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Allstate Insurance Company v. State Farm Mutual Insurance Company No. 43, Sept. Term, 2000 - page 6 / 26





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WinstonthensuedKirby;he iledathird-partycomplaintagainsther in the action iled by Gregorie

and a counterclaim in Kirby’s action. In his third-party complaint, he denied all allegations of wrongdoing

and asserted that the accident was caused by the “sole and/or contributory negligence” on the part of

Kirby, in that she was operating her car on a 55-mile per hour road at night at a greatly reduced rate of

speed, without proper headlights or tail lights, and without proper warning to traffic behind her. The

counterclaimisnotinthe record, but we assume it was consistent with the third-party complaint and are

informedthatitsoughtcontributionandindemni ication. To complete the circle, Gregorie then iled an

amended complaint, in which she added Kirby as a defendant. Though continuing to maintain that Winston

was negligent,GregorieassertedthatKirbywasalsonegligentinoperatinghervehicle at a low speed and

without displaying proper lighting. The two actions (CAL 95-551 and CAL 95-2881) were consolidated.

In her capacity as a plaintiff, Kirby was represented by William Dawe, III, Esq. When apprised

oftheactionsagainsther—thesuitbyGregorieandthethird-party claim and counterclaim by Winston

  • StateFarm retained Richard McBurrows, Esq., to represent her as a defendant. McBurrows filed an

answer on her behalf to the amended complaint and to Winston’s counterclaim and, on February 23, 1996,

sent her a letter of representation. The problem that led to what is now before us is that, at some point

while this was transpiring, Kirby got married,moved to Decatur, Georgia, and washed her hands entirely

of the matter. McBurrows’ letter of February 23 and a follow-upletter of March 6 that were sent to her

Maryland address were returned. On May 14, 1996, having learned of her new address in Georgia, he

advised her of a deposition scheduled for June 10, and received a reply that she would not be attending.

In fact, she did not appear for her deposition, either in June, when it was first scheduled, or in October,

when itwas rescheduled. Several further attempts to reschedule the deposition were unsuccessful. She

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