Judges should be cautious in instructing jurors that they should not be concerned about the source of payment of any damage award, as such a statement may put into the jurors’ minds the idea of insurance, which is an improper consideration.36
It is appropriate for a judge to inform the jury that damages for personal injury or wrongful death are not subject to federal or state income tax, to avoid the risk that the jury may consider it on its own and vary its award in accordance with its opinion as to taxability.37 It is also appropriate to inform the jury that any award to the plaintiff may be subject to payment of attorneys’ fees.38
36. Stuart v. Rizzo, 242 A.2d 477, 478 (Del. 1968). For a discussion of reference to insurance at trial, see § 20:3.
37. Abele v. Massi, 273 A.2d 260, 261 (Del. 1970).
38. Sammons v. Ridgeway, 293 A.2d 547, 551 (Del. 1972). For a discussion of attorneys’ fees and costs in a civil case, see §§ 28:5, 28:11.
© 2010 David L. Finger