Do jurors discuss insurance in deliberations when awarding damages?
The insurance exclusionary rule in civil trials prohibits disclosure to jurors about whether a party is insured to prevent, among other things, jurors adjusting damages awards because a party is insured.
Does silence about insurance during trial imply that jurors do not discuss the matter spontaneously during deliberations?
Jurors are aware of insurance, and often raise the issue spontaneously. For example, Diamond and colleagues (1989) described an accident case to jury-eligible adults, and nearly 25% spontaneously mentioned something about insurance.
Jurors often discuss insurance in deliberations, and adjust damage awards because of presumed insurance in approximately 1 in 7 cases. For example:
- Guinther (1988) found that in post-trial interviews of jurors in 38 civil trials that 29% of jurors discussed the plaintiff's insurance, and 13% said that they lowered their awards because the plaintiff was insured.
- Mott and colleagues (2000) found in post-trial interviews with 269 jurors from 36 different cases involving at least one business or corporate party that 35% of jurors said they discussed the possibility that the defendant was insured, that some jurors increased their awards as a result, and that 15% mentioned discussing the plaintiff's insurance.
- Diamond and Vidmar (2001) analyzed videotaped jury discussions and deliberations from actual trials as part of the Arizona Jury Project, and found that in cases in which insurance was not mentioned during trial, jurors spontaneously raised the issue in 80% of the cases studied. Approximately 40% of jurors voiced a concern about preventing a plaintiff from "double recovering" medical costs already paid by medical insurance. Jurors also raised their awards in response to others' observations that the defendant's insurance company would pay.
- Greene and colleagues (2008) studied 56 mock juries deliberating an automobile negligence case, and found that 84% mentioned something about the plaintiff's insurance and 75% discussed the defendant's insurance. With respect to the plaintiff's insurance, twice as many comments were voiced to reduce the damage award to avoid windfall profits to the plaintiff as were voiced to increase the damage award to ensure the plaintiff would be fully compensated. With respect to the defendant's insurance, the vast majority of the comments focused on the defendant not being personally responsible for paying the damages awarded to the plaintiff. Neither the amount of discussion about the plaintiff's insurance nor the amount of discussion about the defendant's insurance was significantly related to the size of damage awards.
In sum, most civil juries discuss the parties' insurance during deliberations and adjust awards in some cases. No uniform adjustment occurs across cases. Juries sometimes augment awards because of a defendant's insurance, sometimes reduce awards because of a plaintiff's insurance, and most often make no adjustment in the damages awarded.
Source Diamond, S., Casper, J. & Ostergren,L. (1989). Blindfolding the jury. Law and Contemporary Problems, 52, pp. 247-267.
Source Guinther, J. (1988). The Jury in America. New York: Roscoe Pound Foundation.
Source Mott, N., Hans, V. & Simpson, L. (2000). What's half a lung worth? Civil jurors' accounts of their award decision making. Law and Human Behavior, 24, pp. 401-419.
Source Diamond, S. & Vidmar, N. (2001). Jury room ruminations on forbidden topics. Virginia Law Review, 87, pp. 1857-1915.
Source Greene, E., Hayman, K. & Motyl, M. (2008). "Shouldn't we consider….?": Jury discussions of forbidden topics and effects on damage awards. Psychology, Public Policy, and Law, 14, pp. 194-222.