EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Friday, April 25, 2008

What's The 411? Kentucky Court Finds Rule Of Evidence 411 Doesn't Cover Health Insurance

The Court of Appeals of Kentucky's recent opinion in Barkman v. Overstreet, 2008 WL 1052931 (Ky.App. 2008), contains an interesting discussion of Kentucky Rule of Evidence 411, which is identical to Federal Rule of Evidence 411.  Both indicate that "[e]vidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness."  There are two main reasons for Rule 411.  The first reason is the belief that such evidence has low or no probative value on the issue of whether someone acted negligently/wrongfully.  According to the Advisory Committee Notes to Rule 411, "[a]t best the inference of fault from the fact of insurance coverage is a tenuous one, as is its converse."  In other words, in, say, a case where a guest is injured at a defendant's home, do we infer (1) that a person with homeowner's insurance is likely to keep his home less safe than someone without homeowner's insurance because he knows that he is covered in the event of an accident; or (2) that a person with homeowner's insurance is a person who desires safety and is thus likely to keep his home more safe than someone without homeowner's insurance?  According to the Advisory Committee, either inference is weak, making liability insurance inadmissible to prove/disprove negligence or otherwise wrongful conduct.

The second, "[m]ore important," concern according to the Advisory Committee Notes is the concern "that knowledge of the presence or absence of liability insurance would induce juries to decide cases on improper grounds."  In other words, in the case mentioned above, jurors might ignore the absence of evidence of negligence on the homeowner's part if they know that he has homeowner's insurance  because they know that a judgment against him will not come directly out of his pocket.  Conversely, if the guest is seeking significant monetary damages, and the jurors know that the defendant has no homeowner's insurance, they might ignore significant evidence of negligence based upon the knowledge that a verdict against the defendant could put him in financial distress.

So, how does this all relate to the Overstreet case? Well, in Overstreet, while Tammy Barkman was driving her car, a large tree limb fell on her car, crushing the top of the vehicle and causing Barkman to lose control and wreck. She was thereafter transported to the emergency room at Ephraim McDowell Regional Medical Center, and upon admittance,  Barkman could move her arms and legs but was complaining of pain all over her body.  Barkman was initially examined and treated by Dr. John Heiss, who later contacted Dr. David Overstreet, her primary care physician.  Dr. Overstreet thereafter examined and treated Barkman.  However, despite receiving treatment, Barkman permanently suffered paralysis of all four limbs and filed a medical malpractice action against Ephraim McDowell Regional Medical Center, Heiss and Overstreet. 

At trial, Barkman's attorney asked Overstreet, "OK, so you are saying that you just made up this loss of consciousness?"  He responded, "I didn't make it up. I didn't make it up. But, uh, you know, the insurance companies and you guys are the ones that force us into these pigeon holes."  Barkman thereafter asked the trial court to declare a mistrial because Overstreet had intentionally mentioned insurance, but the trial court denied Barkman's request and also denied her request for an admonition regarding Overstreet's use of the word "insurance."  On appeal, the Court of Appeals of Kentucky affirmed, finding that:  "Placing Overstreet's remark into its proper context, it becomes apparent that Overstreet was referring to health insurance not liability insurance. Because KRE 411 applies only to liability insurance, we conclude the trial court did not abuse its discretion when it denied Barkman's motion for a mistrial and her request for an admonition."

So, did the court rule correctly?  I believe that it did.  Essentially, liability insurance is insurance that pays on behalf of the insured for certain types of injuries to others.  Health insurance does not seem to fall under that definition of liability insurance, so the Kentucky court's ruling seems correct and consistent with the rulings of courts in other states. See, e.g., Cervantes v. Rijlaardsam, 949 P.2d 56, 58 (Ariz.App. Div. 2 1997) ("Second, Evidence Rule 411 specifically applies to 'insurance against liability' and does not mention health insurance.").



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