Most automobile accident cases in Pasco County (and throughout Florida) are settled prior to a full blown jury trial on all issues. Today, however, I am going to address a law that I think is unjust to the injured Plaintiff when a jury trial against the at-fault driver does occur. In fact, it’s somewhat of a charade, and allows big insurance companies (and their attorneys) to attempt to fool the jury into thinking that the defendant herself will potentially suffer great financial harm as a result of the verdict. The Florida Statute in question is called “Nonjoinder of Insurers,” and is found at FL Stat §627.4136.

To understand the Nonjoinder statute, let’s work with the following hypothetical: Bryan, a 42 year old father of 3, is rear-ended at a high rate of speed while he is safely stopped at Main Street & US 19 in New Port Richey. Beatrice, a 76 year old female, was distracted and never even applied her brakes, causing neck and back injuries to Bryan. Beatrice is not a “bad person,” and civil cases most of the time are not about bad people vs. good people. In fact, Beatrice, a grandmother of 7, is a very pleasant and warm person who did not want to hurt anyone, but was distracted and careless on this occasion. The accident is unfortunate, but regardless of how nice Beatrice is, Bryan has suffered lost wages, extensive medical bills, and has been forced to alter his life to some degree. Fortunately, Beatrice has an automobile liability policy through USAA that will be sufficient to cover Bryan’s losses; therefore, she will not be financially harmed by her mistake that caused the car accident.

All of that said, in the context of Bryan and Beatrice, what does the Nonjoinder statute mean, if this auto accident case goes to Court. First, it means that should the case not settle, when the lawsuit is file, Bryan can only sue Beatrice in a personal capacity. In other words, he cannot sue USAA, meaning he cannot name USAA as a party. However, the worst part of Nonjoinder is that, although USAA is financially responsible for defending Beatrice and covering her losses for the car wreck, Bryan cannot even mention at trial that Beatrice has insurance coverage.

To put it plainly: The Jury is not allowed to hear so much as a reference that Beatrice has automobile insurance coverage. So, what happens (and I have experienced this many times), is that the insurance company will use this law to make Beatrice as sympathetic as possible. That’s not hard to do. As the injured party’s attorney, the last thing I want to do is aggressively question a defendant that I personally think is a delightful person. So, during the entire four day jury trial, from the start of jury selection through closing arguments, the insurance company makes sure Beatrice is sitting next to her attorney for all the world to see that “she” is on trial.

So, why is it illegal to mention that Beatrice has insurance to cover Bryan’s losses from this car accident? (Apart from the most obvious reason that the insurance lobby scored a victory with the legislature). The legislature felt that, as a matter of “Public Policy,” the availability of insurance should have no influence on the jury’s determination of the damages that should be awarded. Okay, I can understand this point. A jury should not be overly generous to Bryan in it’s verdict just because there is a big insurance policy available to pay it. However, I would argue that the statute is unfair to Bryan, our injured Plaintiff, based on the following:

1) The jury, left to wonder if Beatrice has insurance, may award Bryan less than his fair amount of financial damages out of sympathy and concern for Beatrice; and

2) The statute is just not necessary, because juries tend to look at personal injury cases (insurance or no insurance) with an elevated level of skepticism. In other words, it is highly unlikely that a jury is going to give Bryan a large verdict just because there is insurance and Bryan seems like a nice guy. In injury cases, jurors want to see proof of the losses.

The Nonjoinder statute can make for some awkward moments during a trial. I have had more than one trial when, during jury selection, a potential juror will ask if the Defendant has insurance. I have to reply that I cannot address that issue, and that the jury may not consider the issue in any way. (This is usually followed by a highly distressed defense attorney asking to approach the Bench, which results in the Judge telling the entire jury panel exactly what I just told the person who asked the question).

A well seasoned trial attorney must take many things into consideration when advising his or her client about the inherent risks of an automobile accident jury trial. A jury’s potential concern about causing the Defendant financial harm is but one issue that is weighed.