(This information came from ~diane steele~ (prairielaw forum))
Plaintiff in MD Wins Excess of Limits Against Allstate!!
It's me, Miss Persistent!! After three, full, grueling days in court, in a historically low-award county, the jury awards me close to full medicals ($57,825), most of my lost wages ($9,497), and...$83,000 in pain and suffering. The limits of liability were $100K and Allstate only offered $14K - even after an arbitration hearing and several letters outlining the evidence justifying a request for policy limits.
(Questions about bad faith will follow, but first...)
Highlights of the Trial Part 1, Day 1:
Cast of Characters:
Plaintiff: Miss Persistent who knows medical reports as well as her SS#
Pl's Atty: Columbo, unemotional, respectful
Defendant: Miss Gucci Bag who *thinks* she took the SUV that day
Def's Atty: Man with many mirrors and smiles for the jury
Defendant is put on first (at Miss Persistent's request), and says (after saying she *thinks* she took the SUV that day (perhaps from Garage #7)), that the person in front of Miss Persistent was making a left turn into a driveway and Miss Persistent didn't see it and reacted by slamming on breaks which then made her slam on her brakes but she was able to only slowly come into contact with Miss Persistent's car almost as though Miss Persistent had been touched by an angel. (Which by the way Miss Persistent was, but not by her.)
Police officer witness is on second (at Miss Persistent's request), says he was doing radar from a street where, had there been a car turning left, he certainly would have seen it as it would have been directly in front of him. No he did not see or hear the accident - so it could not have been there. When he went to find the hold-up that was accruing he finds the scene about 40 yards down the street from the mysterious, phantom, left turning car. When asked, Officer says the only left hand turn on the street at all, other than the driveway in front of him, is about a quarter of a mile down the road.
Plaintiff's turn. She has not called Defendant a liar because the police officer already has. But she does tell it like it is.
Miss Persistent's Auto Expert (with low impact whiplash video) is barred from testifying because previous attorney failed to follow some rule of disclosure during discovery. Miss Persistent is barred from stating that the frame was bent. Miss Persistent is allowed to say what she saw. Miss Persistent says she saw the steering wheel horn arm at 11 o'clock instead of horizontal to the pavement when driving on to work afterward, backrest wobbly, etc. When shown low-damage Allstate photo, Miss Persistent says that unfortunately the photo has a shadow across the area that she recalls showed the most damage at that angle, but that, interestingly, the car right next to it in the photo has no shadow. When Plaintiff is then asked (by an increasingly frustrated Man with Mirrors), if steering wheel repair is on the bill thrust at her, Miss Persistent says that the steering wheel itself did not end up being the problem (Objection, mirror man is afraid I will say "bent frame" and perhaps needs a moment after realizing the sheer will and strength of Miss Persistent). Not to worry. Plaintiff is allowed to continue and says that the bill handed to her is only a portion of the full bill and that no, the steering wheel is not mentioned on this portion of the bill. Miss Persistent knows that the other portion of the bill has the repairs for bent frame and seat problems and will not be shown.
After Miss Persistent realizes that Man is carrying Many Mirrors, not only does she refuse to answer any question without qualifying it first by reviewing other statements that she knows more accurately represent the given scenario, but she also realizes that with luck she will give every ounce of strength to crack the mirrors.
After a few angry red-faced tantrums by Mirror Man, Miss Persistent is admonished by Judge, who says something to the effect of, "Miss Persistent, please answer only the question that is asked." Miss Persistent turns inquisitively and innocently toward the Judge and asks, "Even if it is misleading?" Judge cannot answer rhetorical question and becomes a little edgy. He repeats and Miss Persistent apologizes. This soon passes. Man with mirrors tries to become friendly mirror again but is soon exasperated since it does not reflect Miss Persistent's standpoint. Miss Persistent apologizes to the court again. A very short time later, Miss Persistent realizes she is exhausted after 4 hours of testimony and after the next heated round, states to Man with Mirrors in answer to a question, "I am tired of your games," and she hangs her head down. Miss Persistent has also noticed that jury is tired too as it is 5:30 p.m. which is what reminded her that she herself was exhausted. Man with mirror objects, plaintiff overhears him saying something about the comment being "insulting" but Plaintiff is not admonished. Not sure whether Judges is tired and appreciates the action or is just tired and would also like to go home. Man with Mirrors wraps it up after a few face-saving questions like, recite your name again please, for the record.
End of day one and later on Ms. Persistent see's Judge get off the elevator in courthouse lobby with his head thrown back in laughter as he begins to tell colleague "And then she says.." Then Judge sees Ms. Persistent and puts "angry look on." Ms. Persistent knows she is on the right track and is happy. Miss Persistent realizes that if Man with Mirrors is going to look and smile at jury, then she is not. If Man with Mirrors is happy she is sad. Miss Persistent will do the opposite of what Man with Mirrors does and has vowed to herself to refuse to allow his description of her likeness and image to be reflected in his mirrors. She remains as far away physically and emotionally and factually as she possibly can, at all times. If he loses he has the excuse, but if he wins he cannot truly hold himself accountable, he carries the mirrors very close to his heart so that it feels like the real thing, if he doesn't look too hard.
Day 2, Part 2
Miss Persistent has not slept a wink. She arrives at the courthouse early.
Cast of Characters:
Plaintiff: Miss Persistent: Will not acknowledge the presence of any member of the defense team and looks, really, as if she may become physically ill if forced to, accidentally or otherwise.
Pl's Atty: Columbo Pl's Medical Experts/Treating Dr.s
Defendant: Ms. Gucci (apparently no advice given as yet
re: large bag or incessant smiling at jury like "my how entertaining this all is!")
Def's Atty: Man With Mirrors Man with Mirrors' Legal Assistant (Mirror Carrier)
Columbo is unerringly earnest and polite in words and deeds to all parties involved throughout. Columbo calls himself a "simple country lawyer." Columbo has been pouring all glasses of water that Miss Persistence may require but has not asked for, has been opening doors for her, and there is an interestingly off-beat low-key quality about this gentlemanly behavior that Miss Persistence can't quite identify. She still can't Man with Mirrors observes and thinks this reflects a low self-esteem on the part of Columbo, after all, he himself is far too important to be troubled with such drivel, especially over a client? He smirks at Columbo for being so weak. Sigh. Man with Mirrors has only his own illusory self-esteem with which to compare. Columbo still secretly wishes for him to swallow a fish bone (he really said that), because he is still mad about the outcome of the auto expert being barred from testifying. Nevertheless, he remains respectfully dutiful to all.
Man with Mirrors checks Miss Persistent out. She is wearing a modest V-neck dress which details her long, slim neck because she is yes, still alert and knows there will be some discussion later of what the IME referred to as her "at-risk" "gracile" neck, and she feels that no matter what is said, no jury in their right mind will blame her for this "disfigurement." Man with Mirrors squints his eyes and flashes a look of disgust. His dismay, by definition, gives Miss Persistent comfort and she is content as she knows that she attains here, everywhere, and forever after to be the antithesis of Man with Mirrors and is glad he sets such a strong example from which to learn.
Proceedings begin and Miss Persistent's first Dr. is called. He is simple, illustrative, uses real life examples, and connects with the jury by providing them with an enthusiasm about the functions of the neck. He asks us to imagine a ball on a stick, the longer the stick the further the ball will go. We can *all* imagine this. Miss Persistent is aware of the jury wanting to glance at her own neck, but they do not. Hmmm. Miss Persistent prides herself on her powers of observation, including imperceptible, collective sighs. Aha, a little late but the feeling is confirmed when Dr. finishes testifying and as the jury gets up to break, they first glance at her neck, all of them, on their way out. She does not make eye contact, concentrates on something else, and allows them to gather their evidence.
After lunch, during Cross-examination, Man with Mirrors begins each question with such a statement as, "You will agree with me, then that, monkeys do in fact regularly hatch from large blue eggs." Witness of the moment says "No." And Man with Mirrors says, "Well, then, really we do agree since we do in fact know there are such things as monkeys and every person in this courtroom has most certainly seen monkeys and eggs hatch before. And this, is, exactly my point. This is what I have been trying to get at, Thank you."
In essence, Man with Mirrors takes each statement, wraps it up, beginning and end, in pretty holographic gift wrap, ties a neat bow made of the smiles from having conjured the illusion of having chipped away at the integrity of Miss Persistent's life by revealing these "hidden" connections. Man with Mirrors proudly places the prized gifts ever so gently on the defense table for all to see. He is hoping the jury does not recognize that the boxes, although neatly wrapped and complete with the smiles, are empty. Well, Man with Mirrors gift wraps all day and gently sets each perceived award on his defense table as he goes. Miss Persistent is wondering if he is fabricating a pyramid. Nah.
No real foundation. The boxes are in disarray. Miss Persistence knows that, in the end, Man with Mirrors, Mirror Carrier, and Ms. Gucci really will have convinced themselves somewhere along the way that the boxes are full. But when the sky is the limit, you have more resources....
End of Day. Miss Persistent's son had wanted her to wear his Pokeball to court that day and she did in her heart wear it. And so, not too much damage done. Columbo manages to get all medical bills entered, and Miss Persistence is actually pleased she has survived so far.
Day 3, Part 3a
Miss Persistent is pretty sure that she slept some the night before, otherwise she would not have had the dreams that she had. Somewhere in the night she has been accused of having been diagnosed with scoliosis as a child which of course has produced all of her neck problems. Her friends and family cheer over the news.
The scene changes and Miss Persistent is yet again in the psychiatrists office that she was accused of visiting for many, many therapeutic hours but that she does not recognize as she has never truly been there. Thankfully however, while under hypnosis with the psychiatrist she reveals the truth about the 2-level anterior cervical discectomy and fusion with bone graft from her hip.....it was a false memory. There was no surgery, there was no pain, there was no son, there weren't even any doctor's recognizing her pain nor performing the surgery. Her family and friends again cheer over the news.
She hazily becomes overwhelmingly relieved to find that the collision and ensuing fractured life is only a dream. She wishes to wake up to confirm this but cannot, she feels trapped in the nightmare, and too tired to wake up. Miss Persistent is next cognizant of a very, very large Gucci bag carrying a well coifed figure who is observing the show from a distance and appears quite amused by the events. The figure pours a dark, muddy substance from a champagne-shaped bottle into the gigantic Gucci bag, which then springs holes. The figure seems surprised and starts choking on the mud which she inadvertently swallowed before looking more closely. Night is becoming day as, finally, Ash Ketchum has appeared on the scene and carries Miss Persistent's son in his shining, luminescent Pokeball. This particular Pokeman, Austin her son, is the most powerful of all and when handled properly can do much damage. This Pokeman's strength is love. He is Miss Persistent's reason for living, her shining light, her love, she is his. For him and their lost opportunities and for no other earthly reason, Miss Persistent will work through the current symptom up and then head for the cause.
She wakes up exhausted and again arrives at the courthouse early. Today will be the day. Perhaps they will carry her away in one of those nice little jackets where you get to tie the sleeves up together (made by Gucci), and then take her to that nice room that has mattresses for wallpaper (also designed by Gucci). She pinches herself and thinks not. She attaches her Pokeball to her heart for another day.
Last Cast of Characters:
Columbo
Miss Persistent
Courthouse Video Technician Guru
Video Producer Culprit
Man with Mirrors (and cell)
Ms. Gucci (and cell)
One who Carries Mirrors (and cell)
Defense Star Witness, IME (about as smart as a cell)
Miss Persistent has asked Columbo that, when the Plaintiff's case rests this morning, to be sure that the jury is aware of this turning point. Miss Persistent would like the jury to know that the past two days have been at her expense and represent our burden of proof. Columbo assures her.
Miss Persistent has generously allowed, quite fairly she thinks, for the perception of "'gray" on the first two days, and has worn gray accordingly. Today however, things are clearer, and so she wears black and white.
She arrives at the courthouse and waits for Columbo, who arrives moments later. Columbo spreads his papers everywhere, as usual. She watches while he shuffles and he does this expertly. Columbo leaves to visit the restroom.
What's this? Columbo is back. Apparently he has the duty to tell me about an offer made this morning? If I settle now, and win, they will pay $100K plus the $10K it took to bring the show here. If I lose, they will give me 10K. Miss Persistent is reminded of and uses a simple phrase her baby brother used to use all the time. "Denied" Surprisingly, Columbo does not try to reason with Miss Persistence.
Columbo returns. Man with Mirrors arrives, looks at Miss Persistent's dress and quite perceivably looks PO'd. (You B). She had no idea it would really matter. Man with Mirrors has chosen to wear a you-know-what greenish brown suit (no, not tobacco). Miss Persistent looks away and then smiles. She is smiling at this tangible symbolic position they are in. The Mirror is cracking. Whoops, Minor oversight, Judge walks in, notices the similarity of dress, flashes Miss Persistent ol' "you again" look, but this soon passes.
It is now time for Man with Mirrors to present Allstate's case, and he calls Ms. Gucci to the stand. As he approaches her, Man with Mirrors says to the courtroom while looking at Miss Persistent, "I'm just a lawyer." Miss Persistent takes this as an apology for the whole thing and does not accept this. But she knows the mirror is cracking further. Man with Mirrors continues with Ms. Gucci and when asked, Ms. Gucci tells the court that, after the collision she asked Miss Persistent if she was OK. She testifies that not only did Miss Persistent appear OK but in fact she said she was OK, and in retrospect actually seemed very casual and quite the happy girl about
the whole event.
Miss Persistent makes a sound resembling "this takes the cake." Columbo turns to her and rests his hand on the arm that is not holding her jaw up, and reassures her.
Day 3, Part 3b.
Day Three...continued
Now it's time for Columbo to cross for the first time. What will he do? Columbo fries her with 3 good questions, in stark contrast to Man with Mirrors style, and unquestionably allows her, all by herself to establish her own failure to maintain proper look-out, following too close, and idiocy in general. He lifts his paw and she runs back to the comfort of the defense mirrors. Miss Persistence is impressed.
Defense calls for the video of the IME Star Witness. Miss Persistent has been waiting for this. She has been present, at her own insistence, at all depositions. But what is this? Something is wrong with the tape? It can't be.
To break the seriousness of the moment, she becomes aware that, while the IMEs frozen picture is on the screen, his face is shadowed just thus and so and he looks like a convict. For real. Miss Persistent is now impressed and amused. Things are looking up. Now what? Man with mirrors is going to *read* the deposition? Miss Persistent tells Columbo that they will not read the deposition if it kills her and she promises Columbo that she will leave if that happens. (I forgot to mention that Miss Persistent likes to be bratty sometimes.) Columbo assures her calmly that he will request they play the audio. Mirror Man resists the suggestion, ignores it in fact. Mirror Carrier begins to practice reading. Miss Persistent wonders why someone would need to practice reading at the age of 30 something. Oh yeah, the mirrors, I forgot I was still at the amusement park in the funny house. Mirror man telephones Video Producer Culprit from his convenient cell to issue him a punishing verse. He is not on the phone long enough to obtain advise and returns with a simple, "he said he tested it." Ahem. Miss Persistent is not buying this. What is this now? A very serious looking video technician, freed from the courtroom basement, appears between the shimmering gates of the courtroom entrance. He pauses for effect.
Moments later he whisks the video away at the hesitation of Mirror Man and returns a short while later with an interesting arrangement of VCRs. Video Guru has assured us it will now work. Miss Persistent is impressed although no longer amused, she believes there may be justice after all.
Video Guru asks for the name of the Video Producer's Company in the presence of the Judge who has just emerged from the back rooms to assure that things are settled. Meanwhile, Miss Persistent recalls a statement that Video Producer Culprit made to her on her way out from a deposition some months ago. He had, after hearing her pathetic story said, "that's life." Miss Persistent retorts now, two months later, "Yup."
Video is played. Miss Persistent is thrown back into the dreams of the previous night. Everything about her health is unremarkable, her complaints bizarre. IME has never seen such a thing in his 30 years of practice, every test known to mankind, full range of motion, yadda yadda yadda.
