Author(s): William Brickley, David A. Wilson


The scenario is all too familiar. A suspect in a criminal case is offered the opportunity to subject himself to a polygraph examination. If he passes the test, he would not face charges and the prosecutor and police continue their search for the criminal. If he fails then he will most certainly face charges. Given the tremendous weight given to such a single test by high ranking law enforcement officials, one would have to believe that the polygraph must be a particularly reliable and more importantly admissible testing device. This was the quandary recently confronted by the Michigan Court of Appeals.

In the case of Dillard v Farm Bureau, case no. 288134, decided March 11, 2010, the court was asked to examine the admissibility of the polygraph test. Mr. Dillard claimed that he was the victim of a theft and vandalism. Farm Bureau disagreed and concluded that he was involved in the disappearance of his personal belongings and the destruction to parts of his home. The police conducted their own investigation and in the process administered a polygraph to Mr. Dillard. The results of the test determined that Mr. Dillard was being truthful when he answered questions on the test saying he was not involved in the break in and vandalism that occurred to his home. No criminal charges were brought.

At trial, the plaintiff sought to admit the results of the test. The trial court acknowledged that previous courts had found the test to be unreliable and inadmissible. The court, instead of excluding the test, allowed the results to come in but also allowed Farm Bureau’s counsel to question its reliability to the jurors. The court rationalized that it was taking this approach “in fairness to the plaintiff.” The jury found in favor of Mr. Dillard and Farm Bureau appealed.

The Court of Appeals disagreed, reversed the trial court’s decision and ordered a new trial. The panel unanimously agreed with past precedent from both state and federal courts that there is a “per se” exclusionary rule for polygraph tests in all cases, criminal and civil. This means there are no exceptions. The Court disagreed with the trial courts attempts to let the jury decide its reliability. This was the function of the trial court. It had been consistently held that there was no data to show the reliability of such test. In addition, the court was concerned with the weight that a juror might give such a test.

Indeed, a jury is apt to attribute too much weight to a polygraph examination’s results and, thus, abdicate its own role as assessor of credibility.

As we know from the scenario set forth in the first paragraph above, a jury is not the only one who has the tendency to place great reliance on a single test that has not been proven to be reliable in an effort to determine a person’s credibility. While it would be nice if we had a test, that once simply administered, could tell us who is lying and who is telling the truth, no such test exists. It has been the law, and continues to be the law in the State of Michigan, that there is no one measure of determining a person’s truthfulness. Clearly, an examination of all the evidence, the consistency of a person’s statements, his mannerisms while testifying, and the available scientific evidence that is reliable are just some of the things a jury should consider. A polygraph test is not.

Uninsured Statute of Limitations – it’s not what you might think

In October, 2009, the Indiana Supreme Court heard a case involving a claim for uninsured motorist benefits in Bradshaw v Chandler and Affirmative Insurance, 916 N.E.2d 163 (Ind. 2009). In so doing, the Court unintentionally highlighted a change to Indiana law which passed relatively unnoticed regarding the statute of limitations by which an insured must bring a claim for uninsured motorist benefits. Indeed, this writer did not note the change until the issue had recently arose in terms of raising an affirmative defense in an Illinois Court on an Indiana policy, and a conflict of laws analysis. Since this discovery, most attorneys and claims professionals with whom this writer has spoken were not aware of the change.

Previously, there was no specified limitations period for uninsured motorist claims under Indiana law. However, in two decisions by the Indiana Court of Appeals, uninsured motorist claims were deemed to be governed by the lengthiest contract limitations period, provided by Indiana Code 34-1-2-2(6). Panos v Perchez, 546 N.E.2d 1253 (Ind.Ct.App. 1989); Ayers v State Farm Mut. Auto. Ins. Co., 558 N.E.2d 831, 833 (Ind.Ct.App.1990). Most attorneys and claims professionals are familiar with the 10 year limitation period, even if not its genesis. However, in 1998, with almost no notice, the Indiana legislature repealed all of the code provisions from Sections 1 through 12. Even subsequent reviews of legislative updates provided by the Indiana Bar Association did not highlight the applicability of the change.

Since the Ayers decision in 1990, no Indiana court had been specifically called on to address the limitations of an uninsured claim, until the Supreme Court in Bradshaw. The claim in Bradshaw involved an exclusion of two-years for an underinsured claim. The policy at issue contained conflicting limitations periods between underinsured and uninsured claims. Of equal note is that the policy contained language providing a limitation of two years for the uninsured claim. The underinsured provisions limited claims from two years of actual receipt of written notice of the claim. The Court also noted that without such provisions limiting the limitations period in the policy of insurance, the statutory limitation period applicable to claims against insurers involving uninsured motorist benefits provided in an insurance contract is the six-year limitation applicable to written contract actions. The Court cited the Armstrong decision, which had decided that prior case applying “the former ten-year statute of limitation for contract actions.”

The decision is particularly noteworthy for counsel, to the extent that Indiana law provides that a statute of limitations defense is waived if not raised as an affirmative defense in the Answer. The Court also reiterated the rule in Indiana that courts will enforce contractual provisions that

shorten the time as long as a reasonable time is afforded to initiate the claim.