EvidenceProf Blog

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

Saturday, March 27, 2010

Take Out Some Insurance: Court Of Appeals Of Kentucky Notes Exceptions To Rule 411 But Finds Them Inapplicable In Car Crash Appeal

Like its federal counterpart, Kentucky Rule of Evidence 411 provides that

Evidence 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.  

As the recent opinion of the Court of Appeals of Kentucky in Akers v. Cross, 2010 WL 1133083 (Ky.App. 2010), makes clear, there are exceptions to this rule although the court ultimately found that they did not apply in the case before it.

In Cross,

an automobile accident...occurred on January 5, 2004, between vehicles operated by Jerry Akers and...Rose Mary Gensler Cross. The Akers named Cross and State Farm (in its role as the Akers' underinsured carrier) as defendants, and both Cross and State Farm retained counsel and filed answers. Coincidentally, State Farm was also the general liability carrier for Cross.

During proceedings connected to the accident, State Farm never chose to preserve its subrogation rights against Cross by offering to pay the Akers the liability limits of Cross' policy; however, State Farm did attend and elicit some testimony at the deposition of one of Akers' experts. After this deposition,

State Farm moved the trial court to bifurcate the Akers' [underinsured motorist] claim from its automobile negligence claim, in order to excuse it from participating at the trial and prohibit the Akers from identifying it as a party before the jury. The Akers opposed State Farm's motion, arguing that State Farm must be identified to the jury because it chose to participate in [the expert]'s deposition and, thus, actively participated in the proceedings....[T]he trial court granted State Farm's motion. The Akers moved the trial court to reconsider, and the trial court denied their motion....

After trial, the jury found in favor of Cross, Akers appealed, claiming that State Farm should have been identified to the jury. The Court of Appeals of Kentucky noted that evidence of liability insurance is generally admissible to show culpability under Kentucky Rule of Evidence 411. The court noted, however, that there are several exceptions to this rule, including two which might have applied in the case before it:

The first exception holds that where an uninsured or underinsured motorist carrier with a direct contractual obligation to the plaintiff elects to participate actively in the trial, it may not do so anonymously; rather, it must reveal its identity to the jury....The second exception holds that, in the absence of “active participation” in defending the action, that same carrier must still reveal its identity to the jury if it chose to preserve its subrogation rights....This result is mandated even if the carrier only participated in discovery and pretrial motions.

The court then quickly found that the second exception did not apply and found that the first exception did not apply because

neither a representative nor counsel for State Farm attended the trial. And, we do not construe a few questions by State Farm at one deposition as actively participating in the proceedings. Moreover, the Akers have failed to produce any authority demonstrating that this exception should encompass State Farm's very limited participation.



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