Legal Issues

Admissible Evidence

Regardless of how strong an insurer may feel its case may be in exposing fraud, whether it be casualty, property, health, life, or workers' compensation, unless the insurer can present evidence to the jury sufficient to expose the hidden crime, then all efforts undertaken during its investigation shall have been in vain. The purpose of this session is to provide guidance with respect to areas which may assist the insurer in presenting evidence of fraudulent conduct to the jury. While the particular areas of inquiry are by no means exhaustive or to be considered the most important items of evidence to be presented in a fraudulent case, they do represent issues common to the defense of various types of fraudulent cases and have been litigated extensively in almost all jurisdictions across the country.

In order to assist individuals whose particular jurisdiction is not represented in the case law presented, we have utilized the West Key Number System, sufficient to allow the reader the option of locating cases within their particular jurisdiction simply by utilizing either the West Digest of that particular region, West Decennial Digest, West Federal Practice Digest, or Westlaw Computer Research System.

Evidence of prior losses
One of the "badges of fraud" and an initial indicator of a questionable claim is the discovery of a multiple claims history. Although prior acts are generally inadmissible (see F.R.E. Rules 403, 404), many jurisdictions have carved out an exception to this rule where similar acts are intended to show fraud, motive, scheme or intent. See: Standard Fire Insurance Company v. Mitchell, 66 F.Supp. 950 (E.D. Tex. 1987); Galvan v. Cameron Mutual Insurance Company, 733 S.W.2d 771 (Mo. 1987); Sessions Company, Inc. v. Turner, 403 So.2d 1387 (Al. 1986); Weiscopf v. Bond, 739 F.Supp. 1084 (E.D. La. 1990); Turley v. State Farm Mutual Insurance Company, 944 F.2d 669 (10th Cir. Kan. 1991); Pugh v. State Farm Fire & Casualty Company, 474 So.2d 629 (Ala. 1985); Dial v. Travelers Indemnity Company, 780 F.2d 520 (5th Cir. Miss. 1986); Wernowski v. Economy Fire & Casualty Company, 477 N.E.2d 231 (Ill. 1985); Rutledge v. St. Paul Fire & Marine Insurance Company, 334 S.E.2d 131 (S.C. 1985); Collier v. South Carolina Insurance Company, 422 S.E.2d 52 (Ga. 1992).

However, other courts have held that evidence of prior losses, particularly prior fire losses, are inadmissible unless the insurer can prove that the insureds were responsible for the prior losses. See: Garcia v. Aetna, 657 F.2d 652 (5th Cir. Fla. 1981); Smith v. St. Farm, 633 F.2d 401 (5th Cir. Ga. 1980); Pacheco v. Safeco, 780 P.2d 116 (Idaho 1989); Aetna v. Guynes, 713 F.2d 1187 (5th Cir. Tex. 1983); Metropolitan Property & Liability Insurance Company v. Shepherd, 304 S.E.2d 74 (Ga. 1983).

In Dial v. Travelers Indemnity Company, 780 F.2d 520 (5th Cir. Miss. 1986), the Fifth Circuit Court of Appeals held that in order to determine whether evidence of other crimes or acts are admissible, the court must submit the proposed proof to a three-step test. It must determine that the evidence is relevant to issues other than defendant's character. The evidence must possess probative value that is not substantially outweighed by its undue prejudice and must meet other requirements of Federal Rule of Evidence 404 (6). Finally, the evidence relevant to the issue of intent is valid only if an offense was, in fact, committed and the defendant, in fact, committed it. [Evid. § 129(5)]

While there have been numerous opportunities for insurers to seek introduction of evidence of the insured's prior losses, there have been several attempts recently by insureds to introduce evidence of the insurer's prior transactions with other insureds in actions for bad faith denials of claims. See e.g.:  Hawkins v. Allstate Insurance Company, 733 P.2d 1073 (Ariz. 1987). [Evid. § 129(5)]

