Unlike the UIM carrier in Earle, Kentucky Farm Bureau, the UIM carrier in Stinson, never advanced the settlement offered by the liability defendant nor did it participate at trial. On appeal, Kentucky Farm Bureau argued this distinguished the Earle decision. Judge Abramson, writing for the three panel appellate court, noted the force to this argument. However, she could not find any grounds for distinguishing the Earle decision, when as here, the UIM carrier was still a named party. Judge Abramson noted:
We certainly agree with Mattingly that the existence of insurance, liability or UIM, had no relevance whatsoever to the jury’s liability determination. However, we are not writing on a clean slate with respect to this issue.The Court of Appeals found this was not only error, but error which required reversal, regardless of the finding of liability. According to Abramson; "[L]iability is not dispositive. Reversal is required, according to Earle and Hughes, to ensure that our court system is not tainted by "deception" or "subterfuge." citing Hughes, 197 S.W.3d at 568.
I commend Judge Abramson for her candor in noting the decision was one, which was practically compelled by the Supreme Court's Earle decision. What I do disagree with is the language used to circumvent the clear rule against mentioning liability insurance at trial. Claiming that the failure to identify the UIM carrier is akin to tainting our court system with "deception" or "subterfuge" is ridiculous. Our entire Rules of Evidence are based on "deception" and "subterfuge." Here is a book dedicated to keeping information from the jury. Why do we have it then, if as mentioned, the taint on our court system is so dramatic.
Simple, to prevent the jury from hearing things, which have no bearing on the true determination, but which may ultimately sway their decision. Like the prohibition against the mention of liability insurance. Whose lack of relevance was acknowledged by the Court of Appeals when it said, "[I]nsurance should have absolutely no bearing on a jury's findings as to liability and damages."
I also disagree that this is the "harbinger of a new era of disclosure regarding insurance in our courts." Health and disability insurance are still prohibited from being mentioned by the collateral source rule. What about the "deception" or "subterfuge" of this rule. What about the legal fiction created when we allow the plaintiff to recover the full amount of medicals billed, which no one ever even paid? What we have is a Supreme Court mandate requiring the injection of "liability" insurance, with the express hope that the jury will disregard fault and give the plaintiff money anyway. It has absolutely no relevance to the true issue of liability or damages resulting from the accident, has no business being mentioned and frankly, is the true "deception" or "subterfuge" on the court system.
The extent to which this rule is to be applied still awaits to be seen. I believe the Earle opinion only requires the mention of the UIM carrier as a party. Nothing suggests the trial court is forced to mention the type of claim or the effect of the UIM carrier's participation at trial. I think the trial court is well within its discretion to mention only that the UIM carrier is a named party or that a claim has been brought against insurance company X. I see nothing that requires the trial court to say anything further. I anticipate what IS or IS NOT said about the insurance company's participation will be the next issue the courts will need to determine.