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Allstate Insurance Company v. State Farm Mutual Insurance Company No. 43, Sept. Term, 2000 - page 8 / 26

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introducing any evidence concerning the circumstances surrounding the accident.

At some point, the court bifurcated the remaining case — Gregorie v. Winston and Kirby

and set trial on the issue of liability for May 29, 1997. State Farm sent a letter toKirby on May 7, 1997,

advising her of the trial date and informing her that State Farm would pay the travel, food, and lodging

expenses for her to attend trial. An additional letter was sent on May 22, 1997, informing her, among other

things, that, despite the preclusion order, the plaintiff “has indicated a willingness to allow you to present

evidence at the May 29, 1997 trial if you appear to testify in this matter.” Kirby nonetheless failed either

to respond to the letter or to attend trial. The only witnesses at trial were Gregorie and Winston.

McBurrowswaspresentandwaspermittedtocross-examinethewitnessesandarguetothe jury, but, in

accordance with the pre-trial order, he offered no affirmative evidence regarding theaccident. The jury

was thus left with essentially uncontradicted evidence that Kirby was traveling either very slowly or had

stopped, late at night, on a clear, dry, or slightly damp beltway, either without lights or with only a “ licker”

of light. Weiner’s statement, that she observed hazard lights and that she wasable to see Kirby’s car, was

not before the jury. After a short deliberation, the jury concluded that Kirby was negligent and that

Winston was not. McBurrows iled a motion for judgment N.O.V. and for new trial, which was denied.

InJuly,1997, prior to the trial on damages, Gregorie iled a declaratory judgment action against

State Farm and her own insurer, Allstate Insurance Company, averring that (1) on the basis of Kirby’s

failure to cooperate, State Farm had refused to accept the jury’s determination of liability andhad taken

the position that there was no coverage for her, and(2) Allstate had declined to afford uninsured motorist

coverage under its policy on the ground that State Farm was not entitled to deny coverage to Kirby

because it could not show any actual prejudice resulting from Kirby’s failure to cooperate. Gregorie asked

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