Family of Woman Killed in Crash Accuses Insurer...

[madisen]

gma.yahoo.com/family-woman-killed-crash-accuses-insurer-calling-witness-155938855--abc-news-topstories.html

Family of Woman Killed in Crash Accuses Insurer of Calling Witness Against Her
By SUSANNA KIM | Good Morning America – Tue, Aug 14, 2012 11:59 AM EDT...


Family of Woman Killed in Crash Accuses Insurer of Calling Witness Against Her (ABC …

The brother of a woman who was killed in car accident is accusing her insurance company of defending the person he said is her killer in an insurance legal dispute, including calling a witness to the stand against her.

Kaitlynn Fisher, called Katie by her brother and who had engineering degrees from Johns Hopkins University, died in a car accident on June 19, 2010 in Baltimore after another driver ran a red light. She was 24.

On Monday, Matthew Fisher, 33, her brother and a comedian based in Brooklyn, published a blog post, saying the insurance company Progressive "refused to pay the policy to my sister's estate."

Fisher wrote that "someday when you have your accident, I promise that there will be enough wiggle room for Progressive's bottomless stack of in-house attorneys to make a court case out of it and to hammer at that court case until you or your surviving loved ones run out of money."

Chris Wolf, a claims general manager with Progressive, offered a statement to ABC News, saying, "foremost, our deepest sympathies go out to Kaitlynn Fisher's family."

"To be very clear, Progressive did not serve as the attorney for the defendant in this case. He was defended by his insurance company, Nationwide," Wolf said in the statement. "There was a question as to who was at fault, and a jury decided in the Fisher family's favor just last week. We respect the verdict and now can continue to work with the Fisher family to reach a resolution."
A spokesman for Progressive declined to comment further.

Fisher fired back against Progressive's statement in another blog post on Tuesday night, saying Progressive's attorney not only sat next to the other driver during the trial, but conferred with the defendant "in and out of the courtroom."

"He gave an opening statement to the jury, in which he proposed the idea that the defendant should not be found negligent in the case. He cross-examined all of the plaintiff's witnesses," Fisher said in a statement on Tuesday evening. "On direct examination, he questioned all of the defense's witnesses. He made objections on behalf of the defendant, and he was a party to the argument of all of the objections heard in the case. After all of the witnesses had been called, he stood before the jury and gave a closing argument, in which he argued that my sister was responsible for the accident that killed her, and that the jury should not decide that the defendant was negligent."
"I am comfortable characterizing this as a legal defense," Fisher said in his statement on Tuesday.

In his blog post, Fisher said that he doesn't "discount the possibility that Katie was at fault in the accident, but it never really looked that way."

He said a witness stated that "Katie had the light."

The jury awarded the Fishers $760,000 and Progressive will have to pay at minimum $100,000, the amount on Katie's policy, within 30 days.

Fisher and a family spokeswoman directed ABC News to their attorney, Allen W. Cohen.

Allen Cohen, an attorney for the Fisher family, said while Progressive's claim is technically correct that they did not serve as an attorney for the defendant, "Progressive did everything in their power to show that their own insured did something wrong. They were fighting against the person who paid them premiums."

That included calling a witness to the stand who claimed that Katie ran a red light.

"Maryland law requires that an insurance company act in good faith as it works with its own insured," Cohen said, but "we question the good faith behavior of Progressive."

Because of that question of "good faith," Cohen said the family is exploring avenues of additional damages.

"One indication that the case was pretty open-and-shut was that the other guy's insurance company looked at the situation and settled with my sister's estate basically immediately," Fisher wrote in his blog.

However, complications arose because the other driver was uninsured, but his sister "carried a policy with Progressive against the possibility of an accident with an underinsured driver," Fisher wrote in the blog.

"So Progressive was now on the hook for the difference between the other guy's insurance and the value of Katie's policy," Fisher wrote.

"In hopes that a jury would hang or decide that the accident was her fault, they refused to pay the policy to my sister's estate," he wrote.

"Out of a sense of honor, and out of a sense of the cost of my sister's outstanding student loans, my folks opted to try to go after the money through legal channels," he wrote.

