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Allstate Insurance Company v. State Farm Mutual Insurance Company No. 43, Sept. Term, 2000 - page 22 / 26





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compare Berry v. Truck Insurance Exchange, 508 P.2d 436 (Or. 1973). Most courts, at least in

recent times, have rejected a per se rule that mere absence from trial, even if wilful and even if the insurer

hasdonewhatitreasonablycoulddotoproduce the insured, suffices on its own to establish, or to create

a presumption of, prejudice. See Nationwide Ins. Co. v. United States Fidelity & Guaranty Co.,

304 A.2d 283 (D.C. 1973) (applying Maryland law); Campbell v. Allstate Ins. Co., 384 P.2d 155

(Cal. 1963); MFA Mut. Ins. Co. v. Cheek, 363 N.E.2d 809 (Ill. 1977); Western Farm Bur. Mut.

Ins. Co. v. Danville Constr. Co., 463 S.W.2d 125 (Ky. 1971); Hendrix v. Jones, 580 S.W.2d 740

(Mo. 1979).

If the insured has already given a statement describing the accident, the nature of the lost evidence

isknown,andtheuncertaintyfocusesonthe effect and credibility of that evidence. That was the setting

in State Farm Mut. Auto. Ins. v. Davies, 310 S.E.2d 167 (Va. 1983). The insured and her brother,

who was a passenger in the insured’s car, both gave exculpatory statements to the insurer a ter the accident

  • statements that laid theblame on the plaintiff. They subsequently failed to appear for trial, however.

In determining the validity of the insurer’s consequent disclaimer, the Virginia court had before it at least

three proposed standards — one that imposed on the insurer the burden of proving that the insured’s

appearance at trial “would have produced a different result,”an allied one that, likeHarleysville, would

require the insured to show a “substantial likelihood that the trier of fact would have found in the insured’s

favor,” and one, on the otherend of the spectrum, that would make the insured’s absence prejudice per

se. The court rejected both extremes and adopted a middle ground:

“[I]n an action on the policy, when the insurer shows that the insured’s willful failure to appear at the original trial deprived the insurer of evidence which would have made a jury issue of the insured’s liability and

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