Progressive Provides More Details On Controversial Lawsuit

Earlier this week, the brother of a woman killed in a car crash made headlines around the world by claiming that his sister’s insurance company, Progressive, had actually come to the legal defense of the driver accused of causing the fatal accident. Since then, the insurance company has stated that it was not defending the other driver, but only defending itself in the lawsuit — a distinction the brother found wanting. Today, the insurer says it has reached a settlement with the family and is attempting to clarify matters further by explaining why its lawyers ended up on the other side of courtroom.

In a statement posted on its website, Progressive confirms what our insurance expert told Consumerist earlier this week, that in order to receive the payout of an underinsured driver claim in Maryland, the other driver must be deemed to be completely at fault.

“Sometimes this can be proven without the need for a trial,” writes the insured, adding that in this case, “there were credible conflicting eyewitness accounts as to who was at fault.”

Continues the statement:

“A trial was necessary so that a jury could review all of the evidence and come to a decision. In those circumstances, under Maryland law, the insurance company providing the Underinsured Motorist coverage is considered a defendant. As a defendant in this case, Progressive participated in the trial procedures on our own behalf while Nationwide represented the other driver.

On Thursday, August 9, a jury determined that the other driver was at fault in the accident involving Ms. Fisher. In accordance with that decision, Progressive worked with the Fisher family and their legal representative to resolve the claim.”

We have reached out to the brother to see if he has any further comment on this story. He had taken issue with Progressive’s initial statement that it was only acting as a co-defendant in the case.

“During the trial, both in and out of the courtroom, [the Progressive lawyer] conferred with the defendant,” wrote the brother in an earlier statement. “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. 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.”

Thanks to David for the tip!

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  1. crispyduck13 says:

    That entire last paragragh made me want to punch someone in the face.

    • Jane_Gage says:

      Flo makes me want to dig my eyeballs out of my head.

    • Michael Belisle says:

      Punch death in the face, for making cleanup complicated and nasty. The best statement I read:

      Sometimes, life deals you a sh**ty hand. Death, however, always does. And yet, those stuck behind will undoubtedly encounter a world that barely shrugs in acknowledgement. … Insurance companies and all of the other businesses that survivors must joust with aren’t “inhuman monsters.” They’re merely inhuman. And they will follow protocol and attempt to minimize their own exposure as much as is possible. The existence of insurance companies is predicated on their attempts to make money. And nothing in this case suggests that their actions were borne out of anything other than this absolute truth.

  2. Loias supports harsher punishments against corporations says:

    They have still not resolved the brother’s account of the Progressive-the-co-defendent’s actions during the court case.

    Now, I can believe that someone can act as a co-defendent and do all the things the brother described. If I defend myself, I would be doing what he described. But when the person doing that is a bona-fide lawyer, I think you move beyond the realm of partial truths and technicalities. Progressive defended the guilty party.

    • gobanana says:

      “They have still not resolved the brother’s account of the Progressive-the-co-defendent’s actions during the court case.”

      Because it’s apparent to anyone who understands insurance law that this makes sense.

      Progressive did not represent the driver, but they did support the position that the driver wasn’t liable (and thus they shouldn’t be on the hook). The driver was represented by Nationwide. Progressive would’ve been identified as the defendant (as they are properly named in the case) and the arguments make sense.

  3. TheMansfieldMauler says:

    It looks to me like the issue isn’t necessarily with Progressive, but with Maryland law and how it’s structured in regards to this situation. Any other insurance company would be put in the same position under these circumstances. Maybe the bad guy in this case is the Maryland legislature.

    • crispyduck13 says:

      You are right, the Maryland law should be rewritten, but good luck with that. Doesn’t change the fact that Progressive is apparently lying about the nature of their lawyer’s involvement in court, or said lawyer doing everything possible to establish fault on the dead woman who had the green light.

      They deserve some shaming.

      • meh_cat says:

        There must have been a question of fault because Progressive wouldn’t pursue a trial and go to verdict otherwise. Not because they’re great guys, but because it’s business. If you’re already on the hook for money, you don’t want to double down by defending a baseless case.

        • who? says:

          “There must have been a question of fault because Progressive wouldn’t pursue a trial and go to verdict otherwise.”

          Not necessarily. Progressive has little to lose by going to trial. If they lose at trial, they payout up to the limit of the policy, which is pretty much what happens anyway if they settle. No matter how obvious the case seems, you never quite know what a jury is going to do, so it’s worth rolling the dice and going to trial.

