Evidence Rule 411 Does Not Automatically Bar Reference at Trial to a Defendant’s Insurer
The Law Court’s decision in West v. Jewett illustrates the limits of Evidence Rule 411 in precluding evidence of a defendant’s insurer at trial. (2018 ME 98). Rather than functioning as an automatic bar to admissibility in every case, the Rule makes admissibility turn on the purpose for which the evidence will be used.
Plaintiffs in West v. Jewett sought compensation to restore land damaged by a 9,000-gallon oil and gasoline spill. In support of their punitive damages claim against the defendant for alleged malice in failing to completely clean up the spill, plaintiffs introduced evidence of the defendant’s insurer’s conduct as it participated in the oil remediation.
The Law Court upheld admission of the insurer’s conduct over a Rule 411 objection, reasoning the evidence was not introduced to prove the defendant was insured against liability. In other words, it was not used to prove insurance coverage for the compensatory or punitive damages. The Law Court found it unnecessary to reach the second requirement in Evidence Rule 411 to exclude insurance evidence—its use to prove the defendant acted negligently. Additionally, the evidence was admissible without any attempt to hide the identity of the insurer, for instance through identifying the insurer only as an unnamed agent of the defendant. These facts are notable in demonstrating the Law Court’s openness to admission of insurance evidence in the right circumstances.
West v. Jewett affirms that evidence of insurance is admissible when the conduct of the insurer is at issue, or for such long-recognized purposes as proving agency, ownership or control, or the bias or prejudice of a witness.
Pitfalls on the Road to Admission of Business Records in Evidence at Trial
Two different Law Court decisions of 2018 highlight challenges in admitting business records into evidence, when documents held by one business were actually created or modified by another. In M&T Bank v. Plaisted, a mortgage servicer attempted to foreclose on a mortgage relying on documents from a second servicer, who shared the same electronic system and had ”virtual” contacts with it. 2018 ME 121. In Avis Rent A Car System v. Burrill, a rental car company attempted to prove the value of a totaled rental car by submitting into evidence documents from third parties, including a vehicle valuation report. 2018 ME 81.
In both cases, the Law Court held the documents were inadmissible, because technical requirements to establish a witness as the business record’s custodian were not met. In Plaisted, ”virtual” contacts between the two mortgage servicers did not make one servicer’s employee the records custodian for the other, when the employee did not know the physical location of the other’s offices, the identity of the person at the other servicer who made entries into their shared electronic record, or when the entries were made relative to events. Although business may have come to trust and rely on more anonymized, virtual interactions, the Law Court requires a different standard based on personal interactions and personal knowledge to qualify a records custodian.
In Burrill, a rental car employee qualified as custodian of records the company created, but could not qualify for records created by third parties. The dissent noted the rental car company was perfectly reasonable in relying on the third-party valuation by a trusted outside company, but this was not enough in the absence of personal knowledge about how the valuation was created, maintained, and sent to the rental car company, according to the majority. These cases serve as a warning the Law Court continues to uphold technical requirements for admission of business records despite recent changes in technology.