Of course the defense would say something like that - they are trying to avoid a trial. There is no reason it HAS to be a conflict and I don’t think anyone is arguing the insurance company shouldn’t be able to raise a defense. As I mentioned up a post or two - they don’t normally have the insurance company shown in court before a jury - so I don’t know how they would handle it, but obviously they could do so.
It has to be a conflict of interest- if she were suing a third party as the representative of her husband’s estate, her interest would be opposed to that of the third party and his or her insurance company. She would want the third party to be found liable and the third party and his insurance company would not. In this case , she (as the estate rep) wants herself ( as the driver) to be found liable. There doesn’t have to be any inappropriate behavior for a conflict of interest to exist- the fact that different interests exist for the multiple roles played by a single person causes the conflict.
The insurance company is now faced with defending someone who benefits by being found liable - and even if the insurance company can get out of paying because there is some clause requiring Bagley-the-driver to assist in her defense, they’d probably have to prove she threw the case , which is not necessarily so easy.
Admit it. You copied this line, backwards, from a reflection on a mirrored globe being held by a raven’s claw, upside-down.
It’s like Litigious Inception.
I think that legally the Court got it right, but I would have ruled that the action cannot proceed due to a public policy exception: one cannot recover for negligence when the person recovering is the one who is the only negligent party.
Yes, I realize that her husband’s estate is the entity that is recovering, but in this case it is just her. Plus she has a conflict. On one hand, she must zealously prosecute the action as the personal representative to fulfill her fiduciary duty to the estate. On the other hand she (theoretically) has an interest in protecting herself from a lawsuit.
But that is a sham. Any money she recovers goes straight to her. The insurance company will be denied her participation in its defense because she has a vested interest in losing the case.
To be sexual harassment, it has to be an unwanted/uninvited act or possibly an act by a superior. Something you are doing to yourself is probably not uninvited.
I think the defense attorney would stand up before the jury and argue that their client is a highly unreliable witness and her testimony should be disregarded. They would also try to impeach her testimony during cross examination by asking her if she has a financial interest in blowing the trial.
While a jury is instructed to disregard any insurance money in calculating damages, I don’t think it is improper to point out that the witness stands to make a great deal of money from an insurance payout by lying on the stand.
Probably, but not conclusively !
In a civil case, the court is allowed to draw inferences when a defendant pleads the fifth. The plaintiff’s attorney could stand there for an hour hammering her with questions that imply she did something horrendous as she pleads the fifth. And, no, she doesn’t have the right to refuse to take the stand.
I had no idea you could plead the 5th in a civil case.
Interesting, but consider the unusual implications: if the defendant refuses to testify, the plaintiff’s case is likely to fall apart.
It seems though, that she would be incriminating herself, or at least risking the loss of her driving license.
I don’t think the conflict is resolved by appointing an independent executor either. She is still the beneficiary, and therefore an unreliable witness. The insurance company will have to use the police report and any other available witness testimony.
I really don’t see anything wrong with the insurance paying the medical bills and funeral expenses. I do hope she doesn’t profit from the suit.
OTOH, the insurance company may have just automatically denied any coverage for the accident and clearly resulting expenses, despite it being explicitly covered under the policy. In which case, they have forced her into this position and I hope the court bleeds them dry on her behalf.
Let’s be clear. If you are asked a question that could be used against you in a criminal case during a civil trial, you can plead the fifth. You can’t plead the fifth if the question just makes you look bad in the civil trial.
For example, if you are being sued because somebody tripped on your front steps, you can’t refuse to answer why you didn’t inspect your steps (unless there is some law making failure to inspect your steps a criminal offense). But if you are being sued for causing the death of your husband and you were driving drunk, you can refuse to answer a question about how much you had been drinking, because driving drunk is a crime almost everywhere. (If you had not been drinking, you could not take the fifth because saying you were not drinking would not incriminate you.)
In civil trial, the trier of fact (the judge or jury) is allowed to infer the worst from her refusal to testify. Unlike a criminal trial, her failure to testify can be used against her.
I’m not trying to be difficult, but I’m also not sure you’re following along. If Ms. Bagley the defendant refuses to testify at the trial, how is Ms. Bagley the plaintiff going to establish her case?
Don’t be silly. 'Twas clearly held by a crab claw.
Ms. Bagley the defendant cannot refuse to take the stand. She can refuse to answer a particular question only if the answer exposes her to criminal liability, and if she does refuse to answer such a question, the finder of fact can infer that her answer would have been civilly inculpatory. In other words, if she doesn’t testify, the court can assume she didn’t because she didn’t want to admit her own negligence and that this establishes that negligence.
Fascinating. Is the inverse also true? Can the court also assume that she is trying to hide her lack of negligence/culpability in order to collect?
The more I think about this case, the more I think she’s been forced into this position by an insurance companies failure to pay reasonable expenses.
I mean, presumably she was negligent in killing her husband? I guess we don’t know, but that was my impression. So as a defendant, she’ll get up on the stand and tell the truth. She’s not “throwing the case”, she’s just not perjuring herself. Even if both sides use the best legal arguments they have, one side wins and one loses usually.
But I suspect that now that the judge has said this suit can proceed, the insurance company will be looking to settle, so we’ll probably never get to see a trial. It would be interesting to see the mechanics of it.
What if I got myself really drunk?
If Ms. Bagley doesn’t testify, on what evidence will the plaintiff build a case, and how convincing will that case be?