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I have friends who have been scathing Progressive for this, but I’ve kept my mouth shut being in the biz. It seems heartless, but a contract is a contract…UIM pays that which you are legally entitled to recover…so if there is a question of fault, a jury deciding it is perfectly acceptable and often needed.
In response to Progressive’s claim that they did not serve as attorney to the defendant, Matt has released the following on his blog:
At the beginning of the trial on Monday, August 6th, an attorney identified himself as Jeffrey R. Moffat and stated that he worked for Progressive Advanced Insurance Company. He then sat next to the defendant. During the trial, both in and out of the courtroom, he conferred with the defendant. He gave an opening statement to the jury, in which he proposed the idea that the defendant should not be found negligent in the case. He cross-examined all of the plaintiff’s witnesses. On direct examination, he questioned all of the defense’s witnesses. He made objections on behalf of the defendant, and he was a party to the argument of all of the objections heard in the case. After all of the witnesses had been called, he stood before the jury and gave a closing argument, in which he argued that my sister was responsible for the accident that killed her, and that the jury should not decide that the defendant was negligent.
I am comfortable characterizing this as a legal defense.
I wrote about this case on my blog because I felt that, in the wake of my sister’s death, Progressive had sought out ways to meet their strict legal obligation while still disrespecting my sister’s memory and causing my family a world of hurt. Their statement disavowing their role in this case, a case in which their attorney stood before my sister’s jury and argued on behalf of her killer, is simply infuriating.
All I can say is WOW, sure makes Progressive look pretty bad…I know there is more to this.
I have a friend the was involved in a car accident (t-boned by another individual). My friend was insured by Progressive. He was knocked unconscious for a number of days. When he woke up, he found out that Progressive had settled the case WITHOUT taking a statement from my friend (settled in favor of the other driver).
This was later resolved in court. This is not the first Progressive mistake and surely will not be the last, in my humble opinion.
This was an Underinsured motorist case. Progressive effectively has to “step into the shoes” of the underinsured motorist. The Progressive Insured was effectively making a “liability” claim against HER OWN INSURER! Naturally, the Insurer has to handle that claim accordingly. Maybe Progressive could have explained it better, I don’t know as I wasn’t there. But, UIM inherently creates an adversarial relationship between the Insurer and the Insured. It’s the nature of the beast.
Why would UIM claims automatically put the insurer against the insured? The liability claim is still against the other driver – it’s just that the payment is coming from innocent party’s insurer. When the facts of the case are clear, there’s no reason for the insurer to fight the claim.
If an insured seeking payment from his own insurer creates and adversarial relationship, then PIP, Comp and Collision would be thrown in with UIM.
Perhaps this is due to the Maryland law that the Underinsured Insurance Carrier IS a defendant in the case. This is a situation that no matter what there are going to be hard feelings.
This is why buying insurance on-line without a knowledgeable agent to explain what the coverages really are for and how they might respond in the event of a claim, is going to continue to be a bigger problem. Tony’s comments are right on point.
I will take your word for it that they exist, but in my experience buying insurance I have yet to find an agent that will take the time and/or have the knowledge to explain every possible claim scenario.
With an entire generation raised on computers and mobile devices demanding instant access and easy answers, Flo and her type will continue to prosper.
I find it curious that Progressive claimed that the at-fault U.I.M. driver’s insurer, Nationwide, conducted his defense during the U.I.M. damages phase. Typically in these types of claims, by this time the under-insured driver’s insurer has already admitted liability, tendered policy limits and has walked out, at which point they have no further obligation to continue to provide a defense. Just sayin’.
Nationwide may not have been able to tender, if Progressive decided to fight liability and decide not to waive their rights to subro, then Nationwide could not have tendered in good faith without being able to get a release for their insured and would have had a duty to defend.
A Maryland Progressive PAP doesn’t give the carrier the right to consent to settle? I think I’m missing something with your explanation – and I apologize for it.
How does Progressive (and by association the insured) choosing to fight mean Nationwide has to stay on the case? I’d think it’d be more like a situation where you have two carriers (e.g. a primary and excess).
It should be noted that Progressive’s behavior was not unusual for the insurance industry and other carriers do very similar actions. I’ll explain why.
Let’s say an allegedly at fault party’s insurer (e.g. nationwide in this case) deems a case not worth fighting – so they pay their insured’s low policy limit and exhausts their liability and wash their hands. Note this doesn’t immediately mean their insured was actually at fault. It means nationwide thought it cheaper/safer to pay the $10k or $20k and wash their hands of it.
Now the injured party’s insurer (Progressive) – why should they bind their hands and accept the liability based on Nationwide’s ‘lazy’ investigation? They shouldn’t – they should conduct their own due diligence investigation? So they routinely step into the shoes of the allegedly at fault party to make a robust determination of if they truly were at fault. For example, if the nationwide insured truly was not at fault but this was only discovered through deeper investigation by Progressive (e.g. uncovering red-light camera evidence previously missed or something) – is Progress still the same ‘immoral’ company? I would say no.
