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COURT TOLERATES INJECTION OF INSURANCE COVERAGE

Posted by Susan J. Levy

While those of us typically on the defense side of the bar like to think we can protect the jury from learning that our client has liability insurance, to large measure, we really can’t. Juries are typically pre-qualified as to whether they are shareholders, officers, directors or employees of the defendant’s liability carrier. In cases involving mutual insurance companies, jurors are also pre-qualified as to whether they or their family members are policy holders of the defendant’s Insurer.

In the recent case of Park v Nichols, 2011 Ga. App. LEXIS 95, (Feb. 15, 2011), the defendant’s Insurer, Nationwide Mutual Fire Insurance Company was mentioned by name four times and the Court of Appeals refused to grant a mistrial. First, the Trial Court pre-qualified the jury as to officers, directors, shareholders, and employers of Nationwide. Next, the Court asked if any members of the panel were policy holders of Nationwide. Then, the Court asked if any jurors were related by blood or marriage to a director, agent, shareholder, or employee of Nationwide.

In case any of the jurors had still not figured out that the defendant was insured by Nationwide, plaintiff’s counsel drove the point home during his general questioning of the panel: “The judge asked you about Nationwide Mutual Fire Insurance Company; and I am not going to follow-up and repeat those questions, but I do want to ask you about insurance companies, generally.” Id. at *2. Counsel then began a question, but was interrupted by the Court and never finished.

Defense counsel moved for a mistrial based upon the “reinjection of the subject of insurance into the case.” Id. at *3. The Trial Court denied the motion and admonished plaintiff’s counsel not to mention “insurance” again. The Court of Appeals affirmed, relying on the 1996 case of Dubose v. Ross, 222 Ga. App. 99, 100 (1996):

In Georgia the injection into a case of testimony pertaining to liability insurance does not automatically require a grant of a motion for a mistrial. It is only where the testimony is obviously prejudicial in its nature that its adverse effect cannot be eradicated from the minds of the jury or its consequences avoided by proper cautionary instructions from the court, that a mistrial should be granted. The determination as to whether these harmful factors are present in a case necessarily rests in the discretion of the trial judge. Appellate courts should never interfere with the exercise of that discretion unless it is made to appear that wrong or oppression has resulted from its abuse. The principle is historically respected in this jurisdiction.

It will be the rare case where plaintiff’s counsel actually crosses the line and injects the issue of insurance “beyond the permissible limits.” Id. at *5. Consequently, try your case with the knowledge that the jury will undoubtedly know the defendant is insured.