No. 14265 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1979 

JEROME F. BORKOSKI, 

individually, and as the Administrator 

of the Estate of MARY J. BORKOSKI, 

deceased, 

Plaintiff and Appellant, 

ROBERT P. YOST, JAMES E. GOUAX and 

ST. PATRICK'S HOSPITAL, 

Defendants and Respondents. 

Appeal from: District Court of the Fourth Judicial District, 

Honorable Peter G. Meloy, Judge presiding. 

Counsel of Record: 

For Appellant: 

Knight, Dahood, Mackay and McLean, Anaconda, Montana 

David M. McLean argued, Anaconda, Montana 

For Respondents: 

Garlington, Lohn and Robinson, Missoula, Montana 

Sherman V. Lohn argued, Missoula, Montana 

Submitted: February 9, 1979 

Decided: ~PR 2 4 1979 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

Plaintiff and appellant Jerome Borkoski filed this 

medical malpractice and wrongful death action on June 17, 

1975, in the District Court, Fourth Judicial District, 

Missoula County, following the death of his wife, Mary Jane 

Borkoski, as a result of an automobile accident. Defendants 

in the action originally were St. Patrick's Hospital and 

Drs. Robert Yost and James Gouax. Prior to trial, however, 

Borkoski settled with St. Patrick's Hospital for $90,000. 

The hospital is not involved in this appeal. 

Trial commenced on December 12, 1977. On that day, 

Borkoski argued his motion to permit voir dire examination 

of prospective jurors as to the influence of a national 

campaign by leading insurance companies with regard to jury 

awards. During discovery, it had been determined that the 

insurance companies through which Yost and Gouax carried 

their malpractice insurance had been very actively involved 

in this campaign. 

The gist of the advertisements was that large jury 

awards would result in everyone paying higher insurance 

premiums. A fair example of these advertisements depicts a 

holding jury instruction" which states : 

"When awarding damages in liability cases, the 

jury is cautioned to be fair and to bear in mind 

that money does not grow on trees. It must be 

paid through insurance premiums from uninvolved 

parties, such as yourselves." 

Beneath this picture in large type is the statement: 

"Too bad judges can' t read this to a jury." The advertisement then describes several cases which the sponsoring 

insurance company points out as illustrative of "windfall" 

jury awards. The two-page ad then lists several suggestions 

to clean up the "mess" concluding: 
"We can ask juries to take into account a victim's own responsibility for his losses. And we 

can urge that awards realistically reflect the 

actual loss suffered--that they be a fair compensation, but not a reward. 

"Insurers, lawyers, judges--each of us shares 

some blame for this mess. But it is you, the 

public, who can best begin to clean it up. 

Don't underestimate your own influence. Use it, 

as we are trying to use ours." 

The sponsor of this particular ad was Aetna Life and 

Casualty. Dr. Gouax carried his malpractice insurance with 

Aetna Life and Casualty. Borkoski has presented copies of 

this and other similar ads which appeared in Time, Newsweek, 

Sports Illustrated, and Reader's Digest magazines during the 

approximate time of the impaneling of the jury. 

In his motion Borkoski asked: 

"For permission to examine prospective jurors 

with a line of inquiry to determine whether any 

prospective jurors have been exposed to, have 

observed, or are aware of the national campaign 

by leading insurance companies, directed particularly at prospective jurors, to the effect 

that large jury verdicts are in fact paid by the 

general public at large and constituted 'windfalls' to the recipients." 

The District Court denied this motion. According to 

the transcript of the argument on this motion, however, the 

District Court did allow Borkoski to "inquire as to each 

juror whether or not they feel that doctors are unnecessarily or professional people are unnecessarily oppressed by 

suits or large verdicts . . ." Further, according to an 

affidavit filed by the attorney for defendant doctors, 

Borkoski did inquire as to whether each juror was prejudiced 

against this type of case and whether prospective jurors had 

read any articles or advertisements about this type of case 

which would affect their determination of the case. The 

exact questions asked during voir dire are not available due 

to lack of transcript. 
The trial lasted from December 12 to December 19, 1977. 

~ftereceiving the case, the jury deliberated approximately 

forty minutes before returning a verdict in favor of defendants. 

