Subrogator Magazine: How to Make Jurors Care About a Property Insurer’s Case


Paul Falk and Bradley Arnold of Falk Metz LLC were recently published in Subrogator Magazine, contributing an article titled How to Make Jurors Care About a Property Insurer’s Case [link to article removed because Subrogator Magazine doesn’t want anyone to be able to read the article]. It’s an insightful article on the difficulty of making a juror relate to the plight of an insurance company, which is often seen as the profitable bad guy only looking out for its own interests.

Right or wrong, insurance companies are seen as huge corporations which will survive no matter the outcome of a jury trial. An individual or smaller company seeking to avoid reimbursing an insurance company may not survive, so easily, however. It is much easier for the juror to identify with the little guy.

As the authors point out;

“… why should the juror – – an average American – – want to help the big multi-million dollar insurance company recover more money, when they themselves can’t even get a job?”

The key is in getting the jurors to emotionally identify with the insurance company. Mr. Falk and Mr. Arnold won a large verdict in favor of an insurance company in Kemnitz v. Fox Valley Stone & Brick Company Inc. (Winnebago County, WI – 09-CV-1690), and share some of their experiences in the article.

The plaintiff was a large, multi-national insurance company, seeking to recover money it had paid out on the Kemnitz’s  insurance claim. The defendant was a well-respected small company accused of installing a fireplace in an unsafe matter, leading to a fire that destroyed the Kemnitz home. Three defendants settled with the insurance company for $625,000 prior to trial, leaving Fox Valley Stone & Brick as the remaining defendant, which attempted to shift blame to the defendants which already settled.

The concern was that the insurance company would be seen as a greedy corporate giant just trying to make the little guy pay for something that wasn’t his fault.

The plaintiff’s attorneys litigated the theme that the jurors needed to hold Fox Valley Stone & Brick responsible for its conduct, lest the company should continue to install fireplaces in an unsafe manner, and cause other homeowners to lose their houses to fires. The idea was to take the focus off the money and the party seeking the money, and put it back on the conscience of the jurors. The jurors needed to hold the responsible party responsible for the good of the community.

Voir dire included the following, to help week out jurors who might be biased against insurance companies:

One of the plaintiffs in this case is a property insurer. The property insurer met its responsibility in this case to Dr. and Mrs. Kemnitz. The property insurer did not cause this fire and is not responsible for the fire. The property insurer is seeking fairness and justice and Wisconsin law allows these subrogation cases to be decided by jurors so that you can place fault on the party who is primarily responsible for this fire.

What trouble would you have with being fair to the property insurer under these circumstances?

Who here would tend to favor the responsible party over the property insurer?

Counsel has  found it is common for the court to not explain the purpose of subrogation cases to jurors. This line of questioning helped educate jurors on this issue.

Plaintiff’s counsel wanted to ensure that the jurors focused on the responsibility, rather than who was going to be getting money or how much money was going to be awarded.  The focus was kept on holding someone responsible for their unsafe conduct.

Counsel built its case by methodically walking through the facts and evidence which indicated Fox Valley Stone & Brick did not install the fireplace in a safe manner, failing to see that the high safety temperature limit switch was not hooked up. If the jurors believed that the defendant caused the fire, they were required to hold that party responsible for unsafe conduct.

The jurors were persuaded by the focus on holding a party responsible for their bad conduct and the resulting damage. By keeping the focus off a monetary award to a large insurance company, the jurors rendered a verdict in favor of the plaintiff and in favor of holding the defendant responsible for unsafe practices.


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