For those who disagree with Progressive, let’s make a hypothetical. Say the best legal experts at Progressive investigated the facts and believed, after studying past verdicts, that a jury would find the victim here 5% at fault. Should they still pay? Should they try to protect their interests by being adverse to their own insured?
That’s not the issue. Progressive has a PR problem, not a legal problem. I dispute the notion that the existence of a pure contributory negligence regime is well-known and obvious to the average resident of those jurisdictions. I think if it was truly well-known, then Progressive would find it much more difficult to sell underinsured motorist policies in places like Maryland.
My gut feeling is that there’s something rather galling about an insurance company that you paid and that you’re a customer of taking sides against you. It’d be one thing if they had just let the lawsuit conclude, then used the evidence obtained to argue against paying out on the policy. But to assist the defense during the trial? When the woman bought her policy, do you think she had any idea that she would be paying for extra legal assistance for the person who would later cause her death?
Should a great white shark not eat a tasty small child because it’s cute?
I’m halfway tempted to put it this way: if Progressive isn’t going to honor a policy their client paid for, shouldn’t they just return all the payments the client made (with interest) instead of actually spending money on someone else’s legal fees while they refuse to pay? Of course that still wouldn’t resolve the fact that their late client paid them to cover her instead of taking her business elsewhere.
Should we be paying for a product that looks like ‘Flo’ and is, in fact, a Great White Shark?
As was pointed out, this is a case that will be settled in the court of public opinion.
Progressive didn’t break any laws.
And when, precisely, did we started expecting insurance companies to be ethical, anyway?
Last I checked, this is America in the 21st century.
Profit trumps ethics almost every time.
Others (and I) have said this already: Underinsured motorist insurance is not “if something bad happens to me, you pay” it is “If something bad happens to me through someone else’s 100% fault, and their insurance can’t pay, you pay” (at least in Maryland).
So, say again why the insurance company can’t investigate, and take a position in court that it wasn’t someone else 100% fault and refuse to pay? That is the “policy their client paid for.” Now that a jury has spoken, they will pay.
You or I are allowed to dispute our obligations and let a jury decide. Can an insurance company not protect its own interests in court?
I believe that if people don’t like this, they shouldn’t blame Progressive, but blame the Maryland Legislature.
Eh, those are niggling little details that I personally wouldn’t pay much mind to in making a liability call. But here’s one for you.
Large intersection, both roads have 2 lanes in each direction plus a left turn lane. (draw this one).
V1 is travelling southbound in the far right lane at the posted speed limit of 40mph, V2 is travelling westbound in the far left lane, “like a bat out of hell” according to a witness, and enters the intersection with a green light. V1 runs a red light and V2’s left headlight strikes the left rear corner of V1’s bumper.
In practice, I’m putting at least 75% on V1 for violating the light. However, the impact points on both cars demonstrate V1 was almost able to get out of V2’s way. Assuming all drivers have a duty be drive with vigilance, was there anything V2 could have done to avoid the collision? A witness would be a huge help here. If the witness says V2 was on her brakes hard and almost avoided the collision, that’s one thing. On the other hand, if V2 driver says V1 came “from out of nowhere” then I’m going to entertain the possibility she might have some liability for improper lookout. Maybe as much as 25% but probably less depending on how credible I think both drivers are. Unfortunately in a handful of places in the US, I don’t even have to sell 25%, just 1% before I have to tell V2 she has no claimagainst V1.
This is very offensive to those of us in the industry so…Cite? Not one or two examples, but something showing, as you say, this occurring almost every time.
I was not present when the young lady bought her insurance policy but I can envision a situation where the salesperson explained the underinsured/uninsured coverage the same way it was explained to me whenever I bought a policy. You would be crazy not to buy this coverage with all of those people driving around out there with no insurance. If you get into an accident with one of them and you do not have that coverage you cannot recover. I would be willing to bet my life savings against yours that the words contributory negligence were never spoken.
Also, from what I have read, the defendant’s insurer, Nationwide did pay before The only reason for the trial was because Maryland does not allow a policy holder to sue his insurance company, so the heirs were forced to sue the other driver to establish his negligence. Progressive was not a defendant and yet it acted as if the defendant was its client even though that position was adverse to the interest of its actual client, the victim. Progressive called witnesses, conferred with the defendant, cross examined witnesses and gave opening and closing statements, all as an interested party.
If the witness called by Progressive had been believable it’s highly unlikely the jury would have found for the Fishers. This might be a basis for someone to question Progressive’s good faith belief that contributory negligence existed in the case.
That’s not how I understood the facts of the case. The motorist at fault was under-insured, but his insurer accepted he was at fault and paid up the $25,000. Fisher’s family made a claim with Progressive under the policy she had with them in case of an accident with an under-insured driver. Progressive denied their claim, leaving them with no choice but to file suit against the other motorist so they could get a judgement against him to leverage their claim with Progressive. Progressive provided legal assistance to the other driver.
