Earlier today, we brought you the story of the man who says that when his sister died in a automobile accident, it was Progressive — her insurance company — that came to the defense of the man accused of causing the fatal collision. Since then, some relevant information has come to our attention, along with a possible explanation for why an insurance company would defend the other driver.
First, a quick read of the case info in the Baltimore City Circuit Court finds that Progressive did not initially act as the attorney for the other driver. The attorney listed as his representative is actually a lawyer from a Maryland firm that reportedly handles litigated car insurance claims for Nationwide in the state.
Progressive was first listed as a “related” party when the case went to (and failed) mediation. It was later listed as a defendant in the case when a jury trial was requested. The insurer subsequently filed a motion for substitution of service, which would allow the Progressive lawyers to act on the defendant’s behalf, though it’s currently unclear exactly what role the company’s lawyers played in the courtroom.
We’ve asked Progressive to confirm whether or not the company’s lawyer did in fact take over as the other driver’s legal counsel. If they reply, we’ll update accordingly.
Regardless, an auto insurance expert who has been involved in litigation in Maryland in the past tells Consumerist that it’s not unheard of for this to happen.
“A lot of the facts are not known,” cautions the expert. “But it appears that Progressive thought that the liability issue was not clear-cut and that, under Maryland law, Progressive was placed in the position of intervening in the defense of the other driver in order to resolve the liability case.”
“None of this is clear cut,” she adds. “There are cases when the injured party’s insurance company will pay the policy limits on behalf of the other carrier and then take over the handling of the claim. This has to be done if there is a real liability issue. If the injured party’s carrier agrees to the other carrier paying out the minimal limits then the courts can say that they agree that the other party is 100% at fault.
“That probably happened here but with limited info we are going with likelihood,” explains the expert. “However it is not something that the insurance company wants to do, it is the result of various court decisions that have put this potential practice in place.”
Also important to this case is that it occurred in Maryland, which uses what’s known as “Contributory Negligence” as its law to settle civil suits.
“That means that if you are even 1% at fault for the accident you are barred from any recovery,” the expert explains, adding that most states have laws that look at comparative negligence in determining payouts.
“In most states, you can collect if you are up to 50% at fault but only the portion that you are not responsible for,” she tells Consumerist. So if you were 40% at fault, you can collect 60% of your damages.
“But not in Maryland,” says the expert. “One percent and you don’t get anything.”
According to the information available at this time, the case went to trial earlier this month and the jury found in favor the driver’s family and against both plaintiffs in the amount of $760,000 plus costs.
Again, much of what we’re going on is speculation based on precedent and experience. So far, we’ve received a statement from Nationwide saying that the insurer “fully investigated this claim and relevant background/evidence, and feel we properly handled the claim within our contractual obligations,” but we are open to hearing more from both sides of the courtroom so as to clarify the situation even further.