CHARLESTON – The state Supreme Court on May 21 struck down the last vestiges of the Dead Man’s Statute, an evidentiary law that had been on the books in West Virginia since 1868.
Chief Justice Brent D. Benjamin wrote the opinion of the court and Justice Menis E. Ketchum filed a concurring opinion.
The ruling came out of the court’s hearing of an appeal by State Farm Fire & Insurance Company in which State Farm alleged that the Circuit Court of Jefferson County erred in applying the Dead Man’s Statute, prohibiting testimony from a decedent’s family members in a wrongful death lawsuit.
William Lee Piper was the driver of a motor vehicle when he and his passenger, Kyle Hoffman, Jr., were killed in an accident in Jefferson County on Oct. 28, 2007. The Estate of Kyle Hoffman, Jr. filed suit against the Estate of William Lee Piper alleging wrongful death.
The parties agreed to bifurcate the trial into two parts: A declaratory judgment action of whether State Farm was obligated to defend the case and possibly be liable for any tort judgment, and the underlying wrongful death tort action.
The primary question in the coverage action was whether William Lee Piper was a resident of the home of his grandparents in Berryville, Va., at the time of the accident or a resident of his parent’s home in Harpers Ferry.
If he lived with his grandparents, then he would be covered under a State Farm personal liability umbrella policy issued to Piper’s grandfather. State Farm asserted that he lived with his parents.
Considerable evidence that Piper lived with his grandparents was presented at trial, and State Farm sought to introduce testimony from Piper’s parents and other family members that indicated that Piper lived with his parents. The trial court excluded this proffered testimony under a pre-trial motion in limine that had been granted to the plaintiffs.
The jury returned a verdict that Piper lived with his grandparents, thus finding State Farm obligated to defend Piper. Post-trial motions were filed and denied, and State Farm appealed the circuit court’s order denying its motion to alter or amend the verdict or, alternatively, for a new trial.
The court began by discussing the history and purpose of the Dead Man’s Statute:
“At common law, no party or person interested in the results or outcome of the judicial proceedings was permitted to testify. The interest of a witness was an absolute disqualification which precluded the witness from giving any testimony… In 1843, the disqualification of interested persons was removed in England by statute. The West Virginia statute, now codified as W.Va.Code, 57–3–1, first was adopted in 1868. It states in pertinent part: ‘No person offered as a witness in any civil action, suit or proceeding, shall be excluded by reason of his interest in the event of the action, suit or proceeding, or because he is a party thereto… but with the following one exception known as the Dead Man’s Statute.'"
The Dead Man's Statute states:
“No party to any action, suit or proceeding, nor any person interested in the event thereof, nor any person from, through or under whom any such party or interested person derives any interest or title by assignment or otherwise, shall be examined as a witness in regard to any personal transaction or communication between such witness and a person at the time of such examination, deceased, insane or lunatic, against the executor, administrator, heir at law, next of kin, assignee, legatee, devisee or survivor of such person."
The court continued:
“The purpose of the West Virginia Dead Man’s Statute is to prevent the injustice that would result from a surviving party to a transaction testifying favorably to himself or herself and adversely to the interest of a decedent, when the decedent's representatives would be hampered in attempting to refute the testimony by reason of the decedent’s death.”
The court then explained that an earlier court had carved out an exception to the Dead Man Statute for wrongful death medical malpractice actions so that others could testify about conversations with the deceased patient. The court then turned to the matter at hand.
“Although we have recognized that Rule 601 of the West Virginia Rules of Evidence generally permits evidentiary statutes like the Dead Man’s Statute to be created by the Legislature, this does not deprive this Court of all authority to further review or revisit a particular evidentiary statute to determine its continued validity,” the court wrote.
“Under article eight, section three of our Constitution, the Supreme Court of Appeals shall have the power to promulgate rules for all of the courts of the State related to process, practice, and procedure, which shall have the force and effect of law.
“Accordingly, because the Dead Man’s Statute is a heavily antiquated rule of evidentiary law, we believe West Virginia should, at last, join the majority of other jurisdictions throughout the United States.
“Consequently, we now find that, because it addresses evidentiary matters that are reserved to and regulated by this Court pursuant to the Rule-Making Clause, Article VIII, § 3 of the West Virginia Constitution, W. Va. Code § 57-3-1, commonly referred to as the Dead Man’s Statute, is invalid, as it conflicts with the paramount authority of the West Virginia Rules of Evidence.
“In actions, suits or proceedings by or against the representatives of deceased persons, witness testimony and documentary evidence pertaining to any statement of the deceased, whether written or oral, shall not be excluded solely on the basis of competency.
“Although we hold W. Va. Code § 57-3-1 to be invalid and thus, reverse the circuit court’s rulings and remand this case for a new trial, we observe that the proffered testimony and evidence at issue must nevertheless be admissible under the remaining Rules of Evidence.
Ketchum concurred, writing, “Now that this Court has finally abolished the antiquated and unfair Dead Man’s Statute, we need to modify our Rules of Evidence to deal with this type testimony.
“This Court recently appointed a committee to recommend revisions to the Rules of Evidence. I am hopeful the committee will recommend changes that give specific guidelines to our trial judges relating to transactions, communications and/or statements by or with a decedent.”
Having reversed the Aug. 5, 2011, order of the trial court, the matter was returned to the Circuit Court of Jefferson County for a new trial.