July 18, 2012 Articles

The Permissible Use of Evidence of Insurance Coverage

Depending on the facts and issues in the case, an insurance policy or indemnity agreement, or at least some reference to it, can easily end up in front of the jurors.

By Andrew P. Hoppes

Ask almost any litigator to complete this sentence: “Evidence of liability insurance coverage is . . . .” The usual answer will be something like “not admissible.” As a general proposition, that answer is accurate, but not in every situation.

Federal Rule of Evidence 411 codifying the admissibility of evidence of liability insurance is, as one commentator explained, “only an exclusionary rule in a limited sense.” David P. Leonard, The New Wigmore: A Treatise on Evidence: Selected Rules of Limited Admissibility, § 6.9 (rev. ed. 2002). While it bars admission of evidence of liability insurance “to prove whether the person acted negligently or otherwise wrongfully,” it allows admission of evidence of liability insurance “for another purpose, such as proving a witness’s bias or prejudice or proving agency, ownership or control.” Fed. R. Evid. 411.

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