You walk out to your mailbox open it up and there it is, the dreaded Jury Duty Summons. Immediately, you begin to think about ways to avoid the impending date. Can you call in sick? How long is this going to take? What is the darn point? All of these concerns and questions are valid, and I will happily discuss jury duty in another article; but assume for a moment that you step up and fulfill your civic duty. You go to the roll call in a large court room and you are selected to serve on the jury in a civil case. You aren’t told much about the case, only that it’s a car crash case. No one will go to jail in this case as it’s a civil trial. As jurors your role will essentially be: 1) determine who was at fault in the crash; and 2) decide what, if any, injuries were caused or aggravated by the crash. If you determine the Defendant was at fault and that the crash caused or aggravated an injury to the Plaintiff, the law will require you to return a verdict compensating all the harms and losses suffered by the injured party (Plaintiff).
Harms and losses include, but are not limited to, medical bills, lost wages, property damage, inconvenience, mileage to and from doctor visits, scarring, deformity, permanent impairment to a body part, loss of vision, amputation, conscious pain, humiliation, psychological injuries, such as PTSD, and numerous other losses. Once you have considered all of these factors, you may say that the harms and losses suffered by the Plaintiff amount to $200,000 dollars. Despite the fact you firmly believe the loss amounts to the $200,000 dollars, you hesitate.
The hesitation comes from your concern for the Defendant. He seems like a decent fellow. Yes, he failed to yield the right of way and is 100% at fault, but it was just an accident! How on earth will he be able to pay a $200,000 dollar verdict? Will they throw him out of his home? Will they repossess his car? What will become of this man whose only sin was to violate a traffic law? The reality is nothing at all will happen to the individual Defendant in the almost every single auto accident case in South Carolina. Unless a rare exception, there is insurance available to the Defendant in virtually every automobile accident case tried in South Carolina. Even in scenarios where the at fault driver had no insurance, the Plaintiff’s own uninsured motorist coverage will step in to pay the verdict rendered up to their limits of coverage. In short, insurance pays verdicts in an overwhelming majority of auto accident cases.
In my eleven years as a personal injury trial lawsuit in South Carolina, I have never been forced to execute a judgment against a Defendant in an automobile accident case. Virtually all of our verdicts and settlements have been paid for strictly from insurance proceeds. Despite this well-established fact, juries are never allowed to hear the word “insurance” during a trial as it relates to the Defendant. Rule 411 of the South Carolina Rules of Evidence states 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.” SCRE 411. South Carolina courts have interpreted this to mean the jury can’t know that the Defendant carries insurance, despite the fact they almost always do carry insurance or there is insurance in place to pay the verdict. See Dunn v. Charleston Coca-Cola Bottling Co. 311 SC 43; 426S.E2d 756 (1993). The courts have reasoned that if jurors know someone has insurance their verdict be prejudiced.
However, our courts here in South Carolina have never grappled with an equally pervasive prejudice that exists in jury deliberations - the reluctance to render a full and fair verdict because of concern about how the Defendant could ever afford to pay! While it is South Carolina common law that jurors should not consider the Defendant’s ability to pay when awarding actual damages, this fact often gets lost in the court room leaving jurors wondering about the issue of insurance. A common question from jurors during deliberations may be, “Does the defendant carry liability insurance?” Currently, the judge must respond that you are not to consider whether the Defendant has insurance or not. It is high time we started telling jurors the full story and stop the antiquated practice of withholding the existence of automobile insurance to jurors.