In Southerland v. Argonaut Insurance Company, 794 P.2d 1102 (Colo. 1990), the Colorado Court of Appeals held that evidence of an insurer's regular late payments of workers compensation checks to its clients was admissible for purposes of demonstrating an ongoing pattern of purposeful delays in paying benefits and to prove the insurer's economic motive in causing the delays in an action brought against the insurer alleging that the insurer had breached its duty of good faith in processing claims. Similarly, in Underwriters Life Insurance Company v. Cobb, 746 S.W.2d 810 (Tex. 1988), the Texas Court of Appeals held that evidence of an insurer's denial of other claims around the same time it denied the insured's claim on the basis that the insured failed to disclose its past medical history or pre-existing condition was so connected with the issue that a jury could construe the insurer's activity as part of a systematic design or scheme to withhold payment of claims. However, other courts have held that denial of similar claims was immaterial, irrelevant and inadmissible to show a motive or scheme in an action for bad faith denial of claims by the insurer. Jones v. Automobile Insurance Company of Hartford, 698 F.Supp. 226, Aff'd in part, rev'd in part, 917 F.2d 1528 (N.D. Ga. 1988); Group Hospital Services, Inc. v. Daniel, 704 S.W.2d 870 (Tex. at 1985). [Evid. § 129(5)]

Criminal Pleas
In cases involving arson or bodily injury fraud, there may be sufficient evidence of the insured's involvement that the state or federal government may independently pursue criminal charges of arson, insurance fraud or mail fraud against the insured. Similarly, a claimant may have been charged with a traffic offense which would indicate an admission that he was at fault in causing an accident, although the injured party makes a claim for bodily injury.   Almost all jurisdictions have held that guilty pleas are admissible in civil cases as an admission against interest, so long as the statutory scheme for proving the plea, such as securing a certified or exemplified record of the plea from the clerk of court is complied with. See: Brown v. Green 738 F.2d 202 (7th Cir. Ill. 1984); State Farm Fire & Casualty v. Bomke, 849 F.2d 1218 (9th Cir. Cal. 1988)); McCormick v. U.S., 539 F.Supp. 1179 (Colo. 1982); Nunez v. Gonzalez, 456 So.2d 1336 (Fla. 1984); Carolina Casualty Insurance Company v. Davalos, 269 S.E.2d 897 (Ga. 1980); Tempo Trucking and Transfer Corporation v. Dixon 405 F.2d 506 (N.Y. 1975); Country Mutual Insurance Company v. Duncan, 794 F.2d 1211 (7th Cir. Ill. 1986); People v. Powell, 437 N.E.2d 1258 (Il. 1982); State Farm Fire & Casualty v. Miles, 730 F.Supp. 1462 (S.D.Ind. 1990); Perry v. Capital Air, Inc.; 649 F.Supp. 1260 (Dist. P.R. 1986). Romine v. Parman, 831 F.2d 944 (10th Cir. Kan. 1987); Anderson v. New Orleans Public Service, Inc., 433 So.2d 872 (La. 1983); LaMartina v. Hanna, 675 S.W.2d 444 (Mo. 1984); Schaefer v. McCreary, 345 N.W.2d 821 (Neb. 1984); Alexander v. Eldred, 100 A.D.2d 666 (N.Y. 1984); Silveira v. Santos, 490 A.2d 969 (R.I. 1985); Samuel v. Mouzon, 320 S.E.2d 482 (S.C. 1984); Grange Mutual Casualty Company v. Walker, 652 S.E.2d 908 (Tenn. 1983); Dixon v. Stewart, 658 P.2d 591 (Utah 1982); Safeco Insurance Company v. McGrath, 708 P. 2d 657 (Wash. 1985); White v. Lock, 332 S.E.2d 240 (W.Va. 1985). Hinshaw v. Keith, 645 F.Supp. 180 (Dist. Me. 1986).[Evid. § 207(4)]

However, in Texas, unless a guilty plea is made in open court, evidence of the guilty plea is not admissible in a civil suit for damages arising out of the negligence giving rise to the criminal charge. Cox v. Bohman, 683 S.W.2d 757 (Tex. 1984); U.S. v. Ocanas, 528 F.2d 353 (5th Cir. Tex. 1980).

