In Georgia DUI cases involving serious injuries or death, a frequent issue that must be addressed is what information must be provided by the Defendant to their insurer. Statements to an insurer may be incriminating, and, thus, must be approached with care. A criminal defendant in a DUI case who also faces a civil lawsuit for damages arising from the same accident must be careful walking the fine line between cooperating with their insurer (as is required under every liability policy) and making incriminatory statements that may be disclosed in a criminal case.
The portion of Anderson v. Southern Guar. Ins. Co. of Georgia, 235 Ga.App. 306, 508 S.E.2d 726 (1998), provided below is helpful in addressing this dilemma:
In citing her privilege against self-incrimination, Anderson contended that, even though she had been found guilty on the criminal charges arising out of the incident at issue, a real danger of self-incrimination still existed because of the possibility that her pending motion for a new trial in the criminal case could have been granted by the trial court. Under these circumstances, we conclude that a danger of self-incrimination sufficient to support assertion of the privilege still existed. Stallings v. State, 136 Ga. 131, 70 S.E. 1015 (1911);Duvall v. State, 259 Ga. 801, 802, 387 S.E.2d 880 (1990). Moreover, Anderson's election to testify in the prior criminal trial did not waive her rights under the Fifth Amendment in the present action. Mallin v. Mallin, 227 Ga. 833, 836, 183 S.E.2d 377 (1971).
Southern Guaranty contends that Anderson's refusal to answer these questions placed her in violation of provisions in the insurance contract. The insurance policy provides that, after a claimed accident, the insured has a duty “to secure and give evidence.” The policy also provides that “the entire policy will be void if, whether before or after a loss, an insured has … intentionally concealed or misrepresented any material fact or circumstance.” Southern Guaranty claims that Anderson violated these provisions by refusing to answer questions material to its investigation into whether it was obligated to provide coverage and a defense.
In response, Anderson contends that to conclude she violated the insurance contract by refusing to answer questions regarding Vaughn's claim would unfairly penalize her for exercising her Fifth Amendment privilege. She contends she was unfairly forced to confront the dilemma of either refusing to answer questions in violation of the insurance contract, or answering the questions and forfeiting her Fifth Amendment rights.
The Fifth Amendment, which may be invoked in civil as well as criminal actions, “shields against compelled self-incrimination, not legitimate inquiry, in the truth-seeking process.” (Citation and punctuation omitted.) Axson v. Nat. Surety Corp.,254 Ga. 248, 249, 327 S.E.2d 732 (1985); Page v. Page, 235 Ga. 131, 132, 218 S.E.2d 859 (1975). The general rule is that there is no unconstitutional infringement of the Fifth Amendment privilege by forcing an individual to risk disadvantage in a civil case by refusing to provide material facts for fear of self-incrimination in a pending criminal case. Baxter v. Palmigiano, 425 U.S. 308, 317-318, 96 S.Ct. 1551, 47 L.Ed.2d 810 (1976); United States v. White, 589 F.2d 1283, 1286-1287 (5th Cir.1979). However, an exception to the general rule has been recognized in cases where an individual who is a defendant in pending civil and criminal cases is forced to choose between forfeiting the privilege against self-incrimination or losing the civil case by automatic summary judgment. Pervis v. State Farm &c. Co., 901 F.2d 944, 947 (11th Cir.1990). The exception does not apply if assertion of the privilege merely results in loss of the defendant's most effective defense rather than an adverse summary judgment. Id.; White, 589 F.2d at 1287.
Although Southern Guaranty instituted the present declaratory judgment action naming Anderson as a defendant, it did so to investigate the contentions made by Anderson when she claimed any bodily injury to Vaughn was accidental and demanded that Southern Guaranty provide insurance coverage and a defense to the Vaughns' suit. Under these circumstances, the dilemma of which Anderson complains was of her own making. Anderson cannot wield her Fifth Amendment privilege as a shield and a sword by demanding coverage and a defense under the insurance contract, while at the same time refusing to answer questions material to determining Southern Guaranty's duties under the contract. See Pervis,901 F.2d at 947. In the present declaratory judgment action, Anderson is not in the position of the usual defendant involuntarily brought into a civil case, then forced to confront the dilemma of surrendering the privilege against self-incrimination or suffering an adverse judgment. See, Id.; White, 589 F.2d at 1286-1287. Rather, Anderson's demands for insurance coverage and a defense of the suit place her in a position more akin to that of a plaintiff who creates her own dilemma by bringing a civil action to enforce a contract, and who then refuses to provide information material to the defendant's defense by asserting the Fifth Amendment privilege. Id.; Pervis,901 F.2d at 947; see Savannah Surety Assoc. v. Master, 240 Ga. 438, 439, 241 S.E.2d 192 (1978).
The above facts and law support the conclusion that the Fifth Amendment privilege against self-incrimination did not excuse Anderson from complying with her obligations under the insurance contract. Although Anderson was entitled to invoke her Fifth Amendment privilege in refusing to answer questions regarding what happened between her and Vaughn, Southern Guaranty claims that the result was a breach of the insurance contract which voided coverage by Anderson's failure to give material information required to be provided under the terms of the contract. Page, 235 Ga. at 136, 218 S.E.2d 859; Halcome v. Cincinnati Ins. Co., 254 Ga. 742, 744, 334 S.E.2d 155 (1985).
Based on the above facts, without more, we would agree with Southern Guaranty that there would have been a material breach of the contract voiding coverage. Anderson was not compelled to incriminate herself, nor is there a basis for concluding that a grant of summary judgment against Anderson on these facts would constitute an undue penalty for invoking the privilege against self-incrimination. Accordingly, the Fifth Amendment would not prohibit the grant of summary judgment against Anderson.
However, there are additional facts in this case demonstrating that summary judgment against Anderson was not appropriate. At the time Anderson refused to answer questions based on her Fifth Amendment privilege, she offered to fully answer the questions after the pending criminal proceedings and the danger of self-incrimination had terminated. “Willfulness and fraud are essential ingredients to substantiate the defense of failure to co-operate.” (Citation and punctuation omitted.) Southern Mut. Ins. Co. v. Mason, 213 Ga.App. 584, 588(2), 445 S.E.2d 569 (1994). Given Anderson's offer to fully cooperate and answer the questions after the termination of the criminal proceedings against her, we find no basis to conclude that Anderson's refusal to cooperate was wilful or fraudulent. Id. Furthermore, Southern Guaranty has made no showing on the present record that any delay in obtaining information from Anderson had a materially adverse impact on its ability to protect its rights as to the claim. Id. Since the criminal proceedings against Anderson, including her appeal of the conviction, have terminated, Southern Guaranty will be entitled upon the return of the remittitur in the present case to complete its investigation by questioning Anderson without a Fifth Amendment limitation.
DUI accident cases are different than typical, non-accident cases and must be treated with a higher level of care.
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