Should We Give The Jury The Truth About Insurance?

You had a car accident. It is not your fault. You are hurt. Did you know that if the other person's insurance company is not treating you fairly, and you have to sue, you have to sue the person and not the insurance company? And, not only that. Once you are forced to take that person that hurt you to trial because her insurance company chose not to help you, you are not allowed to tell the jury that there is really an insurance company dragging both of you though a lawsuit and trial. Imagine if you are the person who caused the harm, you feel terrible and want to make things right, but the insurance company you bought a policy with refuses to pay for the harms on your behalf to protect you. Now you are stuck in a lawsuit. Does this seem fair?

This is what we see everyday as we represent people who were hurt by others who paid good money for insurance to protect them. Florida law does not allow the jury to know there is insurance. The public policy behind the rule is that: juries should decide cases based on whether a person is responsible because of what she did instead of based merely on whether she had liability insurance. The goal is to keep jury's from saying, "Well, I don't think the defendant was negligent, but find her negligent anyway because there is insurance." I give juries much, much more credit than that. Juries are incredibly smart. In my experience, most of the time the jury will find liability where the is some, and find no liability where there is none. In reality, the law prohibiting the admission of liability insurance might actually do the opposite of its intended purposes. By not letting the jury know about liability insurance, the law by implication, misleads the jury into thinking that the defendant will have to pay the verdict out of their own pocket. When in reality, the defendant will not have to pay a penny – the insurance company will – even if the judgment is against the individual. Usually, the insurance company will step in and pay the judgment provided there is no basis for appeal or a new trial. In the event they do not pay and protect their insured, the insured can sue her own company for bad faith. So, it is in the insurance company's best interest to do what it should have done years before – step up and pay.

In a case we tried last August, the jury was allowed to ask questions. Speaking of incredibly savvy jurors, they repeatedly asked questions about insurance. Some jurors seemed to know that liability insurance was involved, paying for the defense lawyer, and calling the shots on the defense side. So, if the law misleads the jury, and some jurors are thinking about it anyway, why not just tell the jury the truth? Isn't that the point of a judicial process? To get to the truth?

There is a standard jury instruction in Florida that is given to juries if and when the suggestion of insurance "slips" out in a trial. The instruction tells the jurors not to consider whether there is insurance and to based their decision of the facts and law and the court will adjust the verdict later if necessary to prevent a windfall or double recovery to the injured party. Many Judges have crafted their own instructions to deal with this issue when it arises. But, why not give the instruction in every case? We definitely request it. We know some jurors are thinking about it. And, if we do not give it, it may hurt an injured person by allowing the jury not to include all of the harms in a their verdict. It would allow the jury to believe what they have been mislead into believing, that the poor defendant will have to pay everything from her own resources. It would be best to tell the jury and give the instruction in every case. It will help the jurors get to the truth – the fundamental goal of a trial.