~orkoski moved for a new trial on the grounds that he 

had been denied a fair and impartial jury when his voir dire 

motion had been denied and that the verdict was not supported by the evidence. The court denied his motion, and 

Borkoski appeals. 

On appeal Borkoski raises two related issues concerning 

the denial of his voir dire motion. These may be consolidated as follows: 

Whether the trial court committed reversible error and 

denied Borkoski his right to a fair and impartial jury when 

it refused to allow Borkoski to pursue a line of inquiry on 

voir dire to determine whether any prospective jurors were 

biased against Borkoski as the direct result of the national 

advertising campaigns by leading insurance carriers to the 

effect that large jury awards are in fact paid by the general public and constitute "windfalls" to the recipients. 

By this appeal, Borkoski brings to the attention of 

this Court a matter of increasing concern to both lay persons and lawyers. See e.g., Time, February 20, 1978, at 

65; Business Week, July 31, 1978, at 39; 64 A.B.A.J. 531 

(1978). The possibility of serious prejudice resulting to 

personal injury plaintiffs as a result of the advertising 

cam2aign being waged by the insurance companies constrains 

this Court to reexamine its rules on the propriety of the 

mention of insurance by attorneys on voir dire. As evidence 

of the possibility of prejudice, see the psychological study 

reported at 65 A.B.A.J. 68 (1979) which concludes that "even 
a single exposure to one of these ads can dramatically lower 

the amount of award a juror is willing to give." 65 A.B.A.J. 

Initially, we agree with Borkoski as to the purpose of 

voir dire examination: 

"The purpose of voir dire is simply to enable 

counsel to determine the existence of bias and 

prejudice on the part of prospective jurors 

and to enable counsel to exercise intelligently 

his peremptory challenges." State ex rel. 

Stephens v. District Court (1976), 170 Mont. 

22, 27, 550 P.2d 385, 388. 

"Although the trial judge may set reasonable limits on 

the examination, he should permit 'liberal and probing 

examination calculated to discover possible bias or prejudice . . . I 11 Barton v. Owen (1977), 71 Cal.App.3d 484, 508, 

139 Cal.Rptr. 494, 508 (citation omitted). The reasonable 

limits to be set must have due regard for the interests of 

fairness to both parties. Kiernan v. Van Schaik (3rd Cir. 

1965)) 347 F.2d 775, 778; Langley v. Turner's Express, Inc. 

(4th Cir. 1967), 375 F.2d 296, 297. 

With these principles in mind, we turn to an examination of this Court's treatment of the mention of insurance 

during voir dire. 

This Court's opinion the propriety of inquiry by an 

attorney into a prospective juror's relationship to the insurance industry has varied over time. The first case in 

which the issue was presented was Beeler v. Butte & London 

Copper Development Co. (1910), 41 Mont. 465, 110 P. 528. In 

that case, the respondents were permitted to ask each of 

the prospective jurors whether they had any business relations with the Casualty Company of America. The Court concluded : 
". . . Apparently respondents deemed this information necessary as an aid to the intelligent 

exercise of their peremptory challenges. It 

does not appear that either the purpose or tendency of these questions was to inform the jury 

that the burden of a judgment, if obtained, 

would fall on an insurance company instead of 

the defendant, and the company was not afterward 

mentioned in the case. The first time the question was asked, no objection whatever was made, 

and we are unable to see how the appellant could 

have been prejudiced by the examination." 41 

Mont. at 473, 110 P. at 530. 

Beginning with the very next case on the issue, however, this decision began to be eroded, primarily on the 

basis of the timeliness of objection to the first question 

concerning a prospective juror's business relations with an 

insurance company. Robinson v. F.W. Woolworth Co. (1927), 

80 Mont. 431, 261 P. 253, overruled - on other grounds, 

Hayward v. Richardson Construction Co. (1959), 136 Mont. 

241, 347 P.2d 475; Thomas v. Whiteside (1966), 148 Mont. 

394, 421 P.2d 449. Beeler was distinguished: 

". . . the opinion in that case does not say 

what should have been the ruling of the trial 

court if objection had been made the first time 

the question was asked and we say now had that 

been done in this case the objection would have 

been valid and, in that event, should have been 

sustained; to have done otherwise, in such 

event, would have constituted prejudicial error. 

