### 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 24 

## 1979Mr. 

### 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, inthe District

### Court, Fourth Judicial District, Missoula County, following the death of hiswife, Mary Jane Borkoski, as a resultof an automobile accident. Defendants inthe action originallywere St. 

### Patrick's Hospital and Drs. 

### Robert Yost and James 

### Gouax. Prior to trial, however, Borkoski settledwith St. Patrick's Hospital for $90,000. The hospital isnot involved in this appeal. Trial commenced on December 12, 1977. On that day, Borkoski argued hismotion topermit voir dire examination of prospective jurors as tothe influence of a national campaign by leading insurance companies with regard tojury 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 inthis campaign. The gistof the advertisements was that largejury awards would result ineveryone paying higher insurance premiums. A 

### fairexample of these advertisements depicts a 

### holding jury instruction" which states: 

### "When awarding damages inliability cases, the jury is 

### cautioned tobe fair and tobear inmind thatmoney does not grow on trees. It

### must be paid through insurance premiums from uninvolved parties, such asyourselves." Beneath thispicture inlarge 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 illustrativeof "windfall" jury awards. The two-page ad then lists 

### several suggestions toclean up the "mess" concluding:

### "We can ask juries totake 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 faircompensation, 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 toclean it 

### up. Don't underestimate your own influence. Use

### it, 

### aswe are trying touse ours." The sponsor of thisparticular ad 

### wasAetna Life and Casualty. Dr. 

### Gouax carried hismalpractice insurance with Aetna Life and Casualty. Borkoski has presented copies of this and other similar ads which appeared inTime, 

### 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 toexamine prospective jurors with a lineof inquiry todetermine whether any prospective jurors have been exposed to, have observed, or areaware of the national campaign by leading insurance companies, directed particularly atprospective jurors, tothe effect that large jury verdicts areinfactpaid by the general public atlarge and constituted 'windfalls' tothe recipients." The DistrictCourt denied thismotion. According to the transcript of the argument on thismotion, however, the DistrictCourt did allow Borkoski to "inquire as toeach juror whether ornot they feel that doctors areunnecessarily orprofessional people are unnecessarily oppressed by suitsor large verdicts 

# . . ." Further, according to an affidavitfiledby the attorney for defendant doctors, Borkoski did inquire astowhether each juror was prejudiced against this type of case and whether prospective jurors had read any articlesor advertisements about this type of case which would affect their determination of the case. The

exact questions asked during voir direarenot available due to lack of transcript.The 

### trial lasted from December 12toDecember 19, 1977. ~fter eceiving the case, the jury deliberated approximately fortyminutes before returning a verdict infavor 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 hismotion, and Borkoski appeals. On appeal Borkoski 

### raises two related issues concerning the denial of hisvoir diremotion. 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 toallow Borkoski topursue 

### a line of inquiry on voir dire todetermine 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 infactpaid by the generalpublic and constitute "windfalls" to the recipients. By this appeal, Borkoski brings to the attention of this Court a matter of increasing concern toboth 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 toreexamine itsrules 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 "evena single exposure toone of these ads can dramatically lower the amount of award 

### a juror 

### iswilling togive." 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 toenable counsel todetermine the existence of bias and prejudice on thepart of prospective jurors and to enable counsel toexercise intelligently his peremptory challenges." State ex 

### rel. Stephens v. District Court (1976), 170 Mont. 22, 27, 550 P.2d 385, 388. "Although the 

### trialjudge may 

### set reasonable 

### limitson the examination, he should permit 'liberal and probing examination calculated todiscover possible bias orprejudice 

# . 

# . .I11 Barton v. Owen (1977), 71 Cal.App.3d 484, 508, 139 Cal.Rptr. 494, 508 (citationomitted). The reasonable 

### limitstobe 

### setmust have due regard for the interests of fairness toboth parties. Kiernan v. Van Schaik (3rdCir. 1965)) 347 F.2d 775, 778; Langley v. Turner's Express, Inc. (4thCir. 1967), 375 F.2d 296, 297. With these principles inmind, 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), 41Mont. 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 fallon an insurance company instead of the defendant, and the company 

### was not afterward mentioned inthe case. The firsttime the question was asked, no objection whatever was made, and 

### we areunable to 

### see how the appellant could have been prejudiced by the examination." 41 Mont. at473, 110 P. at530. Beginning with the very next case on the issue, however, this decisionbegan tobe eroded, primarily on the basis of the timeliness of objection to the firstquestion 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 ifobjection had been made the first

### time the question 

### was asked and 

### we say now had that been done inthis case the objection would have been valid and, inthat event, should have been sustained; tohave done otherwise, in such event, would have constituted prejudicial error. On that point, the authorities aredivided but the weight of authority and, 

### webelieve, sound reason are against the privilege of asking such questions. A venireman's business, occupation and connections can be learned, ina proper way, on voir 

