It has for more than 100 years been recognized by the courts of this state that evidence that a defendant in a negligence or malpractice action carries liability insurance is generally inadmissible. Like Voldemort of Harry Potter fame, the word “insurance” has become known as “that which shall never be mentioned” at trial. Indeed, the practice of bringing before the jury the fact that the defense is being conducted by an insurance company and/or that the defendant might be reimbursed by insurance in the event of a verdict against him or her, has been repeatedly and soundly condemned by the Court of Appeals and the Appellate Divisions. See e.g., Cosselmon v. Dunfee, 10 Bedell 507 (1902) (“The inquiry into the matter of insurance is not material and the practice of asking a question that counsel must be assumed to know cannot be answered is highly reprehensible, and where the trial court or Appellate Division is satisfied that the verdict of the jury has been influenced thereby, it should, for that reason, set aside the verdict”); Loughlin v. Brassil, 187 NY 128 (1907) (remarks by plaintiff’s counsel during summation concerning insurance “were entirely improper, and…they were designed to influence the jury by considerations which were not legitimately before them”); Simpson v. Foundation Co., 201 NY 479 (1911) (“Evidence that the defendant in an action for negligence was insured in [sic] a casualty company, or that the defense was conducted by an insurance company, is incompetent and so dangerous as to require a reversal even when the court strikes it from the record and directs the jury to disregard it, unless it clearly appears that it could not have influenced the verdict”); Wildrick v. Moore, 66 Hun. 630 (4th Dept. 1892); Manigold v. Black River Traction Co., 81 AD 381 (4th Dept. 1903); Haigh v. Edelmeyer and Morgan Hod Elevator Co., 123 AD 376 (1st Dept. 1908); Hordern v. The Salvation Army, 124 AD 674 (1st Dept. 1908). Indeed, so verboten is the very mention of insurance before the jury that the prohibition similarly has been applied to the mention by defense counsel of the absence of insurance. See Rendo v. Schermerhorn, 24 AD2d 773 (3d Dept. 1965).
The rationale underlying this prohibition is, of course, in the case of the existence of coverage, that “it might make it much easier to find an adverse verdict [against the defendant] if the jury understood that an insurance company would be compelled to pay the verdict” (Loughlin v. Brassil, supra, 187 NY at 135), and, in the case of a lack of coverage, that it might engender sympathy for the defendant. In short, evidence of liability insurance injects an issue into the trial that is, or should be, collateral, and irrelevant, to the question of whether the defendant/insured acted negligently.
