Indiana Court of Appeals Rules Against Allstate In Underinsured Motorist Case
On October 29, 2009, in the matter of Brown-Day v. Allstate Insurance Co., the Indiana Court of Appeals held that Allstate, as the Plaintiff's UIM carrier, was not entitled to substitute the dismissed tort feasor as the party defendant for purposes of the underinsured motorist trial to prevent prejudice from the “mention of insurance” under Evid. R. 411. According to the Court (Barnes, J. writing with Kirsch and Vaidik, JJ. concurring):
Evidence Rule 411 simply is not a mechanism providing for an outright substitution of parties so that the identity of a party as an insurer may be shielded. It does not contemplate the creation of a fiction to avoid possible prejudicial effects from a reference to insurance or an insurer.
The Court also held that the Plaintiff was entitled to cross-examine Allstate's medical examiner regarding who had hired him and how much he had been paid even though that line of questioning would reveal the existence of insurance. This ruling is consistent with the language and purpose of Indiana Rules of Evidence 411 adn 616 which only exclude evidence of insurance when it is offered to establish liability and specifically authorize evidence of insurance when it is offered for the purpose of establishing the bias and prejudice of a witness.
The Plaintiff in this case was represented by Nick Deets of the Indianapolis, Indiana Personal Injury Firm of Hovde Dassow and Deets, LLC.
The full opinion may be found at: http://www.in.gov/judiciary/opinions/pdf/10290901lmb.pdf.
