Although everyone should have insurance coverage, it’s a phrase the jury will never hear. In a property or injury lawsuit, if you have to go to trial the jury will never know that the judgment will ultimately be paid by the insurance company rather than by the individual. Lets take this example, an at-fault driver is not paying attention and collides into the rear of an innocent driver’s vehicle who is stopped at a red-light. The innocent driver’s vehicle is fairly new, is damaged, will need a rental vehicle and his car is worth less because of the repairs. Also the innocent driver was injured and went to the emergency room, followed up with their family doctor and then a chiropractor before he is finally released to return to work.
PROPERTY DAMAGE CLAIMS:
The damage to the car may be a few thousand and a rental vehicle for a week or two may be a few hundred. Often there is no issue recoverying these amounts from the at-fault driver’s insurance company. But what if the car was new? And even if it was not, a vehicle that has been damaged is worth less than one that has never been in a wreck. In NC you are permitted to make a claim for diminution in value (i.e. the difference in value of the property before the wreck vs. the value after its repair). In a recent case an innocent driver’s new (+1yr old ) luxury vehicle had significant repairs (+$7,000) which included removal and re-welding of a quarter panel. The manufacturer estimated the diminished value at $4,500 and the insurance company’s estimator (i.e. hired gun) estimated only $2,500. At trial both experts testified and the jury awarded only $2,500. During our presentation of evidence, we were not permitted to put on evidence that the insurance company paid the repairs bills, the rental vehicle for several weeks, and that it would be the insurance company that would also be responsible and pay any judgment for the diminished value. When questioned afterwards, a juror informed us that during deliberations the jury was upset that the innocent-driver brought a lawsuit against the at-fault driver “rather than the insurance company” who they felt should be responsible.
INJURY & MEDICAL CLAIMS:
Similarly, if we take the above hypothetical example, a visit following an accident to the ER could easily run from $3,000 - $10,000 with the hospital, doctor and radiology bills if an MRI is performed. A few follow up visits to a family doctor can run a few hundred per visit and a course of therapy with a chiropractor (2-3 visits per week for a 1-3 months) could run easily $3,000. The innocent-driver may also be unable to return to work and therefore may miss several weeks of work until released. Under our state’s law, one is permitted to recoup medical expenses that are reasonable and related to the injury, lost wages as well as an amount for pain and suffering. At trial, the plaintiff-victim will be permitted to submit his/her medical records, bills and lost wages. There is no document or formula for “pain and suffering” and therefore that is left solely up to the determination of the 12 jurors.
During the presentation of evidence, the victim is not permitted to introduce the at-fault driver’s insurance coverage (although the plaintiff is permitted and the defendant is required to produce a copy of it) that has been provided which outlines the amounts that the insurance company must pay. Therefore, the jurors may be under the belief that because the driver or at-fault driver is being sued, that the individual will have to open up their checkbook to write a check for the damages rather than the insurance company.
WHY?
Under Rule 411 of the NC Rules of Evidence (Chapter 8c of the N.C. General Statutes), evidence that someone has or is without liability insurance coverage is not admissible. This means a victim is not permitted to offer evidence that although he/she has sued an “individual” person (who paid premiums for coverage in the event of an unfortunate event), that it is the insurance company who will pay the verdict for the wrong-doing. The fear could be that if the jury knew that it was the “insurance company” that was paying rather than the “person’ then the jury would lose its conscience and award exorbitant amounts.
Many persons do not have medical insurance coverage, and if they do, the coverage can vary greatly. Some persons may have little to no co-pays and/or deductibles while many have no coverage or only catastrophic coverage with very high deductibles. This information is not permitted to go to the jury either. The only evidence that goes to the jury are the amounts charged by the medical providers and those are the numbers that the jury should base its award upon. However, even if a victim has medical insurance, there is often a “subrogation” clause either in the contract or imposed by law (including state and federal employees coverage, teachers, Medicare, Medicaid, etc.) which may require that the victim reimburse his/her medical ins. company with any recovery from a verdict, meaning, they can end up with nothing.
THINGS TO REMEMBER AT A JURY TRIAL
- The word insurance will not be mentioned;
- Although a person is usually sued (driver or a negligent doctor), neither their auto nor medical malpractice insurance carrier/company will be;
- Insurance and Malpractice Insurance coverage is required to be turned over to the victim’s attorney if requested
- Most injury cases are handled on a contingency fee basis meaning that the attorney gets a % of the amount awarded by the jury
- Most injury cases verdicts (auto accidents, med malpractice claims, etc.) are paid by the insurance company
- Almost no attorney will take a case to trial if there is no insurance coverage;
- Almost every attorney agrees to take these cases on a contingency fee basis which means that the victim's recovery is less than what the actually awards, but this is not mentioned to the jury either.
This article was written by attorney Ron Trimyer, feel free to email me at ron@mastfirm.com.
