The Rhode Island Supreme Court recently issued an interesting decision in a personal injury action involving the question of the admissibility of a proof of loss prepared after an automobile accident by an insured, who died before discovery and trial of the personal injury action. The decision by the Rhode Island Supreme Court offers important guidance on the business records exception to the hearsay rule when it involves insurance-related documents, and otherwise.

1. The following article is from National Underwriter’s latest online resource,
FC&S Legal: The Insurance Coverage Law Information Center.
The Insurance Coverage Law Information Center
TRIAL STRATEGY: A PROOF OF LOSS, AND THE BUSINESS
RECORDS EXCEPTION TO THE HEARSAY RULE
December 10, 2013 Steven A. Meyerowitz, Esq., Director, FC&S Legal
The Rhode Island Supreme Court recently issued an interesting decision in a personal injury action involving the question
of the admissibility of a proof of loss prepared after an automobile accident by an insured, who died before discovery
and trial of the personal injury action. The decision by the Rhode Island Supreme Court offers important guidance on the
business records exception to the hearsay rule when it involves insurance-related documents, and otherwise.
The Case
When she was 91 years old, Camella L. Martin was involved in an automobile accident with Michael Coyne in Providence,
Rhode Island. Ms. Martin subsequently completed a “Notice of Injury—Proof of Loss” (the “Notice”) with her own insurer,
Allstate Insurance Company, that offered a brief description of how she believed the accident had occurred.
Ms. Martin sued Mr. Coyne and, after she passed away, her son, Dennis Martin, as executor, was substituted as named
plaintiff in the case.
Prior to trial, the trial court addressed a number of motions in limine made by the defendant, including a motion to
preclude the Notice’s admission into evidence. The trial court excluded the Notice, the jury returned with a verdict for
the defendant, and the plaintiff appealed to the Rhode Island Supreme Court.
The Rhode Island Rules of Evidence
Rule 803(6), the “business records exception,” permits admission into evidence of hearsay statements if they can be
characterized as:
[a] memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinions or diagnoses,
made at or near the time by, or from information transmitted by, another person with knowledge, if kept in the course of a
regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum,
report, record, or data compilation * * *.
The Rhode Island Supreme Court’s Decision
The court agreed with the trial court that the Notice was not admissible.
The court explained that it had adopted a four-part test for the admissibility of a hearsay business record under Rule
803(6):
First, the record must be regularly maintained in the course of a regularly conducted business activity. Second, the source
of the information must be a person with knowledge. Third, the information must be recorded contemporaneously with
the event or occurrence, and fourth, the party introducing the record must provide adequate foundation testimony.
Moreover, the court added, “[t]o provide [an] adequate foundation a party must prove the first three requirements and
authenticate the document or record.”
The court then pointed out that the plaintiff “did not bring in a representative from Allstate to either authenticate the
document or establish the other necessary elements of Rule 803(6).” The court found “no reason for plaintiff’s failure to
foresee the need to bring in a representative from Allstate in light of the document’s admitted importance to plaintiff’s
case at trial and the well-established requirements of Rule 803(6).” Without testimony from Allstate to establish that the
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2. document was, in fact, regularly kept in the course of Allstate’s business and recorded contemporaneously with the
collision, the court stated, it agreed with the trial court “that there was not sufficient evidence that the document was
reliable so as to qualify as a business record.” Absent this “necessary testimony,” the court decided that the document
did not fall within the purview of Rule 803(6) and the trial court had not abused its discretion in granting the defendant’s
motion to exclude the document.
The case is Martin v. Lawrence, No. 2012–297–APPEAL (R.I. Dec. 5, 2013). Attorneys involved include: Ronald J. Resmini,
Esq., for Plaintiff; Mark W. Hickey, Esq., for Defendant.
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