Everyone knows about insurance, so why can’t we talk about it?

One of the most common questions that we trial attorneys hear from deliberating jurors is, “will insurance cover whatever our verdict is?” In almost every case, the judge will respond to the question telling the jurors something along the lines of, “I cannot tell you if insurance is, or isn’t, applicable in this case, and your verdict must be independent of any considerations of insurance.” We all know that most people have car insurance or homeowners insurance, and that most businesses and large corporations carry extensive insurance policies, so why can’t jurors ask about it?

Missouri courts forbid any mention during trial about how the verdict against a defendant might be paid, or, more generally, a defendant’s ability to pay a verdict. (1) The presence of auto, homeowners, or any other insurance might convince a jury that awarding a substantial verdict will not affect a defendant; it will not have to be paid by the losing defendant, but rather by a wealthy insurance company. (2) “Everybody knows that there is a difference, and that juries are prone to return much larger verdicts where there is insurance coverage than where there is not.” (3)

The opposite is also true: defendants are not allowed to plead poverty. Defendants can’t make arguments about hardship or any inability to pay a verdict for the purposes of eliciting sympathy from a jury.

Additionally, Missouri courts have also forbidden discussion of insurance coverage that applies to a defendant as a way to suggest that person is more or less likely to have acted negligently or wrongly. Basically, it is improper to suggest that a defendant who is alleged to have caused a car wreck is more likely to be a bad driver simply because he has a significant insurance policy which would cover him in a car crash.

This rule also applies to any insurance that a plaintiff might have. In this context, the rule is generally referred to as the “collateral source rule.” This rule stands for the proposition that it is harmful to a plaintiff’s case for a jury to hear that a plaintiff has had some of their medical costs paid by someone else, typically health insurance. It might lead a jury to award lower damages for a plaintiff if they believe the hurt person has already had some of their damages – like medical bills – paid by someone else. “[A] wrongdoer is not entitled to have the damages to which he is liable reduced by proving that plaintiff has received or will receive compensation or indemnity for the loss from a collateral source, wholly independent of him, or, stated more succinctly, the wrongdoer may not be benefited by collateral payments made to the person he has wronged.” (4)

This applies not only to health insurance, but other benefits that a plaintiff might receive as well such as: contracted for payments, benefits from an employer, workers’ compensation benefits, disability pension benefits, retirement benefits, an employer’s medical benefits, or sick leave. Missouri courts have also found that this rule applies to some governmental benefits such as: Medicare benefits, Medicaid benefits, veterans’ benefits, and social security. (5)

The overwhelming majority of cases that wind up at trial, especially those which fall under the umbrella of personal injury cases, have some sort of insurance involved. Insurance exists to protect people from the unexpected, and most trials involve issues of who was at fault, and how significantly injured a person might be, rather than concerns about satisfying any verdict or judgment.

  1. Conrad v. Twin Oaks, Inc., 344 S.W.2d 286, 288 (Mo. App. 1961)
  2. Id.
  3. Buehler v. Festus Mercantile Co., 119 S.W.2d 961, 968 (Mo. 1938)
  4. Washington by Washington v. Barnes Hospital, 897 S.W.2d 611, 619 (Mo. 1995).
  5. Id.