Will the Jury Hearing My Case Know About the Insurance Company?

Posted by Scott A. Staples | Jan 10, 2022 | 0 Comments

I can't count how many times I've had to tell a dumbfounded personal injury client that not only is our lawsuit not going to be against the negligent party's insurance company, but we can't even mention the fact that they have insurance in court. Their confusion is understandable - to most people it seems intuitive that the insurer, the one that hires the defense attorneys and ends up paying the money, is “responsible” and should be talked about. But, enter Washington Evidence Rule (ER) 411:

Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.

For starters, unless the lawsuit is against the injured person's own insurer (say, for auto policy underinsured motorist benefits), the insurer is not the proper party in the lawsuit because the insurer did not, for example, hit someone with its car.  The driver did, and they are responsible - they have entered into a contract with their insurer to defend and indemnify them for their own liability.

The text of the rule is pretty limited, prohibiting reference in court to liability insurance only if someone is bringing it up to try and prove the negligent party was actually negligent (think of the improper argument of “this person's insurer will pay for all this, so find them at fault even though they might not be”). In practice, however, judges usually err on the side of caution, not wanting to run afoul of the rule and give the defendant an issue to appeal, and do not allow “the I word” to be mentioned at all in reference to the defendant - the rationale being that whether this person had insurance or not isn't relevant to whether they were negligent and thus legally liable, nor whether the plaintiff was injured and suffered damages.    

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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