  4. Marlin says:

    So they want to triple down on stupid?

    They went from no we did not defend to “Progressive participated in the trial procedures on our own “. Just tell the damm truth, we already know and we even know why.

    Geez did they hire the PR team from ChickfilHate???

    • crispyduck13 says:

      Geez did they hire the PR team from ChickfilHate???

      I’m guessing it was Flobot, and she’s doing a pisspoor job so far.

    • Loias supports harsher punishments against corporations says:

      I agree. They keep coming out with new, different statements, each time inching closer to the actual truth.

      If they had explained that they did, and that every other insurer in the state of Maryland would have done the same, and why, we’d all have let it go.

      Now I’m just ticked off at them for being complete idiots. Lost my business forever, Regressive.

      • Michael Belisle says:

        No, nothing they have said has been incorrect or contradictory. The first statement didn’t say what they did. It just said they didn’t “represent” the other driver, who had his own lawyer and that there was a question of fault. Both statements are true, but don’t answer the question. The current statement finally says what they did, which is act as their own defendant.

        From the start, Matt Fisher made it clear that they sued the other driver to get at Progressive, who didn’t feel they were responsible for paying the full limits. Simple logic from there establishes that Progressive is at least a defendant in the case, but not necessarily the defendant or “representing” the other driver. It means they’re representing themselves on the same bench as the at-fault driver.

        To be sure, there’s a bit of careful legalese in their statements. But it’s all true.

  5. DuckNCover says:

    Are court transcripts (especially jury tried cases) public records? Would it be possible to get a copy of them and see what went on?

    Also, there’s no way I can see someone being even remotely at fault when they are struck by someone who has run a red light if they themselves had a green light.

    • crispyduck13 says:

      It seems ridiculous and illogical, so I’m going with who?’s theory above that they figured “why not” and just roll the dice in court. Figured maybe they could get lucky and the family would refuse to go to trial and disappear, run out of money to continue, or they’d get a stupid jury who’d side with them.

    • Marlin says:

      Maryland has the stupid if its even 1% your fault you get nothing rule so what the insurance company was hoping for was 99% the red light runners fault and 1% her and they would not have to pay.

      One way I can think is say her car was not safe, she was not wearing a seat belt, did not maintain the car, etc… to show that she MIGHT have lived if she drove a better car or took better care of her car etc…
      I think its BS but that is the law. If Progressive had just come out and said we are following Maryland law to a T and that is what we had to do then you know what they explain it, honestly, and it puts the burden on the State to change the law. Instead they have lied and keep BSing.

    • madanthony says:

      the question probably was if the defendant had, in fact, run a red light.

    • Fishnoise says:

      My state’s Court of Appeals just recently overturned a summary judgment on liability for the plaintiff on that fact pattern because there was still a possibility the plaintiff failed to slow down or otherwise try to avoid the collision with the red-light runner.

      Thankfully, we’re a comparative fault state so any judgment would just be reduced in accordance with the percentage of fault assigned by the jury. Contributory fault, as they have in Maryland, is nasty doctrine right up there with the (Ayn Rand-ish) “fellow servant rule” when it comes to misery.

    • Michael Belisle says:

      There’s no way I can see someone being even remotely at fault when they are struck by someone who has run a red light if they themselves had a green light.

      From Progressive’s statement, what if the witness reports conflict? Say, one person says the other driver ran a red light, one says he didn’t. In that case, did he run a red light?

      • Marlin says:

        Seeing that the other driver admitted fault I don’t think who ran the red light was in question.

        • Michael Belisle says:

          When did he admit fault?

        • Michael Belisle says:

          Even Fisher, in his original post, said “The totality of the evidence left some room for argument.” If Progressive only has to prove 1% fault on the part of their insured in order to avoid paying a claim, then “room for argument” could very well be enough to allow them to avoid having to pay.

          Could be, because we really don’t have any facts about the actual case. The real jury received those facts and rendered their decision, but Internet jury is just speculating.

  6. AcctbyDay says:

    Even if they were required to defend themselves, sometimes it’s better to plead guilty. Why did they defend the other party and not themselves?

    • nishioka says:

      > Why did they defend the other party and not themselves?

