), and the "residual" exception, Rule 803(24). Plaintiff did not attempt to introduce the testimony of the insurer's recordkeeper. The trial court excluded the statement. It commented that it did not think the statement was admissible even if the insurer's recordkeeper testified.

The Supreme Court said the testimony of the insurer's representative was necessary to establish authenticity and the other elements of Rule 803(6). "Without testimony from [the insurer] to establish that the document was, in fact, regularly kept in the course of [its] business and recorded contemporaneously with the collision, we agree with the trial justice that there was not enough sufficient evidence that the document was reliable so as to qualify as a business record." With respect to the "residual" exception, the Court quoted its prior decision: "[T]his exception is 'not to be used as a device...to prove material facts through...unsworn statements as a substitute for...testimony."

Notably, the Supreme Court did not address the issue that apparently troubled the trial justice, i.e., even if the document was the insurer's business record, the decedent's description of the accident was still hearsay within hearsay for which a separate hearsay exception would have been necessary.  On this basis, the Court has excluded similar statements in the context of police accident reports.

Martin v. Lawrence, No. 2012-297, 2013 WL 6328592 (R.I. Dec. 5, 2013)

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