There were two witnesses. Progressive ignored the testimony of the bystander who said the other driver ran a red light and accepted the testimony of Fisher’s passenger who suffered brain damage and memory loss as a result of the accident.
Well here is the problem. First, I would like to see Progressive’s copy of the deceased’s policy where it says that in Maryland recovery will be denied if the policy holder is at fault IN ANY WAY. Further, if that language is present I would expect to see the deceased’s initials next to it to show that she was fully aware of the nature of the product she was buying.
Second, the fact that Progressive is denying the claim until liability is proven in court against the actual driver does not give progressive the right to defend that driver. That duty fell on his own insurer, Nationwide. There is no way such a conflict of interest can be tolerated.
You are right the Maryland legislature is at fault, but of course they are undoubtedly lobbied night and day by insurance companies.
Frankly, I am surprised that Progressive would try to pull this sort of shit. It is an advertisement telling all their policyholders to switch to GEICO or Allstate.
Any idea why his insurer accepted that he was at fault? I almost wonder if his insurer figured $25k wasn’t worth going to court over, regardless of how “at fault” he was.
They can absolutely choose that course and their attorney *should *advise that it is a possible choice, but the company must weigh the potential cost of tarnishing their reputation and brand.
Just because they can litigate to save some money doesn’t automatically mean it’s the best decision for the shareholders. A proper analysis needs to be done by management before choosing.
Progressive stated “Under Maryland law, in order to receive the benefits of an underinsured driver claim, the other driver must be at fault. Sometimes this can be proven without the need for a trial, but in Ms. Fisher’s case, there were credible conflicting eyewitness accounts as to who was at fault.”
I guess Nationwide accepted the testimony of the bystander, and disregarded the brain damaged passenger. Progressive apparently thought both witnesses were equally credible.
But by your same reasoning – Progressive lost. They had to pay. Now their former insured believes she has a case against Progressive for bad faith. Shouldn’t SHE have the right to go to court to attempt to prove that bad faith?
Why, in other words, can Progressive’s actions be analyzed in that way, but not the injured party who believes she was the victim of bad faith?
Example:
[QUOTE=insuring agreement from UM/UIM coverage (not a Progressive policy, admittedly)]
We will pay compensatory damages for
bodily injury an insured is legally entitled
to collect from the owner or driver of an
uninsured motor vehicle or an underinsured
motor vehicle.
[/QUOTE]
In Maryland, if a party is 1% at fault, they are NOT legally entitled to collect anything. Signature on a contract is generally considered as evidence the contract has been read. “Nobody reads those things” is a flimsy defense against looking out for yourself. Maybe everyone should read the policy they’re paying for rather than just assuming it will perform according to their whim.
[QUOTE=example verbiage]
- a. The insured and we must agree to the
answers to the following two questions:
(1) Is the insured legally entitled to
collect compensatory damages
from the owner or driver of the uninsured
motor vehicle or underinsured
motor vehicle?
(2) If the answer to 1.a.(1) above is
yes, then what is the amount of the
compensatory damages that the insured
is legally entitled to collect
from the owner or driver of the uninsured
motor vehicle or underinsured
motor vehicle?
b.** If there is no agreement on the answer
to either question in 1.a. above, then
the insured shall file a lawsuit**, in a
state or federal court that has jurisdiction,
against:
(1) us;
(2) the owner and driver of the uninsured
motor vehicle or underinsured
motor vehicle unless we
have consented to a settlement offer
proposed by or on behalf of
such owner or driver; and
(3) any other party or parties who may
be legally liable for the insured’s
damages.
[/QUOTE]
Are you suggesting that, should Progressive be sued because their insured disagrees with their 1% or whatever liability assessment, that they should not defend themselves? Defending against such a suit necessarily involves defending the other driver to some extent because the point to be proven is that the other driver was not wholly at fault.
Aaaaaand…cite? Anything at all showing insurer’s persistent and concerted involvement in suppressing attempts to overturn laws that preexisted cars & insurance. Why would an insurance company even care? The law is what it is and affects risk in a specific way. If it changes, then the risk changes and premiums are recalculated accordingly. My bet is that reworking the law into something more modern will result in higher insurance, and people are going to vote with their wallets and against their own interests.
Flo-bot must be broken.
Since when is this a standard for contract law? Generally, a contract chooses an applicable law and that’s it. Progressive isn’t trying to enforce something special here. In any liability situation, Maryland applies the old contributory liability rule.
I’m not sure what you mean by this. Maryland (and four other jurisdictions) have not changed what was once the universally accepted contributory liability standard. Does this necessarily say anything about the legislature or lobbyists? If insurance company lobbyists are so strong, then why have 46 states changed this rule?
Absolutely not.
Also a valid point. Based on what I’ve read in this thread, seems like one would have to be fool to pay for underinsured motorist coverage in a state that allows for contributory negligence.
So, yes, Progressive was perfectly within their rights, is just preserving shareholder value, blah blah blah. I hope that comforts them when I cancel the auto policies I’ve carried with them for some ten years, for being a bunch of chiseling bastards.