A common question from jurors in personal injury trials is, “will insurance cover our verdict?”
The answer: “You have been instructed on the law you are to apply in this case. You must take the law as it is and carefully apply it to the facts as you find them,” or some similar nonsense that does not answer their question.
Of course, the defendant has insurance.
Who do you think is paying for those attorneys sitting at the defense table? Do you think we would even be here in trial if the defendant did not have insurance to pay the verdict?
But, in most cases, we are not allowed to talk about insurance at trial. Why is that? Is it to protect the insurance company from unfair prejudice, or is it to help the insurance company create unfair prejudice by hiding their existence from the jurors?
No Mention of Insurance at Trial on the Question of Negligence
Rule 411 of the SC Rules of Evidence says:
Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.
Evidence of insurance is not admissible on the issue of whether the defendant was negligent. How could it be evidence of negligence? No reasonably intelligent person is going to say, “The defendant had insurance; therefore, the car wreck was his fault.” It just doesn’t make logical sense.
Could there be another reason insurance companies don’t want to be seen or mentioned at trial?
The Rule Does Not Exclude Evidence of Insurance at Trial When Offered for Another Purpose
Plaintiffs are not allowed to talk about insurance at trial when it is offered as evidence of liability, but Rule 411 doesn’t prohibit evidence of insurance at trial when it is offered for another purpose, “such as proof of agency, ownership, or control, or bias or prejudice of a witness.”
If the courts followed the rule as it is written, insurance would be talked about at trial all the time. For example, agency, ownership, and control:
- “The car belongs to you? Your name is on the insurance policy?”
- “You have control over the use of the vehicle, correct? You are the primary policyholder on the insurance policy?”
- “You had permission to use the vehicle, didn’t you? You are an authorized user on the insurance policy?”
Or bias and prejudice of a witness:
- “Isn’t it true that your insurance company refused to settle this case? Was it your choice to deny liability or your insurance company’s?”
- “Isn’t it true that your insurance company has instructed you to deny liability? Isn’t it true that, if you admit that you caused the accident, your insurance company will say you are not cooperating in the defense, and they will deny your coverage?”
And yet, these and similar questions that are within the plain language of Rule 411 will be met with shock and outrage by insurance defense lawyers, and an angry, defense-friendly judge will then order a mistrial…
Despite the clear language of Rule 411, the SC Supreme Court has carved out very specific and narrow exceptions to the prohibition against mentioning insurance at trial. In Yoho v. Thompson and Todd v. Joyner, for example, the Court found that, where liability had been admitted, a defense medical expert could be cross-examined on their relationship with the insurance company to show bias.
But, even when liability had been admitted, evidence of insurance is admissible only where the defense expert has an ongoing employment relationship with insurance companies makes up a substantial portion of his income (Yoho v. Thompson).
When the defense expert was only paid an expert fee by the insurance company to testify that the plaintiff’s injuries were exaggerated, but they did not have an ongoing employment relationship, it was not a sufficient connection to show bias and therefore was not admissible (Todd v. Joyner).
Why Don’t We Talk About Insurance at Trial?
We don’t talk about insurance at trial because 1) Rule 411 prohibits talking about insurance when it is offered to prove liability, and 2) the SC Supreme Court has interpreted Rule 411 to mean, “you don’t talk about insurance at trial,” despite the plain language of the Rule.
According to Insurance Companies and Their Attorneys…
If juries knew that the defendant had insurance, they would have unreasonably higher verdicts because they know the insurance company will be paying the bill and not the defendant. We must protect the insurance company from the prejudicial verdicts that would result if jurors knew that the defendant was not paying out of their own pocket.
The Truth About Why We Don’t Talk About Insurance at Trial
When juries aren’t sure that a defendant has insurance, the insurance company and their attorneys can play to the sympathies of jurors who do not want to take a chance on bankrupting an everyday Joe who works hard to support his family.
We don’t talk about insurance at trial because insurance companies, through their lobbyists and their influence on the Bar through prominent insurance defense firms, have ensured that the laws, court rules, and court opinions protect them.
It is about protecting the insurance companies, but not from prejudicially high verdicts. It’s about protecting them from verdicts that would fully and fairly compensate accident victims. It’s about protecting a multi-trillion-dollar a year industry and keeping money in the pockets of the richest Americans while insurance companies commit fraud on their customers and accident victims.
Almost every defendant in a personal injury or auto accident case has insurance.
In most cases, the attorney you see sitting with the defendant in a personal injury case is an attorney for the insurance company and they are paid by the insurance company – they represent the defendant in name only.
Yes, the insurance company is going to pay the verdict – up to their policy limits unless they file an appeal to a higher court.
Auto Accident Lawyers in Myrtle Beach, SC
The Myrtle Beach personal injury lawyers at Coastal Law accept most types of SC personal injury cases, including auto accidents, motorcycle crashes, products liability, slip and fall cases, and wrongful death lawsuits.
Ready to speak with a personal injury attorney? Contact Coastal Law to discuss your case. Call us at 843-488-5000 for a free consultation or use our online form.