## -- dire examination, without bringing into the trial such incompetent 

### matter as the carrying by defendant of indemnity insurance." 80 Mont. 

### at443, 261 P. at257. Although Robinson 

### was actually decided the 

### same as Beelerbecause of the failure tointerpose an objection the first time the question

### was asked, the penalty suggested in Robinson 

### was imposed one year later inWilson v. Thurston Co. (1928), 82 Mont. 492, 495-96, 267 P. 801, 801-02. This Court ordered a new trialbecause of the prejudice causedwhen, 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 inBeeler 

### was completely prohibited: "The firstprospective 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 oryour husband are the investors inany 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 lastquestion 

### -- of the prospective juror. The purpose of such questioning was obvious, improper and-completely prejudicial. "The law 

### iswell-settled in this state that the action of the lower court inpermitting 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 inoriginal.) Despite this forceful pronouncement in 1967, the Court, in 1973, ineffect reversed 

### itsposition, explaining: "As a general rule if counsel acts ingood 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, etseq. for an exhaustive listing of authorities in support. The rationale behind thisgeneral 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 orprejudice on their part; that one of the sensitive 

### areas of juror bias and prejudice 

### relates tothe existence or nonexistence of insurance, particularly liability insurance; and accordingly counsel for a litigant 

### is entitled to a reasonable latitude in voir dire examination toexpose any such bias orprejudice on the part of a prospective juror and toenable a litigant intelligently toexer

### cise his challenges, limited only by considerations of good faith." Haynes 

### v. County of Missoula (1973)t 163Mont. 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 slightexpansion of this rulewhich alsoenjoys fairly wide support involves asking not only whether prospective jurors have a financial interestor connection inthe insurance business as stockholders or employees, but alsowhether they 

### are insurance policyholders ina 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 inwhich member policyholders' premiums aredetermined directly by the amount of damages paid. The rationale for the rule inthe former circumstance is that if the insurance company is a named defendant, the need tokeep information about insurance coverage from the jury disappears; inthe 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 inthe outcome. On themore specific issue presented by Borkoski of whether an attorneymay 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 largejury verdicts

### willresult inlarger insurance premiums for them, the cases 

### are far fewer innumber. 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 isprejudicial 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

19M.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 thatof the Texas Court of Civil Appeals inBrockett: 

# ".

. . counsel then asked the whole panel 'whether any of them thought that a verdict inthe 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 at22. Accord, Maness, 198 S.E.2d 

### at753; Barton, 139 Cal.Rptr. at

In theMissouri, Kentucky and Third Circuit Court of Appeals cases, the respective courtsmerely held that exclusionof 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. (4thCir. 1967), 375 F.2d 296 (anymention of insurance held prejudicial) with Wichman v. United Disposal, Inc. (8thCir. 1977), 553 F.2d 1104 (inquiry only as tobusiness involvement with an insurance company 

### is permissible). Kiernan, supra, relied on heavily by Borkoski, does support this latter view. 347 F.2d at782.) Atthe other extreme, the Supreme Court of Arkansas, in a very recent case virtually identical to the instant appeal, has held such inquiry 

### isproper, so long as 

### it is conducted ingood faith. King v. Westlake (1978), Ark. 

### , 572 S.W.2d 841. The similarity tothe instant case aswell as the decision by the Arkansas court is contained inthe following excerpt: "The record shows that for sometime preceding the 

### trial date a number of liability insurance companies had run advertisements inTime, The Wall StreetJournal and the Smithsonian Institutemagazine aimed 

### atjurors ingeneral to the effect that jurors themselves 

### were affected by the verdicts they rendered inthat such verdicts resulted in increased premiums. "On voir direby appellee's counsel and in

### response toquestioning a number of potential jurors responded that they had read 

## - Time, 

## -- The WallStreet Journal, or the Smithsonian Institutemagazine. Allbut two of the jurors indicated that they had seen one ormore 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 

### willnow direct to you have nothing todo with whether or not the defendant has insurance. The questions I 

### willask 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 

### willnot the verdicts that you render have some effecton 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 couldcostyou a littlemore 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 interestyou have in this case because of your insurance premiums and render a verdict? (All jurors raised their hands.)' "The voir direof the jury was obviously ingood 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 toenable 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 ingood faith, he may, inone form or another question prospective jurors respecting their interest inorconnection with liability insurance companies." 572 S.W.2d 

### at 843-44. Approaching the issue from a different angle, the Supreme Court of QueensCounty inNew York held that the type of insurance company advertisements atissue herein violated 

### a plaintiff's right toan 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 inKansas and Connecticut have entered into consent decrees with one insurance company whereby the company agreed to stoppublishing similar advertisements inthose states. In



### re Crum and Forster Insurance Companies, Kan., Office of the Commissioner of Insurance, June 27, 1978; In reCrum and Forster Insurance Companies, Conn., Office of the State Insurance Commissioner, August 

### 14, 1978. Somewhere between the above extremes 

### lie the decisions of courts inConnecticut, Maryland, and Oregon. Lowell v. Daly (1961)r 148Conn. 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 thathad theproper founda-

### tion been laidfor the inquiry, 

### itwould have been permissible. In thewords of the Oregon Supreme Court: "In the case at

### bar there

### was no preliminary 

### ----- -- showing of 

### any fact thatmight have made rele

## -- -- 

# vant -- aninquiry concerning bias arisingout 

### -- of the relationshipof verdicts and insurance premiums. Where a 

### line of questioning obviously is

### going toopen up prejudicial speculation, e.g., of a racial, religious, political or other emotionally charged nature, the exploration of which 

