APPEAL AND ERROR - BAD FAITH OF COUNSEL AS A BASIS FOR GRANTING A NEW TRIAL WHERE FACT THAT DEFENDANT WAS INSURED WAS BROUGHT TO ATTENTION OF JURY

It is generally agreed that the jury in a personal injury action should not be informed that the defendant is covered by indemnity insurance. The reasons for the rule are that the matter of insurance is irrelevant, and that the exposition of its existence is prejudicial. The jury is likely to grant more and larger verdicts for the plaintiff when it is known that an insurance company, rather than the individual defendant being tried, will have to pay the judgment. However, the fact that the defendant is insured reaches the jury in a multitude of ways.

While direct evidence of insurance is inadmissible as such, it may be introduced if it bears on· some material issue. Also, the jury is quick to realize that an insurance company is involved when, upon the voir dire examination, each prospective juror is questioned as to his and his family's interest in any insurance company. Often the matter comes in inadvertently, as where the witness' answer mentioning insurance is unresponsive to the question asked. Finally it may be brought to the jury's attention through the wilful misconduct of counsel.

In those exceptional situations where evidence of insurance is admissible the introduction of such evidence clearly does not constitute error, but when the matter of insurance is clearly inadmissible, and yet the matter does get before the jury, many courts will grant the defendant a new trial if the opposing counsel acted wilfully, and will deny a new trial if opposing counsel acted in good faith. This comment is addressed to this distinction.