If your limited tort case doesn’t settle, you may go to trial. There, the lawyers are generally not permitted to mention insurance in front of the jury. Rather, the judge will instruct the jury to decide whether it believes the evidence supports a finding that the Plaintiff suffered a substantial impairment of an important bodily function (to overcome the limited tort election described); but even then, the judge will not mention the word “insurance” or “limited tort.”
So why not?
The mere mention of insurance might make a jury think the dispute is “covered by insurance” and therefore no money need be awarded by the jury. Or, if the reference is to the defendant having liability insurance, the jury might improperly infer that he acted carelessly, causing the plaintiff’s injuries, since he had insurance to cover the harm either way.
Neither inference is fair or permissible. So reference to “insurance” at trial is a big no-no.
What happens if a lawyer mentions insurance to the jury — either by accident or otherwise?
Making reference to insurance — including “limited tort” — can be grounds for a mistrial. In Dolan v. Carrier Corp., 623 A.2d 850, 853 (Pa. Super. 1993), the court held that evidence of insurance is irrelevant and prejudicial and justifies the grant of a mistrial.
The same decision was reached in Price v. Guy, 735 A.2d 668, 672 (Pa. 1999). In that case, the Supreme Court found reversible error where the trial court informed the jury that the plaintiffs had elected the limited tort insurance option and that such election resulted in their paying lower premiums, to include situations where the trial attorneys—and not just the court—”impermissibly introduce[] the concept of limited tort” to the jury. Coker v. S. M. Flickinger Co., 625 A.2d 1181, 1184-85 (Pa. 1993) (internal citations omitted).
“The general rule in Pennsylvania is that evidence of insurance is irrelevant and prejudicial and justifies grant of a mistrial.” Paxton Nat’l Ins. Co. v. Brickajlik, 552 A.2d 531, 533 (Pa. 1987). See also Pa.R.E. 411 (“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. That said, reference to insurance can be admitted for another purpose, such as to show a witness’s bias or prejudice or proving agency, ownership, or control.”).
Thus, the courts have also held, “the mere mention of the word insurance by a witness during trial does not necessitate a new trial. There must be some indication that the defendant was prejudiced.” Phillips v. Schoenberger, 534 A.2d 1075, 1078 (Pa. Super. 1987) (citing Pushnik v. Winky’s Drive In Restaurants, 363 A.2d 1291, 1297 (Pa. Super. 1976) (en banc)) (brackets omitted).
This issue came up again recently (2021) in the non-precedential opinion Ciarlante v. Clark, Pa: Superior Court 2021. There, an attorney had asked a witness about “limited tort,” to which the opposing counsel objected. The objection was sustained, thus no testimony was elicited in regard to insurance. The judge allowed the trial to go forward and denied the motion for a mistrial. On appeal, the superior court held:
The trial court found that Ciarlante did not suffer the requisite prejudice for a grant of new trial because the court: (1) sustained Ciarlante’s objection; (2) immediately explained to the jurors that it would instruct them on the law; and (3) properly instructed the jurors on the element of “serious impairment of a bodily function.”[7] See Trial Court Opinion, 2/10/20, at 16-17.
Here, we find the trial court’s determination that Ciarlante has failed to demonstrate the requisite prejudice was not an abuse of discretion.[8]
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