In almost all jurisdictions, except the 6th Circuit, a nolo contendere plea is not admissible in a subsequent civil action. See e.g.: Neuner v. Clinkenbeard, 456 F.Supp. 54 (Dist. Okla. 1978); U.S. v. Kates, 419 F.Supp. 846 (Dist. Pa. 1976); Agnew v. State, 446 A.2d 425 (Md. 1982); Eisenberg v. Commonwealth Department of Public Welfare, 485 A.2d 511 (Pa. 1984); U.S. v. Yonkers Contracting Company, Inc. 689 F.Supp. 339 (S.D.N.Y. 1988); Windsor Forrest, Inc. v. Rocker, 175 S.E.2d 65 (Ga. 1970). [Evid. § 207(4]

Similarly, an insured's attempt to show that no criminal prosecution was brought against him is inadmissible in a subsequent civil action arising from the same circumstances. Bazza v. Panscher, 533 N.Y.S.2d 285 (N.Y. 1988); Clough v. Greyhound Corp, 85 S.E.2d 476 (Ga. 1955). [Evid. § 147]

As indicated above, the 6th Circuit Court of Appeals has adopted an unusual rule with respect to pleas of nolo contendere insofar as the court has held that evidence of an insured's nolo contendere plea to arson was admissible in the insured's civil action against the insurer for civil proceeds in which the party offering the nolo plea is the defendant in the subsequent civil action. Levin v. State Farm Fire & Casualty Company, 735 F.Supp. 236 (E.D. Mich. 1990) [Evid. § 207(4]

Polygraph and Voice Stress Tests
Generally, polygraph tests are not admissible to prove that the party who had submitted to a polygraph exam did or did not tell the truth unless, before the polygraph is administered, both parties stipulate to allow it into evidence. See generally, F.R.E. Rule 702. Foster v. Township of Hillside, 780 F.Supp. 1026 (Dist. N.J. 1992); Brown v. Darcy, 783 F.2d 1389 (9th Cir. Cal. 1986); Simmons, Inc. v. Pinkerton's, Inc., 762 F.2d 591 (7th Cir. Ind. 1985); Bally National Bank of Cortez v. Chaffin, 718 P.2d 259 (Colo. 1986); Farmer v. City of Ft. Lauderdale, 427 So.2d 187 (Fla. 1983); Haldeman v. Total Petroleum, Inc., 376 N.W.2d 98 (Iowa, 1985); Silver Spring TP v. Thompson, 496 A.2d 72 (Pa. 1985); Bufkin v. Texas Farm Bureau Mutual Insurance Company, 658 S.W.2d 317 (Tex. 1983); Munford, Inc. v. Anglin, 329 S.E.2d 525 (Ga. 1985). [Evid. § 150]

However, in several recent cases, the courts have held that the fact that the insured was willing to undergo a polygraph test was admissible as being relevant to the insured's credibility and the insurer's motive in refusing the claim. Murphy v. Cincinnati Insurance Company 772 F.2d 273 (6th Cir. Mich. 1985); Moss v. Nationwide Insurance Company, 493 N.E.2d 969 (Ohio 1985); Senders v. CNA Insurance Company, 515 A.2d 820 (N.J. 1986). [Evid. § 150]

Also, of particular note, are two relatively significant cases which held that an insurer cannot introduce evidence that their insured either refused to take a polygraph exam or took the exam and failed the same in order to establish good faith on behalf of the insurer. Lynch v. Mid-America Fire & Marine Insurance Company, 418 N.E.2d 412 (Ill. 1981); DeVres v. St. Paul Fire & Marine Insurance Company, 716 F.2d 939 (1st Cir. N.H. 1983). [Evid. § 150]

