The vast majority of my clients are surprised to learn that we cannot mention insurance during trial. Their expectation is that I will be able to argue to the jury that “X insurance carrier” should be responsible to pay for their medical bills and lost wages. With a few exceptions, under the Rules of Evidence in our state this is not the case.
Generally, in a trial between a Plaintiff and an individual Defendant, the jury never learns that the Defendant has X dollars of liability coverage that will protect the Defendant and pay the judgment. The jury only considers the Defendant herself as the source of payment for any award the jury gives. The burden is then on the Plaintiff to convince the jury to make this Defendant (perhaps a school teacher, LVN, or student) pay the entire judgment out of her pocket. What happens if insurance is mentioned? Often times, the mere mention of the word “insurance” during the trial may result in the judge declaring a mistrial. Even if “insurance” is mentioned by a non-party witness while testifying, the judge may determine that the jury has been tainted, dismiss the jury, and terminate the current trial. Consider this: If you were a jury member, which would be easier for you to decide: X insurance carrier must pay the Plaintiff $50,000 for her injuries, or Defendant John Doe, a middle-school math teacher, must pay the Plaintiff $50,000 for her injuries? The assumption is that for most people the first verdict scenario is easier to reach than the second, and that assumption about an easier verdict becomes the rationale for the rule. The assumption is that it is far easier to order the Defendant to pay $50,000 when the jury knows it is really X insurance company that will ultimately cover the judgment. The rationale for the rule is that this is unfair to both the Defendant against whom the judgment is entered on public record and the insurance company that must now pay a higher judgment (and presumably raise the Defendant’s and everyone’s rates to cover the higher losses). The current Rules of Evidence keep the mention of insurance coverage out of most injury trials. There are exceptions, but those exceptions do not apply to the majority of cases where an injured person is seeking to recover medical expenses and losses from an individual Defendant. This, too, is obviously unfair. Our current practice, however, considers keeping the Defendant’s financial reality from the jury, potentially to the financial detriment of a severely injured Plaintiff, to be the least unfair practice of all.