On that point, the authorities are divided but 

the weight of authority and, we believe, sound 

reason are against the privilege of asking such 

questions. A venireman's business, occupation 

and connections can be learned, in a proper 

way, on voir -- dire examination, without bringing 

into the trial such incompetent matter as the 

carrying by defendant of indemnity insurance." 

80 Mont. at 443, 261 P. at 257. 

Although Robinson was actually decided the same as 

Beeler because of the failure to interpose an objection the 

first time the question was asked, the penalty suggested in 

Robinson was imposed one year later in Wilson v. Thurston 

Co. (1928), 82 Mont. 492, 495-96, 267 P. 801, 801-02. This 

Court ordered a new trial because of the prejudice caused 
when, over seasonable objection, the prospective jurors were 

asked whether they had any immediate relatives employed by 

any insurance company. 

By 1967, the type of question permitted in Beeler was 

completely prohibited: 

"The first prospective juror examined by counsel 

for Mrs. Avery was Mrs. Anna Berry. Counsel for 

Mrs. Avery inquired: 

"'Q. Now, I am going to ask you if you or your 

husband are the investors in any insurance 

companies? ' 

"At that time an objection was interposed by the 

City and a motion for mistrial presented. The 

motion was denied and the voir dire continued. 

"This same question was asked of each of the 

twenty prospective jurors. In some instances, 

counsel~for~~rs. ~ver~ would ask the question as 

the last question -- of the prospective juror. The 

purpose of such questioning was obvious, improper 

and- completely prejudicial. 

"The law is well-settled in this state that the 

action of the lower court in permitting this 

type of questioning on voir dire was prejudicial 

and reversible error." Avery v. City of Anaconda 

(1967), 149 Mont. 495, 497, 428 P.2d 465, 466. 

(Emphasis in original.) 

Despite this forceful pronouncement in 1967, the Court, 

in 1973, in effect reversed its position, explaining: 

"As a general rule if counsel acts in good faith, 

he may question prospective jurors on voir dire 

respecting their interest in, or connection with 

liability insurance companies. See: Anno. 4 

A.L.R.2d 761, 792, et seq. for an exhaustive 

listing of authorities in support. The rationale 

behind this general rule as indicated by these 

cases is that every litigant is entitled to a 

fair and impartial jury; that to secure this 

right, counsel for a litigant is entitled to 

question prospective jurors for the purpose of 

determining any bias or prejudice on their part; 

that one of the sensitive areas of juror bias 

and prejudice relates to the existence or nonexistence of insurance, particularly liability 

insurance; and accordingly counsel for a litigant is entitled to a reasonable latitude in 

voir dire examination to expose any such bias 

or prejudice on the part of a prospective juror 

and to enable a litigant intelligently to exercise his challenges, limited only by considerations of good faith." Haynes v. County of Missoula (1973)t 163 Mont. 270, 287-88, 517 P.2d 

370, 380. 
The rule thus adopted enjoys wide, although not unanimous, support among other jurisdictions which have considered 

the question, Annot., 4 ALR2d 761 and cases cited therein. 

A slight expansion of this rule which also enjoys fairly 

wide support involves asking not only whether prospective 

jurors have a financial interest or connection in the insurance business as stockholders or employees, but also whether 

they are insurance policyholders in a particular company 

themselves. E.g., Fowler v. Burks (1974), 52 Ala.App. 14, 

288 So.2d 798, 799; Kath v. Brodie (1955), 132 Colo. 338, 

287 P.2d 957, 958; Haston v. Hightower (1965), 111 Ga.App. 

87, 140 S.E.2d 525, 526; Barrett v. Morris (Mo. App. 1973), 

495 S.W.2d 100, 103. This latter expansion generally applies only if the insurance company is a named party or is a 

mutual insurance company in which member policyholders' 

premiums are determined directly by the amount of damages 

paid. The rationale for the rule in the former circumstance 

is that if the insurance company is a named defendant, the 

need to keep information about insurance coverage from the 

jury disappears; in the latter circumstance, where the 

insurance premium paid by a prospective juror may be directly 

determined by the amount of damages awarded, the plaintiff 

is entitled to learn of the juror's direct financial interest 

in the outcome. 