Psychological or voice stress tests are similar to the polygraph examination in that it is a device supposedly designed to detect untruthfulness or nervousness on behalf of the party being examined. However, the courts have universally disapproved admitting these test results into evidence on the same basis that the polygraph results are deemed inadmissible, in that they have been shown to be unreliable, inaccurate and sufficiently invalid to warrant its inadmissibility in judicial proceedings. Joubert v. Travelers, 736 F.2d. 191 (5th Cir. La. 1984); Barrell of Fun v. State Farm Fire & Casualty Insurance Company, 739 F.2d 1028 (5th Cir. La. 1984); Simon Neustadt Family Center, Inc. v. Bloodworth, 641 P. 2d 531 (N.M. 1982). [Evid. § 150]

Photographs, Videotape, Sound recordings and handwriting
During the insurer's investigation of the claim, the chances are very high that photographs, videotape, sound recordings, handwriting samples and/or signatures will be obtained in order to substantiate the insurer's contention that the claim is fraudulent. However, unless this evidence can be submitted to the jury for consideration, then these tools are wholly ineffective.

Most courts in various jurisdictions across the country have formed a relatively simple rule to determine the admissibility of photographs. Simply stated, if a proper foundation can be laid by showing that the photographs accurately depict the subject which they purport to portray, and if such evidence will be helpful to the jury, then the photographs will generally be deemed admissible, even if the photographer himself is unavailable. Shiver v.Waites, 408 So.2d 502 (Ala. 1981); Johnson v. State, 636 P.2d 47 (Ark. 1981); Dildine v. Clark Equipment Company, 686 S.W.2d 791 (Arz. 1985); Blanchard v. City of Bridgeport, 463 A.2d 553 (Conn. 1983); Sinai v. Polinger Company, 498 A.2d 520 (D.C. 1985); Hannewacker v. City of Jacksonville Beach, 419 So.2d 308 (Fla. 1982); Reliance Insurance Company v. Bridges, 311 S.E.2d 193 (Ga. 1983); Hascup v. City and County of Honolulu, 639 P.2d 870 (Haw. 1982); Rowett v. Kelly Canyon Ski Hill, Inc., 639 P.2d 6 (Idaho 1981); City of Chicago v. Scandia Books, Inc., 430 N.E.2d 14 (Ill. 1981); Paducah Area Public Library v. Terry, 655 S.W.2d 19 (Ky. 1983); Rosenthal v. Weckstein 473 N.E.2d 202 (Mass. 1985); McMiddleton v. Otis Elevator Company 362 N.W.2d 812 (Mich. 1984); Jesco, Inc. v. Shannon, 451 So.2d 694 (Miss. 1984); Pfeffer v. Kerr, 693 S.W.2d 296 (Mo. 1985); Simonson v. White, 713 P.2d 93 (Mont. 1986); Chalupa v. Hartford Fire Insurance Company, 350 N.W. 2d 541 (Neb. 1984); DeFrancisci v. Barron, 467 N.Y.S. 2d 419 (N.Y. 1983); Gay v. Walter, 283 S.E.2d 797 (N.C. 1981). [Evid. § 359(1)]

Similarly, in order to lay a proper foundation for sound recordings, the proponent seeking admission of tapes into evidence must establish that a recording device was capable to take the conversation offered into evidence; that the operator of the device was competent to operate it; that the recording is authentic and correct; that changes, additions and deletions have not been made; that the recording has been preserved in a manner satisfactory to the court; that the speakers on the tape are identified by the proponent of admission; and that the conversation was made voluntarily and in good faith without any sort of inducement. Williams v. Butler, 746 F.2d 431 (5th Cir. Ark. 1984). See also: John Hancock Mutual Life Insurance Company v. Dutton, 585 F.2d 1289 (5th Cir. Ga. 1978).

With respect to proof of handwriting, it is sufficient that the proponent seeking admission testifies that he is familiar with the handwriting sample offered and that he recognizes same as an accurate sample of handwriting of the party sought to be established. In some jurisdictions, it is sufficient to allow handwriting samples to go to the jury who are authorized to compare signatures once the foundation is laid for admission of the sample into evidence. Rader v. PageBoyer Marx & Associates, Inc, 235 S.E.2d 690 (Ga. 1977); Perryman v. Johnson Products, Inc., 698 F.2 1138 (11th Cir. 1983).

