Rule 411: Evidence of Liability Insurance (inadvertent or Incidental Mention of Insurance)

• Publication year: 1992
• Pages: 246
• Citation: Vol. 21 No. 2 Pg. 246

21 Colo.Law. 246 Colorado Lawyer 1992.

1992, February, Pg. 246. Rule 411: Evidence of Liability Insurance (Inadvertent or Incidental Mention of Insurance)

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246

Vol. 21, No. 2, Pg. 246

Rule 411: Evidence of Liability Insurance (Inadvertent or Incidental Mention of Insurance)

by Stephen P. Ward and Allen R. Christy

Q: Are all references to insurance prohibited?

A: CRE Rule 411 prohibits any reference to insurance when attempting to prove negligence. However, an inadvertent reference to insurance is not grounds for a mistrial.

ASSUMED FACTS

The plaintiff alleges that he was injured when the car he was driving was hit from behind by a delivery truck. Your firm represents the owner of the truck at the request of his insurance company.

The plaintiff has brought a civil action alleging negligence on the part of the truck operator, resulting in his injuries.

At trial, during the cross-examination of the fleet manager for the truck owner, plaintiff's counsel attempts to impeach his testimony with conflicting statements that were made in an earlier statement to the insurance adjuster. In one question to the fleet manager, specific reference is made to an "earlier statement to the adjuster." The question that includes reference to "the adjuster" is heard by the jury.

You subsequently move for a mistrial on the ground that reference to the insurance adjuster constitutes a violation of CRE Rule 411 that is prejudicial to your client.

ANALYSIS

CRE Rule 411 states in part:

Evidence that a person was or was not insured against liability is not admissible upon the issue whether he acted negligently or otherwise wrongfully.

In construing the rule, the Colorado Supreme Court has stated that

evidence of a party's liability insurance is irrelevant to the question of whether he acted negligently or otherwise, and as such, any allusion to insurance coverage is improper.(fn1) (Emphasis added.)

The bar has been held to extend to indirect references to insurance, including statements regarding "coverage" or "protection."(fn2)

However, not all references to insurance constitute grounds for a mistrial. In Jacobs, v. Commonwealth Highland Theatres, Inc.,(fn3) plaintiff was injured after falling in a theater. At trial, counsel for plaintiff made repeated references to "claims forms" during opening and closing arguments and, while questioning witnesses, made reference to "claims" and...