On the more specific issue presented by Borkoski of 

whether an attorney may inquire on voir dire into the prospective jurors' possible belief, formed by reading or 

hearing insurance company advertising, news articles, or 

other outside material, that large jury verdicts will result 

in larger insurance premiums for them, the cases are far 

fewer in number. The cases addressing this issue are also 

far from any sort of agreement. 
The jurisdictions of California, Kentucky, Hissouri, 

North Carolina, Texas, and the Court of Appeals for the 

Third Circuit hold that such inquiry is prejudicial and if 

allowed constitutes reversible error. Barton v. Owen (1977), 

71 Cal.App.3d 484, 508, 139 Cal.Rptr. 494, 508; Murrell v. 

Spillman (Ky. 1969), 442 S.W.2d 590, 591; Butcher v. Main 

19 M.C.App. 386, 198 S.E.2d 752, 753; Brockett v. ice 

(Tex.Civ.App. 1969), 445 S.W.2d 20, 22; Kiernan v. Van 

Schaik (3d Cir. 1965), 347 F.2d 775, 782-83. 

The rationale for these decisions varies. In the North 

Carolina, California and Texas cases, the respective courts 

held that this type of inquiry improperly conveyed the 

impression that the defendant was covered by liability 

insurance. Exemplary of their reasoning is that of the Texas 

Court of Civil Appeals in Brockett: 

". . . counsel then asked the whole panel 'whether any of them thought that a verdict in the 

case would affect their insurance rates.' The 

necessary effect of this was to infer that 

appellant had insurance because a verdict could 

not possibly affect their rates unless he had 

insurance. This was error." 445 S.W.2d at 22. 

Accord, Maness, 198 S.E.2d at 753; Barton, 139 Cal.Rptr. at 

In the Missouri, Kentucky and Third Circuit Court of 

Appeals cases, the respective courts merely held that exclusion of this type of questioning lies within the discretion 

of the trial court. (Parenthetically, we note that the 

other Federal Courts of Appeal which have considered the 

mention of insurance during voir dire disagree. See, Annot., 

40 A.L.R.Fed. 541 (1978); cf.Langley v. Turner's Express, 

Inc. (4th Cir. 1967), 375 F.2d 296 (any mention of insurance 

held prejudicial) with Wichman v. United Disposal, Inc. (8th 
Cir. 1977), 553 F.2d 1104 (inquiry only as to business 

involvement with an insurance company is permissible). 

Kiernan, supra, relied on heavily by Borkoski, does support 

this latter view. 347 F.2d at 782.) 

At the other extreme, the Supreme Court of Arkansas, in 

a very recent case virtually identical to the instant appeal, 

has held such inquiry is proper, so long as it is conducted 

in good faith. King v. Westlake (1978), Ark. , 572 

S.W.2d 841. The similarity to the instant case as well as 

the decision by the Arkansas court is contained in the 

following excerpt: 

"The record shows that for sometime preceding the 

trial date a number of liability insurance companies had run advertisements in Time, The Wall 

Street Journal and the Smithsonian Institute magazine aimed at jurors in general to the effect that 

jurors themselves were affected by the verdicts 

they rendered in that such verdicts resulted in 

increased premiums. 

"On voir dire by appellee's counsel and in response to questioning a number of potential jurors 

responded that they had read - Time, -- The Wall Street 

Journal, or the Smithsonian Institute magazine. 

All but two of the jurors indicated that they had 

seen one or more of the advertisements. Thereafter, as abstracted by appellant the record shows: 

"'Mr. Eubanks continued: 

"'It is improper for either side to imply or suggest that the defendant does or does not have insurance, and the questions I will now direct to 

you have nothing to do with whether or not the 

defendant has insurance. The questions I will ask 

concern your insurance premiums, not insurance in 

this case. How many of you believe that jury verdicts affect insurance premiums? 

"'Your insurance premiums may not be affected 

greatly one way or the other, but will not the 

verdicts that you render have some effect on your 

insurance rates? 

"'Venireman Gerald Hudgens responded: Yes. 

