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Allstate Insurance Company v. State Farm Mutual Insurance Company No. 43, Sept. Term, 2000 - page 23 / 26





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supported a verdict in his or her favor, the insurer has established a reasonable likelihood the result would have been favorable tothe insured and has carried its burden of proving prejudice . . . .”

Id. at 170.

The court noted that the insured’s version of the accident was in direct conflict with that of the

plaintiffandconcludedthatitwasnotinherentlyincredible. Had the jury accepted her version, it would

have returned a verdict in her favor — a verdict that would have been supported bythe evidence. By

wilfully failing to attend and testify and assist in securing her brother’s testimony, the court held, she

deprivedtheinsureroftheveryevidencenecessarytomakea jury issue of her liability and thereby clearly

prejudiced the insurer in its defense, which justified its disclaimer.

Other courts have adopted a similar kind of middle approach when dealing with a failure to appear

at trial, although they have articulated it differently. See Brooks v. Haggard, 481 P.2d 131, 134 (Colo.

App. 1970), rejecting a per se rule of prejudice and holding that “if, after consideration of all factors

involved,itappearsthatthepresenceoftheinsuredorhistestimonywassopotentiallyvaluable as to have

materiallyaffectedtheoutcomeofthetrial,thenhisnonappearanceisregardedas a material or prejudicial

breach of the policy.” See also Berry v. Truck Insurance Exchange, supra, 508 P.2d 436, 438

(prejudice found from failure ofinsured to appear at trial where insured was the “principal, if not the only,

favorable witness available to the defense”); Dietz v. Hardware Dealers Mut. Fire Ins. Co., 276

N.W.2d 808 (Wis. 1979); Anderson v. Kemper Ins. Co., 340 N.W.2d 87 (Mich. App. 1983).

Although we do not concur entirely with the Davies standard as articulated by the Virginia court,

in that we do not agree that establishment of “a jury issue of the insured’s liability” necessarily equates to

the establishment of “a reasonable likelihood the result would have been favorable to the insured,” we

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