Kentucky

Recent decision analyzed at Kentucky Tort and Insurance Law Journal busts the old saw that the mention of insurance amounts to a mistrial. 

What is really important about this is that there is actually a syllogism to follow regarding a ruling that the mention of insurance was improper.  As Mr. Brutscher noted --

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.

I attended a hearing recently on the defendant insurer's motion to bifurcate the UIM (underinsured motorist) claim and was surprised that the general defense objection was basically "insurance is a bad, bad word; a very bad word".  However, the rule is limited to a. LIABILITY INSURANCE but b. used to prove negligence. 

Well, within the context of UIM and the post Earle v. Cobb world (held improper to bifurcate UIM claim when liability limits advanced to preserve subrogation claim) and Stinson v. Mattingly (COA opinion not final as pending discretionary review at SCOKY but held that it was also improper to bifurcate UIM claim even when liability limits were neither tendered nor advanced), then the older analytical framework automaton objection premised solely on the mere mention of the "verbotten" word of "insurance."  Insurance defense counsel usually hark back to the decisions over a half century old which discuss the aroma of the insurance perfume which is the evil to be avoided.  Thus, these older "insurance" mention decisions are suspect in light of KRE 411 (and its interpreting decisions) and Earle v. Cobb since the mention of liability insurance within the context of a UIM claim is a contractual element of proof and has no relationship to proving negligence of a party!!

Thus when the "reason" for the rule goes, the rule no longer has reason in its application in the absence of another reason for the rule!  I thank Ed for his post as a reminder that the basics must not be forgotten.

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.