EvidenceProf Blog

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

Thursday, February 18, 2021

Fifth Circuit Finds Evidence of Independent Contractor's Expired Insurance Admissible to Prove Casino's Negligent Hiring

Federal Rule of Evidence 411 states that

Evidence that a person was or was not insured against liability is not admissible to prove whether the person acted negligently or otherwise wrongfully. But the court may admit this evidence for another purpose, such as proving a witness’s bias or prejudice or proving agency, ownership, or control.

So, can a plaintiff use evidence that a defendant hired independent contractors without liability insurance under Rule 411? That was the question addressed by the Fifth Circuit in its recent opinion in Echeverry v. Jazz Casino Company, L.L.C., 2021 WL 609015 (5th Cir. 2021).

In Echeverry,

Jazz Casino Company, doing business as Harrah's New Orleans Casino, hired Alabama Wildlife Removal (“AWR”) as an independent contractor in January 2017 to remove birds from palm trees near the Casino. On February 16, 2017, during the second week of the project, Echeverry stood near the worksite in front of the Casino as she waited to cross an adjacent street. AWR was using a manlift to reach the treetops. As the manlift was being moved from one group of trees to another, it struck Echeverry, running her over and causing a comminuted fracture in her lower right leg and ankle. The AWR employee serving as the flagman had not alerted Echeverry to the movement of the manlift as he passed her.

The jury subsequently found the Casino negligent and assigned it 49% of the fault. Remaining fault was assigned to AWR (50%) and Echeverry herself (1%). On appeal,

[t]he Casino argues that the district court's admission of evidence of AWR's expired certificate of insurance entitles it to a new trial. The Casino relie[d] on Federal Rule of Evidence 411, which makes inadmissible the existence or nonexistence of insurance for purposes of proving or disproving a party's negligence.

The Fifth Circuit, however, found this argument inapposite, concluding that "[h]ere, AWR's lack of insurance was not admitted on the issue of AWR's negligence but to prove the Casino's negligence in hiring AWR."

I agree with this conclusion and analogize it to cases in which plaintiffs sue defendants for negligent hiring and seek to introduce character evidence. For example, if a plaintiff sues a city for negligent hiring after being struck by a city bus driver by a driver with a history of DUIs, (1) the plaintiff could not use the DUIs to prove the driver's bad character; but (2) the plaintiff could use the DUIs to prove that the city was negligent in hiring the driver. See Federal Rule of Evidence 405(b).



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A couple things:

(1) The conclusion seems right to me as well. Also, didn't the court slightly misstate the rule? The court said it prohibits admitting such evidence "for purposes of proving or disproving a party's negligence". However, isn't that exactly what happened here? That is, the evidence was admitted to prove negligence of the Casino, which is a party. Under the court's description of the rule, that shouldn't have been allowed. But the rule actually just forbids admitting the evidence to show negligence/wrongdoing of the same person who had or lacked insurance. Here, that was AWR. I realize the misstatement had no impact on the bottom-line conclusion in this particular case, which, again, was correct. But the court should be a little more precise in its description. For example, that language—instead of the actual rule text—might be quoted by another court later on.

(2) The court denied rehearing/en banc rehearing, but reissued the panel opinion, which originally came down on Jan. 11. Presumably, the panel opinion must have been modified in some way, but it wasn't clear how. Does anyone know the changes that were made?

(3) Between this and the Hard Rock incident in 2019, the areas surrounding NOLA casinos seem to be a little dangerous in recent years. You could almost say that going near one is gambling with your safety.

Posted by: hardreaders | Feb 18, 2021 8:13:00 PM

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