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

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testimony, and heard and credited as well Weiner’s testimony that the Kirby car wasvisible and had on

hazard lights, it could reasonably have found no negligence at all on Kirby’s part. It could reasonably have

found that Winston, distracted by the car to his right, simply was not paying attention, as Gregorie, herself,

charged, and therefore did not see what clearly was there to be seen.

The prejudice was not in terms of how the jury would actually have viewed this evidence, whether

the jury would have found it believable or not believable, for that ispurely a matter of speculation. The

prejudice lies in the fact that there was a credible defense to be presented and that Kirby’s non-cooperation

precluded State Farm from even presenting that defense.

JUDGMENT OF COURT OF SPECIAL APPEALS VACATED; CASE REMANDED TO THAT COURT WITH INSTRUCTIONS TO VACATE JUDGMENT OF CIRCUIT COURT FOR PRINCE GEORGE’S COUNTY AND REMAND TOTHAT COURT FOR ENTRY OF DECLARATORY JUDGMENT IN CONFORMANCE WITH THIS OPINION; PETITIONER TO PAY THE COSTS IN THIS COURT AND IN COURT OF SPECIAL APPEALS.

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