dissenting. The collateral source rule should not be used to allow an unfair advantage to occur to a defendant attempting to avoid liability. The majority opinion relies on Peters v. Pierce, 308 Ark. 60, 823 S.W.2d 820 (1992), in which the Trial Court determined that the defendant’s remark that he would be financially ruined by a judgment against him “[had] an impact on the jury.” That case is cited to support the proposition that the Trial Court must make such a finding before error can be assigned to the exclusion of insurance coverage information. That is not so.
The Peters case and others the majority cites, stand, rather, for the proposition that relevance and good faith of the offering party are the key factors in allowing or excluding evidence of insurance coverage. When a party testifies about his or her financial condition in a false or misleading manner, the door opens to otherwise inadmissible insurance information. Younts v. Baldor Elec. Co., 310 Ark. 86, 89, 832 S.W.2d 832, 834 (1992).
The injection of a reference to insurance coverage is not proper unless it is relevant and pertinent to some issue in the case. Pickard v. Stewart, 253 Ark. 1063, 491 S.W.2d 46 (1973). References to insurance are prejudicial and beyond cure by an admonition when they are not made in good faith. Id.
In York v. Young, 271 Ark. 266, 608 S.W.2d 20 (1980), and Younts v. Baldor Elec. Co., supra, considerations of the relevance of insurance coverage allowed its introduction to stand. Mr. York testified that he would have had additional work performed on his vehicle had he been able to afford to do so. We upheld the Trial Court’s decision to allow the defense to show that Mr. York could have repaired all the damage to his vehicle with the insurance proceeds, had he chosen to. We held that Mr. York’s statement’s were misleading to the jury and made the issue of insurance relevant.
In the Younts case, Mr. Younts testified on direct examination that he could not afford to reopen his business. Because that point was not at issue, the Trial Court allowed the defense to cross-examine Mr. Younts about the insurance proceeds he had received. The Court upheld the Trial Court’s allowance of the evidence on the ground that Mr. Younts’s testimony was misleading to the jury and he had made the issue of insurance relevant.
The Peters case relied on by the majority is very similar to the case at bar in that evidence of the defendant’s work status was introduced. Mr. Peters said that he was retired and any money taken from him to satisfy a judgment could not be replaced. We reversed the Trial Court’s exclusion of insurance evidence on the ground that Mr. Peters had made it appear he was alone in satisfying any judgment against him and thus could not afford to pay one. The testimony was misleading to the jury.
In this case, Mr. Carden testified that he was disabled and did not work. His attorney led him through a series of questions designed to bring out his preexisting physical injuries in order to contrast his condition after the accident with that of Ms. Esry. I can accept the explanation that the testimony about Mr. Carden’s physical condition might have been elicited to show that, despite his fragile condition he suffered no injury in the collision and thus it must have been minor. I cannot, however, agree that the concluding question, “So you do not work I take it?”, had any purpose other than to suggest to the jury that Mr. Carden was unemployed and thus that levying a judgment upon him would impose a hardship upon him greater than upon one who had a source of funds to pay it.
The question relating to Mr. Carden’s unemployed status was irrelevant and misleading to the jury. Ms. Esry should have been allowed to submit evidence of Mr. Carden’s insurance coverage.
I respectfully dissent.
Glaze and Thornton, JJ., join in this dissent.