I fully avow this is a sensitive case as it involves a fatality vs. simple property damage. It may have been in Progressives best interest not to go the route of the deeper investigation. But readers should not think Progressive is alone in this approach or that – in principle – it is an unreasonable approach in general.
Deeper investigation, sure. But when there’s no proof, they should payout. As they obviously should have in this instance.
Pay out what – though? UM/UIM is not a lump sum payment made in whole whenever there’s an accident. It’s there to cover costs which you are *legally obligated to collect* but which are unable to do so.
In other words, the legal obligation to collect (percentage of fault) has to be determined as well as the amounts owed. An award *has to be granted* before you can claim you can’t collect it.
Use a hypothetical to clarify. Say You have $20K limits and I have $500K with UM/UIM at same. You run into me at low speeds. I spend a day in the hospital but am otherwise good, happy, and healthy. I claim you owe me $20K in hospital bills and $500K in pain/suffering.
Obviously that’s a ridiculous amount – and my insurance company would rightfully scoff at my attempting to claim that amount. So what’s the solution? Absent a settlement, the only way to determine what I am actually owed is to have a court make that determination. I.e., a trial.
UM/UIM coverage is for that – actual amounts owed which you cannot collect. Not hypothetical amounts you think you are owed.
It would have been prudent in this case for Progressive to ‘substitute’ limits, ie: when Nationwide offered to pay their limit in exchange for a full release, Progressive chooses to pay their limit to keep Nationwide in the case (as well as the defendent driver) as interested parties.
Not doing so leaves the insurer with a more difficult case to defend. It may seem heartless to the general public, but UIM carriers cannot just give away policy limits in cases which may involve emotional injuries, such as death. Carriers must focus on the facts of the loss as well as the damages associated. While Progressives actions may seem contrary to what the public cries for, in reality, they have a strong interest to ensure the other driver was ready and prepared to testify.
I would love to have all the facts regarding this situation to know whether Progressive acted in good faith, but without all the facts it sounds as though they handled the matter prudently. They do also have shareholders, and policyholders, to protect.
Progressive not only sought to avoid its responsibility, it then issued two statements that were outright lies as court documents and Fisher confirm.
This company is made up of crooks and liars.
exactly. I’m surprised it’s not in more of the reporting that their statement contains an out and out lie about not representing the driver.
My wife and I had gotten a qoute to switch all of our coverage, including auto, home and life to Progressive. I am so glad I saw the Fisher story on TV. Will never use Progressive. Shame on you gready bastards.
Progressives sells home and life????
Yes, I believe the home is through TRAVELERS (not 100% positive it’s Travelers, so don’t quote me on that), but definitely they sell homeowners. Not sure about the life insurance company. Unbelievable.
Characterizing Progressive’s behavior as reasonable or in their best interests misses the point entirely and is the reason this story is getting so much attention. Progressive could have done their own investigation, and most likely did. They must have known the evidence most likely pointed to the conclusion the jury delivered. (A witness said the other driver ran a light) They did more than play “devil’s advocate” to determine a fair outcome, they actively fought (then denied they fought) the outcome they did not prefer. That it involved a woman’s death only makes the case more appalling, not more principled.
The nature of the damages should have absolutely no bearing on whether the claim is valid or not. Whether this was bumps and bruises or a death claim is not the issue. It appears that liability was the issue.
Unfortunately, people hear someone died and become very emotional. The driver of the allegedly at-fault vehicle may not have been fully or even partially liable for the loss. We don’t know whether all parties were cooperating with the investigation so it may have had to go into suit so discovery could be compelled.
There may have been valid defenses that were exercised here by Progressive and maybe the jury let emotion take them down an incorrect liability path just so they could give money to the family because they felt bad about the lady’s death. It’s certainly right to feel bad, but absolutely wrong to render an award based on “feelings” instead of facts. Progressive may have been “right” in their liability analysis and the jury could have just ignored the facts under the veil of emotionalism.
The bottom line is that people are willing to judge the actions of the parties based on a flimsy article with very incomplete information and in the context of emotionalism. We just don’t know the relevant facts so we shouldn’t rush to judge.
The way I heard it, Progressive said they couldn’t pay the UIM without legal determination of fault – that’s reasonable enough. So, they told the family they would have to sue the at fault driver to have fault legally established.
At that point, they should have removed themselves and let fault be determined. They were not being sued and did not represent the defendant. Instead, they joined the trial on the side of the at fault driver. To avoid paying $75,000 to their own deceased insured, they argued against her and probably spent at least that amount doing it.
A bone-headed move and they deserve all the bad press they get.
With much regret, this kind of short-sightedness happens in the country all the time. Some stupid kid fresh out of college looks at the mathematical analysis and renders a judgement of not paying up. Next thing you know, the company will lose millions in potential loss of new business, bad publicity and legal expenses.
