I recently wrote a blog about the “T” word: Tickets, here. Today’s blog is about another word lawyers cannot use in front of the jury: Insurance. More specifically, that the defendant has Insurance. There is no automatic mistrial, but the courts often grant one. See Hollenbeck v Hooks.

All injury and death cases start by filing a lawsuit against a defendant. The lawyer names the defendant, but the defendant’s insurance company is never joined in the suit. Why not? When the Judge starts a trial he asks the jury have your heard of this case: and then he names the parties. For example:  “This is the case of Robert Smith vs Sam Jones and Allstate Insurance Company.” By naming an Insurance company the Jurors knew Sam Jones had insurance.  The insurance companies were convinced in 1976 that verdicts were inflated when Jurors knew there was insurance so the insurance industry lobbied  the Florida legislature to make some changes.

Ever since 1976 in Florida a lawyer cannot join the defendant’s insurance company. The result: jurors are not aware that a powerful insurance company is sitting in the room controlling the defense all the way from jury selection to final verdict, including the most important choice of all: whether to settle or not. So if you are called for jury duty, be aware of this information. Very few defendants have assets so in almost every Tort case, you can be sure there is insurance behind the defendant. A plaintiffs attorney will not take a case unless he can collect his fees and costs.

Thus the “I” word: Insurance cannot be mentioned in the presence of the Jury or it will likely result in a mistrial, and the case has to be started over again without a “tainted” jury.

Historically there was a period of time when lawyers sued the defendant and combined his insurance company. This was called “joinder.” In 1976 the Florida legislature enacted the non-joinder statute. Ever since then an insurance company cannot be sued as a co-defendant. FS 627.4136. Even though the insurance company is not a party, the legislature granted insurance carriers the unique right to recover court costs just as thought they were parties. FS 627.4136(2). And, even though carriers control all aspects of the defense, they do not have liability under the offer of judgment statute for a large verdict, which could have been avoided. In other words, carriers get their cake and can eat it too.   This results in two sets of rules, one for insurance companies and one for all others, and guess who wins?  The insurance companies, of course.  Here is what one Florida appellate court said about this heads we win, tails you lose situation:

The inequity is that when a plaintiff, such as Barnes, makes a successful offer of judgment, its recovery of attorney’s fees is limited to the defendant. The insurance carrier thus suffers no risk as to the award of attorney’s fees.This imbalance has been the comment of at least one appellate court judge, but nothing has changed.

In years past, plaintiffs had opposed having to pay the non-party insurance carrier’s costs under the offer of judgment statute. In holding the payment of costs advanced by one other than the named party to be appropriate, the Florida Supreme Court stated: “Failure to allow a cost award to a prevailing defendant who is insured, because of the fact of insurance coverage alone, gives the plaintiff and/or the plaintiff’s insurance carrier, an undeserved windfall.” Aspen v. Bayless, 564 So.2d 1081, 1082, 1083 (Fla.1990).

That was almost 40 years ago, and the Florida legislature has not addressed the inequity yet.  The legislators should be ashamed of themselves.

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