Missouri Injury Law Blog

Many people not familiar with the Missouri personal injury legal process often get confused as to the issue of auto insurance versus the individual driver that caused the car accident. If the driver had auto insurance your claim is against the individual driver but the auto insurance company "indemnifies" the driver, or pays for the amount they owe as a result of the injuries caused. Additionally, the insurance company appoints and pays a lawyer they use, technically, the driver is the insurance lawyer's client, but in reality the insurance lawyer is looking out for the company that pays their bill, the auto insurer.

If the car insurance company will not settle the auto accident claim and a lawsuit is necessary, in most cases, the Missouri car accident lawsuit is against the driver, not the insurance company, however, as stated above, the insurance company foots the attorney bills and typically pays any settlement, judgment, or verdict.

In most cases the Jury is NOT told about auto insurance, as it is considered irrelevant under the Missouri collateral source rule. There are exceptions to this rule and other ways to get the issue of insurance in the juries minds. This is important as a jury could be reluctant to fully compensate an injured victim based on worries about whether or not the individual defendant driver can pay or if it will be an undue hardship for them to pay. A few years ago a St Louis jury returned a verdict in favor of my client in a car accident case. The verdict amount was good and double what the insurance company offered before the case, but it was not a great verdict. When I asked the jury, after they were dismissed by the judge, why they did not find a larger verdict, most of them told me, we felt sorry for the driver and did not want her to have to pay more. Example of a case where no one on the jury knew or assumed there was auto insurance. In fact when I asked them about auto insurance they stated they assumed there was no insurance because we did not tell them there was.

This insurance issue must be addressed and every good trial lawyer knows it. IT can be addressed as follows:

1. The "Insurance Question" During Voire Dire:

"Voire dire" or jury selection is the beginning of a trial where a pool of potential jurors is questioned top make sure they are an appropriate juror for the case. One of the questions that can be asked is called "The Insurance Question". Under Missouri law the Plaintiff's lawyer can ask the jury if they have any affiliation or interest in _______ Insurance Company. Cannot state it is the defendant driver's insurance company.

The accepted procedure in Missouri for asking the preliminary "insurance question" includes 1) first getting the judge's approval of the proposed question out of the hearing of the jury panel, 2) asking only one "insurance question," and 3) not asking it first or last in a series of questions so as to avoid unduly highlighting the question to the jury panel. Callahan v. Cardinal Glennon Hosp., 863 S.W.2d 852, 871 (Mo. banc 1993). The form of the question is at the trial court's discretion. However, it generally encompasses whether any members of the panel or their families work for or have a financial interest in the named insurance company.

2. Get the Jury Panel Talking About Insurance:

Inevitably, during voir dire, a juror will bring up auto insuance, a lawyer must be careful in doing so, but to the extent you can, a good Missouri injury lawyer will follow up with quesitons like "tell me more about that" or "anyone else feel the same way?" to get the jury discussing the issue of insurance coverage. There is no rule against the jury telling each other about insurance coverage!

3. Defense Lawyer is Employed by the Auto Insurer:

Oftentimes, the insurance defendant lawyer is directly employed by the auto insurance company. In that situation the court, in its discretion, can allow an additional insurance question, but even the best Missouri injury lawyers must be very careful not go over the line or they may risk a mistrial. In Richter v. Kirkwood, 111 S.W.3d 504 (MO Ct App SD 2003) the trial court allowed the personal injury lawyer to ask the jury if any of them knew the defense lawyer or provided goods or services to his employer, Allstate Insurance. The case was appealed with one of the grounds for appeal was the trial court allowing this question. The Court of Appeals upheld the ruling that the question was proper, stating:

It was within the trial court's discretion to allow plaintiffs' attorney to show that defendant's attorney was an employee of Allstate to ascertain whether that circumstance would result in bias or prejudice on the part of prospective jurors.

4. Defense "Opens the Door" to the insurance issue:

The rules not allowing the Plaintiff to inject insurance coverage into the case does not stop the defense from being able to do it, however, they would never intentionally do it. So if the defense lawyer or one of his witnesses brings up auto insurance coverage, they effectively waived their objection to it and it is now admissible. If it is a simple slip up in testimony, the extent you can follow up on it will remain within the discretion of the trial judge.

But, if the defense argues to the jury about not burdening the defendant with a money judgment, that clearly opens the door for a good St Louis car accident lawyer to immediately follow up with the jury that there is no evidence that the defendant would have to personally pay any money judgment and that they have auto insurance to cover them. The defendant "opens the door" the the issue of insurance when they make an argument that can only be rebutted by the discussion of the insurance.