State Laws Give Insurance Companies Advantage In Trial
by Harry Graham
Insurance companies in Florida have long enjoyed unprecedented protections. These protections are largely secured by the insurance company’s outsized influence with pliant legislators at the expense of Florida’s citizens. Section 627.4136 of the Florida Statutes (the non-joinder statute), is particularly egregious. It has been on the books since 1976 and has the effect of bamboozling jurors into thinking that trial lawyers are suing helpless old ladies or naïve teenagers, rather than the multi-billion dollar insurance companies that are financing their own representation and calling all the shots.
The non-joinder statute is supposed to shield insurance companies from liability caused by jury bias. In reality, the insurance industry has used the statute as a sword against trial lawyers and their clients, conveying the false impression that individual defendants are on the hook for judgments entered against them, rather than the insurance companies whose decisions have put the defendant’s assets at risk.
The myth of no insurance at trial manifests itself in sneaky ways that undermines our civil justice system. I have seen insurance companies try to portray their insured as having financial difficulties. Even though the insured won’t pay any damages – the insurance company pays those – his lawyer will subtly try to convince the jury that finding for the plaintiff will bankrupt the hapless defendant. But that charade masks the true injustice: the multi-billion dollar insurance company hides its vast wealth behind its modestly appearing insured, often resulting in sympathy verdicts for the defendant and injustice for the injured plaintiff.
In a recent auto accident case of mine, the deliberating jury sent our judge this question: is there insurance available to pay for a verdict against the defendant? Based on the non-joinder statute, the trial judge properly replied that the presence or lack of insurance was not an issue the jury should be concerned with. Shortly afterwards, the jury returned with a very modest verdict against the very modestly dressed defendant. Would the verdict have been different if the judge told the jury that, yes, the defendant’s multi-billion dollar insurance company will pay the verdict?
Oftentimes, jurors are unaware of the trickery put on by the defense. They don’t realize that the liability insurance policy backstops the defendant, and that the defendant’s personal assets are not at risk. As a plaintiff’s attorney, I cannot be guaranteed that my jury is knowledgeable about the extraordinary length insurance industries go to in order to sanitize trials of any references to insurance. This can make it extremely difficult to prove my case. Many people don’t have liability insurance and if they are sitting on a jury they may be misled into believing that the defendant, like themselves, is completely exposed to a potentially crippling judgement if they rule in favor of the plaintiff. Unfortunately, we as plaintiff’s attorneys are precluded from exploring this issue in jury selection.
Florida’s non-joinder statute serves no valid public policy goal other than shielding the insurance industry and its vast profits. Its repeal would level the playing field in our justice system without leaving the insurance industry defenseless at trial.
Regardless of the jury’s knowledge that a defendant has a liability insurance policy, big insurance will continue to do what it has always done – to spend virtually unlimited sums of money on droves of law firms and experts to defend legitimate claims. Their goal is to make the litigation exorbitantly expensive for the injured plaintiff and the lawyers he’s paying for out of his own shallow pocket.
Big insurance will also continue to appeal adverse verdicts in the hopes of either getting plaintiff’s judgements reversed, or simply adding years to the process in hopes that the injured plaintiff will settle for less. A plaintiff’s verdict is merely an accounting entry for the insurance industry, while it is justice, accountability, and often a matter of financial survival for the injured plaintiff.
The non-joinder statute perpetuates injustice and serves no valid public interest. It should be repealed by the Florida Legislature. We should all be confident that our citizen juries will make the right decision when imparted of such relevant information, and do justice for all parties involved.