When an insurance adjuster testifies during the trial of a motor vehicle case, his testimony is that of a fact witness, as he is not offering expert testimony, according to the Connecticut Appellate Court in  Shepard v. Mitchell, 96 Conn. App. 716 (2006).

An adjuster for the defendant’s insurer had prepared a damage estimate concerning the defendant’s vehicle.  The adjuster had terminated his employment with the insurer prior to trial.  Nevertheless, the plaintiff called the adjuster as a witness.  At trial, the adjuster testified that he had also taken photographs of the defendant’s vehicle.  He described the damage as “heavy front end damage to the 1997 Toyota Corolla, a small unibody structured car.  He went on to observe that “the damage to the front end was fairly severe where it actually folded the hood like an accordion.”

The defendant first claimed on appeal that the court improperly permitted the adjuster to testify, in that a) the adjuster’s testimony was irrelevant and highly prejudicial; b) the adjuster was never disclosed as an expert; c) the adjuster was not credible and should not have been allowed to testify in front of the jury.

Court disagreed and concluded that the adjuster’s testimony was relevant to the plaintiff’s case and that, although it was highly adverse to the defendant, it was not unduly prejudicial.

§ 4-1 of the Connecticut Code of Evidence provides in pertinent part that evidence is relevant if it has “any tendency to make the existence of any fact that is material to the determination of the proceeding more probable than it would be without the evidence.  Nevertheless, relevant evidence may be excluded by the court “if its probative value is outweighed by the danger of unfair prejudice or surprise, confusion of the issues, or misleading the jury.  Conn. Code Evidence § 4-3.  All evidence that is adverse to an opposing party, by its very nature, is prejudicial because it is damaging to that’s party position in the case.  See Berry v. Loiseau, 223 Conn. 786, 806 (1992).

Unfair prejudice exists, however, when the evidence “tends to have some adverse effect upon [the party against whom the evidence is offered] beyond tending to prove the fact or issue that justified its admission into evidence.”  Ancheff v. Hartford Hospital, 260 Conn. 785, 804 (2002).

The Appellate Court held that the adjuster’s testimony was adverse to the defendant’s position but it was not irrelevant or unduly prejudicial.  Although adverse to defendant’s stated position that the impact was minor, this testimony was relevant to show that the impact of the rear-end collision was substantial enough to have caused the plaintiff serious injuries.

The defendant next claimed that the adjuster should not have been allowed to testify because the plaintiff never disclosed him as an expert.  The Appellate Court concluded that the adjuster properly was allowed to testify as a fact witness and that he did not offer expert testimony.  The adjuster, as a fact witness testified that he, personally, took photographs of the defendant’s automobile.  The testimony related to an estimate that the adjuster prepared, damage that he witnessed and photographs that he took.  The Appellate Court held that the testimony clearly was offered as a matter of fact and not as a matter of expert opinion.