Not All Mention of Insurance at Trial is Prohibited.

April 14, 2008

The Court of Appeals published Barkman v. Overstreet, an appeal of a malpractice verdict in favor of the treating physician.  While several errors were alleged, the most interesting one involved the mention of insurance by Dr. Overstreet during his testimony.  The Appellant Barkman argued these mentions were in violation of evidence rule 411, which prohibits the mention of liability insurance to prove negligence.

The Court of Appeals noted that Overstreet mentioned insurance in his testimony on two occasions.  The first was in reference to the 23 hour admission of Barkman.  Overstreet noted that “insurance companies” prefer the limited admission to a full blown admission.  When questioned about fabricating facts to support the 23 hour admission, Dr. Overstreet responded in part that this was due to the insurance companies restrictions.

The  Court of Appeals noted that 411’s prohibition against the mention of insurance requires certain precepts before it is implicated.  First, it must be mentioned in the context of liability insurance, and second, it must be used to prove negligence of a party.  The Court of Appeals noted that in reviewing the context in which the statements were made it was clear that Overstreet was referring to health insurance and not liability insurance.  As such, the trial court did not abuse its discretion in overruling counsel’s motion for a mistrial or in refusing to admonish the jury on its use.

Editor’s note: This rule is often misunderstood and misapplied.  Contrary to popular opinion, the rule does not prohibit any mention of insurance at trial.  The rule is limited to liability insurance and only then if it is being admitted as evidence of negligence.  Even then, rule 411 allows the introduction of liability evidence if used for a different purpose such as agency, ownership, control, or bias or prejudice of a witness.  Of course, the mention of “health” insurance could be in violation of the collateral source rule if used to show receipt of payments of damages by a party from other sources.

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