The “Insurance” Jury Instruction

Posted by Scott A. Staples | Jan 25, 2022 | 0 Comments

I wrote recently about Washington ER 411 and how it usually prevents a defendant's liability insurance from being mentioned at trial. Will the Jury Know about the Insurance Company?  The natural question to ask, faced with that reality, is: “So won't the jurors think this defendant is uninsured and take pity on them, resulting in a lower award than I am entitled to?” It's a fair question, and always of concern to us. Pity or sympathy is not supposed to play into a juror's deliberation, but we know it can.

Jurors are usually instructed on this topic, however. Washington Pattern Jury Instruction 2.13 states:

Whether or not a party has insurance, or any other source of recovery available, has no bearing on any issue that you must decide. You must not speculate about whether a party has insurance or other coverage or sources of available funds. 

You are not to make or decline to make any award, or increase or decrease any award, because you believe that a party may have medical insurance, liability insurance, workers' compensation, or some other form of compensation available. Even if there is insurance or other funding available to a party, the question of who pays or who reimburses whom would be decided in a different proceeding. Therefore, in your deliberations, do not discuss any matters such as insurance coverage or other possible sources of funding for any party. You are to consider only those questions that are given to you to decide in this case.  

This instruction doesn't come out and tell jurors that insurance is lurking in the background of the case, but hopefully it at least reassures them not to worry about it or let the fact that it has gone unmentioned in the trial sway their verdict. 

About the Author

Scott A. Staples

Scott Staples came on board in 2006 as a clerk during law school, and joined the firm as an associate attorney in 2007. He was made a shareholder in the firm in 2010. Scott graduated, cum laude, from Washington State University Vancouver with a BA in English, and obtained his Juris Doctorate from Willamette University College of Law, with cum laude honors there as well. He has successfully represented clients in a variety of different types of injury cases, including auto collisions, premises liability, animal attacks, watercraft accidents, and construction site injuries. He has appeared, and won, before the Washington State Supreme Court (Weismann v. Safeco, 2012). Scott has volunteered time for the past several years at the Clark County Volunteer Lawyers Housing Justice Project. He has previously served on the new member and membership committees for the Washington State Association for Justice (WSAJ), and has acted as chair and co-chair of the WSAJ Clark County Roundtable. He is a member of the Washington and Oregon State Bar Associations, WSAJ and OTLA (state trial lawyer organizations), and is admitted to practice in all state and federal courts in Washington and Oregon. Scott was born and raised in Vancouver, attending Vancouver public schools and graduating from Hudson's Bay High School. He enjoys playing recreational basketball and softball, skiing, and spending time with his wife and three children.


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