Insurance companies are silent partners in nearly every personal injury case. They have skin in the game, but they rarely play an active role as juries weigh the evidence.
Instead, courts generally prevent attorneys from introducing evidence about a plaintiff’s or defendant’s insurance policy. The idea is that such evidence could bias the jury. Jurors may be more likely to rule in favor of plaintiffs when they believe they’re not punishing the people they see in court. They can simply dump a big bill in an insurance company’s lap.
Accordingly, nearly every state has rules that prohibit or limit comments about either party’s insurance policies. To protect their interests, insurance companies must understand these rules and when they apply.
The Case of Cheryl Voegel v. Devyn Salsbery
As a recent case illustrates, violations of the rules of evidence can lead to mistrials. However, the rules aren’t so black-and-white as to say that any mention or insinuation of “insurance” counts as a violation.
That was clear from the Montana Supreme Court’s opinion in the case of Cheryl Voegel v. Devyn Salsbery. Voegel suffered injuries from a car crash with Salsbery and filed suit. During the trial, Voegel’s attorney prompted a couple warnings from the judge for alluding to other payors. When Voegel’s attorney referenced “someone else” who might have to pay the bills, the judge decided that crossed the line and declared a mistrial. But the Supreme Court overruled that decision on appeal.
In its opinion, the Supreme Court provides a clear view of how Montana, and possibly other states, view the line between proper and improper references to insurance. And these are distinctions insurance companies want to understand as they defend their interests.
In Montana, the rules exist, as the court noted, to exclude evidence that might be:
- Misused by the jury
Rule 411 specifically addresses the use of insurance coverage as evidence. It is short, and as the court pointed out, it does not exclude all mentions of insurance:
Evidence that a person was or was not insured against liability is not admissible upon the issue of 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.
Accordingly, the Supreme Court weighed the plaintiff’s allusions to insurance against this standard.
When Is the Mention of Insurance Worthy of a Mistrial?
In Montana, the mention of insurance is excluded “upon the issue of whether the person acted negligently or otherwise wrongfully.” It is not necessarily excluded in other contexts, but the Supreme Court made it clear that courts should review its admission within the individual context of each case.
Generally, as noted in one Nebraska Law Review article, there are five reasons courts might allow lawyers to discuss insurance:
- When the matter is relevant to the facts of the case
- When the facts about insurance support or diminish the credibility of a witness
- When a defendant alludes to the matter as an integral part of testimony
- When the fact arises unintentionally as part of witness testimony
- When attorneys ask potential jurors “good faith” questions about insurance to explore any existing biases
Courts can make other exceptions, and the rules can change from state to state. But the general principle remains: The mere mention of insurance isn’t the problem. The problem occurs when attorneys try to plant ideas in the jurors’ minds. It’s a problem when attorneys try to place the insurance companies in the back of the jurors’ minds as the jurors debate whether they should hold a defendant responsible for the plaintiff’s injuries and damages.
Effective Counsel Should Recognize When Lawyers Cross the Line
For the insurance companies that are peripherally involved in injury cases, the primary concern tends to be the money at stake. That means they want defense attorneys to recognize when a discussion of insurance coverage is clearly prejudicial and worthy of a mistrial. But they do not want attorneys to push for unwarranted litigation. Litigation that doesn’t have much chance of success is just an extra expense.
In Montana, then, insurance companies would want to understand how the Supreme Court differentiated mentions worthy of mistrials from less harmful allusions. Again, the issue is case-specific, but the Supreme Court noted three themes in the times it found mentions worthy of mistrials:
- “Pervasive” allusions to or mentions of insurance
- Singular instances that were “devastating” in their timing and impact
- Intentional uses aimed at gaining the “trial advantage” the rules intend to block
In Voegel v. Salsbery, the court ruled the indirect allusions to “other payors” were neither pervasive nor so “devastating” as to bias the jury. The court further supported this idea by pointing to the fact that Voegel’s attorney made the final allusion to “other payors” at the end of a three-day trial and within the context of an “otherwise appropriate” closing argument.
Fitting the Pieces Together
The question: How can insurance companies protect themselves from attorneys who want jurors to believe they’re deciding against insurance companies, rather than individual drivers or business owners?
The answer: Insurance companies need attorneys to understand the threshold for prejudicial remarks. They need attorneys to ask for mistrials when remarks would raise the specter of insurance over the process of determining negligence. And, if the allusions to insurance don’t call for mistrial, insurance companies want their attorneys to focus on making the strongest possible argument in court.