¶1(dissenting).
¶2We all agree, I think, that the existence or nonexistence of liability insurance is ordinarily irrelevant in tort cases. Usually the question in those cases is, did the defendant negligently cause damages, not, who will ultimately pay the damages. Hence the matter of insurance is not to be disclosed to the fact finder.
¶3Two distinct situations may arise, however, regarding the presence or absence of insurance. One is the situation in which the defendant is insured and the plaintiff seeks to disclose that fact to the jury, or the defendant is uninsured and the defendant seeks to disclose that fact to the jury. The second is the situation in which the defendant is uninsured and the plaintiff seeks to give the jury the impression the defendant is insured, or the defendant is insured and the defendant seeks to give the jury the impression he is uninsured.
¶4A basic difference exists between the two situations. In the first situation the matter sought to be shown is irrelevant but true. In the second situation the matter sought to be shown is both irrelevant and untrue. The first situation is serious but the second is much more serious.
¶5I realize that defense attorneys not uncommonly have made jury arguments similar to the present one: “Are you going to take X dollars out of the defendant’s pocket and give it to the plaintiff?” At least where the defendant has insurance which is adequate, as the defendant does here, this argument creates a misimpression; it conveys the thought that the defendant personally will pay the judgment, whereas in fact the insurer will pay the judgment. Manifestly that is the misimpression sought to be given, otherwise the arguer would ask the jury: “Are you going to take X dollars out of the pocket of the Y Insurance Company and give it to the plaintiff?” That question would still be irrelevant, but it would not create a misimpression as to who will bear the loss.
¶6We have a number of decisions which already state our rules in the first situation of irrelevant but true disclosure to the jury. I think we should not only firmly disapprove practices which fall within the second situation, whether they involve plaintiffs or defendants, but we should also enforce our disapproval by requiring retrial where the offending party prevailed at the first trial.
¶7I concur in divisions I, II, and IV of the majority opinion, but I dissent from division III and the result.