Time for Columbo to cross. What's this Miss Persistent hears? Is that really the IME, Man with Mirrors' Star Witness saying on video that patient relates that her frame was bent as a result of the collision? Did I hear bent frame? Oh Columbo, can't we hit rewind and hear it again? Somebody grab the remote! Oh, what's this now? Question number two from Columbo, "Any ideas about uh, any ideas about how, um, I'm just curious, do you have an explanation for, um, why Miss Persistent might have had restricted range of motion noted on day 8 [that you failed to mention], but not on day 9 [as you pointed out and as determined by a foot doctor]? IME says with a shrug and a nasty voice, "bad day I guess."
Miss Persistence feels the collective disgust of the jury. Question number 3 from Columbo about taking notes during the visit, puts IME into what appears to be a self-induced, five minute tail spin whereby he thoroughly explains that he takes notes and then destroys them and does dictation both before the patient arrives and after but not during because he is busy taking the notes that he will destroy, and then he reviews the records sent to him. So that's when I do it. Subsequent. That's my practice." What? Miss Persistent has had the freedom to look at the jury the whole time, she already knows the story, and they are glued to the sheer ridiculousness of the IMEs explanations. She notices the imperceptible jaw-dropping. She is impressed, amused, and content. Such a big, big deal has been made of keeping the jury from knowing the frame was bent (or any other damage for that matter), that this is just beautiful.
Columbo delivers what Miss Persistent believes to be a brilliant closing argument. This is not easy.
Man with Mirrors does his. In his closing, Man with Mirrors tells the jury that Ms. Gucci will have to pay any award right out of her pocket. Columbo objects for the first time. Miss Persistent has her eyes closed, and her face is fraught with distress. She has covered her eyes with her hand and her elbow is supporting this grief. She really feels this. It seems interminable and it is. He closes. Columbo re-addresses the jury and thanks them.
Juror #7, the alternate, is dismissed. She wishes Columbo luck on the way out. Columbo smiles for the first time. Miss Persistent leaves the building and cries. She is morally outraged. She has not been alone in 3 days. She needs space. She needs rest. She needs Peace. She does not want to go home and tell her son that the bad guys won. He is so impressionable. She can't, she can't.
The jury has finished deliberating. Gucci negligent, Miss Persistent not. Whew, this is Maryland. The foreman reads the medical award. Whew, no bankruptcy for me. Foreman reads lost wages. Whew, I can pay my dad back for when I was out all that time. Foreman reads future medicals. No futures? OK we blew that. But, will I beat the limits? Foreman reads pain and suffering. What? What did you say? $83,000? I beat the limits. For the first time, I am glad her limits are what they are. Mirror man lets out an audible "Oh my God" but I believe it was ego rather than $$. Maybe it was his last ditch effort to send jurors home thinking they had behaved outrageously.
Miss Persistent has climbed to the top of the mountain. She's been roughed up. She realizes that going down the other side is equally if not more, difficult. The mirror, in fact, cracked itself, and Miss Persistent believes of course that this means she will not personally have seven years of bad luck!
Hope you liked it. Felt good to write. Now, about bad faith....After losing, Allstate then filed a motion for retrial which was denied a month ago. Just prior to the deadline for filing an appeal (last week), Allstate (outside counsel actually), offered me 110K. In reality, this amounts to the policy limit we asked for years ago plus fees in getting to trial. However, it was suggested to me that I come back with an offer of 125K and that Allstate would probably meet me there. Not having had any previous experience with Allstate negotiating fairly or even reasonably, I decided not to go that route. I counter-offered with 140K. Turns out Allstate had already filed the appeal before making the 110K offer. Anyway, I understand that I should check to see if Allstate posted bond on the entire 150K. How do I do that? And importantly, say Allstate did post bond on the entire award of 150K to protect their client from having to post anything, does this necessarily mean that if the appeal is denied Allstate is liable to pay the entire award plus interest or are they still only liable to pay policy limit 100K plus interest and make me chase the 50K through bad faith? When I say liable I mean both legally and likely. I also understand that filing an appeal is a one-pager and that the real work comes when briefs need to be filed and transcripts need to be purchased and that means the true opportunity for negotiating arises at that time when they have to start paying for stuff...including interest. Can anyone enlighten me on the experiences they've had with the negotiating aspect of the appeal business that Allstate plays?
~ diane steele ~
Diane M. Steele, M.A.
Truth and Justice will prevail! Promote it for all you are worth, or your worth will be nothing!
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