Lachenmeier, Enloe & Rall - February, 2004 Publication

CONVICTED!

The demand letter from plaintiff’s attorney, after giving a review of the “facts,” concludes that liability is clear because “your insured was convicted of … (insert traffic offense).” But does that conviction mean that you concede liability and just talk about damages? Maybe not, depending on the type of conviction and, of course, the facts.

Probably the most common convictions in cases that we handle are traffic-related offenses. ORS 41.905(1) provides that a traffic offense conviction, or acquittal, may not be admitted in a subsequent civil action:

“(1) A judgment of conviction or acquittal of a person charged with a traffic offense is not admissible in the trial of a subsequent civil action arising out of the same accident or occurrence to prove or negate the facts upon which such judgment was rendered.”

When a traffic citation is issued, instead of pleading “not guilty” and disputing the ticket, the insured usually has two other options: pleading “guilty” or “no contest.” Each of these options will result in a conviction, and ORS 41.905(2) and (3) provide the consequences for future civil litigation:

“(2) A plea of guilty by a person to a traffic offense may be admitted as evidence in the trial of a subsequent civil action arising out of the same accident or occurrence as an admission of the person entering the plea, and for no other purpose.

(3) Evidence that a person has entered a plea of no contest in the manner described in ORS 153.061(2)b to a charge of a traffic offense shall not be admitted as evidence in the trial of a subsequent civil action arising out of the same accident or occurrence.”

     The “traffic offenses” being referred to are defined in ORS 801.555, and include city and municipal traffic ordinances, traffic crimes or violations for which the penalty is found in the vehicle code, and any criminal or traffic violation for which the penalty is provided in ORS chapter 825 (regarding motor carriers).

     In the typical case in which your insured was cited and convicted of a traffic offense, therefore, the citation and conviction would not be admissible, provided the insured pled “not guilty” or “no contest.” If the plea was “guilty,” the guilty plea itself is admissible (not the conviction), but only as an admission of the insured. That “admission,” of course, may be explained to the jury. The reason traffic offenses are not treated as determinative of liability is that most people have neither the resources nor the incentive to put a lot of effort and expense into defending against them. By contrast, if a significant fine or imprisonment is at stake, the accused can be expected to mount a spirited defense. This reasoning applies a “guilty” plea to a traffic offense. Being charged with something that carries a $200 fine is a bit different from being sued for $200,000. Although the jury will hear of the plea, they can also be presented with evidence of why the guilty plea was entered, including avoiding the inconvenience and time involved in going to traffic court.

     If your insured was convicted in a juvenile proceeding, most likely neither the conviction nor the proceedings themselves will be admissible. ORS 419A.255 governs the use of juvenile records. With respect to subsequent civil actions, ORS 419A.255(3) provides, with a few exceptions, that:

“no information appearing in the record of the case or in reports or other material relating to the child, ward, youth or youth offender’s history or prognosis may be disclosed to any person (other than judges, attorneys, guardians, etc. involved in the juvenile proceeding) without the consent of the court … and no such information may be used in evidence in any proceeding to establish criminal or civil liability against the child, ward, youth or youth offender, whether such proceeding occurs after the child, ward, youth or youth offender has reached 18 years of age or otherwise …”

     This prohibition extends to impeachment at trial. In State v. Burr, 18 Or App 494 (1974), the court held that one cannot impeach the credibility of a juvenile witness with evidence that the witness, in a juvenile proceeding, admitted an act which, if committed by an adult would constitute a crime.

     Of course, none of this makes much difference if the facts will show your insured to be completely at fault. In the case where there is something to talk about regarding liability, however, take a closer look at that conviction to see if it really can be used against your insured.

     Please direct any questions in this area of law to the author, Tim Heinson, at 503-768-9600, or by email to tim@lerlaw.com.