§ 8.3 Insurance as Evidence
Library | Insurance Law in Oregon (OSBar) (2020 Ed.) |
§ 8.3-1 General Rule of Exclusion
It has long been the rule in Oregon that evidence of liability insurance should not be admitted during the trial of a lawsuit to indicate that the defendant is negligent or to create an inference of the defendant's ability to pay. Although the policies behind the rule have sometimes been unclear, the courts have consistently recognized that the mention of insurance before a jury can influence the jury's deliberations. The rule has been codified in both the Oregon Evidence Code (OEC) and the Federal Rules of Evidence (FRE). OEC 411 provides as follows:
(1) Except where lack of liability insurance is an element of an offense, evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully.
(2) Subsection 1 of this section does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proving agency, ownership or control, or bias, prejudice or motive of a witness.
FRE 411 is nearly identical to OEC 411.
Read literally, OEC 411 leaves much room for argument. For example, it only expressly excludes insurance as evidence to prove whether a person acted negligently or wrongfully. As pointed out by the conference committee when the rule was enacted in 1981, "[t]he inference of fault from the fact of insurance coverage is at best tenuous." Legislative Commentary to OEC 411(1), reprinted in Laird C. Kirk-patrick, Oregon Evidence § 411.02 (6th ed 2013) [hereinafter Legislative Commentary]. Although OEC 411 does not specifically deal with proof of insurance to show ability to pay, it is presumed that evidence offered for such a purpose would be excluded as irrelevant. The conference committee acknowledged that "the presence or absence of insurance may induce juries to decide cases on improper grounds," but the rule does not specify any other improper use of the evidence other than to prove fault. Legislative Commentary to OEC 411(1) at § 411.02.
OEC 411(2) specifically states that the exclusion of evidence of insurance is not required "when offered for another purpose," and suggests several permissible uses for the evidence (see § 8.3-2), but the list is not exclusive.
In addition, OEC 411 does not cover situations in which insurance may be inadvertently injected into the trial of a case, such as during voir dire, by a witness's nonresponsive answer, or in situations in which it is intentionally injected by submission to the jury of Uniform Civil Jury Instruction 16.01 (ability to pay). See § 8.4-1 to § 8.4-2 (reference to insurance at trial).
OEC 411 does not specifically deal with the use of evidence to show benefits already received by the plaintiff. Evidence in that context is covered by the collateral-source rule as set out in ORS 31.580. See § 8.3-4 (collateral benefits).
COMMENT: It is expected that the appellate courts in Oregon will continue to review cases involving the improper injection of insurance into evidence by following past precedent in addition to the literal application of OEC 411. In prior cases, the central question has always been whether the introduction of insurance was intentional or inadvertent and, more important, whether it was prejudicial. See, e.g., Blake v. Roy Webster Orchards, 249 Or 348, 354-56, 437 P2d 757 (1968) ("If insurance is not relevant, but has come into the case through inadvertence, whether or not to grant a mistrial is in the discretion of the trial court."); DeSpain v. Bohlke, 259 Or 320, 486 P2d 545 (1971); Lunski v. Lindemann, 270 Or 316, 527 P2d 254 (1974) ("The intentional injection of insurance in the trial of a personal injury case is ordinarily a ground for a mistrial unless the circumstances are such...
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