      The only way for Progressive to defend themselves in this case is to defend the guy who ran the red light. I thought the way the trial system worked was that you make the person who committed the act be the defendant. Apparently Maryland’s law does not work that way, and makes other parties be the defendant as well.

      • RedOryx says:

        If I’ve been reading all of this right, Progressive only stepped in as a second defendant because they were the ones who would have to pay up. The family did go after the other driver, but he was under insured, so they only way to get the money was from Progressive directly. They aren’t just going to hand over that cash, not with the way Maryland law is written and the 1% rule

        • gobanana says:

          You got it.

          • RedOryx says:

            Okay, I thought as much. It’s clearly quite complicated, but even as a Progressive customer I can see why they did what they did. (Of course, I say that as someone who has never been in the position of the family.) The fault really is with the Maryland law and Progressive just got caught in the fire.

  7. rawrali says:

    The OP is quoted in a CBS news story as saying:

    “The guy who…killed my sister had more than one attorney. He had two attorneys,” Matt Fisher told Quijano, “One of them identified himself at the beginning of the case as an attorney at Progressive.”

    Progressive inserted themseves as a defendant. Sometimes, defendants are accusing each other of fault (sometimes resulting in further, derivative lawsuits). In those cases, multiple attorneys may present their case in the courtroon. Other times, the defendants are trying to prove the same thing, as is the case here. In those times, one attorney will often step up and lead the defense. This is what happened here.

    The simple fact is that people don’t understand UM/UIM coverages.

    • Marlin says:

      “The simple fact is that people don’t understand UM/UIM coverages.”

      I disagree. The reason people are pissed off is that progressive put them self in a conflict of interest in this case to save money. When you look at Maryland law it makes sense, and it could have ended there, but instead of explaining that they lied about it and made it worse. They could have explained the law and put it back on the State to fix it or be the one to take the blame.

    • gobanana says:

      Pretty much this. The only possible issue that could exist is if Progressive didn’t have a good faith claim that the driver wasn’t at fault. Raise the pitchforks then, folks, not when it’s standard motor vehicle insurance procedure.

  8. dolemite says:

    It’s so much simpler to say: “He was covered for underinsured people. That policy kicked in due to the person responsible being underinsured. Instead of paying him what he was due, we decided to see if a jury could get us out of it, so we worked against our client for our own benefit in court, and our gamble didn’t pay off.”

    • Michael Belisle says:

      Not quite. Before the trial, there was no agreement on fault (conflicting witness reports, supposedly) or on the value of the damages (Progressive offered to settle for $33k, Fishers claimed damages of at least the policy limits, $100k). Now we have both: other driver at fault, damages worth $760,000.

      And apparently in Maryland, Progressive only has to pay the limits despite the judgement exceeding them. If they thought they had a good shot, there wasn’t much incentive to pay out before the trial.

      • Marlin says:

        yes there was agreement of fault…

        “the other driver’s insurance company settled with his sister’s estate “basically immediately,””

        Even the other insurance company admitted it and they had a pile of skin in this. If not they would not have paid out.

        • Michael Belisle says:

          That’s not necessarily an admission of fault. The other driver had a small policy ($25k, apparently the minimum). Nationwide could very well have decided that it wasn’t worth fighting rather than paying out on a small policy.

          Progressive, meanwhile, had $100k at stake. They’re not bound by Nationwide’s decision in deciding what do with paying out their policy.

          But they are bound by the jury’s determination of fault. Because, in the event of a dispute over fault, that’s how fault is determined: in places like courts or arbitration.

  9. sorta savvy consumer says:

    no s*** sherlock. You effectively sued your insurance company. Their lawyer has an obligation to defend it fully.

    • sqlrob says:

      Sue them to do what they were obligated to do. Nothing puts them in a good light.

    • crispyduck13 says:

      Yeah effectively sued them for a benefit they were paid to provide. Changes things doesn’t it?

      • RedOryx says:

        But the way the law is written, the benefit only comes if the other driver is 100% at fault. If they had a reasonable belief this was not the case then they aren’t going to just pay up. If the two defendants are both arguing the same position, they get one lawyer to ask the questions, while still keeping the two parties separate. In this case, since Progressive is the one that will ultimately fork over the cash, I can understand their decision to want their lawyer front and center. Looks bad, of course, but they are within their legal rights to do so.

      • rawrali says:

        The victim died almost immediately per reports. There may have been an ambulance or ER bill, but likely very little else in the way of medical bills.

