No. 33651 - State of West Virginia ex rel. Nationwide Mutual Insurance Company v. The
Honorable Mark A. Karl, Judge of the Circuit Court of Marshall County, and Stacey
Maynard, Chief Justice, dissenting:
Although the majority opinion attempts to minimize any potential juror bias
from the disclosure during voir dire
of the identity of the insurer with whom captive counsel
is associated, I still believe that the preferable practice simply is not to permit reference to
the insurer in front of the jury.
Our general rule that a jury should not be informed of the insured or uninsured
status of a party is based on valid assumptions about jurors. For example, jurors who know
that a party is covered by insurance may be more apt to award an injured plaintiff, even in
the absence of a finding of negligence, if they know that the defendant will not be
responsible for paying the verdict. Similarly, jurors may be more likely to award a sizable
verdict if they know that an insurance company, a.k.a. a deep pocket, will be liable.
In the instant case, I fear that reference to the Nationwide Trial Division during voir dire
will prejudice the jurors by alerting them to the fact that the party actually
responsible for paying any verdict awarded will not be the alleged tortfeasor but rather
Nationwide. As a result, the jurors will be more likely to disregard the real legal issues in
favor of permitting the plaintiff to recover from a party whom the jury believes to have deep
pockets. Such a result is plainly at odds with the principle that our judicial system should
treat all parties equally regardless of their economic status or perceived economic status.
For this reason, I would grant the writ of prohibition to prevent the
identification of Nationwide Trial Division during voir dire.
Accordingly, I dissent.