John Bordeau Obtains Favorable Ruling
John Bordeau recently obtained an extremely favorable ruling in favor of his client, a contractor. The Plaintiff in the case was an insurer trying to recover a subrogation interest in excess of $300,000. The Plaintiff failed to respond to discovery for a year and failed to comply with a Court’s Order pertaining to the outstanding discovery. The Court, upon the second hearing regarding the outstanding discovery, found that the Plaintiff had been told pursuant to the court’s first discovery order that a failure to comply would result in the striking of the Plaintiff’s pleadings. The Court ordered the same and the client was dismissed from the case with prejudice.
Poindexter v . Allstate Fire & Casualty Ins. Co.
The claim arose out of an auto accident at an intersection when the driver of the vehicle insured by Allstate pulled into the path of a motorcycle, which collided with the car. The operator of the motorcycle died from his injuries at the scene of the accident. The daughter of the insured auto had given her boyfriend permission to drive it, and he was operating it with the daughter riding as a passenger. Neither the daughter nor her boyfriend had a driver’s license.
Allstate received notice the day after the accident occurred. It conducted an investigation concerning whether the boyfriend qualified as an insured under the policy, which included determining whether he was resident of the household and whether he had permission to drive the vehicle. Allstate had difficulty locating the boyfriend to follow up on those questions, but the owner confirmed that the boyfriend had driven the vehicle on several occasions before the accident.
Two days after the accident, a lawyer representing the widow of the motorcycle driver notified Allstate of her representation. She asked Allstate to preserve the insured vehicle for inspection and indicated that the widow was making a claim. She did not make a settlement demand with that letter, however. Allstate acknowledged notice of the claim and asked for copies of medical records, bills, death certificate and wage loss information. Allstate wrote to the claimant’s lawyer the following day to advise that the company was not in a position to make a settlement offer at that time.
A month later, Allstate received a certified letter from the widow’s lawyer, making a settlement demand for the policy limit with two conditions: (1) receipt of a certified copy of the applicable policy, and (2) an affidavit signed by the driver that he did not have any other insurance that would apply. The letter did not have a time limit. Allstate did not receive the certified letter until nine days after it was mailed. Allstate sent an email to the widow’s lawyer the day after it received the letter, acknowledging receipt and asking her to provide the form of an affidavit it requested for the driver. Meanwhile, the company searched for the boyfriend, seeking to obtain the requested affidavit from him, but the company had difficulty finding him.
Four days after Allstate had received the settlement demand, Allstate received a letter from another law firm, advising that they had been asked to assist with the claim and withdrawing the settlement demand that had been made less than two weeks earlier.
Eight days later, Allstate offered its policy limit of $100,000, subject to court approval for the wrongful death settlement. The letter advised that Allstate was working on getting a certified copy of the policy and that the company had not yet been able to locate the driver to obtain an affidavit from him. Plaintiff’s counsel rejected the offer. Plaintiff made two more settlement demands in the next year for $3.5 million. Allstate offered its policy limit in response to each demand, but plaintiff rejected the offers.
The claim was tried to a jury in September of 2021, when a jury entered a verdict of $1.4 million. Allstate paid its policy limit plus costs and post-judgment interest, and plaintiffs filed an acknowledgement of partial satisfaction of judgment.
Plaintiffs then filed an equitable garnishment action against Allstate and the insured driver. The petition sought recovery of the policy limit under R.S.Mo. § 379.200, including a claim for funeral benefits under Allstate’s policy. There was no separate claim for bad faith. The insured did not enter an appearance in the case, so there was no cross-claim for bad faith. Allstate filed a motion for summary judgment, arguing that the company already had paid the liability limit in partial satisfaction of the judgment and that plaintiffs’ decedent did not qualify as an insured for medical benefits coverage, which included funeral benefits, under its policy. The Missouri Supreme Court previously has held that an action under § 379.200 is limited to recovery of insurance policy proceeds and is not a basis to seek recovery beyond the policy limits. In response, plaintiffs dismissed the petition for equitable garnishment.