In a previous post, When Insurance Is Prohibited From the Courtroom, I discussed briefly how even the mention of insurance during a trial may result in a mistrial.
Sadly, this rule is sometimes exploited by insurance agents and adjusters to the detriment of injured people. In my own practice, I have seen the following dirty trick played on dozens of unsuspecting clients. Here’s how the dirty trick unfolds: John is injured in an accident and starts a claim with the Defendant’s insurance carrier. The insurance company’s adjuster tells John that they will take care of John and get him in to see a doctor for his injuries. They will take care of everything. But it will take a day or two to make the arrangements. John calls back after two days and asks when and where he can get medical treatment. The adjuster then puts John off a few more days for various reasons, most commonly the need for more time to make arrangements with the proper clinic. More days pass. Then a week or more passes while John continues to trust that the Defendant’s insurance company will get him in to see a doctor. Then the adjuster changes tactic. John calls again and asks when he can see a doctor. The adjuster then says John cannot see a doctor because if John has been able to go this long without seeing a doctor, then he can’t possibly be that injured. John is now on his own to seek treatment. Down the road, during the litigation of the case, the Defendant’s counsel will get to argue that John has a gap in his treatment between the time of the accident and the first time he actually sought treatment. The Defendant’s counsel will get to argue that John’s injuries can’t be severe because he was able to wait two weeks or more before first seeing a doctor. The Defendant’s counsel may get to argue that in fact the first time John went to a doctor for treatment was after retaining his attorney, making John look like an opportunist rather than an injured person seeking legitimate treatment. What John never gets to tell the jury is that he didn’t seek treatment for two weeks because he was trusting that the insurance company and insurance adjuster were truly going to help him. This dirty trick exists because it can so easily hide behind the Rule of Evidence that prohibits the mention of insurance during trial.
