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Allstate Insurance Company v. State Farm Mutual Insurance Company No. 43, Sept. Term, 2000 - page 7 / 26





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failed to respond to letters from McBurrowsin November and December. Interrogatories and a demand

for documents filed by Gregorie and interrogatories filed by Winston also went unanswered.

Dawe was having the same problem and, on December 2, 1996, he moved to strike his

appearance. In his motion, he said that he had spoken with Kirby in June and thatshe “doubted that she

wanted to pursue the action.” On December 20, the court granted his motion. Ten days later, State

Farm’s Claim Superintendent wrote to Kirby, admonishing her that, if she continued to ignore requests for

assistance, State Farm may refuse to protect her and she may be liable for any judgment rendered against

her. On January 20, 1997, McBurrows wrote to her, confirming that, if she continued to withhold her

cooperation, judgment would be taken against her and she would be responsible personally. That letter,

sent by certified mail, was returned unclaimed.

In February, 1997, Gregorieand Winston each filed a motion for discovery sanctions, noting

Kirby’s refusal to respond to discovery and the fact that trial was scheduled for May 29, 1997. They

asked that Kirby be barred from opposing their claims and prohibited from offering any evidence at trial.

McBurrows opposed the motions and asked for additional time. The court responded initially by dismissing

Kirby’slawsuitandgivingheruntilMay6,1997to respond to all outstanding discovery requests. State

Farmwrote to her,by regular and certi ied mail, on February 14, March 5, April 7, and April 11 requesting

that she contact McBurrows; the certi ied letters were returned unclaimed. State Farm also employed an

investigator who, at various times, le t messages for Kirby with her father, her sisters, her husband, and her

employer, and had letters physically delivered to her home in Georgia, all to no avail. After 15 to 20

attempts, he was inally able to speak directly to Kirby, who, on two occasions,promised to contact State

Farm or McBurrows but never did so. On May 6, 1997, the court entered an order precluding Kirby from

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