Whether in the form of anonymous comments to an article written by someone else, reviews of businesses, or drafting blog posts, tweets, musing on Tumblr, Facebook posts, it often only requires a few keystrokes and hitting “enter.” With all of this, we have become so desensitized to opinion in our daily lives that we do not ask the proper questions to learn if someone is reporting facts or opinion. However, the South Carolina Court of Appeals recently reminded us that, during trial, we must be discriminating in an evaluating what constitutes fact and what constitutes an opinion. Fowler v. Nationwide Mut. Fire Ins. Co., No. 2012-213250 (S.C. Ct. App. Aug. 6, 2014) is a breach of contract and bad faith case arising from the denial of insurance coverage on a policy held with Nationwide for a house fire that occurred in 2009 in Oconee County, South Carolina. The Friendship Fire Department, a volunteer fire department, led by its Chief David Wright, responded first to the fire at the Fowler home and found itself ultimately responsible for putting out the fire. Following the fire, as required by state regulations, Chief Wright filled out a report about the fire, called a “Truck Report,” listing and explaining certain information about the fire. On the Truck Report, Chief Wright noted as follows: (1) for “Area of Origin,” Wright wrote “Living Room”; (2) for “Cause of Ignition,” Wright wrote “Unintentional”; and (3) for “Equipment involved in Ignition,” Wright wrote “Heater.” Prior to trial, Nationwide moved to exclude the testimony of Wright regarding the cause and origin of the fire as well as the relevant portions of the Truck Report regarding same.
While Chief Wright was never admitted as an expert at trial—an issue which is the subject of a different appeal—he was permitted to testify about the Truck Report and his conclusions therein. He testified that he wrote “Living Room” because it was the room that was the most heavily damaged and that the homeowner wrote “Unintentional” because he did not see or smell anything that caused him to suspect the use of accelerants or arson. As to the “Unintentional” answer, Chief Wright testified that it was “just his opinion.” Finally, he testified that he believed the heater was involved because a kerosene heater was located at the base of a V-shaped burn pattern on the wall of the living room. When asked to explain the V-pattern, Chief Wright testified that when he has been around investigators or inspectors, they call it a “V-pattern” when the fire starts at a point and moves up the wall and spreads out like a “V.” Thus, Chief Wright testified that he believed the heater had instigated the fire because it was at the base of the V-shape.
The jury returned a Plaintiff’s verdict for over $500,000 on the breach of contract and bad faith claims. On Nationwide’s motion for new trial, the circuit court found that the statements made by Chief Wright were admissible perceptions under Rule 701 of the South Carolina Rules of Evidence. Rule 701, SCRE, states that “[i]f the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which (a) are rationally based on the perception of the witness, (b) are helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c) do not require special knowledge, skill, experience or training.”
Despite arguments by the respondents that Chief Wright was merely explaining what he observed, the Court of Appeals held that some of Chief Wright’s testimony was improper opinion testimony because that testimony required “special knowledge, skill, experience or training.” Additionally, the Court of Appeals held that the Truck Report should not have been admitted as a public records hearsay exception under Rule 803(8), SCRE, which includes “reports, . . . of public offices or agencies, setting forth . . . matters observed pursuant to duty imposed by law as to which matters there was a duty to report, . . . ; provided, however, that investigative notes involving opinions, judgments, or conclusions are not admissible.” The Court of Appeals also found that the improper admission of Chief Wright’s testimony and the Truck Report was prejudicial to Nationwide at trial such that a new trial was warranted.
Unlike the unregulated land of Internet reviews, tweets, blog posts, and other social media statements, Fowler makes clearer the delineation of opinion testimony for those who are not admitted as experts. Going forward, an opinion is something that goes to causation or the underlying issues because it requires “special knowledge, skill, and experience.”