And yet the IJ comments section is full of derision for insurance companies and juries that pay too easily or pay too much to settle a claim that could just as easily blow up in their face.
I actually read up on this matter extensively when I first heard about it, and had similar thoughts to you. However, this is not only NOT uncommon in UM/UIM cases, but actually routine. This is because an insurance company has both a legal right and *duty* to participate in the defense in this case.
Since they have an interest in any ultimate result (since it’s their money that would be paid) an insurance company definitely has a right to participate in the case. This is to ensure that it meets with their standards; that a fair defense is being provided.
Secondly, they have a duty, because if they let an inept defense through they could be charged with collusion.
The right of an insurance company is necessary to prevent collusion THE OTHER WAY. Otherwise I could make a deal with you to hit me in the parking lot – I’m going to claim millions of dollars in damages and sue you. And if you promise to defend pro se and throw the case then I’ll give you half. After all it’s my insurance company paying for it – under a coverage that costs me almost nothing!
So in the end it’s an unfortunate series of events that *have* to happen the way they did.
The family had to sue the alleged (key word: alleged) at-fault driver to determine if there were amounts payable and how much.
AND Progressive had to have been able to defend the alleged at-fault driver to ensure that their interests were properly protected.
This wasn’t Progressive being malicious, but following proper procedure. It’s just that proper procedure is squarely between a rock and a hard place.
Also, FYI> Maryland is a contributory negligence state, meaning a person who contributes *IN ANY WAY* (i.e., even 1%) to their injury is barred from collecting against third parties for that injury. I.e., if I’m speeding and that put me 1% at fault for my injuries, even if the other 99% of fault is because you failed to yield, I cannot seek compensation from you for those injuries.
Meaning that this case was doubly important to Progressive because if the driver had done anything in any way to contribute to the accident, no amounts would be owed.
I feel really, really badly for the family, and I feel like scum dissecting situations like this. However I think it’s important that everyone, especially agents, read up on the situation. Hopefully by doing so we can prevent similar heartache in the future.
If you were speeding faster your would’ve avoided the accident altogether.
Don Q – Are you an attorney, because you sure sound like one! As far as I can tell, the facts of the case are that a woman was hit by an UIM, her insurance company played some role in the defense of the UIM, and the jury ruled that the UIM was at fault. I work for an insurance company and I certainly understand the dilemma, but there are ways to handle these situations consistently within the terms of the policy while still meeting moral and ethical responsibility to the insured. An insurance policy is a promise of protection for the insured – would you feel properly represented by your insurance company if you found yourself in this position based on the facts?
Sooo happy I use an Independent agent. My agent goes over every single detail with me unlike the big name carriers. They are so much more helpful.
We sell Progressive everyday. I have seen them pay claims that I did not think they would. In Alabama, they do not sell Life insurance policies. I saw the report on CNN. The brother stated that his sister had a life insurance policy of $100,000. I did not understand how they could refuse to pay a life insurance policy. It is hard to know exactly what has occurred. So many different stories are coming out. But if the UIM driver ran a red light, how can Progressive’s insured be at fault? It seems that fault was obvious. And if she had paid in money for UIM/UM coverage, it should not have been that difficult to file on it and receive payment. Regardless, this man is brave for taking on a giant. It’s a wonder that he is not being sued for slander.
Progressive indulges in highly misleading advertising, so I do not find it difficult to believe the above senario.
I quote personal lines including auto. My brother asked me to quote his auto with several different carriers including Progressive. I went on his computer and did the quotes. Progressive was definitely cheaper than his current policy – BUT – all the coverages were much lower than he currently has. When I matched apples to apples – Progressive was much higher than his current carrier. This same held for all the quotes I did for him with different carriers. They advertise heavily that they will save the insured money but don’t say that the savings come at the expense of the coverages. The average insured will only see the lower premium not the fact that his coverages are lower. Then, if/when he needs to file a claim it may not be covered or only partly covered.
Should claims be investigated? Of course. Should you release a statement omitting the truth while stating “Progressive did not serve as the attorney for the defendant in this case”? Only if you want your behind nailed to the wall by the public for good reason. While Progressive may not have been the attorney, they were in fact working for the defense. Omitting the truth is still lying, and tends to tick people off.
Wait…what I am hearing with all your comments is “to determine” or should have or needed to, etc etc
What you all arent obviouslly seeing is the rest of the article…read up!
PROGRESSIVE TRIED TO SETTLE SEVERAL TIMES WITH FISHER…LAST SETTLEMENT WAS 1/3 OF WHAT THEY WERE RESPONSIBLE FOR.
Meaning they KNEW they had to pay, they just didnt want to pay the whole thing.
Case in point they fought to try and give the claiment nothing instead. WRONG
Is it any wonder that insured’s and their families involve lawyers?
Ahhhh yes Mr Wolf – Nationwide you say defended the o.p. – you don’t say if Progressive paid or contributed in any manner to the defense offered by Nationwide.