COA orders trial over whether trucking company must pay for highway damage

The crash report prepared after a fatal trucking accident on Interstate 70 that resulted in damage to the highway should not have been included as evidence in the state’s lawsuit seeking recovery of the money it spent repairing the highway, the Indiana Court of Appeals ruled Thursday. As a result, the judges reversed summary judgment in favor of the state and ordered the matter proceed to trial.

Averitt Express employee John Goins, who drove a semi-truck for the company, struck another semi-truck on I-70 in Putnam County in 2011. His truck caught fire and Goins died as a result of the accident. The collision and fire caused nearly $60,000 in damages to the highway and guardrail, which were completed through an emergency repair.

The state sued Averitt to recover the money spent fixing the highway. It alleged the company, through Goins, negligently damaged the highway and guardrail. Both parties filed for summary judgment, and the trial court granted the state’s motion. Before doing so, it struck paragraph six of Indiana State Trooper Brandon Mullen’s affidavit, but allowed his crash report to remain as evidence.

The Court of Appeals agreed paragraph six of the affidavit needed to be struck from the record because Mullen’s opinion on the accident was based in part on information he received from others, so it is not admissible under Rule of Evidence 701. But the judges reversed the trial court regarding the crash report, finding it is not admissible. Rule 803(8)(B) specifically excludes a police investigative report, such as Mullen’s unless it is offered by the accused in a criminal case. The state, as the party that offered the report, is not the defendant here, nor is this a criminal case, wrote Senior Judge Betty Barteau in Averitt Express, Inc. v. State of Indiana ex rel. Indiana Department of Transportation, 67A05-1403-CC-108.

The appellate court found without the crash report, the state did not submit evidence that Averitt, through Goins, breached a duty and proximately caused the damage to the highway and guardrail. The judges remanded for retrial.

Judge Cale Bradford concurred in a separate opinion, believing the traditional rationale for excluding police reports does not seem to apply under the facts of this case.

“An accident report used in a civil case … strikes me as a different animal, because, while an accident might give rise to adversaries in civil litigation, the agency employing the investigating police officer is not likely to be one of them,” he wrote.

Even though this is a civil case and there is no reason to doubt Trooper Mullen’s impartiality in preparing his report, Indiana Evidence Rule 803(8)(B)(i) clearly excludes investigative reports by law enforcement personnel, except when offered by an accused in a criminal case, he wrote.