Complications arose because, Fisher wrote, because, "In Maryland, you may not sue an insurance company when they refuse to fork over your money."

Therefore, the family listed Progressive as a co-defendant as permitted by Maryland in the case of an underinsured motorist claim.

Maryland state law uses "contributory negligence" to settle civil suits, which means "if you are even 1 percent at fault for the accident you are barred from any recovery," one insurance analyst told Consumerist.com.

Tom Baker, law professor at University of Pennsylvania and an insurance expert, said that without analyzing the legal documents, it sounded like Progressive was following Maryland's rules regarding under-insured motorist claims.

In order to collect coverage you bought in case of an accident with an uninsured motorist, you have to prove that the accident was the other driver's fault.

"The fact that the other driver's insurance company paid its limits quickly does not mean that it was the other driver's fault," Baker said. "The insurance policy may have been so small that the insurance company decided that it wasn't worth fighting about."

Fisher's parents had to sue the other driver and establish his negligence in court to force Progressive to pay the policy. Progressive made a series of offers, "never higher than 1/3 the amount they owe," according to Matthew Fisher's Monday blog post, and then let it go to trial.

To the surprise of Fisher, "At the trial, the guy who killed my sister was defended by Progressive's legal team," he wrote. "If you are insured by Progressive, and they owe you money, they will defend your killer in court in order to not pay you your policy."

[WOT?*]

People don't understand how insurance works. There are a couple links on MM, I think. Ask-an-adjuster on the first page was based on this article posted a few days ago on MM but I haven't found it yet.

Basically, auto insurance isn't life insurance. The policy doens't automatically pay out. If she's partially liable for the accident, then she is also partially liable for her own death, and the damages are or can be mitigated based on how at-fault she can be found. And the defendant's insurance paying out has nothing to do with Progressive's stance. It's very possible he had minimal coverage and it was more economically practical for the insurance company to pay out, and her policy limits were more substantial (which would in fact be the case because UM coverage generally pays out at the limits *above* what has already been paid out in many states. So if his policy was $25K and her policy had a $25K UM rider, then they balance and she lacks coverage. If he had $25K and her policy had a $250K policy rider for UM, then the insurance company would have an obligation to their shareholders (yeah, I know, they should also have an obligation to their policy holders, but they look to the shareholders) and they do a cost-benefit analysis to see what the risks might be between a payout of the limits, a lower settlement or verdict, mitigation of damages (who was at fault) and a possible defense verdict. They have to weigh in the cost of retrieving records, hiring experts, having reports made... With a lower limits policy it's generally de rigeur to pay the limits with no questions asked in these instances, the higher policy limit cases generally go to trial or go very close to trial unless there is ample evidence that the limits should be paid. I've seen it swing both ways when it's gone to court; Progressive flipped a coin and lost in this instance but it's how it works for all insurance companies.

You should check out the Ask an Adjuster thread and I can possibly try to locate the original thread posted because there were some good responses in there.

[madisen]

I haven't lurked on MM lately.

I get that auto insurances aren't like life insurances. I'm surprised that Progressive took such an active role in the legal defense of the other driver. I would have thought there would have to be more of an arms' length deal here.

[IIOY]

This was all over my Twitter feed yesterday. I used to do some insurance defense work so this doesn't phase me, but I can appreciate the shitty optics.

[WOT?*]

Here's the MM link. Found it.

pandce.proboards.com/index.cgi?board=mm&action=display&thread=44310

My guess is they were misunderstanding Progressive's role. They weren't defending the killer, they were defending their file, position and shareholders. The killer would have been defended in court by a personal attorney (or Nationwide's attorney per the rebuttal) not a Progressive attorney. Progressive may have been there to observe and ask questions to protect their valuation on their file but they weren't there to defend the defendant.

And it's standard procedure to sue the offender. Almost all complaints are made "Victim" as plaintiff and "Driver" as defendant. I would be surprised that Progressive wasn't named however, as a defendant in the case; it's very possible they were named as a defendant on the lawsuit and the family isn't "outing" or even aware of that part of it. Yes they had to sue the driver; that's the standard. But it's also standard to sue the carrier for UM/UIM claims, in which case it's also reasonable for Progressive to be sitting on the defendant's side of the courtroom, because they are defendants (or rather, co-defendants) in the case. They would also be asking questions of the defendant and the witnesses and objecting on their behalf in that scenario to protect their case.

