THE “INSURANCE” JURY INSTRUCTION

I wrote recently about Washington ER 411 and how it usually prevents a defendant’s liability insurance from being mentioned at trial. Will the Jury Know about the Insurance Company?  The natural question to ask, faced with that reality, is: “So won’t the jurors think this defendant is uninsured and take pity on them, resulting in a lower award than I am entitled to?” It’s a fair question, and always of concern to us. Pity or sympathy is not supposed to play into a juror’s deliberation, but we know it can.

Jurors are usually instructed on this topic, however. Washington Pattern Jury Instruction 2.13 states:

Whether or not a party has insurance, or any other source of recovery available, has no bearing on any issue that you must decide. You must not speculate about whether a party has insurance or other coverage or sources of available funds. 

You are not to make or decline to make any award, or increase or decrease any award, because you believe that a party may have medical insurance, liability insurance, workers’ compensation, or some other form of compensation available. Even if there is insurance or other funding available to a party, the question of who pays or who reimburses whom would be decided in a different proceeding. Therefore, in your deliberations, do not discuss any matters such as insurance coverage or other possible sources of funding for any party. You are to consider only those questions that are given to you to decide in this case.  

This instruction doesn’t come out and tell jurors that insurance is lurking in the background of the case, but hopefully it at least reassures them not to worry about it or let the fact that it has gone unmentioned in the trial sway their verdict.