Examinations Under Oath
Individuals who pursue fraudulent claims have often been involved in litigation and bankruptcy proceedings in the past. As such, procurement of certified or exemplified copies of pertinent pleadings and filings is desirable inasmuch as numerous courts have held that a pleading in a prior civil proceeding may be offered into evidence as an admission against interest.  Magnolia Square Homeowners Association v. Safeco Insurance Company of America, 271 Cal. Rptr. 1 (Cal. 1990); Goodwin v. ITT Commercial Finance Corp., 497 N.E.2d 331 (Ill. 1986); Trexlar v. Seaboard Systems, R.R. Inc., 641 F.Supp. 688 (W.D.N.C. 1986); Duhon v. Petroleum Helicopters, Inc., 554 So.2d (La. 1989); McWilliams v. Szymanski, 792 P.2d 457 (Or. 1990); Pankow v. Mitchell, 737 S.W.2d 293 (Tenn. 1987); Williams v. Union Carbide Corp., 790 F.2d 552 (6th Cir. Tenn. 1986); Stratton v. Sachs, 900 F.2d 255 (Dist. Md. 1989); Fidelity and Deposit Company of Maryland v. Hudson United Bank, 493 F.Supp. 434 (Dist. N.J. 1980); Bentley v. Ayres, 117 S.E.2d 633 (Ga. 1961). [Evid. § 208(2)]

Like prior pleadings, examinations under oath and sworn statements taken by the insurer are admissible into evidence in their entirety. Essman v. Fire Insurance Exchange, 753 S.W.2d 955 (Mo. 1988); McIntosh v. Eagle Fire Insurance Company of New York, 325 F.2d 99 (8th Cir. 1963). [Evid. § 269(1)]

Police Reports, Fire Reports and Other Investigative Records

INVESTIGATIVE RECORDS
In general, Rule 803(8) of the Federal Rules of Evidence makes admissible records, reports, statements in any form from public offices or agencies, including factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate a lack of trustworthiness. Similarly, 803(6) makes available records kept in the course of a regularly conducted business activity if it was the regular practice of that business activity to make the report a record as long as same is shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstance of preparation indicates a lack of trustworthiness. Generally, the federal courts have permitted police reports to be admitted into evidence unless the document has not been proven to be trustworthy. See, e.g.: Dallas and Mavis Forwarding Company v. Stegall, 659 F.2d 721 (6th Cir. Ky. 1981) [state trooper's report inadmissible as containing no physical data or evidence regarding where accident occurred and consisted primarily of statements of biased, eyewitnesses]; Meder v. Everest and Jennings, Inc., 637 F.2d 1182 (8th Cir. Mo. 1981) [report inadmissible since the source of information unknown]; Ferries v. Atlas Truck Body Manufacturing Company, 797 F.2d 619 (8th Cir. Mo. 1986) [police report inadmissible where no measurements or relative position of vehicles or length of skid marks were made and report could not be corroborated]; Joseph Schachter & Company v. John Hancock Mutual Life Insurance Company, 801 F.2d 563 (2nd Cir. N.Y. 1986) [police report inadmissible inasmuch as detective who investigated insured's death stated he did not know whether death was accident or suicide]; Baker v. Elcona Homes Corp., 588 F.2d 551 (6th Cir. Ohio 1978) [police report inadmissible since report contained truck driver's statement and sergeant's notations concerning fault].

