What the Evidence Won't Show

When I speak to jurors after one of my trials, at least one of the twelve members always asks me, “Why didn’t insurance take care of this?” That’s a good question. The truth of the matter is in most personal injury cases insurance is involved all the way through satisfaction of any judgment entered on the jury verdict. Who do you think pays for that defense attorney? The insurance company does. They have a contractual duty to defend the policyholder under the policy should they be unfortunate enough to get sued by somebody like me.

Even though insurance is involved, the jury never gets to hear about it in the majority of cases. North Carolina has a rule and much case law establishing a prohibition against mentioning the existence (or non-existence) of insurance at trial. The prevailing theory behind this prohibition is the Courts are afraid the monetary resources of the insurance company, rather than the evidence presented at trial, will be what serve as the basis for any verdict. In short, the Courts are afraid that the jury might use the existence of insurance as an excuse to compensate the victim without hurting the wrongdoer (or, not compensating the deserving victim to avoid hurting the uninsured wrongdoer). They’re afraid that a jury will award an amount just because the company made big profits last year and Dennis Haysbert tells us we’re “in good hands” at least twice per hour during primetime television (read: really expensive advertising slots). This fear may or may not be unfounded. Some jurors have told this trial lawyer that it would impact their decision. On the other hand, in one trial where evidence of insurance was allowed to be considered by the jury (there are exceptions to the rule), one juror stated that the fact there was insurance didn’t even come up in deliberations.

Some clients become upset with this rule. They feel it’s unfair to them and that it deceives the jury. This is a reasonable belief. But, the defendant and the insurance carrier could say the same thing about another rule established by the North Carolina courts. The collateral source rule prohibits evidence from being introduced of payments made to the Plaintiff by health insurance plans, Medicare, Medicaid, medical payments coverage, and many other different sources of payment. This benefits the Plaintiff because it allows the Plaintiff to recover the entire amount of the bills incurred even if health insurance or some other benefit has paid out already (in some cases the health plan has a right to reimbursement for what it has paid) and the jury will likely never know some of the bills were paid. This rule, of course, usually results in more money to the client.

Insurance plays a big part in any personal injury case. Despite its large role, the jury most likely will never know of its existence and will be specifically instructed by the Court in most cases to not assume that it is or is not there. Insurance, ladies and gentlemen, is what the evidence at trial won’t show.