"'Mr. Eubanks continued: 

"'The question I have been building up to is 

this: Assuming that the verdict you render could 
cost you a little more or a little less money on 

your insurance premiums, can you listen to the 

testimony, the statements of counsel, and the 

instructions and then put aside the financial 

interest you have in this case because of your 

insurance premiums and render a verdict? (All 

jurors raised their hands.)' 

"The voir dire of the jury was obviously in good 

faith and as such was proper. See Dedmon v. 

Thalheimer, 226 Ark. 402, 290 S.W.2d 16 (1956), 

where we held the purpose of voir dire examination 

is to enable counsel to ascertain whether there 

is ground for a challenge of a juror for cause, or 

for a peremptory challenge and that so long as 

counsel acts in good faith, he may, in one form 

or another question prospective jurors respecting 

their interest in or connection with liability 

insurance companies." 572 S.W.2d at 843-44. 

Approaching the issue from a different angle, the 

Supreme Court of Queens County in New York held that the 

type of insurance company advertisements at issue herein 

violated a plaintiff's right to an impartial jury and constituted jury tampering and therefore could be restrained. 

Quinn v. Aetna Insurance Co. (1978), N.Y.Misc.2d I 

409 N.Y.S.2d 473. Similarly, the Commissioners of Insurance 

in Kansas and Connecticut have entered into consent decrees 

with one insurance company whereby the company agreed to 

stop publishing similar advertisements in those states. In 

re Crum and Forster Insurance Companies, Kan., Office of the 

Commissioner of Insurance, June 27, 1978; In re Crum and 

Forster Insurance Companies, Conn., Office of the State 

Insurance Commissioner, August 14, 1978. 

Somewhere between the above extremes lie the decisions 

of courts in Connecticut, Maryland, and Oregon. Lowell v. 

Daly (1961)r 148 Conn. 266, 169 A.2d 888; Kujawa v. Baltimore Transit Co. (1961), 224 Md. 195, 167 A.2d 96; Johnson 

v. Hansen (1964), 237 Ore. 1, 389 P.2d 330. These three 

jurisdictions held that, on the record before the Court, the 

inquiry was improper yet indicate that had the proper founda- 
tion been laid for the inquiry, it would have been permissible. In the words of the Oregon Supreme Court: 

----- "In the case at bar there was -- no preliminary 

showing of any -- fact that might -- have made relevant -- aninquiry concerning bias arising -- out of 

the relationship of verdicts and insurance premiums. Where a line of questioning obviously 

is going to open up prejudicial speculation, 

e.g., of a racial, religious, political or other 

emotionally charged nature, the exploration of 

which will manifestly incite similar speculation 

upon the part of listening jurors, counsel must 

be prepared to show the need which might make 

such an inquiry relevant, or run the risk of an 

immediate mistrial. Insurance matters should 

be handled with the same safeguards. -- In the 

case before us counsel -- did not advise - the court 

of -- the existence of recent institutional advertising, -- or of other current propaganda calculated 

- to produce --- bias upon the part of jurors -- in the 

local court. Thus there was nooccasion to open 

up the matter of insurance, whether innocently 

or with scienter. We hold that the inquiry was 

improper." Johnson, 389 P.2d at 331. (Emphasis 

added. ) 

Accord, Kujawa, 167 A.2d at 98; Lowell, 169 A.2d at 889. 

The holdings in these cases are important in our resolution of the situation such as the one presented in the 

instant appeal. The attorney for Borkoski did present to 

the trial court evidence of recent institutional advertising 

by the very insurance companies involved in the case; advertising carried in popular national magazines at about the 

time of the drawing of the jury panel; advertising calculated to produce bias upon the part of jurors against awarding large amounts of damages to personal injury plaintiffs 

such as Borkoski. Under these circumstances, we conclude 

that a line of inquiry designed to uncover this possible 

bias should be permitted. 

When insurance companies inject the issue of insurance 

into the consciousness of every potential juror through a 

high priced advertising campaign, as has been illustrated in 

this case, they threaten every plaintiff's right to an 
impartial jury. 1972 Mont. Const. Art. 11, 526. In such 

cases, it is only fair that attorneys have some means to 

secure this right for their clients. Liberal voir dire is 

the best means to this end. State ex rel. Stephens v. District Court, 170 Mont. at 27, 550 P.2d at 388. See also, 

comments of University of Illinois Law Professor Jeffrey 

O'Connell in Time, February 20, 1978, at 65. 

