What sized Gorilla?
June 27, 2012 Leave a comment
The phrase “800 pound gorilla in the room” has grown to 900 pounds in some recent stories. While an 800/900 pound gorilla can be a banana eating primate at the local zoo, here I am talking about a problem people are aware of but don’t address.
For personal injury cases in Mississippi, the problem that doesn’t get addressed at trial is insurance. Miss. R. Evid. 411 provides:
Evidence that a person was or was not insured against liability is not admissible
upon the issue whether he 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.
The knee jerk reaction from lawyers and judges alike is that mention of insurance is cause for a new trial. But juries are not by any means stupid. Juries are made up of citizens and generally know something about insurance. The case of Downs v. Ackerman, 2011-CA-0089 (June 27, 2012) from the Mississippi Court of Appeals highlights this fact. After the jury began deliberating, the jury submitted three questions to the judge.
Did Dr. Ackerman have insurance?
How much did insurance pay toward medical bills?
Of the amount of medical bills not covered by car insurance, what were the out-of-pocket expenses?
Very good questions. They are also questions that I would want to know if I was on a jury. However, they are questions that cannot be answered for the jury under the current rules. End result, the jury was left to speculate about insurance. For instance, the jury could assume the plaintiff received money from the defendant’s insurance company and that whatever they award would be in addition to the insurance money. Because of some of the evidence introduced in the case, the jury was likely aware that the injured party received workers’ compensation benefits for medical expenses and some of her wage loss. However, it is unlikely the jury was aware that workers’ compensation benefits must be repaid in full from the jury verdict dollar with no reductions.
Most everyone can agree that juries shouldn’t disregard the law and enter judgments based on the defendant’s insurance. Likewise, the size of the jury’s verdict should not be based on the size of the defendant’s insurance policy. However, it is equally wrong for a jury to speculate that some or all of a plaintiff’s bills have been paid and therefore fail to award full compensation for those damages. If a jury does make such an assumption, the injured person gets the shaft yet again because the amounts paid by workers’ compensation and the plaintiff’s own health insurance must be repaid from the jury verdict.