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Allstate Insurance Company v. State Farm Mutual Insurance Company No. 43, Sept. Term, 2000 - page 21 / 26

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may be a considerable element of speculation involved in attempting to measure whether there was actual

prejudice to the insurer: was there any other relevant and credible evidence to be discovered; what efforts

did the insurer make, after notice, to discover that information and develop a defense; and how credible

wouldanysuchinformationhavebeenhaditbeendiscoveredandpresented? The immediate problem in

that setting is the dif iculty in determining what helpful evidence was lost to the insurer; how does the insurer

prove what it might have discovered? That was the concern that led the Washington court to reject

application of the standard stated in Harleysville.

When a disclaimer is based on a failure of the insured to appear for trial, at least the potential scope

of the loss is ascertainable; it is the insured’s viva voce testimony — the ability of the jury to hear the

insured’s side of the story from his or her own lips. Even in that setting, however,circumstances governing

the reality of prejudice may differ: was the jury entirely without the bene it of the insured’s side of the story

or were there other witnesses or exhibits in support of a defense; how helpful or credible would the

insured’s testimony have been in light of the other evidence? See United States Fid. & Guar. Co. v.

Perez, 384 So. 2d 904, 905 (Fla. App.), petition denied, 392 So. 2d 1381 (Fla. 1980) (insured’s

testimony would not have been beneficial, as it would have established insured’s negligence);

Montgomery v. Preferred Risk Mutual Insurance Co., 411 P.2d 488 (Utah 1966) (no prejudice

from insured’s failure to attend trial where his pre-trial deposition was available but not used), but

3(...continued) iftheonlyquestion had been whether State Farm would be liable to indemnify Kirby, up to the policy limit, for any judgment rendered, the court should have waited, as juries sometimes do surprising things. That was not the only issue, however. In its complaint, State Farm sought a declaratoryjudgment that it was notobligedtodefendKirbyin the tort action, and thatdid need to be resolved before the trial on damages.

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