Teachers' Manual to Green, Nesson & Murray, Problems, Cases and Materials on Evidence, 3rd Edition.

CHAPTER II: CATEGORICAL RULES OF EVIDENCE
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D. Proof of Insurance (158)

St. Pierre v. Houde, 269 A.2d 538 (Me. 1970)

This case is included to demonstrate the common law's traditional concern about the prejudice inherent in proof of the availability, or non-availablity, of liability insurance to pay any damages awarded. In St. Pierre v. Houde the problem was that counsel for the defendant asserted in argument that the defendant would be required to pay the damages out of her own pocket, when there was in fact liability insurance coverage. The problem for the court was how this legally irrelevant mis-impression about the source of payment of any damages awarded should be corrected.

The appellate court found that the trial judge had not abused his discretion in allowing plaintiff's counsel to state to the jury that the defendant would not, in fact, have to pay any award out of her own pocket, on the ground that the defendant had "opened the door". The court went on, however, to order a new trial on the ground that the $5000 damages awarded seemed excessive in light of the facts made of record on the appeal.

This case is a good example not only of the traditional attitude toward evidence of insurance, but also of the phenomenon of "opening the door", and the importance of an appellate record to issues of sufficiency of the evidence.

A recurring problem with the categorical rules of exclusion is that they all provide that the prohibitive evidence may be admitted if offered for other purposes. For example, Rule 411 does not require the exclusion of evidence of insurance when offered to prove agency, ownership, or control, or bias or prejudice of a witness. Moreover, prohibited evidence is often suggested to the jury by clever attorneys in various tricky ways even when it cannot be introduce for any admissible purpose. This, of course, raises ethical as well as practical questions. How do attorneys go about getting evidence of facts excluded by these rules before the jury? If evidence within the reach of these categorical rules is offered by an opponent and admitted over objection under a permissible purpose exception, or is suggested to the jury improperly, how does one counteract its prejudicial effect? What limiting instructions should a judge give? How effective are they in these situations? An important question for students to consider is the extent to which the fact that evidence which is purportedly excluded by these rules nevertheless often gets before the jury should affect one's view on the wisdom of having these rules.

Some questions to ask the class are:

1. Suppose you represent the plaintiff in a medical malpractice case. You want to get in evidence that defendant is insured up to $10,000,000. How do you do it (ethically)?

2. You represent the defendant in the same case. You want to get in evidence that the defendant has no insurance. What do you do (ethically)?

3. In the same case, you represent the defendant who has no insurance. If the plaintiff somehow floats the suggestion that the defendant is insured, what do you do?

4. You represent the plaintiff in a negligence action against a supermarket. Plaintiff slipped and fell in the isles. How do you (ethically) get in evidence that the supermarket changed from a wax floor polish to the non-skid variety a week after the accident?



Problem - The Deep-Pocket Approach (162)

The point:

Evidence that the defendant is insured against liability is inadmissible to show negligence, but is admissible for other purposes, such as cross-examining a witness to show bias.

Answer and Analysis:

As the Advisory's Committee's Note to FRE 411 states, inferring fault from the fact that one has liability coverage is incorrect, and the exclusion of evidence of insurance is traditionally based on this ground. (Insurance is so widespread today that the opposite inference is probably more likely true.) Also, even though the presence or absence of liability insurance has nothing to say about fault, it might induce a jury to decide cases on improper grounds, i.e. ability or inability to pay. Thus, such evidence is uniformly excluded.

In this problem, evidence that D Co. carries insurance would be excluded. However, such evidence may be admissible to impeach the credibility of a witness by showing bias. In this case, the jury is entitled to know that Dr. X is a paid witness of the real party in interest, the Casualty Insurance Company. The Casualty Company's responsibility for the loss is thus relevant in assessing Dr. X's credibility and would be admissible for this purpose. D Co. would be entitled to a limiting instruction.



Problem - Hit and Run (164)

The point:

In a hit and run case, having insurance is not highly probative to whether the defendant acted wrongfully, but it probably passes Rule 401's test of relevancy and may be admissible when offered by the defendant to show his state of mind.

Answer and Analysis:

There are so many alternative explanations why D might have run from the scene of the accident other than fear of monetary liability that the evidence seems to approach the irrelevant. However, under FRE 401's minimum relevancy test, the evidence would be admissible because one inference from the evidence negatives a possible motive for running.

Under FRE 411, the evidence is offered for another purpose --showing the defendant's state of mind at the time of the accident. Since it is offered by the defendant in a criminal case, the court will bend over backwards to admit the evidence for whatever it is worth. Of course, if the prosecution suggests that the motive for D's running was fear of financial liability, the evidence's probative value would be substantially increased.





Problem- Absence of Coverage (164)

The point:

In an age in which workers' compensation and liability insurance is widely assumed to exist, the rule excluding evidence of lack of insurance may be unfair to those who do not have such coverage.

Answer and Analysis

See the extended discussion in the note following the case in the text for a more extended discussion of the policy issues raised by this rule.

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