### willmanifestly incite similar speculation upon the part of listeningjurors, counsel must be prepared to show the need which might make such an inquiry relevant, or run the risk of an immediate mistrial. Insurancematters should be handled with the 

### same safeguards. 

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

## -- 

## - of 

### -- the existenceof recent institutional advertising, 

## -- or of othercurrent propaganda calculated toproduce biasupon the part of jurors inthe 

### - 

## --- -- local court. Thus there

### was nooccasion toopen up thematter of insurance, whether innocently orwith scienter. We

### hold that the inquiry was improper." Johnson, 389 

### P.2d at331. (Emphasis added.) 

### Accord, Kujawa, 167 A.2d at98; Lowell, 169 A.2d at889. The holdings inthese cases areimportant inour resolution of the situation such as 

### the one presented inthe instant appeal. The attorney for Borkoski didpresent to the trial court evidence of recent institutional advertising by the very insurance companies involved inthe case; advertising carried inpopular national magazines atabout the 

### timeof the drawing of thejury panel; advertising calculated toproduce bias upon the part of jurors against awarding large amounts of damages topersonal injuryplaintiffs such asBorkoski. Under these circumstances, 

### we conclude that a 

### line of inquiry designed touncover thispossible bias should be permitted. When insurance companies injectthe issueof insurance intothe consciousness of every potential juror through a high priced advertising campaign, 

### as has been illustrated in this case, they threaten every plaintiff's right toanimpartial jury. 1972Mont. 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 bestmeans to this end. State ex 

### rel. Stephens v. Dis

### trict Court, 170Mont. 

### at 27, 550 P.2d at388. See also,

comments of University of Illinois Law Professor Jeffrey O'Connell inTime, February 20, 1978, at65. Therefore, 

### we hold that inappropriate cases an attorney upon voir diremay inquire of prospective jurors whether they have any business relationshipwith insurance companies and whether they arepolicyholders of an insurance company named as a defendant orof a mutual insurance company involved inthe 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 inpersonal injury cases result inhigher insurance premiums for everyone; if so, whether the prospective juror believes such materials; and if so, whether thatbelief 

### willinterfere with the juror's ability torender 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 tothepermissible nature orextent of these follow-up questions 

### atthis

### time. Wedo conclude, however, that the alleged plan of Borkoski's attorney tocirculate among the jury panel copies of the insurance companies' advertisements would have been been improper and would have led tothevery prejudice against which Borkoski isnow arguing. Liber v. Flor (1966), 160 Colo. 7, 415 P.2d 332, 339.It 

### isnot our intent toignore the equal right of a defendant to a fair and impartial jury. Therefore, 

### we further hold that, asa prelude to any questions concerning whether a potential juror has read or heard anything to indicate thatjury verdicts for plaintiffs inpersonal injury cases result inhigher insurance premiums for everyone, an attorney must ask certain general introductory questions. These initialquestions may be approached from two directions: 

### (1)whether the prospective juror has heard of

or read anything (not necessarily related to insurance) which might affecthis ability to 

### sit as an impartial juror (aswas done by the trialjudge inthis 

### case); or (2) whether the prospective juror regularly reads any of the magazines or newspapers inwhich 

### it has been demonstrated that the insurance advertisements or articles had appeared (as



### was done inWestlake). An attorney may utilize either or both of these approaches. If, however, no positive responses

arereceived to these introductory inquiries, there 

### is no

reason topursue further the line of inquiry 

### we have approved above. The foregoing rules are 

### all subject toa showing that counsel 

### is acting ingood 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. at287, 517 P.2d at380. We fully subscribe to the following procedure and statement adopted by the New Mexico Supreme Court inCanter v. Lowry (1961), 69 N.M. 81, 364 

# ".



# . . the practice which has developed inmany jurisdictions of advising the 

### trial court, in the absence of thejury, of the questions proposed tobe asked, the purpose thereof, andmaking of a showing of good faith, 

### is definitely preferred 

# . . . Failure to follow such preferred practice has 

### a tendency tonegative 

### a claim of good faith. Contrariwise, the following of such practice would minimize the possibility of any prejudice or injustice toeither of the parties inmany cases, aswell asbeing a considerable saving of 

### trial 

### time.

### " (Citationomitted.) The question of whether the voir dire 

### is in factbeing conducted ingood faith

### is thus leftto the trial court. State ex rel. Stephens v. District Court, 170 Mont. at27, 550 P.2d at388. For the guidance of the trial courts in these 

### matters, 

### we commend to their attention the voir dire approved by the Arkansas Supreme Court inKing 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 toreduce the amount of 

### -damages awarded by a jury. Atno point is it suggested, either by Borkoski or in the advertisements themselves, that juries should not find a party negligent inthe firstplace. The ads speak only to damages, not liability. Here, the jury found defendant doctors not liable atall. 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 d

# %,g Chief Justice



## v 

# e,- ustices 

# V