Therefore, we hold that in appropriate cases an attorney upon voir dire may inquire of prospective jurors whether 

they have any business relationship with insurance companies 

and whether they are policyholders of an insurance company 

named as a defendant or of a mutual insurance company involved in the case. We further hold that, upon a proper 

showing of possible prejudice, an attorney may inquire 

whether a prospective juror has heard or read anything to 

indicate that jury verdicts for plaintiffs in personal 

injury cases result in higher insurance premiums for everyone; if so, whether the prospective juror believes such 

materials; and if so, whether that belief will interfere 

with the juror's ability to render a fair and impartial 

verdict. Depending upon the responses received to these 

inquiries and subject to the discretion of the trial court, 

limited follow-up inquiries may be made. We decline to 

hypothesize as to the permissible nature or extent of these 

follow-up questions at this time. We do conclude, however, 

that the alleged plan of Borkoski's attorney to circulate 

among the jury panel copies of the insurance companies' 

advertisements would have been been improper and would have 

led to the very prejudice against which Borkoski is now 

arguing. Liber v. Flor (1966), 160 Colo. 7, 415 P.2d 332, 

339. 
It is not our intent to ignore the equal right of a 

defendant to a fair and impartial jury. Therefore, we 

further hold that, as a prelude to any questions concerning 

whether a potential juror has read or heard anything to 

indicate that jury verdicts for plaintiffs in personal 

injury cases result in higher insurance premiums for everyone, an attorney must ask certain general introductory questions. These initial questions may be approached from two 

directions: (1) whether the prospective juror has heard of 

or read anything (not necessarily related to insurance) 

which might affect his ability to sit as an impartial juror 

(as was done by the trial judge in this case); or (2) whether the prospective juror regularly reads any of the magazines or newspapers in which it has been demonstrated that 

the insurance advertisements or articles had appeared (as 

was done in Westlake). An attorney may utilize either or 

both of these approaches. If, however, no positive responses 

are received to these introductory inquiries, there is no 

reason to pursue further the line of inquiry we have approved 

above. 

The foregoing rules are all subject to a showing that 

counsel is acting in good faith and is not merely attempting 

to impress on the jury the fact that the defendant may be 

covered by insurance. Haynes v. County of Missoula, 163 

Mont. at 287, 517 P.2d at 380. We fully subscribe to the 

following procedure and statement adopted by the New Mexico 

Supreme Court in Canter v. Lowry (1961), 69 N.M. 81, 364 

". . . the practice which has developed in many 

jurisdictions of advising the trial court, in 

the absence of the jury, of the questions proposed to be asked, the purpose thereof, and 
making of a showing of good faith, is definitely 

preferred . . . Failure to follow such preferred 

practice has a tendency to negative a claim of 

good faith. Contrariwise, the following of such 

practice would minimize the possibility of any 

prejudice or injustice to either of the parties 

in many cases, as well as being a considerable 

saving of trial time. " (Citation omitted. ) 

The question of whether the voir dire is in fact being 

conducted in good faith is thus left to the trial court. 

State ex rel. Stephens v. District Court, 170 Mont. at 27, 

550 P.2d at 388. For the guidance of the trial courts in 

these matters, we commend to their attention the voir dire 

approved by the Arkansas Supreme Court in King v. Westlake 

(1978) t Ark. , 572 S.W.2d 841, 843-44, and quoted 

above. 

Unfortunately, the foregoing conclusions do not avail 

Borkoski on this appeal. Even though we accept Borkoski's 

arguments, it is undeniable that the purpose of the advertisements was to reduce the amount of - damages awarded by a 

jury. At no point is it suggested, either by Borkoski or in 

the advertisements themselves, that juries should not find a 

party negligent in the first place. The ads speak only to 

damages, not liability. Here, the jury found defendant 

doctors not liable at all. The jury did not even reach the 

question of damages. In such a case, Borkoski's arguments 

lose their vitality, and any error committed must be viewed 

as harmless and not grounds for reversal. Rule 61, M.R.C~V.P. 

The judgment of the District Court is affirmed. 
We concur: 

4 

Chief Justice 

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