The Volokh Conspiracy
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Insurance Company Not Allowed to Litigate Under the Name of a Stranger
"Progressive has filed a Motion in Limine seeking to preclude references at trial to Progressive as the named defendant. Progressive contends it would suffer unfair prejudice if a jury was aware of its relationship to this action. Thus, Progressive requests that the parties use the name of the non-party driver as the defendant."
From Pasparage v. Progressive Specialty Ins. Co., decided last month by Judge Maureen Kelly (W.D. Pa.):
Plaintiff … was injured in a car accident caused by a negligent driver. The parties agree that the driver was at fault for the accident and agree that his insurer has tendered the full limits of his liability policy. Through this breach of contract action, Plaintiff seeks additional recovery under the underinsured motorist ("UIM") provisions of his insurance policy, issued by Defendant Progressive Specialty Insurance Company …. The parties dispute the extent of Plaintiff's injuries that were caused by the accident, and Progressive has denied Plaintiff's UIM claim.
Progressive has filed a Motion in Limine seeking to preclude references at trial to Progressive as the named defendant. Progressive contends it would suffer unfair prejudice if a jury was aware of its relationship to this action. Thus, Progressive requests that the parties use the name of the non-party driver as the defendant. Progressive argues that the substitution is in accord with "the substantive law of the forum state – Pennsylvania," and the non-dipositive opinion issued by the Pennsylvania Superior Court in Stepanovich v. McGraw (Pa. Super. 2013), where the underlying tortfeasor was also a party to the action.
Plaintiff opposes the Motion. He states that he does not intend to introduce evidence of Progressive's UIM coverage limits or the amount of the tortfeasor's liability insurance limits. However, Plaintiff argues that Progressive should remain as the named defendant so that the jury understands Progressive's role as an adverse party and the breach of contract claim for UIM benefits….
Progressive … seeks to shield its identity from the jury because of a broadly alleged fear of an inflated jury verdict. In support, Progressive cites Paxton Nat. Ins. Co. v. Brickajlik (Pa. 1987), which involved an insured's breach of a contractual duty to cooperate in a subrogation action to recoup losses paid. The policyholder refused to permit the insurer to proceed against a third party in his name. The Pennsylvania Supreme Court concluded that the insured was in material breach of the policy because subrogation actions "would almost certainly be stronger if filed in the name of the insured," and use of his name would ward off a jury's temptation to render a decision "based upon the extraneous consideration that an insurance company will actually pay the bill."
Here, Progressive fails to provide any binding or persuasive authority permitting it to shield its identity by placing before the jury the name of an individual who is not a party to the UIM policy, not under any obligation pursuant to a policy, and who has no legal obligation with respect to the instant litigation….
Progressive briefly invokes Federal Rule of Evidence 403, which provides that "[t]he court may exclude relevant evidence if its probative value is substantially outweighed by a danger of … unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence." Like Rule 411, Rule 403 is not a mechanism to permit a party to proceed anonymously or in the name of a non-party and … runs counter to the general right of the public to know the identity of those who come before the Court. Absent exceptional circumstances not set forth by Progressive, the requested relief is not warranted.
Finally, the Court notes that any potential prejudice to Progressive proceeding in its own name is offset by the Plaintiff's agreement not to introduce evidence of the UIM policy limits and the amount of the underlying liability payments received….
Within five days, the case settled (though this may also have stemmed from the court's decision to exclude evidence of plaintiff's hernia, which plaintiff claimed stemmed from the injury; the court held that expert evidence would be required to support that theory).