Why Is The Insurer Not A Defendant In My Case?

By: John A. Houghton

Often times, injury victims following a wreck are left mystified and angered by the at-fault driver’s insurance company’s lowball offers. Prior to the involvement of an attorney, liability insurers are notorious for wearing down a claimant and offering little compensation for injuries. The insurer, through its team of adjusters, requests endless documentation and verification from the victim. The clear business objective by the insurer is to fatigue the injury claimant and pay as little as possible for the claim.

Clients frequently develop more outrage towards the insurance adjuster than the actual at-fault driver who caused the wreck. Not surprisingly, the client often wants to sue the liability insurer and not the at-fault driver when negotiations reach an impasse. Unfortunately, outside the context of motor common carrier litigation, the insurer will not be a named party to your lawsuit.

In fact, the jurors who may ultimately determine the outcome of your civil action will never hear the word “insurance” at trial. The Georgia legislature has specifically prohibited any reference to liability insurance at trial, unless the case involves a “direct action” insurer for a motor carrier. See O.C.G.A. § 24-4-411

As stated in the Georgia evidence code, “in all civil proceedings involving a claim for damages, evidence that a person was or was not insured against liability shall not be admissible.” O.C.G.A. § 24-4-411. Thus, in the scenario of a non-commercial vehicular accident, the parties named to the litigation will only be the injured and the at-fault driver.

Jurors are generally qualified through written questionnaire as to whether they are a shareholder or officer for any of the specific liability insurers (or UM carriers) involved in the litigation. Smith v. Crump, 223 Ga. App. 52 (1996). This is to determine if they have a financial interest in the outcome of any case in which they may sit as a juror. Judges will often allow the attorneys to inquire during voir dire if any potential jurors have any experience or work history as a claims adjuster. However, this is usually the last time the jurors will ever hear about insurance. (Likewise, the jury will not hear about health insurance or generally any other ‘collateral source benefit’ utilized by the Plaintiff but that is for a future blog post)

As a practical matter, any case that has reached jury trial for a car wreck almost always involves a Plaintiff’s lawyer on contingency fee and a defense lawyer billing by the hour (or similar fee structure paid by the insurer). In other words, in virtually all civil jury trials involving a car wreck, the defendant has insurance, and any verdict returned will be paid by the insurance carrier.

Nevertheless, it is important as an injured claimant to understand the lengths to which this information is safeguarded at trial and kept from the jurors’ consideration. During their deliberations, the jurors will know nothing about liability coverage, policy limits or the role any adjuster played in the case. This can open the door for improper considerations by the jury, such as sympathy or fear of financially crippling the defendant with a large verdict. It is vital for any injury claimant to be made aware of this challenge, as it certainly affects the outcomes of these cases.