Mistrial

MENTION OF INSURANCE GROUNDS FOR A MISTRIAL?

By SHERRI RUGGIERI

The mention of insurance does not by itself “establish the degree of prejudice required as grounds for a mistrial or appeal” Runnacles v. Doddrell, 59 N.J.Super. 363, 368, 157 A.2d 836 (App. Div.1960).  As long as “the insurance is not featured or made the basis at the trial for an appeal to increase or decrease the damages, the information would seem to be without prejudice.” Krohn v. N.J. Full Ins. Underwriters Ass’n, 316 N.J. Super. 477, 482 (App. Div. 1998), certif. denied, 158 N.J. 74 (1999).

Nonetheless, New Jersey courts have routinely criticized the efforts of attorneys to make the jury aware of irrelevant and prejudicial facts surrounding insurance coverage.  (Pickett v.Bevacqua, 273 N.J.Super 1, 640A.2d 1173 (App.Div. 1994).  See Brandimarte v. Green, 37 N.J. 557, 563, 182 A.2d 562 (1962); Haid v. Loderstedt, 45 N.J.Super. 547, 550-52, 133 A.2d 655 (App.Div.1957); Hansson v. Catalytic Constr. Co., 43 N.J.Super. 23, 30, 127 A.2d 431 (App.Div.1956).  The Rules of Evidence instruct that a balancing must take place of “the probative value of information regarding whether a person is insured or not” versus “the potential for undue prejudice.”  Biunno, Current N.J. Rules of Evidence, comment to N.J.R.E. 411 (1998-99). One of the main reasons for the prohibition against a reference to insurance is that jurors may award damages based upon the perceived “deep pockets” of the carrier.  See Judson F. Falknor, Extrinsic Policies Affecting Admissibility, 10 Rutgers L.Rev. 574, 594 (1956).

However, every inappropriate, impermissible reference to insurance coverage in a liability action is not necessarily grounds for a mistrial. See Tomeo v. Northern Valley Swim Club, 201 N.J.Super. 416, 421, 493 A.2d 544 (App.Div.1985); Runnacles v. Doddrell, 59 N.J.Super. 363, 367-69, 157 A.2d 836 (App.Div.1960); Hansson v. Catalytic Constr. Co., supra, 43 N.J.Super. at 30, [640 A.2d 1175] 127 A.2d 431]. Resolution of the claim of mistrial depends upon the circumstances surrounding the insurance reference and “the impression of the attendant disadvantage visited upon the” party. See Haid v. Loderstedt, supra, 45 N.J.Super. at 550, 133 A.2d 655.

Sherri Ruggieri is the managing editor of Empire State News. A practicing attorney for over 20 years, Ms. Ruggieri is also chairperson of Edison Township’s Planning Board. Additionally, she has served as a college professor, with nearly a decade of experience in teaching law and political science courses.

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