South Carolina Trial Law Blog

In response to a question, John Nichols of Bluestein and Nichols gave the following reponse to the question of when a defense attorney opened the door to allowing the issue of insurance to be brought up.

There is no SC case on point, although Yoho v. Thompson, 345 S.C. 361, 548 S.E.2d 584 (2001) recognized that the adoption of Rule 411, SCRE, changed the rule on absolute prohibition regarding mentioning liability insurance. "Rule 411 modified the rule by providing that the admissibility of evidence of insurance depends upon the purpose for which such evidence is introduced." The Court explained that now evidence of the existence of liability insurance was admissible to show bias on the part of Dr. Brannon in that case.

I have spoken with a few judges who agree with my take that when the defense lawyer engages in "poor mouthing" the existence of liability insurance (though not the amount) is admissible.

Here are a few cases that agree:

• Shane v. Rhines, 672 P.2d 895 (Alaska 1983) (dissenting opinion of Burke, CJ) (citing 23 Wright & K. Graham, Federal Practice and Procedure § 5364, at 449 (1980) and 10 J. Moore, Moore's Federal Practice § 411.04 (1981), that the list of purposes in Rule 411 is illustrative, not exclusive, and thus evidence of insurance is admissible for any purpose that does not involve an inference from the fact of insurance to the existence of negligence or similar wrongdoing; also noting 23 Wright & K. Graham, Federal Practice and Procedure § 5364, at 449 (1980) ("Finally, Rule 411 does not prohibit the use of evidence of insurance where it is relevant to the question of damages or punitive damages....")).
• Reed v. Wimmer, 195 W.Va. 199, 465 S.E.2d 199 (1995) (setting forth a procedure for admitting evidence of insurance under Rule 411).
• Weiss v. La Suisse, Societe D'Assuances Sur La Vie, 293 F.Supp. 2d 397 (S.D.N.Y. 2003) (Rule 411 does is not a bar to the introduction of evidence regarding liability insurance in all cases; courts have allowed evidence of insurance in cases where the insured opens the door to the issue by "poor mouthing" or where the party's ability to pay damages has been put into issue), citing to Wright & Miller, Federal Practice & Procedure § 5368 (plaintiffs have sometimes been allowed to show the existence of insurance in response to "poor mouthing" by defendants).
• DSC Communications Corp. v. Next Level Communications, 929 F.Supp. 239 (E.D. Texas 1996) ("allowing curative admissibility in response to 'poor-mouthing' has garnered support in both the judiciary and academia" and citing to cases from Michigan, Arkansas, as well as Wright & Graham and McCormick on Evidence as support).
• Kemezy v. Peters, 79 F.3d 33, 37 (7th Cir. 1996) (in dicta, Judge Posner noted, "The defendant should not be allowed to plead poverty if his employer or an insurance company is going to pick up the tab...It is bad enough that insurance or other indemnification reduces the financial incentive to avoid wrongdoing -- which is why insuring against criminal liability is prohibited. It would be worse if the cost of insurance fell, reducing the financial disincentive to engage in wrongful behavior, because the insurance company knew that is insured could plead poverty to the jury.").

Thanks for the help, John.

David, in Illinois, we use Golden v. Kishwaukee, 269 Ill.App.3d 37, 645 N.E.2d 319Ill.App. 1 Dist.,1994, to backdoor insurance. It typically arises in the context of a well worn expert that testifies repeatedly on behalf of the same insurance company. Ben

Ben,

We have the same thing here in South Carolina. If an expert gets a substantial amount of money from defense firms or the same insurance company, we can subpoena that information and show it for bias.

In this post, John was talking about the defense lawyer's penchant for poormouthing the defendant's ability to pay the judgment and when it gets to the point where we can say "Hey folks. *She's* not going to have to pay. There's insurance."

Thanks for the cite and the input.