Evidence that a person was or was not insured against injury resulting from the occurrence giving rise to the lawsuit is not admissible to prove negligence or wrongful conduct.27 Such evidence risks prejudice as it conveys to the jury the suggestion that the defendant is not concerned with the amount of the verdict because it would be paid by the insurer.28 Reference to an insurance policy owned by a plaintiff is also prejudicial because, by identifying an alternate source of payment, it may inhibit a jury from awarding full compensation. The jury should be concerned only with fault, and not with who will pay a judgment. Knowledge that a plaintiff can recover from his or her own insurance company is also prejudicial to the plaintiff’s case because it may cause the jury to speculate as to the plaintiff’s motives in bringing suit.29
Reference at trial to liability insurance is not prejudicial per se.30 Evidence of ownership of an insurance policy may be admissible if offered for a purpose other than to establish liability, such as proof of agency, ownership or control, or bias or prejudice of a witness.31 If a party makes an improper reference to liability insurance during the trial, the error can often be cured by the trial court instructing the jury to disregard such evidence.32 The determination whether the reference to insurance is so flagrant as to require a mistrial is within the discretion of the trial judge.33
27. D.R.E. 411. See also Concord Towers, Inc. v. Long, 348 A.2d 325, 327 (Del. 1975); Chavin v. Cope, 243 A.2d 694, 696 (Del. 1968); Kaufmann v. McKeown, 193 A.2d 81, 82 (Del. 1963); Hoffman v. Cohen, 538 A.2d 1096, 1102 (Del. 1988); Catalfano v. Higgins, 188 A.2d 357, 359 (Del. 1962); Murray v. James, 326 A.2d 122, 123 (Del. Super. 1974); Dc Vincentis v. Maryland Casualty Co., 325 A.2d 610, 612 (Del. Super. 1974); Steenburg v. Harry Braunstein, Inc., 77 A.2d 206 (Del. Super. 1950); Clark v. Simon, C.A. No. 85C-MY-l, slip op. at 6, Lee, J. (Del. Super. Nov. 9, 1992), reh’g denied, C.A. No. 85C-MY-l, Lee, J. (Del. Super. Dec. 9, 1992); Todd v. Tigani, C.A. No. 88C-NO-160, slip op. at 17, Herlihy, J. (Del. Super. Nov. 15, 1990); Dixon v. Reid, C.A. No. 86C-NO-14, slip op. at 12, Steele, J. (Del. Super. July 26, 1990); Connelly v. Willey, C.A. No. 86C-OC-132, slip op. at 3 (Del. Super. Mar. 20, 1990); Virdin v. Hindt, C.A. Nos. 85C-JL-19, 85C-NO-19 & 87C JL-27, slip op. at 2-3, Ridgely, J. (Del. Super. Nov. 6, 1989) (ORDER).
28. Blatz v. Wilson, 170 A. 808, 809 (Del. 1933).
29. Gillen v. Proth, C.A. Nos. 357 & 1269, slip op. at 2, O’Hara, J. (Del. Super. Jan. 15, 1975), aff’d mem., 364 A.2d 650 (Del. 1976).
30. Chavin v. Cope, 243 A.2d 694, 696 (Del. 1968); Lord v. Poore, 108 A.2d 366, 377 (Del. 1954); Blatz v. Wilson, 170 A. 808, 810 (Del. 1933); Neutz v. Justice, C.A. No. 86C-06-88, slip op. at 2-3, Herlihy, J. (Del. Super. May 13, 1993), aff’d mem., 634 A.2d 938 (Del. 1993) (mention of automobile insurance not prejudicial per se since all automobiles registered in Delaware must be insured, and the jury knew or should have known that fact); Shaw v. Metzger, C.A. No. 77C-DE-1O1, slip op. at 1-3, Taylor, J. (Del. Super. Apr. 22, 1985).
31. D.R.E. 411.
32. Chavin v. Cope, 243 A.2d 694, 696 (Del. 1968); Blatz v. Wilson, 170 A. 808, 810 (Del. 1933). See also Lord v. Poore, 108 A.2d 366, 370 (Del. 1954).
33. Chavin v. Cope, 243 A.2d 694, 696 (Del. 1968).
© 2010 David L. Finger