A Baltimore jury handed down a $760,000 verdict to the family of Kaitlynn E. Fisher, 24, an engineer at Aberdeen Proving Ground who was killed in a two-car accident in Baltimore on June 19, 2010.
The Fishers had filed the lawsuit on March 29, 2011, seeking $1.1 million from the driver of the other vehicle in the accident, Ronald K. Hope III. Progressive Casualty Insurance Co. was added later as party at its own request, and was represented by its in-house counsel, James R. Moffat.
That last detail — Progressive’s role — propelled this case into the public eye beyond the state boundaries this week.
Matt Fisher, a New York-based stand-up comic and Kaitlynn’s brother, took to social media to blast his sister’s insurance company for assisting the defense. His post on his personal Tumblr account, titled “My Sister Paid Progressive Insurance to Defend Her Killer In Court,” went viral and showed up on heavily trafficked sites like the UK Daily Mail and Gawker. Progressive’s Twitter feed was clogged by outraged posts that were not helped by the fact that Progressive’s answer featured the smiling mug of company spokeswoman “Flo,” saying, “This is a tragic case, and our sympathies go out to Mr. Fisher and his family for the pain.”
By Wednesday, Progressive had dropped Flo and was going with the standard company logo instead. But, not before being called out by AdWeek for bad form.
UPDATE: After this post was written, Progressive released another statement saying it had settled with the Fishers. The amount was not disclosed.
Progressive was involved because Fisher’s policy included underinsured motorist coverage, meaning it would be liable if the damages exceeded the policy limits of the other driver, Hope.
And, the case was not straightforward when it came to the issue of liability.
Maryland is an all-or-nothing contributory negligence state, meaning that if Fisher contributed in any way to the accident then the jury could not award her anything. The Baltimore Police Department’s crash expert testified that Fisher had run the red light, not Hope. But other witnesses said Hope ran the light, and those were the witnesses the jury believed.
After Fisher’s post went viral, Progressive attempted to clear the air. The company’s claims general manager issued a statement saying Progressive did not represent Hope in the case; his insurance company, Nationwide, did:
I’d like to take this opportunity to explain Progressive’s role in this complex case. First and foremost, our deepest sympathies go out to Kaitlynn Fisher’s family.
To be very clear, Progressive did not serve as the attorney for the defendant in this case. He was defended by his insurance company, Nationwide.
There was a question as to who was at fault, and a jury decided in the Fisher family’s favor just last week. We respect the verdict and now can continue to work with the Fisher family to reach a resolution.
(Hope’s attorney of record, by the way, is Robin F. Kessler, of the “Law Office of Andrew B. Greenspan” in Linthicum, but both Kessler and Greenspan have “@nationwide” email addresses.)
Progressive’s more detailed response seemed to stem the tide of bile against it— at least for a little while.
Then Matt Fisher again took to his blog, standing by his earlier comments and excoriating Progressive for playing down its role in the case. He said that while he observed the trial, Progressive’s attorney, Moffat, was far from a wallflower and took an active role in trying to help Hope and Nationwide win.
During the trial, both in and out of the courtroom, he [Moffat] 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 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.
Right, wrong or indifferent, Progressive took it on the nose this week for its handling of the case. As a publicly traded Fortune 500 company, Progressive is obligated to protect its bottom line, and there’s no dispute that it was entitled to participate in the case as an interested party.
But it begs the question: where do you the draw the line? And, at what point do you have to step back and ask yourself if someone could accuse you of “paying to defend your customer’s killer?”