[statlerwaldorf]

This is a pretty standard practice. It is common for insurance companies to fight for contributory negligence of their own insured in an uninsured or underinsured motorist case to avoid having to pay as much out. It is uncommon in a situation where someone ran a red light to have conflicting witness statements. It is more commonly that the insured was speeding which added to the extent of the injuries therefore the at-fault party (which in this case is UM policy) is only liable for a certain % of the damages.

When I worked in PI, Allstate was the absolute worst to deal with UM policies. I'm not sure if it was just the office I dealt with, but it was enough to get me to switch my own policy to another company.

[WOT?*]

Statler, you should try Kaiser as a medical provider with Allstate as the UM carrier. Fun times.

[madisen]

Aug 15, 2012 15:52:28 GMT -5 WOT?* said:

Here's the MM link. Found it.

pandce.proboards.com/index.cgi?board=mm&action=display&thread=44310

My guess is they were misunderstanding Progressive's role. They weren't defending the killer, they were defending their file, position and shareholders. The killer would have been defended in court by a personal attorney (or Nationwide's attorney per the rebuttal) not a Progressive attorney. Progressive may have been there to observe and ask questions to protect their valuation on their file but they weren't there to defend the defendant.

And it's standard procedure to sue the offender. Almost all complaints are made "Victim" as plaintiff and "Driver" as defendant. I would be surprised that Progressive wasn't named however, as a defendant in the case; it's very possible they were named as a defendant on the lawsuit and the family isn't "outing" or even aware of that part of it. Yes they had to sue the driver; that's the standard. But it's also standard to sue the carrier for UM/UIM claims, in which case it's also reasonable for Progressive to be sitting on the defendant's side of the courtroom, because they are defendants (or rather, co-defendants) in the case. They would also be asking questions of the defendant and the witnesses and objecting on their behalf in that scenario to protect their case.

I believe the article I posted does state the family named Progressive as a co-defendant. I get that it's standard practice, but should it be? I still think it's shitty.

[WOT?*]

It should be standard practice. Otherwise, any time someone is in an accident, they would be automatically required to pay out the policy limits, which is not the purpose or intent of insurance. If there was no question of liability and no question of damages then they would of course pay out the policy limits. I've seen that happen time and again. But if there is any question, they also have an obligation to protect the company and not simply pay out on the policy.

They have to name Progressive. They're making a claim against them. If they don't name them they can't pursue them. They have to name the person that was involved in the accident because that's how it works; again, they can't pursue a claim unless all parties are named in the complaint. I assume that wasn't your question though but rather the point of "why don't they just pay it out like they're supposed to?" Because they're not supposed to; that's the point of life and disability insurance not the point of auto insurance. Auto insurance is for if you're in an accident that is not your fault and if they found a witness who faulted her, even partially, it's their obligation to pursue that as long as it's deemed a reliable, credible witness. It's the driver's obligation to *not* be at fault if her policy is to pay out. In this instance, the jury said she wasn't at fault; Progressive flipped the coin and lost.

[madisen]

I appreciate you taking the time to explain the process in more depth. I also read the OP from MM that you linked.

Something about the process still doesn't sit well with me, but I don't know enough about it to really say what part.

[WOT?*]

Here's the link to the Ask an Adjustor thread too: pandce.proboards.com/index.cgi?board=mm&action=display&thread=44330

There are a lot of things that don't sit well. Insurance companies fare about as well as plaintiff lawyers in the reputation department so imagine how fun it must be to work with them.

[madisen]

Aug 15, 2012 18:48:38 GMT -5 WOT?* said:

Here's the link to the Ask an Adjustor thread too: pandce.proboards.com/index.cgi?board=mm&action=display&thread=44330

There are a lot of things that don't sit well. Insurance companies fare about as well as plaintiff lawyers in the reputation department so imagine how fun it must be to work with them.

I work in the mortgage banking industry. I'll be sitting next to you from now on.