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It’s been a common rule in cases of negligence for over 100 years – mention of whether or not a defendant has liability insurance is forbidden. The rule was conceived to bar any prejudice on the part of a jury against the defendant in knowing that they are insured for their liability. In knowing that a defendant who has negligently harmed another is insured for their liability, a jury may increase damages upon them since their insurance company must pay the verdict. And so, this common rule has taken root in civil cases. Mention of a defendant’s liability insurance may be grounds for a mistrial since it may alter a jury’s verdict.

But let us take a step back and truly examine this rule. Many jurors aren’t even aware of it. And they expect to know whether or not a defendant has liability insurance. But, since even mentioning the existence of liability insurance is forbidden, jurors are made to believe that a defendant is not insured for his or her liability.
Therefore, prejudice still exists…in the opposite fashion. Jurors may feel sorry for a defendant, believing their verdict, whether deserved or not, may harm them financially since they perceivably have no liability insurance. What about the plaintiff, though, who may already be facing financial ruin? Does this rule not, in a way, favor the defendant and in doing so, harm the plaintiff’s case? We firmly believe that it does. Insurance companies are hiding behind their insured’s names with this rule. We don’t believe this to be fair to the plaintiff. This rule deserves some scrutiny.

For example, a negligent driver who has liability insurance may damage a person’s life via their own improper driving. A civil case is brought against the driver, and the case is brought to trial. The person’s defense is paid for by the insurance company. A jury may or may not expect this person to have liability insurance. They may not even know what it is. Since it’s never brought up, they assume this person doesn’t have liability insurance. The intention of the rule is reversed. The insurance company would be responsible for reimbursing the plaintiff for medical bills, physical therapy, pain and suffering, etc. But the jury believes it is up to the defendant to make these reimbursements – which could destroy them financially. And so, they’re verdict is swayed, by sympathy for the defendant, nonetheless. And the plaintiff may not receive the reimbursements he or she deserves for all their losses.
We believe this rule can truly hurt a plaintiff’s case by inspiring a jury’s sympathy for a defendant. Should it truly matter if a defendant has liability insurance? Whether it is mentioned or not, a jury’s prejudice still exists.