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Allstate Insurance Company v. State Farm Mutual Insurance Company No. 43, Sept. Term, 2000 - page 25 / 26





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cooperation clause had not been breached, Kirby would not have been held liable, and, as a result, decided

that it, “sitting in place of the jury as the inder of fact, can consider as to what evidence would have been

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

the liabili y trial.” (Emphasis added). On that basis, it concluded that thelikelihood was that, had the

juryheard from Kirby and Weiner, it would have found Kirby and Winston jointly liable. The Court of

Special Appeals rejected that conclusion because it was based on an impermissible standard and because

it “requires speculation about the missing testimony, and how a fact inder would react to same.” State

Farm v. Gregorie, supra, 131 Md. App. at 335, 748 A.2d at 1099.

The parties join issue over whether the “actual prejudice” requirement of § 19-110 permits a

parsing of prejudice, but, on the recordin this case, that is really not the issue. Even if, as Allstate asserts,

the statute permits disclaimer only to the extent that the insurer can establish actual prejudice (see Fid. &

Cas. Co. v. McConnaughy, supra, 228 Md. 1, 179 A.2d 117), in this case, based on the standard

we believe is appropriate, the prejudice was complete. The evidence lost to State Farm as a result of the

preclusion order was (1) Kirby’s testimony that she was driving at a normal speed but was concerned

about ice on the road, (2) Weiner’s testimony thatshe was able to see the Kirby car, that it had hazard

lightson,and that she was able to avoid a collision, (3) a weather report indicating the cold temperature,

which,inlightofotherevidencethattheroadwaywaswetordamp,may have supported Kirby’s testimony

that there was ice, and (4) photographs of the damage to the Kirby vehicle. As in Davies, Kirby’s

testimony, though contradicted in some important respects by that of the plaintiffs and Weiner, would have

created a genuine issue with respect to how fast she was traveling. There is nothingin the record to suggest

that her statement, though disputed, was inherently unreliable. If the jury had heard and credited that

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