Does the Defendant have Insurance?

Let’s say you were injured in an accident. Might be a car accident or a slip and fall. You get treatment. Your personal injury lawyer makes a settlement demand to the defendant’s insurance company. Negotiations go nowhere so you are forced to file a lawsuit. You never wanted to be involved in a lawsuit. But you had no choice – the insurance company refused to make a reasonable offer. If they had made a fair offer, you probably would have resolved your case and moved on. However, the insurance company left you with three choices – accept what they offer; drop your case; or file a lawsuit.

You probably haven’t heard of the defendant who caused your injuries since the accident. Since that time, it has been in the insurance company’s hands. But now when it is time to file a lawsuit for your personal injury damages, your lawyer is only suing the defendant. The insurance company is not a defendant even though that company forced you into this position. The defendant’s insurance company controlled the whole process. Yet now, they are not a named defendant. It doesn’t seem right.

Our personal injury lawyers in Miami get this question all the time and we understand why. When the time comes to go to trial, we advise our clients that not only is the insurance company not a defendant but that the jury will never know that there is an insurance company involved. That is a tough concept to swallow, but for the most part it is Florida law.

The purpose of Florida’s Non-Joinder statute was “to ensure that the availability of insurance has no influence on the jury's determination of the insured's liability and damages.” General Star. Indemnity Co. v. Boran Craig Barber Engel Constr. Co., 895 So. 2d 1136, 1138 (Fla. 2d DCA 2005). In Florida, an injured third party cannot file a lawsuit against an insurer without first completing either one of two steps first: (1) obtaining a settlement against the insured or (2) obtaining a verdict against the insured. The Non-Joinder statute was first enacted in 1976. It has been amended over the years, but it remains the law in Florida.

Before 1976, insurance companies could be named as defendants in personal injury lawsuits. The insurance company lobbyists were able to push the non-joinder rule and they have maintained it ever since. However, that does not mean that insurance companies are never sued. In fact, insurance companies are sued every day. One prominent example is uninsured or underinsured motorist benefits lawsuits.

Uninsured or underinsured motorist insurance coverage is not mandatory. It is coverage you can purchase to protect yourself and loved ones in the event that you are injured by an uninsured or underinsured motorist. In a UM claim, you are dealing with your own insurance company. That insurance company “stands in the shoes” of the uninsured or underinsured motorist. It is as if you purchased insurance for the other driver who did not have insurance or enough insurance to cover your damages.

In a UM claim, you and your personal injury attorney will negotiate with the UM insurance carrier. If you cannot reach a reasonable settlement and have to file a lawsuit, then the UM insurance carrier will be named as a defendant. The Non-Joinder statute does not apply to UM lawsuits.

As we tell our clients, insurance defense lawyers are prepared with arguments and strategies to defend UM cases at trial. An experienced insurance defense attorney is not concerned with having an insurance company as a named defendant at trial. In fact, some lawyers will try to use this to their advantage. It is not uncommon for a defense lawyer to hint at concepts that directly affect jurors such as rising insurance rates due to frivolous litigation.

In our opinion, jurors should know about the existence of insurance in all cases. Hiding that fact does not seem fair. Especially since the insurance company controls the settlement and litigation of claims.

In nearly every personal injury trial, the defendant has insurance. Most jurors seem to understand this. Insurance defense lawyers will sometimes try to minimize their defense case presentation to avoid the inference that there is an insurance company involved. But there are certain signs and tips at trial that can lead a reasonable person to assume that the defendant has insurance such as:

• Usually, the insurance company will have a representative sitting in the back of the courtroom observing the trial.
• Expensive experts testifying for the defendant
• Extravagant and costly demonstrative aids at trial
• Defendant medical doctors who make a lot of money doing exams for insurance companies and testifying for the insurance companies and for defense attorneys.

Most insurance defense lawyers will ignore the elephant in the room and simply proceed to pick away at the plaintiff’s case. This is known as a “death by a thousand cuts”. If your personal injury case ends up being tried before a jury, then you will want to be certain that you have the best personal injury trial lawyer you can find in Miami, Broward or Palm Beach County.

An experienced personal injury trial attorney will know how to present your case and how to defend against the strategies and techniques of the insurance company lawyers. If you would like to discuss the issue of your personal injury trial, we offer free consultations. Just call us at (305) 285-1115. Our personal injury lawyers will go to trial when it becomes necessary. In fact, we strategically partner with other law firms who bring us in as co-counsel for the purposes of litigation or trial. Call us today and let us answer your questions.