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Insurance Coverage and the Amount of Insurance are not Admissible

A personal injury case almost always involves insurance but that fact is kept from a jury at a trial. This is the rule in Massachusetts and across the country and it has been that way for generations.

  • The general rule is that a plaintiff is not permitted to show that the defendant is insured against liability. Braun v. Bell, 247 Mass. 437, 442-443 (1924). Gladney v. Holland Furnace Co. 336 Mass. 336, 368 (1957). Prosser, Torts, (4th ed.) s. 83, p. 549 (1971). Prosser is the leading authority on torts -basically, for our purposes, personal injury cases- and his book gives a survey of how different jurisdictions, really States, treat rules. This is the rule that is followed in every jurisdiction: unless some exception is present, and those exceptions are few and far between, insurance is not to be mentioned.
  • Exposing juries to this sort of “inflammatory” evidence is condemned because it is not probative [more likely to prove a material element in the case] to any relevant proposition. The fear is that it will lead to undeserved verdicts for plaintiffs and exaggerated awards “which jurors will readily load on faceless insurance companies supposedly paid for taking the risk.” Wigmore, Evidence (3d ed.) s. 282a (1940). Wigmore, like Prosser, is the author of a leading treatise in his field. Wigmore’s field is evidence.
  • A plaintiff is not allowed to show that he has no resort to insurance or workmen’s compensation to cover the loss he has suffered. The courts have ruled that this evidence should be rejected because it is irrelevant and prejudicial against the defendant. Snyder v. Lehigh Valley R.R. 245 F. 2d 112, 116 (3d Cir. 1957). Lee v. Osmundson, 206 Minn. 487 (1939). Bridgeforth v. Proffitt, 490 S. W. 2d 416, 425-426 (Ct. App. Mo. 1973). Jones, Evidence (6th ed.) § 4.48 (1972). Indeed, this seems fair; it is really symmetrical treatment.
  • As a matter of legal practice, I have kept out of the case any worker’s compensation payments my client has gotten. The strategy for this is obvious because the jury would feel that the Plaintiff is getting some compensation from the system and presumably not be as inclined to make an award. Your lawyer should keep that information out, just as the defendants will keep out the fact that the plaintiff has no resort to other forms of compensation.
  • Additionally, a defendant is prohibited to assert or imply that he is not protected by insurance because such statements are considered “tantamount to a plea of poverty,” irrelevant and prejudicial since they might influence jurors toward giving defendants compassionate but unmerited relief from personal liability. Piechuck v. Magusiak, 82 N. H. 429 (1926). King v. Starr, 43 Wash. 2d 115, 119-121 (1953). Socony Vacuum Oil Co. v. Marvin, 313 Mich. 528, 538-540 (1946). McCormick, Evidence (2d ed.) § 201, pp. 481-482 (1972). Appleman, Insurance Law and Practice, § 12838 (1962). Annotation, 4 A. L. R. 2d 761 (1949) Those are also treatises which are commonly cited.
  • Summary: The courts will prevent reference to, or evidence of, the parties’ resources for bearing the losses, and have instructed juries to simply find the facts, including damages, impartially, without wondering or speculating about extraneous facts.. See Hoffman v. Brandt, 65 Cal. 2d 549 (1966).

The leading case in Massachusetts on this issue is Goldstein v. Gontarz, 364 Mass. 800, 807–814, 309 N.E.2d 196, 202–206 (1974). See also Section 411 (Insurance) in the Massachusetts Guide to Evidence. ALM G. Evid. § 411

The following is a survey of when you can mention insurance though, keep in mind, it never applies to the classic kinds of cases in personal injury:

  • Evidence of insurance coverage may be admissible where the issue of control over the covered premises is disputed because the jury could properly infer that whoever buys an insurance policy, has an ownership or management responsibility. Perkins v. Rice, 187 Mass 28, 30, 72 N.E. 323, 324 (1904).
  • Additionally, evidence of insurance coverage or lack thereof may be admissible to establish the bias of a witness. Goldstein v. Gontarz, 364 Mass. 800, 812, 309 N.E.2d 196, 205 (1974).

Why this fascination with rule against mentioning insurance? Don’t juries know nowadays that insurance is involved? Well, maybe, but the rule won’t change. If they don’t hear about insurance, they certainly won’t hear about the amount of available insurance. Also, it’s good for clients to realize that the case is never: The Name of the Client v. Insurance Company; rather it is John Doe v. Jane Doe. Insurance is not in the caption. This fact, which can be surprising to clients, sheds important light on the court requirements and its effect on settlements.

Feinberg & Alban, P.C. fervently protects your rights
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