|Post by Rip Van Riper|
I recently had a case in which the claimant, subsequent to filing a workers’ compensation claim, robbed a large merchandise store. During the robbery, he fled with great agility and in such a manner as to suggest that his injury was not disabling. I asked him about the details of the crime, and he replied that he was “taking the fifth.” The case was unfortunately settled before the issue that I am discussing below could be raised.
“Our research indicates that those states confronted by this issue have almost uniformly concluded that one who seeks this affirmative relief in a civil case may not invoke the Fifth Amendment privilege against self-incrimination in response to proper questions relating to the subject matter in issue. In such instances, the trial court may properly require them to choose between the Fifth Amendment privilege and the continuation of their claim for affirmative relief. See Cantwell v. Cantwell, 109 N.C.App. 395, 427 S.E.2d 129 (1993); Stockham v. Stockham, 168 So.2d 320 (Fla.1964) (equity considerations require complaining spouse in divorce action to answer requests or pursue action no further); Minor v. Minor, 232 So.2d 746 (Fla.Dist.Ct.App. 1970), aff’d 240 So.2d 301 (Fla.1970); Christenson v. Christenson, 281 Minn. 507, 162 N.W.2d 194 (1968) (plaintiff required to waive privilege against self-incrimination or have divorce action dismissed); Franklin v. Franklin, 365 Mo. 442, 283 S.W.2d 483 (1955) (en banc) (complaining spouse’s refusal to answer questions at support hearing justified striking of spouse’s pleadings); Pulawski v. Pulawski, 463 A.2d 151 (R.I.1983) (wife could not seek financial relief and at the same time preclude her husband from examining her on other matters that were relevant to that relief).
These rulings are not limited to domestic relations cases. For a specific case holding that a State Workers’ Compensation Agency has been required to dismiss a case when a claimant hides behind his fifth amendment rights while asserting a claim, all resulting in a dismissal, see the North Carolina Court of Appeals case of Grove v. Bar Constr. Co., Inc. (2008 NCCA COA06-1412 – 011508), in which the court stated:
“Upon remand, the Commission shall determine whether the matters with respect to which he asserted his Fifth Amendment privilege were ‘essential to evaluate’ plaintiff’s claims for compensation under Chapter 97, See Roadway Express, Inc. v. Hayes, 178 N.C. App. 165, 174, 631 S.E.2d 41, 47 (2006), and if it so finds, it shall apply the holdings in the cases of Cantwell v. Cantwell, 109 N.C. App. 395, 396-98, 427 S.E.2d 129, 130-31 (1993) and Roadway Express, 178 N.C. App. at 171-174, 631 S.E.2d at 46-47 to dismiss plaintiff’s claims.”
Chronologically, Independent Productions Corporation v. Loew’s, Inc., 22 F.R.D. 266 (S.D.N.Y.1958) is likely the earliest case involving the assertion of the Fifth Amendment privileges by a plaintiff and subsequent dismissal of the affirmative relief. The Independent case was a private treble damage anti-trust action by two corporate plaintiffs and the president of one plaintiff claimed the privilege. The court wrote:
“It would be uneven justice to permit plaintiffs to invoke the powers of this court for the purpose of seeking redress and, at the same time, to permit plaintiffs to fend off questions, the answers to which may constitute a valid defense or materially aid the defense. Plain justice dictates the view that regardless of plaintiffs’ intention, plaintiffs must be deemed to have waived their assumed privilege by bringing this action…Plaintiffs in this civil action have initiated the action and forced defendants into court. If plaintiffs had not brought the action, they would not have been called on to testify. Even now, plaintiffs need not testify if they discontinue the action. They have freedom and reasonable choice of action. They cannot use this assertive privilege as both a sword and shield. Defendants ought not be denied a possible defense because plaintiffs seek to invoke an alleged privilege.”
The New York Court of Appeals, citing this “sword and shield” metaphor, stated:
“The privilege against self-incrimination was intended to be used solely as a shield, and thus a plaintiff cannot use it as a sword to harass a defendant and to effectively thwart any attempt by defendant at a pre-trial discovery proceeding to obtain information relevant to the cause of action alleged, and possible defenses thereto. (See also Franklin v. Franklin, 365 Mo. 442, 283 S.W.2d 483; Hazlett v. Bullis, 12 A.D.2d 784, 209 N.Y.S.2d 601 (2 Dept. 1961)); ” Laverne v. Incorp.
, 18 N.Y.2d 635, 272 N.Y.S.2d 780, 219 N.E.2d 294 (1966). Village of Laurel Hollow
Wisconsin, in an action on a fire insurance policy wherein the insurer alleged arson by the insured as an affirmative defense, the Federal District (Kisting v. Westchester Fire Insurance Company, 290 F. Supp. 141, 149 (W.D.Wis.1968)), stated:
“A plaintiff in a civil action who exercises his privilege against self-incrimination to refuse to answer questions pertinent to the issues involved will have his complaint dismissed upon timely motion. See Stockham v. Stockham, 168 So.2d 320, 4 A.L.R.3d 539 (Fla.1964); Lund v. Lund, 161 So.2d 873 (Fla.App.1964); Levine v. Bornstein, 13 Misc.2d 161, 174 N.Y.S.2d 574 (S. Ct., Kings Co. 1958); aff’d, 7 A.D.2d 995, 183 N.Y.S.2d 868 (2d Dept.), aff’d, 6 N.Y.2d 892, 190 N.Y.S.2d 702, 160 N.E.2d 921 (1959); Franklin v. Franklin, 365 Mo. 442, 283 S.W.2d 483 (1955); Ann., 4 A.L.R.3d 545. Cf. Zaczek v. Zaczek, 20 A.D.2d 902, 249 N.Y.S.2d 490 (2d
In summary, the reason for the rule permitting the dismissal of a claim based on that party’s refusal to reveal relevant information is the promotion of fairness and to ensure that a person seeking affirmative relief is not able to obtain that relief from a party and, at the same time, conceal relevant evidence. In other words, a claimant may not bring a claim and refuse to answer relevant questions based on the fifth amendment. We have precedent in South Carolina dealing with workers’ compensation cases, but raising this issue could make your case the first to address this issue.