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Allstate Insurance Company v. State Farm Mutual Insurance Company No. 43, Sept. Term, 2000 - page 10 / 26





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under thepolicy, and that State Farm was prejudiced by not being allowed to produce evidence. In that

last regard, the court noted Ms. Weiner’s testimony that she saw light from the Kirby vehicle and that the

vehiclemayhavebeentravelingatabout20milesper hour. It mentioned as well Kirby’s initial statement

that she was going about 55 miles an hour, and, notwithstandingthat there was no such proffer, it pondered

whether State Farm, but for the preclusion order, may have been able to produce an accident

reconstruction expert to opine as to how fast Kirby was traveling. At a minimum,” the court found,

State Farm was prejudiced in that “Mr. Winston’s liability as a co-defendant would have been substantially

increased and the likelihood of a joint judgment against Ms. Kirby and Mr. Winston was fairly high.”

(Emphasisadded). Ititeratedlaterinitsoralopinion that, “[h]ad Ms. Weiner testi ied in this case, just that

single witness, it is more than probable, when one reads the transcript, thatat least a co-defendant liability

would have occurred.” (Emphasis added). The court concluded that “[t]here is more than a substantial

likelihood that the insured would not have beenfound sole y liable for this motor vehicle accident” and

“therefore State Farm has been prejudiced as a result of Ms. Kirby’s non-cooperation.” (Emphasis


The court announced that it would prepare and sign an order declaring that State Farm was not

obligated to defend or indemnify Kirby for the claims presented by Gregorie and severing Gregorie’s case

from the declaratory judgment actions. Counsel for Allstate then observed that “[i]f the less favorable

result, that State Farm suffered by Ms. Kirby’s non-cooperation is joint liability, then it wouldappear that

the damages that had been suffered by State Farm is some pro rata share of the verdict. Otherwise, State

Farm, with the non-cooperation inds itself in a better position than they would have been in had Ms. Kirby

cooperated.” The court responded that it intended to enter the judgment as it had announced, but that the

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