A number of states have ruled that a motor vehicle accident report is admissible either under the public records exception or business records exception to the hearsay rule. Williamson v. City of Springfield, 465 N.E.2d 1035 (Ill. 1984); Lannon v. Taco Bell, Inc., 708 P.2d 1370 (Colo. 1985); Gross v. Latimer, 472 A.2d 1303 (Conn. 1984); Leiken v. Wilson, 445 A.2d 993 (D.C. 1982); Reid v. Heffernan, 318 S.E.2d 700 (Ga. 1984); Rumley v. City of Mason City, Iowa, 320 N.W.2d 648 (Iowa 1982);Kincade v. Doll, 472 So.2d 60 (La. 1985); Genova v. Genova, 554 N.E.2d 1221 (Mass. 1990); Copeland v. City of Jackson, 548 S.2d 970 (Miss. 1989); Wentz v. Unified, 365 S.E.2d 198 (N.C. 1988); Sanders v. Hairston, 554 N.E.2d 1951 (Ohio 1981); Aetna Casualty & Surety Company v. Kuhl, 463 A.2d 822 (Md. 1983); Schear v. Motel Management Corp. of America, 487 A.2d 1240 (M.D. 1985); McCoy v. Hershey Chocolate Company, 65 S.W.2d 128 (Mo. 1983); Purdy v. Nationwide Mutual Insurance Company, 445 A.2d 424 (N.J. 1982); Bracco v. Mabstoa, 502 N.Y.S. 2d (N.Y. 1986); Ours v. West Virginia Department of Motor Vehicles, 315 S.E.2d 634 (W.Va. 1984).[Evid. § § 318(1), 333(1)]

However, other courts have held that police reports do not fall within any exception to the hearsay rule and, as such, are inadmissible. Plenkers v. Shappelle, 420 S.2d 41 (Ala. 1982); Golli v. Reutter, 384 N.W.2d 43 (Mich. 1985); Holland v. Zelnick, 478 A.2d 885 (Pa. 1984); Stevenson v. Emerson Electric Corp., 333 S.E.2d 355 (S.C. 1985); McDonald v. Onoh, 772 S.W.2d 933 (Tenn. 1989); Victory Park Apartments, Inc. v. Axelson, 367 N.W.2d 155 (N.D. 1985); Kaye v. State Department of Licensing, 659 P.2d 548 (Wash. Appeal 1983). [Evid. § 333(1)]

In addition to police and accident reports, the courts have held on a number of occasions that reports prepared by fire investigators, fire marshals, and the Department of Alcohol, Tobacco and Firearms (ATF), fall within the public records exception to the hearsay rule, and as such, are properly admitted once authenticated. Dean v. Insurance Company of North America, 453 N.E.2d 1187 (Ind. 1983); Kincaid v. Doll, 472 S.2d 60 (La. 1985); Duboise v. State Farm & Casualty Company, 734 F.Supp. 722 (E.D.La. 1990). [Evid. § 333(1)]

Reports prepared during the investigation of a questionable death claim including a death certificate, coroner's certificate or pathologists report have been deemed to be admissible, once statements contained in the reports declaring that the death was accidental were excised. Pollard v. Metropolitan Life Insurance Company, 598 F.2d 1284 (2nd Cir. Pa. 1979). [Evid. § 333(1)]

EXPERT OPINIONS
In order to qualify a witness as an expert under Rule 702 of the Federal Rules of Evidence, it must be demonstrated that they have: (1) Knowledge; (2) Skill; (3) Experience; (4) Training; or (5) Education in their field of expertise. It is not necessary that the witness be qualified with respect to all five criteria related above. Although the trial judge determines whether witnesses are properly qualified as experts, it is up to the jury to determine how much weight to give his testimony once the court has declared him as an expert witness. See generally Exum v. General Electric Corp, 819 F.2d 1158 (Dist. D.C. 1987); Thomas J. Klein, Inc. v. Lorillard, Inc. 878 F.2d 791 (4th Cir. Md. 1989); Rogers v. Ray Mark Industries, Inc., 922 F.2d 1426 (9th Cir. Cal. 1991); Mason v. E. L. Murphy Truck Company, Inc., 769 F.Supp. 341 (Dist. Kan. 1991); Bailiff v. Manville Forest Products, Corp., 772 F.Supp. 1578 (S.D. Miss. 1991).

Furthermore, in determining whether to admit the testimony of an expert, the court must determine whether the proposed testimony falls within traditional fields of learning and expertise, or whether the knowledge, skill, experience, training or education offered by the witness will help the jury understand the evidence or determine the fact at issue. Van Blargan v. Williams Hospitality Corp, 754 F.Supp. 246 (Dist. P.R. 1991). However, if an expert is not qualified, his opinion is inadmissible, regardless of the content of the opinion. Smith v. Ortho Pharmaceutical Corp., 770 F.Supp. 1561 (N.D. Ga. 1991). [Evid. § § 544, 545, 550(1)]

An expert witness may give testimony which provides an opinion going to the ultimate issue in the case. See F.R.E. Rule 704(a); Hanson v. Waller, 888 F.2d 806, (11th Cir. Ga. 1989). However, an expert may not base his opinion on an opinion expressed by another witness. Stancill v. McKenzie Tank Lines, Inc., 497 F.2d 529 (5th Cir. Ga. 1974). Nor is it proper for one witness to state that another expert's view is spurious. Ostrander By Ostrander v. Cohen Mills, Inc., 119 F.R.D. 417 (Dist. Minn. 1988); Smith v. Ortho Pharmaceutical Corp., 770 F.Supp. 1561 (N.D. Ga. 1991). [Evid. § § 544, 545, 550(1)]

In cases involving fire claims, opinions of fire officials that an insured premises was deliberately set was held to be a proper opinion and deemed admissible. American Home Assurance Company v. Sunshine Supermarket, 753 F.2d 321 (Ct.App.V.I. 1985); Godwin v. Farmers Insurance Company of America, 631 P.2d 571 (Ariz. 1981); Thrifty-Mart, Inc. v. Commercial Union Assurance Companies, 268 S.E.2d 398 (Ga. 1980) [inspector from state fire marshall's office]; Phillips v. USF&G, 235 S.E.2d 771 (Ga. 1977) [fire chief with eighteen years experience]; Galvan v. Cameron Mutual Insurance, 733 S.W.2d 771 (Mo. 1987) [professional fire expert]; Godwin v. Farmers Insurance Company of America, 631 P.2d 571 (Ariz. 1981). However, see Audobon Insurance Company v. State Farm Mutual Insurance Company, 425 S.E. 907 (La. 1981) [fireman with six years on the scene investigation experience with only high school education and no formal courses in fire origins who had never testified as an expert witness is not qualified as expert]; Bloomgreen v. Fire Insurance Exchange, 517 N.E.2d 290 (Ill. 1987) [volunteer fireman who had never conducted cause and origin investigation was not qualified as expert witness]. [Evid. § § 544, 545, 550(1)]

Not only have the courts qualified expert witnesses in fire cases, but also with respect to accident investigations. For example, in Carpenter v. Barner, 797 S.W.2d 99 (Tex. 1990), a 21 year veteran of the City's Police Department was found to be qualified as an expert to testify as to negligence and proximate cause in an action involving a motor vehicle accident. See Also: Hanson v. Waller, 888 F.2d 806 (11th Cir. Ga. 1989); Estate of Hunt v. Board of Commissioner of Henry County, 526 N.E.2d 1230 (Ind. 1988) [state trooper qualified to testify as expert witness, although only on the job twenty months, based upon knowledge and training at the time of trial]; May v. Strecker, 453 N.W.2d 549 (Minn. 1990) [21 year veteran of police force with 80 hours in class on traffic accident investigation and involvement in numerous rear-end traffic accident qualified as expert]; Hastings Mutual Insurance Company v. State Farm Insurance Company, 442 N.W.2d 664 (Mich. 1989) [accident reconstruction expert and former state trooper with expertise as to speeds and impact held competent to testify that high-speed collision would likely cause skull fractures and spine fractures on motorcycle involved in four car collision]; Jefferson Pilot Life Insurance Company v. Clark, 414 S.E.2d 521 (Ga. 1991) [trial court abused discretion when it determined that state patrolman with twenty years experience and numerous courses on traffic accident investigations and actual investigation in hundreds of traffic accidents, was not qualified as expert, when called upon to decide cause of accident]. [Evid. § § 544, 545, 550(1)]

