South Carolina Lawyer
Vol. 14, No. 1, Pg. 14.
South Carolina's substantial connection test for introducing evidence of insurance to prove witness bias
14South Carolina's "substantial connection" test for introducing evidence of insurance to prove witness biasBy J. Christopher ClarkIntroduction
South Carolina courts have traditionally refused to allow evidence of insurance coverage to enter the trial of a case. See, e.g., Norris v. Ferre, 315 S.C. 179, 182, 432 S.E.2d 491, 493 (Ct. App. 1993) ("Our Supreme Court has been meticulous in keeping the issue of insurance coverage away from the jury"). This judicial aversion to insurance evidence stems from the concern that an insurer's relative wealth might lead to jury awards based solely on the insurer's ability to pay. 2 Wigmore, Evidence § 282a, at 133-34 (1940). Thus the mere mention of the term "insurance" during testimony has often triggered motions for -and occasional orders granting - mistrial. Horsford v. Carolina Glass Co., 92 S.C. 236, 75 S.E. 533 (1912) (declaring mistrial).
16The adoption of South Carolina Rule of Evidence 411 in 1995, however, put the issue of insurance coverage back into play. Rule 411 generally prohibits admission of insurance evidence for purposes of assessing liability, but allows admission of such evidence for a variety of other purposes, such as proof of agency, ownership or bias of a witness. In Yoho v. Thompson, 345 S.C. 361, 548 S.E.2d 584 (2001), the S.C. Supreme Court recently joined a small number of jurisdictions which hold that insurance evidence may be used to establish witness bias only when the examining party establishes a "substantial connection" between the witness and the insurer.
This article discusses the Yoho decision in detail and briefly addresses the decisions of other jurisdictions that have adopted the substantial connection analysis. The article concludes with some suggestions for practitioners on both sides of the bar on how to confront the introduction of insurance evidence to prove witness bias in light of the Yoho decision.
Yoho v. Thompson
In 1994, Thomas Yoho's car was allegedly rear-ended by Marguerite Thompson's vehicle. A lawsuit ensued, and Thompson admitted liability before trial. Thompson's liability carrier paid the limits of her policy, and Yoho's underinsured carrier, Nationwide Insurance, assumed the defense. Nationwide challenged Yoho's damages claim and proferred Dr. William Brannon as the defense's expert witness. Dr. Brannon testified that Yoho received unnecessary treatment and was possibly seeking a secondary benefit from the accident.
The plaintiff sought to cross-examine Dr. Brannon about his employment relationship with Nationwide. Counsel offered a prior statement by Dr. Brannon explaining that "I do a fair amount of consulting with Nationwide Insurance Company and the reason for that is that I've been invited to give lectures to their agents and adjusters." The trial court refused to permit the examination.
The Court of Appeals upheld the trial court's decision. The court reasoned that Yoho was not prejudiced by the exclusion of evidence establishing Dr. Brannon's relationship with Nationwide because other means existed to establish Brannon's bias. For example, Yoho could inquire about the number of times Brannon had testified for defendants. Similarly, Yoho was free to inquire into Brannon's...