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Krohn v. New Jersey Full Insurance Underwriters Association

December 08, 1998


Before Judges Baime, Conley and Kimmelman.

The opinion of the court was delivered by: Baime, P.j.a.d.

[9]    Argued November 12, 1998

On appeal from Superior Court of New Jersey, Law Division, Camden County.

Following a lengthy jury trial, plaintiff was awarded $250,000 on her claim for underinsured motorist coverage (UIM) against the New Jersey Automobile Full Insurance Underwriting Association. The Association appeals. We reverse.


Plaintiff was involved in two automobile accidents. One occurred on September 6, 1988, and the other on March 4, 1990. The 1988 accident allegedly resulted in severe migraine headaches and temporomandibular joint problems. The 1990 accident allegedly caused injuries to plaintiff's lower back. At the time of the 1988 accident, the Association was plaintiff's automobile insurer and State Farm Insurance Company was the servicing carrier. The policy carried UIM combined single limits of $250,000. At the time of the 1990 accident, American Hardware Insurance Company provided plaintiff's automobile coverage. That policy had combined single limits of $300,000.

Plaintiff settled both claims for the other drivers' full available policy limits, $50,000. She then demanded arbitration under the UIM clauses of the Association and American Hardware policies. The arbitration proceedings were consolidated. Plaintiff did not seek economic damages. The arbitration panel awarded $150,000 for pain and suffering resulting from the 1988 accident and $40,000 for pain and suffering resulting from the 1990 accident.

Plaintiff rejected the award and filed a complaint in the Law Division, naming State Farm and American Hardware as defendants. State Farm was granted summary judgment and the Association was substituted in its place. In response to interrogatories, plaintiff indicated that she was "not making a lost wage claim." However, shortly before the scheduled trial date, plaintiff supplemented her answers to interrogatories, adding reports pertaining to lost future earnings. At trial, plaintiff was permitted to present expert testimony relating to economic losses over defense counsel's vigorous objections.

Prior to selection of the jury, the Association requested that the names of the tortfeasors in the underlying actions be substituted for the names of the insurance carriers. The trial court rejected this proposal and erroneously referred to State Farm as one of the defendants in its introductory comments to the jury. When reminded that the Association was the correct defendant, the trial court overruled defense counsel's objection. Repeated references were made to State Farm throughout the trial, despite defense counsel's numerous requests for curative instructions.

We need not recount the facts adduced at trial. We merely note that in his opening and closing statements, plaintiff's attorney stridently attacked the insurance company defendants for not honoring their contractual commitment to pay UIM benefits. In the course of his comments, the attorney repeatedly referred to the fact that plaintiff had "paid the extra premium" to obtain full coverage but that the insurers had reneged on their promise. Counsel was not content merely to attack the insurers' motives. In an attempt to gain the jury's sympathy, counsel went on to compare plaintiff's plight to that of a homeowner whose house had been destroyed by fire and whose insurer refused to pay for the resulting loss. The attorney beseeched the jury not to permit the Association to "hide behind the veil" and "persist [with] the indifference [it] had [exhibited] to [plaintiff's] claim." In effect, counsel asked the jury to punish the insurers for their bad faith refusal to honor their commitments. We will return to this subject later in our opinion.

The jury awarded plaintiff $100,000 for pain and suffering, plus $200,000 for future lost wages resulting from the 1988 accident. The jury also awarded plaintiff $10,000 for injuries sustained as a result of the 1990 accident. Following the jury's verdict, the trial court entered judgment in favor of American Hardware because the damage award was less than the settlement amount plaintiff had received from the tortfeasor. As to the Association, judgment was entered in the sum of $250,000. The trial court arrived at this figure by deducting the $50,000 plaintiff had received from the tortfeasor from the amount of damages found by the jury. This appeal followed.


In its appeal, the Association urges us to adopt a blanket rule barring any reference to insurance in a trial on a claim for UIM benefits. Among other artifices, the Association asserts that the name of the tortfeasor in the underlying action should be substituted for that of the defending insurer. We need not issue such a broad ruling in this case. Instead, we find that counsel's repeated references to the subject of insurance seriously infected the Association's right to a fair trial. We reverse the judgment on this limited basis.

Inappropriate efforts of counsel to make the jury aware of irrelevant and prejudicial facts surrounding insurance coverage have long been criticized by our courts. See, e.g., Roman v. Mitchell, 82 N.J. 336, 347-48 (1980); Brandimarte v. Green, 37 N.J. 557, 562-63 (1962); Patterson v. Surpless, 107 N.J.L. 305, 307-08 (E. & A. 1930); Dalton v. Gesser, 72 N.J. Super. 100, 106 (App. Div. 1962); Haid v. Loderstedt, 45 N.J. Super. 547, 550 (App. Div. 1957); Hansson v. Catalytic Constr. Co., 43 N.J. Super. 23, 30 (App. Div. 1956); N.J.R.E. 411. As a general rule, the probative value of information regarding whether a person is insured or not is substantially outweighed by the potential for undue prejudice. Biunno, Current N.J. Rules of Evidence, comment to N.J.R.E. 411 (1998-99). One of the principal reasons for this prohibition is that jurors who are made aware ...

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