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Allstate Insurance Company v. State Farm Mutual Insurance Company No. 43, Sept. Term, 2000 - page 11 / 26





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parties could present that issue through a motion for reconsideration. The next day, the court entered a

written order that (1) recited that it had issued an “Oral Opinion holding that State Farm Mutual Automobile

InsuranceCompanyisnotobligatedtodefendorindemnify[Kirby]for the claims and/or causes of action

presented by [Gregorie] as advanced in CAL 95-00551,” (2) severed Gregorie’s case, which had yet to

betried on damages, from the declaratory judgment actions, and (3) lifted the stay that had been entered

in Gregorie’s case and ordered trial on the damages issue in that case. Nothing was said in the order about

any liability on the part of Allstate.

Allstatedid,indeed, ileamotionforreconsideration,anditwasgranted. Inawrittenmemorandum

and order filed on May 3, 1999, the court, preliminarily, noted that “[n]o one cancontend seriously that

Kirby’s lack of PreTrial assistance or testimony at trial will affect Gregorie’s damage verdict” and

concluded that it was not premature to resolve the issue raised by Allstate prior to a damage award. In

determining the extent of State Farm’s prejudice, however, it said that, given what it regarded as the

closeness of the case, it could, sitting inplace of the jury, “consider as to what evidence would have been

admissible at trial and what result would have occurred had this evidence been introduced in the liability

trial.” In so doing, the court determined that Kirby’s statement that she was proceeding at 55 miles per

hour was “suspect,” andit found as a fact that she was traveling at only 20 miles per hour or less. That,

it said, wasevidence of negligence. The court acknowledged that it did not know why Kirby was driving

so slowly and asked, rhetorically: “Was there a sudden mechanical failure? Was Kirby experiencing some

illness that caused her to slow or stop? Did Kirby see some ice or snow that other witnesses overlooked?

Had Kirby slowed to avoid a collision with another motor vehicle or animal or object on or near the


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