Insurance Policies: What the Jury Doesn’t Know May Affect the Outcome of a Sexual Assault Case
At a sexual assault trial, the plaintiff is not allowed to tell the jury that the defendant has an insurance policy. This is important because jurors may mistakenly assume the defendant is paying for its own lawyers and will be responsible for any judgment.
A Jury May Mistakenly Believe that a Defendant in a Sexual Assault Suit Is Paying for Its Legal Defense
Jurors could conclude that a defendant is paying for its own attorneys. But is there is an insurance policy, then the insurance company is paying for its own attorneys to defend the suit. This creates an unequal situation because jurors may be inclined to extend sympathy to the defendant. In addition, the defendant will never have to pay the legal fees. On the other hand, a plaintiff ultimately will have to pay legal fees if she succeeds in a settlement or at trial.
Understandably the jury does not have this information and must guess as to what is going on behind the scenes.
A Jury May Mistakenly Believe the Defendant in a Sexual Assault Case Will Be Responsible to Pay any Verdict
This is doubly problematic when the plaintiff is a parent whose child was sexually or physically abused at a public or private school. The jury may conclude that it does not want to award damages against a public school because it will increase taxes, or the jury may conclude that an award of damages will spell financial ruin for a daycare or private school.
Almost always, the jury is not allowed to know that schools—including public schools—have insurance policies. The schools’ lawyers are paid for by insurance companies. And an award of damages will be paid by the insurance company, not the school.
This cone of silence gives the defendant an unfair advantage. At trial, the plaintiff is not allowed to tell the jury that the defendant has an insurance policy. The problem is that the jury may conclude that it does not want to award damages because they will increase taxes. Jurors might also think if they award any amount of damages at all then that means financial ruin for daycares and private educational institutions- which would be true!
In practical terms, the real defendant in the case becomes the insurance company. Insurance policies include a “duty to cooperate” clause. This clause requires the insured party, such as a school, to cooperate in defense of the lawsuit. Some schools or daycare facilities do not want to upset the insurance company for fear that it could abandon them during the lawsuit. After all, it is the insurance company who chooses the lawyers for the school and pays the lawyers’ fees.
As a result, the insurance company, rather than the school, can often make key decisions in the lawsuit. Even if the school wants to resolve the case through a settlement, the school’s path could be blocked by the insurance company. The insurance company is concerned about its bottom line, even if a school wants to walk the path of moral responsibility.
Consequently, due to the law and rules of a court, the jurors will not hear that there is an insurance company behind the curtain, causing the jurors to extend sympathy to a defendant that — in reality — does not have financial exposure.
We Stand Ready to Help You Obtain Justice
DRZ Law has long been a leader in Missouri and Kansas by helping clients win a full recovery when a school or daycare has permitted physical injuries or sexual abuse of a child. Contact us today to hear how we can develop a strategy best suited for your family’s needs.