BAILEY, J.
Marijeanne Brown-Day (“Brown-Day”) sued her insurer, Allstate Insurance Company (“Allstate”), for underinsured motorist benefits. We have accepted this interlocutory appeal to review pretrial orders granting a motion for party substitution and a motion in limine, which collectively prohibited any explicit reference to Allstate. We reverse and remand.
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Brown-Day (together with amicus Indiana Trial Lawyers Association) and Allstate offer disparate views as to the breadth of Indiana Evidence Rule 411, which provides:
Evidence that a person was or was not insured against liability is not admissible upon the issue whether the person acted negligently or otherwise wrongfully. This rule does not require the exclusion of evidence of insurance against liability when offered for another purpose, such as proof of agency, ownership, or control, or bias or prejudice of a witness.
Allstate believes that a broad application of the rule is necessary and the jury should only hear that an individual is liable for payment, so as to avoid an over-inflated damages award upon awareness that an insurer’s deeper pockets are available for payment. Brown-Day and the Indiana Trial Lawyers Association argue that excluding all reference to insurance or insurers is not justifiable in a modern society where insurance coverage is prevalent.
Brown-Day also argues that the remedy employed by the trial court here goes beyond the possible parameters of Evidence Rule 411. The order of the trial court procedurally creates a fictitious persona. Evidence Rule 411 speaks to the admissibility of evidence, excluding evidence of insurance offered to show that a party acted negligently or wrongfully so that a jury is not induced to decide a case on improper grounds. Here, liability has been conceded and the amount of damages is at issue. Regardless of academic argument as to whether a jury is likely to assess greater damages against a deep-pocket insurance company, Evidence Rule 411 simply is not a mechanism providing for an outright substitution of parties so that the identity of a party as an insurer may be shielded. It does not contemplate the creation of a fiction to avoid possible prejudicial effects from a reference to insurance or an insurer.
Moreover, even if we assume that prejudice could have been lessened had Lobdell remained a named defendant along with Allstate, Allstate stood by and allowed her dismissal with prejudice instead of advancing payment and asserting a subrogation interest pursuant to Indiana Code Section 27-7-5-6. Years later, Allstate sought to use her identity. The cause of action to be tried before the jury is a first party claim for contract enforcement against Allstate, seeking underinsured motorist benefits. Although the amount of damages caused by a tortfeasor is at issue, the complaint is not a direct complaint against a tortfeasor. Allstate, the issuer of the insurance policy contract, is the sole named defendant and sole entity potentially liable for paying Brown-Day. Quite simply, Allstate is the real party in interest.
Allstate argues that this court has recently approved party substitution as an appropriate methodology to lessen prejudice in insurance cases, citing Wineinger v. Ellis, 855 N.E.2d 614 (Ind. Ct. App. 2006), trans. denied. In Wineinger, an automobile passenger who was injured in a collision brought an action against Shelter, the insurer who had contracted with the vehicle driver to provide uninsured motorist benefits. She also sued Ellis, an uninsured motorist and alleged tortfeasor. In its answer to the complaint, Shelter admitted liability and agreed to pay any judgment rendered, leaving the nature and extent of injuries as the only remaining issues. Id. at 617.
The trial court prohibited references to the insurer before the jury and permitted Shelter to “step into the shoes” of Ellis, with Ellis substituted “in name only” as the proper party defendant. Id. On appeal, this court found that the trial court “properly concluded that requiring Shelter to be a nominal participant in the trial would have impermissibly confused the issues[.]” Id. at 616.
However, the Wineinger case is readily distinguishable from the instant case. There, the substituted party was a co-defendant who had not been dismissed. The substitution of one name for two was ordered “provided that” Shelter admitted liability and agreed to pay the full judgment, even if it was beyond the policy limits. 855 N.E.2d at 617. Effectively, Shelter stipulated to full liability for all damages as a trade-off for exclusion of the mention of insurance.
Here, in contrast, there was no offer of full payment in order to “step into the shoes” of a tortfeasor. Indeed, there is no named defendant other than Allstate; there is no alleged tortfeasor with “shoes to step into.” Wineinger does not prohibit all references to insurers or insurance; rather, it addressed very specific circumstances. An insurer otherwise liable only for its contract obligations chose to forego a right of subrogation and contract limitations and agreed to total liability for any damages caused by a tortfeasor, as if the insurer were the tortfeasor. As such, the claim tried before the jury in Wineinger was substantively a tort claim.
Here, Brown-Day directly seeks benefits for which she contracted. Allstate wants the benefit of its bargain with Brown-Day, that is, the contractual limitation on Brown-Day’s recovery. Neither Evidence Rule 411 nor Wineinger provides authority for substitution of a non-party in place of a party so as to create a legal fiction before the jury in a contract case.
Brown-Day argues that she should be allowed to inquire as to payments Allstate made to its examiner/expert witness, contending that a witness’s source of income is relevant to the issue of his bias, prejudice or interest. Allstate suggests that a reference to “payments from the defendant” is adequate. Appellee’s Brief at 21.
Indiana Evidence Rule 616 provides:
For the purpose of attacking the credibility of a witness, evidence of bias, prejudice, or interest of the witness for or against any party to the case is admissible.
This rule reflects the fact that it is within the province of the jury to determine the credibility of witnesses and the weight to be accorded to their testimony. In reaching this determination, the jury is entitled to hear “evidence of bias, prejudice, or interest of the witness for or against any party.” The source of witness income goes to the heart of bias or prejudice, and excluding evidence relevant to the jury’s credibility assessment would operate as an invasion of the province of the jury. The language of the Rule carves out no exception when a party is an insurance company.
As such, relevant evidence is not to be excluded on grounds that an insurer is involved. Moreover, admitting relevant evidence with references to “a defendant” to avoid revealing insurance is not appropriate. . . . Here, Brown-Day has a right to cross-examine Allstate’s examiner/expert witness regarding compensation paid to him by Allstate.
Allstate is the sole defendant in this case, and neither Evidence Rule 411 nor the common law permits the substitution of a non-party so as to conceal Allstate’s identity as an insurer. Additionally, pursuant to Evidence Rule 616, evidence of bias, prejudice, or interest of a witness for or against a party is admissible, and the rule may not be disregarded on grounds that the party involved is an insurance carrier.
Reversed and remanded.
KIRSCH, J., and VAIDIK, J., concur.