It is not permissible for a witness qualified in one area, to testify in an area which is not part of the witness training or experience. Laffman By and Through Jacques v. Sherrod, 565 S.2d 760 (Fla. 1990) [Accident Reconstructionist and Metallurgist not qualified to render an opinion, based on examination of orthopaedic X-rays, that moped rider's injuries were caused by "Fred Flintstone" maneuver (i.e. dragging feet to brake moped), inasmuch as his opinion was dependent on radiology orthopaedic studies in which he was not qualified].

EVIDENCE DEMONSTRATING STATE OF MIND
Although allegations of bad faith are generally not welcomed by insurers, it has proven to be a doubled edge sword in numerous jurisdictions. Insurers who face allegations of bad faith are permitted to introduce evidence to show the basis for their decision to deny the claim, or to otherwise demonstrate their state of mind at the time the decision was made in order to explain their conduct. Such evidence is deemed admissible, even if the testimony they offer would be otherwise inadmissible in the case. The basis for the rule is that such testimony is offered not to show the truth of the matter asserted, but to explain the reason behind the insurer's decision to dishonor the claim.

In Pace v. Insurance Company of North America, 838 F.2d 572 (1st Cir. R.I. 1988), the court held that letters containing results of interviews with the insured and the captain of a ship were not hearsay when they were offered to prove that the insurer had refused to pay under a Maritime Hull policy on counsel's advice and not in bad faith. Similarly, in Davis v. Cincinnati Insurance Company, 288 S.E.2d 233 (Ga. 1982), the trial court did not err in allowing testimony by an attorney who represented the insurer at the time a decision was made to refuse to settle a claim on the basis that the inventory indicated that the claim might result in a judgment of $17,000 to $20,000, whereas the injured party was not willing to settle for less than $32,000. See Also: Heller v. Jonathan Investment, 481 N.E.2d 987 (Ill. 1985); Spotts v. Reidell, 497 A.2d 630 (Pa. 1985); Commercial Union Insurance Company v. Smith, 347 S.E.2d 701 (Ga. 1986); Colonial Life and Accident Insurance Company v. Donaldson, 322 S.E.2d 510 (Ga. 1984); New Market Investment v. Firemen's Fund Insurance Company, 774 F.Supp. 909 (E.D. Pa. 1991); Letson v. Liberty Mutual Insurance Company, 523 F.Supp. 1221 (N.D. Ga. 1981). [Evid. § § 269(1), 471(9)]

CHAIN OF CUSTODY
Where physical evidence has been collected by the insurer for examination by another entity, sufficient care must be taken to insure that the chain of custody can be established so that the sample can be traced from taking possession to the time it was delivered for analysis. The insurer must be able to identify all persons who came in contact with the sample during the time that it was in the possession of the insurer. The purpose for the chain of custody rule is to insure that the possibility of tampering with the physical evidence is greatly reduced or diminished. Sligh v. Johnson, 342 S.E.2d 620 (S.C. 1986); Emerick v. Carson, 472 A.2d 1133 (Pa. 1984); Bartel v. State, 704 P.2d 1067 (Mont. 1985); Elliott v. Leavitt, 178 S.E.2d 268 (Ga. 1970); Richardson v. Continental Insurance Company, 468 S.2d 675 (La. 1985); Moerman v. Kalamazoo County Road Commission 341 N.W.2d 829 (Mich. 1983); Irwin v. Town of Ware, 467 N.E.2d 1292 (Mass. 1984); Uniguard Ins. Co. v. Elmore, 224 S.E.2d 762 (Ga. 1976); Interstate Life & Acc. Ins. Co. v. Whitlock, 144 S.E.2d 532 (Ga. 1965). [Evid. § 150]