        The victim was a single, adult woman. She had no dependents based on what I have heard so far. The fact of the matter is that there is very little “value” in the death of a person like this, unless her parents or brother can show that she monetarily provided for them and they are at a disadvantage now that she is gone.

        Based on those circumstances, I can see why Progressive didn’t just hand over the entire limits of their UM/UIM policy. They simply did not evaluate the case the way the decedent’s family did. Adding to all of this is the fact that Maryland is a contributory negligence state, meaning it has no real obligation to pay unless the victim is shown to be 0% at fault. Progressive was no in way, at any time, obligated by policy language to turn over its entire limits simply because this woman died. Sad fact but true.

        • patty says:

          The woman who died did have student loans and the brother said that they had to be paid back. I would think that if you provided proof of death (death certificate) that would be enough to cancel the student loans, but there is also funeral costs, and misc costs that will suddenly pop up. Taxes maybe…

  10. SpammersAreScum2 says:

    “As a defendant in this case, Progressive participated in the trial procedures on our own behalf while Nationwide represented the other driver.”

    Wait, what? The sister’s insurance was with Progressive, and the other driver was “uninsured”. How is Nationwide in the picture???

  11. Wonko the Sane says:

    The Progressive defenders, and PR flacks, are exactly right in that this is what Progressive can do and should be expected to do from their financial interests. Where they are wrong is in believing that makes their actions right. Maryland law allows them to mount a legal defense and make a case that their client was responsible but it does not require them to. Progressive chose to fight this case because it is a better investment for them to fight claims in court rather than pay. Progressive can make more money by operating this way rather than simply providing the service their customers have paid for but that doesn’t make it right. If corporations are people then Progressive is a high-functioning sociopath.

  12. Jimbo says:

    Long story short……..

    Progressive didn’t want to pay because they are scum and they elected to go for a jury trial on the hopes that they could win their way out of paying. Fortunately the jury thought otherwise and awarded the family what they were originally entitled too.

    Funny how Progressive likes to explain their reason for a trail was to have the “jury” review the evidence, because I’ll bet their investigators told them exactly who was at fault and they wanted to gamble for the cheaper option.

  13. nauip says:

    “under Maryland law, the insurance company providing the Underinsured Motorist coverage is considered a defendant.”

    That’s pretty much all that we needed. It probably doesn’t make a lot of sense, but it’s the law there and it puts Progressive between a rock and a hard place. Sure Progressive did a very dumb thing and tried to hide it. Ya, call ‘em out on it. But them representing the defendant is what they had to do under Maryland law.

  14. Golfer Bob says:

    It seems that Progressive followed normal procedures once they become a defendant other than to fully explain to the victim’s family what to expect. As distasteful as it may be, if you are going to pursue the issue at trial you are going to have to accept the indignities as well. It seems no different than any other attorney trying to reduce or shift negligence off of the defendant.

  15. There's room to move as a fry cook says:

    “…but only defending itself in the lawsuit”
    So Progressive DID fight the family in court in an attempt to pay them NOTHING. Scumbags.

  16. Meano says:

    I’m confused…where did I misread this.

    Under Maryland’s contributory negligence doctrine, Ms. Fisher’s estate would not have collected had she been found even 1% at fault. But she *was* found blameless, her estate *won* at trial and judgment was entered against the defendant for something like $750 thousand.

    That amount was more than defendant’s policy limit and ability to pay, so the estate collects the Nationwide policy limit and the defendant declares bankruptcy.

    Then the estate goes after Progressive under the underinsured motorist part of Ms. Fisher’s policy and Progressive is now running the usual insurance defense “stall and run-the-clock-out” gameplan.

    If I’ve read this right, this is not a Maryland contributory negligence issue. It’s just Progressive saying that they will “resolve the claim” for way less than the jury award. It is – pardon the language – the same d*ck move every insurance company runs in order to settle for less with the bereaved and desperate.

    “Well, you can take $0.50 on the dollar now or try to get it at trial. You’ll have to spend 25 cents on the dollar on legal fees. Up front. Then, if you win, we’ll drag it out on appeal. I sure hope you and your kids don’t need to eat for several years.”

    Insurance companies run into serious fraud, and I have met some truly decent lawyers who work for insurance companies. But the innermost circle of hell is reserved for the shysters who run the stall game, so that telemarketers have someone to spit on when they die.

  17. msmith6044 says: