Buying a Kick in the Face

August 14, 2012 11:15 AM

My Sister Paid Progressive Insurance to Defend Her Killer In Court: After a Baltimore car accident between an insured and an underinsured driver left the insured driver dead, Progressive Insurance took up the defense of the underinsured driver against their own policy-holder.

Maryland law follows the doctrine of contributory negligence, which disallows any monetary awards if even minimal negligence on the part of the plaintiff contributed to the damages. Presumably the Progressive legal team defended the at-fault driver in hopes of proving some negligence on the part of their policy holder. Other states have moved away from contributory negligence, holding that "the doctrine of comparative negligence is preferable to an 'all or nothing' rule from the point of view of logic, practical experience, and fundamental justice." Does contributory negligence encourage insurance companies to act against their own clients' welfare?
previously

posted by Ice Cream Socialist (251 comments total)

Needless to say, these people have to be hammered.

Contributory negligence sucks. Only MD, DC and VA still have it.
posted by Ironmouth at 11:18 AM on August 14, 2012 [8 favorites]

Progressive is claiming Nationwide defended her. But their answer is a bit fishy. Not enough detail.
posted by Ironmouth at 11:20 AM on August 14, 2012 [1 favorite]

Thanks for the background on this. As somebody who is not familiar with contributory negligence, it all seemed really weird when I originally heard the story. There's no love lost between me and particular auto insurance companies, but the details didn't make logical sense.

(It's still a horrible situation, but at least I understand the logic behind the horror.)
posted by MCMikeNamara at 11:24 AM on August 14, 2012

This is a tragic case, and our sympathies go out to Mr. Fisher and his family for the pain they've had to endure.
posted by MuffinMan at 11:24 AM on August 14, 2012 [10 favorites]

Say it ain't so, Flo!
posted by Legomancer at 11:26 AM on August 14, 2012 [6 favorites]

Here's is Progressive's statement that they did not defend the other driver. So we have a he said/she said situation.
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 11:27 AM on August 14, 2012 [1 favorite]

This link says that the Progressive's attorney's name is Jeffrey R. Moffet.

Googling the name gives you this document:

Donald L. Speidel
Managing Attorney

Jeffrey Moffet
Christine S. Britton
Devon Doane



ALL ATTORNEYS ARE ADMITTED IN MD AND ARE EMPLOYEES OF PROGRESSIVE CASUALTY INSURANCE COMPANY
posted by CrazyJoel at 11:29 AM on August 14, 2012 [26 favorites]

From Twitter last night: http://imgur.com/ErKPH. You could scroll on and on and get the same. So that can't be great for the "Flo" brand…
posted by glhaynes at 11:30 AM on August 14, 2012

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.

Chris Wolf
Claims General Manager
Progressive

I'd like to explain to you what the word "explain" means. First off, it involves more than 4 brief sentences in response to a "complex case." Second, it has nothing to do with formulaic (and toothless) expressions of "deepest sympathy." Third, it's usually accompanied by information that clarifies.

Watching the cut and paste damage control on twitter last night pretty much sealed my sense that Progressive deserves every last kernel of the shitstorm that's now descending on them.
posted by R. Schlock at 11:32 AM on August 14, 2012 [20 favorites]

I started writing a comment in the other deleted post, but I'm having a tough time being really angry at Progressive here.

Since fault was never definitively determined in this case, is there really a practical alternative to sending the case to court? I agree that Progressive seem to have handled this case somewhat poorly from a customer service perspective, but insurance claims are rarely a warm, cuddly affair when there's a death and large claim involved...

This is an especially prickly case, given that it involves an underinsured motorist claim, which is legally convoluted by necessity. I'm pretty sure that there have been cases of insurance companies suing themselves to resolve similar matters in a legal/transparent manner.

Contributory negligence seems rather suck-y, but I think the nastiness in this case comes from the fact that the other driver was underinsured.
posted by schmod at 11:32 AM on August 14, 2012

from the statement by progressive: We respect the verdict and now can continue to work with the Fisher family to reach a resolution.

note how that is not "we can now pay the claim" - it sounds like it's "we can keep trying to browbeat a grieving family to accept 2/3 less than the claim should be." what assholes.
posted by nadawi at 11:34 AM on August 14, 2012 [21 favorites]

R. Schlock: "First off, it involves more than 4 brief sentences in response to a "complex case.""

I wouldn't want my insurance company discussing my personal affairs in detail in a press release.

If truthful, that brief response was appropriate, and about the extent of what they could do without violating their client's privacy.

Separately, the PR firm managing the Twitter account needs to be sacked. Very few large companies manage their own Twitter accounts with internal staff. I'm willing to bet that the twitter mess was just a result of a bad HootSuite glitch, or the PR firm accidentally jumping the gun on their apology.
posted by schmod at 11:36 AM on August 14, 2012

Sounds like Progressive footed the bill for the other guy's defense, even if he was actually defended by Nationwide's attorneys. Which is totally to be expected. As a tactical matter, what Progressive did is not only sound, but pure legal common sense. If a deep-pocketed client is in a situation where its liability is going to be decided at a trial to which it is not a party, any good lawyer would recommend paying the legal bills (and thus effectively controlling the legal representation) of the "right" side. A litigator reads this and thinks, "well, yeah."

A further point: how is this practically any different from a situation where the insured was able to sue Progressive for the money, and Progressive litigated against its customer directly?
posted by eugenen at 11:37 AM on August 14, 2012 [4 favorites]

Then don't call it an "explanation." Call it "our side of the story" or "something you may not have heard." But don't pawn off your ass-covering as information.

It's really really really (really) important that this kind of corporate malfeasance gets called out and punished in the court of public opinion as often as is possible. Corporations make these kinds of intimidating and threatening moves not because they're inherently evil or brutal, but because they're thinking about the bottom line. Social media like twitter and reddit help to restore some balance to the relationship. The more Progressive is seen to suffer for their heartless approach to this case, the more other insurance companies will think twice before acting similarly.

Which is to say, pitchforks and torches for everyone!
posted by R. Schlock at 11:40 AM on August 14, 2012 [5 favorites]

Flo worked for Wolfram and Hart. Is it any surprise Progressive is also evil?
posted by kmz at 11:41 AM on August 14, 2012 [19 favorites]

I think eugenen has it right. I'm surprised at the outrage over this as seen on FB and other social media. I've been lucky to not have any dealings with my insurer like this, but fully understand that this is how the system works.
posted by k5.user at 11:41 AM on August 14, 2012 [2 favorites]

nadawi: "note how that is not "we can now pay the claim" - it sounds like it's "we can keep trying to browbeat a grieving family to accept 2/3 less than the claim should be." what assholes."

I'm not sure why I'm defending Progressive so much here, but this is more or less exactly how insurance needs to work in order to stay financially solvent and prevent fraud.

The outrage here seems to be a fundamental misunderstanding of how insurance works. I'm sure there are ways that the legal system could be reformed to streamline this process for victims, but there doesn't seem to be anything unusual about this case.

I've had insurance policies with a few different companies, and I've read each of them. Most of the time, the language is actually surprisingly brief and easy to comprehend (and most notably, can change substantially when you move to another state). I know that I would need to endure a similar legal process to this one if I were to make an underinsured motorist claim.
posted by schmod at 11:41 AM on August 14, 2012 [1 favorite]

...but I think the nastiness in this case comes from the fact that the other driver was underinsured.

I pay good money to the insurance company to protect myself from underinsured or uninsured drivers, as did the poor woman who passed on. They are going above and beyond to screw over her estate, and lying openly about it.
posted by Slap*Happy at 11:41 AM on August 14, 2012 [21 favorites]

A further point: how is this practically any different from a situation where the insured was able to sue Progressive for the money, and Progressive litigated against its customer directly?

The difference is that insured is dead and this looks like Progressive is pissing on her grave. Regardless of if they were legally entitled to do it, it's very much insensitive and it looks very bad.
posted by inturnaround at 11:42 AM on August 14, 2012 [2 favorites]

Man, this is shitty behavior from Progressive. It's too bad, since their chairman gives a lot to charities and, well, progressive causes.
posted by zombieflanders at 11:48 AM on August 14, 2012 [2 favorites]

fully understand that this is how the system works.

Ah, yes. "The System." That cherished institution carved into the fundament of our commonwealth. It must be respected and preserved at all costs, for without it, we are only men alone with our freedoms.

Dude. If we live in a world where a sufficient number of outraged and irritated consumers can force a company to rethink it's corporate policies in order to stay in business, then "the system" has changed. "The system" is really good at devising all kinds of ways to fuck people over, and its lazy appeals to convention more than outright coercion that keep things working that way. There is literally nothing wrong with an aggrieved customer taking his complaint public in order to change a game that is stacked against him. The internet just gives him a bullhorn of sufficient volume that his complaint might actually get heard.
posted by R. Schlock at 11:49 AM on August 14, 2012 [53 favorites]

This guy does not know what the f*ck he's talking about. I do civil defense work for a living. Progressive isn't one of our clients, because they're big enough to do their own work in-house--same for State Farm--but I do UM/UIM defense all the damn time.

First of all, it was not Progressive's lawyers that defended the other driver. The guy has zero evidence that this happened. It was that driver's own attorney, hired by his insurer, in this case Nationwide. Progressive's answer makes perfect sense in that respect. What probably confused the guy was that Progressive's interests and the other driver's interests were aligned, i.e., neither the other driver nor Progressive wanted him to be found negligent, so it looked like Progressive was taking his side. Because they were. But the guy definitely had his own lawyer.

Second, this guy doesn't know how UM/UIM works. This insurance is designed to cover you in the event that another driver is liable for your injuries. It is not a magic "I got hurt, now may me money" device. The other driver must be established to have been negligent. This necessarily involves bringing suit against the alleged tortfeasor, in this case the other driver. That's just a fundamental feature of UM/UIM law, and in every state that has UM/UIM, and in every policy of insurance that includes UM/UIM, that's how it works.

Third, the contributory negligence issue is huge. Maryland is indeed one of the few remaining states to hold to the contributory negligence defense, it makes perfect sense that Progressive would want to go this route. A finding of 1% fault on the guy's sister would have made the defendant driver not liable and eliminated any possibility of recovering under the Progressive UM/UIM policy. Bang, Progressive just saved $100,000 or whatever.

Fourth, Progressive's offer of 1/3 of the policy limits was reasonable. They were discounting the offer based on their evaluation of the likely outcome of the case. They figured the claimant had a 1/3 chance of prevailing, so they offered 1/3 of what they thought the value was. The unreasonable person here was the claimant's family, who weren't willing to discount their valuation of the case even a little. In most cases where that happens, it's the claimant, not the insurer, who winds up unhappy, because insurers are way better at realistically evaluating claims than individual plaintiffs. Seriously, if an insurer goes to trial and gets a verdict that's anything less than the plaintiff's last demand at settlement counts that verdict as a win. And most of the time, when all that's really at issue is the value of the claim, the insurer makes out like a bandit. My firm just tried a case where the jury awarded the plaintiff $2,250. The plaintiff's last demand at mediation was $500,000. That's a win.

Progressive is absolutely in the right here. This guy is frustrated because he doesn't understand how insurance works. Which is unsurprising, but not Progressive's fault. And I guarantee you, every other company in the country would almost certainly have done exactly what Progressive did here, and would be justified in doing so. That's just the way that works.
posted by valkyryn at 11:49 AM on August 14, 2012 [50 favorites]

Dear Frog,

No, no, you don't get it. This is how things are supposed to work.

Sincerely,
Scorpion, Esq.
posted by Behemoth at 11:49 AM on August 14, 2012 [47 favorites]

I'm glad this is getting publicized, because it will encourage insurance companies to pay out more of these claims instead of contesting them, in the hope of avoiding the bad PR and subsequent loss of income.
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 11:49 AM on August 14, 2012 [4 favorites]

There is literally nothing wrong with an aggrieved customer taking his complaint public in order to change a game that is stacked against him.

For the love of all that's holy, there was nothing stacked against anyone here. The insurer fought a case in which there was contested liability, and the guy got his facts wrong to boot. The only problem here is that Matt Fisher knows f*ck-all about insurance.
posted by valkyryn at 11:50 AM on August 14, 2012 [2 favorites]

I'm glad this is getting publicized, because it will encourage insurance companies to pay out more of these claims instead of contesting them, in the hope of avoiding the bad PR and subsequent loss of income.

Not bloody likely. Auto insurance is a legal requirement. It's not like people are going to refuse to buy insurance. And Progressive did what every other insurance company would do, so it's not like they've got particularly bad claims practices or anything.
posted by valkyryn at 11:51 AM on August 14, 2012

Matt Fisher knows f*ck-all about insurance.

He seems to have a good handle on social media, though. Doesn't he?
posted by R. Schlock at 11:51 AM on August 14, 2012 [4 favorites]

Progressive is absolutely in the right here. This guy is frustrated because he doesn't understand how insurance works. Which is unsurprising, but not Progressive's fault.

Yes, it's Progressive's fault. Agents should not sell coverage that the client doesn't thoroughly understand.

And I guarantee you, every other company in the country would almost certainly have done exactly what Progressive did here, and would be justified in doing so. That's just the way that works.

The first sentence is likely correct, the rest of them less so.

Just because this is "the system" doesn't mean it shouldn't be aired out very publicly. Even the good insurance companies are pretty damn evil, and they need have sunlight shown on their policies as often as possible.
posted by small_ruminant at 11:53 AM on August 14, 2012 [13 favorites]

and prevent fraud

so, after determining fault, they're still working towards a resolution instead of just paying it out. how does fraud even come into it? unless you mean fraud by the insurance company for talking her into coverage, and collecting money for it, and probably giving her agent a bonus for selling it, and then not paying out when it's proven she (or her estate) is entitled to it...that does sound pretty fraudulent.

if you're saying that insurance companies have to not pay out the full amount of legitimate claims to stay in business, well, let me see if i can find my tiniest violin for such a cash strapped, struggling business.
posted by nadawi at 11:53 AM on August 14, 2012 [10 favorites]

He seems to have a good handle on social media, though. Doesn't he?

If you mean "knows how to post potentially defamatory comments," then by all means, yeah. I highly doubt Progressive will sue him, because that really would be bad PR, but they've absolutely got a cause of action here.
posted by valkyryn at 11:53 AM on August 14, 2012

...so they offered 1/3 of what they thought the value was. The unreasonable person here was the claimant's family, who weren't willing to discount their valuation of the case even a little.

You and I have very different definitions of "a little" - relinquishing 2/3'rds of the claim does not seem like "a little."
posted by Slap*Happy at 11:55 AM on August 14, 2012 [2 favorites]

Yes, it's Progressive's fault. Agents should not sell coverage that the client doesn't thoroughly understand.

The client, the client's family and random people on the Internet you mean?
posted by Talez at 11:56 AM on August 14, 2012 [4 favorites]

Does contributory negligence encourage insurance companies to act against their own clients' welfare?

Well, I think basic evil is what leads them to act again their own clients' welfare. But, yes, contributory negligence does contributes.
posted by Joey Michaels at 11:57 AM on August 14, 2012 [1 favorite]

The only problem here is that Matt Fisher knows f*ck-all about insurance.

Surely it's a problem that his sister died.
posted by Ragged Richard at 11:57 AM on August 14, 2012 [22 favorites]

He seems to have a good handle on social media, though. Doesn't he?

If you mean "knows how to post potentially defamatory comments," then by all means, yeah. I highly doubt Progressive will sue him, because that really would be bad PR, but they've absolutely got a cause of action here.

I'm not sure what is going on here. Frankly, I find Progressive's statements definitely setting off my "what's going on here" meter. I think there may be a tad more going on.

Unless you have facts supporting the claim that Progressive had nothing to do with Nationwide's defense, I suggest we wait until more information comes out.
posted by Ironmouth at 11:57 AM on August 14, 2012 [1 favorite]

Valkyryn, are you able to look up the case and tell us the name of the attorney(ies) who represented the motorist who was found negligent, so that we don't have to rely on hearsay alone whether a Progressive agent did or did not represent him?

I assume the case is public record?
posted by de void at 11:58 AM on August 14, 2012 [1 favorite]

they need have sunlight shown on their policies as often as possible.

What do you mean, "sunlight"? These policies are written to comply with state laws! They're not just a matter of public record, they're subject to statutes passed by the state legislature! Seriously, Md. INSURANCE Code Ann. § 19-509 specifically provides that UM/UIM coverage is only for damages that "the insured is entitled to recover from the owner or operator of an uninsured motor vehicle. . ." Get it? A UM/UIM claimant can only recover from their insurance carrier what they are entitled to recover from the other driver. If the other driver wasn't at fault, there is no recovery. That mirrors the language of almost every other state's statute on the issue.

Progressive isn't writing some nasty, sneaky policy here, they're writing a policy the terms of which are dictated by statute.
posted by valkyryn at 11:58 AM on August 14, 2012 [9 favorites]

You and I have very different definitions of "a little" - relinquishing 2/3'rds of the claim does not seem like "a little."

You'd be right if "what the family believes" had any bearing whatsoever on "what can be proven".
posted by Talez at 11:59 AM on August 14, 2012

Yes, it's Progressive's fault. Agents should not sell coverage that the client doesn't thoroughly understand.

In Maryland, this is called PIP coverage and it is required to be sold by the insurer if they offer auto insurance. I'm a Maryland attorney and I know very little about all of this. Here's a copy of the code section.
posted by Ironmouth at 12:00 PM on August 14, 2012

Most people are not arguing that Progressive did something illegal. They are arguing that Progressive did something immoral. Parroting the law is not going to change this.
posted by grouse at 12:01 PM on August 14, 2012 [97 favorites]

Nice. Thanks grouse. That's elegantly put.
posted by R. Schlock at 12:02 PM on August 14, 2012

Md. INSURANCE Code Ann. § 19-509 specifically provides that UM/UIM coverage is only for damages that "the insured is entitled to recover from the owner or operator of an uninsured motor vehicle. . .

Its called Personal Injury Protection or PIP. We don't use those other terms. Anyone searching for details should use Personal Injury Protection or PIP.
posted by Ironmouth at 12:02 PM on August 14, 2012

The unreasonable person here was the claimant's family, who weren't willing to discount their valuation of the case even a little.

Yes, let us all engage our humor modules at these foolish humans for not acting like soulless mathematical automatons and computing the proper valuation for their dead relative.
posted by Behemoth at 12:03 PM on August 14, 2012 [8 favorites]

Ironmouth: "Its called Personal Injury Protection or PIP. We don't use those other terms. Anyone searching for details should use Personal Injury Protection or PIP."

I have UM and PIP on my insurance, and I'm pretty sure I also had a third UM+PIP on my policy in NJ. I'm pretty sure they're all separate things...
posted by schmod at 12:04 PM on August 14, 2012 [1 favorite]

Unless you have facts supporting the claim that Progressive had nothing to do with Nationwide's defense, I suggest we wait until more information comes out.

I checked the docket. Progressive was represented by their counsel. The defendant, Ronald Hope, was represented by someone else. Definitely had his own lawyer. Case no. 24C11002185, for those who care.
posted by valkyryn at 12:04 PM on August 14, 2012 [4 favorites]

I'm not sure why I'm defending Progressive so much here, but this is more or less exactly how insurance needs to work in order to stay financially solvent and prevent fraud.

Dunno about that; insurance companies make their money on the float, not the premiums themselves.

If the calculation is that offering a rider that pays extra to the policy holder in the event of an accident with an uninsured driver is unprofitable, don't offer it. If the calculation is that such a rider is only profitable if you brow-beat the vast majority of grieving families into taking a dime-on-a-dollar settlement rather than risk a lengthy court battle, again, don't offer it. If a product is only profitable if it causes you to behave like scum, don't fucking sell it.

Look, I haven't seen the police report, so I can't say anything for sure about this case. But if it is basically as described --- the other driver ran a red light and was obviously at fault --- then progressive's decision here was based not on whether the circumstances of the case met the requirements of the policy but on whether the cost of proving that they did so would prove do onerous to the family that they'd back down. That's scummy anyway you cut it. There's a lot of grey area stuff when it comes to fault and car accidents. "other guy runs a red and plows into me" ain't one. They had to have known that if the family pursued the case they'd lose. They were just betting that they could make claiming what was owed them so painful that the family would go away. Scum, scum, scum.
posted by Diablevert at 12:05 PM on August 14, 2012 [12 favorites]

Its called Personal Injury Protection or PIP.

Look, I respect that we're both lawyers, but this is my area of practice, and Maryland has both UM and PIP. PIP is something different entirely.
posted by valkyryn at 12:05 PM on August 14, 2012

"avoiding the bad PR and subsequent loss of income"

People don't buy car insurance with the expectation of receiving benefits. They buy car insurance because that is a requirement for driving a vehicle on a public roadway.
posted by Ardiril at 12:05 PM on August 14, 2012 [4 favorites]

Most people are not arguing that Progressive did something illegal. They are arguing that Progressive did something immoral. Parroting the law is not going to change this.

Contesting a disputed claim is not immoral.
posted by valkyryn at 12:05 PM on August 14, 2012 [2 favorites]

Most people are not arguing that Progressive did something illegal. They are arguing that Progressive did something immoral. Parroting the law is not going to change this.

So they should pay out, always ? That's not sustainable either.
posted by k5.user at 12:06 PM on August 14, 2012 [2 favorites]

Contesting a disputed claim is not immoral.

Putting a family through hardship and even appearing to defend the man who killed my daughter or sister (even indirectly)? That's pretty fucking immoral.
posted by inturnaround at 12:07 PM on August 14, 2012 [4 favorites]

Behemoth: "Yes, let us all engage our humor modules at these foolish humans for not acting like soulless mathematical automatons and computing the proper valuation for their dead relative."

The victim already did exactly this when selecting the level of coverage that she wanted to purchase. I believe the fact that she owned a UM policy also indicates that she was carrying more than the legally-required minimum level of coverage, so there was definitely some sort of decision involved.

Dress it up however you may, insurance is necessarily a cold, relentless, mathematical being.
posted by schmod at 12:07 PM on August 14, 2012 [2 favorites]

insurance companies make their money on the float, not the premiums themselves.

This is wrong, by the way. The vast majority of insurance companies make money on their underwriting activities. Sometimes quite a bit. They also make money on investments--and it's on what's called "surplus," which is different than float anyway. But writing an underwriting loss is considered a Very Bad Sign.
posted by valkyryn at 12:08 PM on August 14, 2012

Contesting a disputed claim is not immoral.

That's your opinion. Unfortunately for Progressive, I imagine that a majority of people will feel otherwise.
posted by grouse at 12:08 PM on August 14, 2012 [7 favorites]

"They are arguing that Progressive did something immoral."

... and doing a rather poor job of it.
posted by Ardiril at 12:08 PM on August 14, 2012 [1 favorite]

...I checked the docket. Progressive was represented by their counsel. The defendant, Ronald Hope, was represented by someone else. Definitely had his own lawyer. Case no. 24C11002185, for those who care.

Thank you. Here is a direct link to the case online:

http://casesearch.courts.state.md.us/inquiry/inquiryDetail.jis?caseId=24C11002185&detailLoc=CC


Attorney(s) for the Defendant/Respondent
Name: Kessler, Esq, Robin F
Appearance Date: 08/01/2011
Practice Name: Law Offices Of Andrew B Greenspan
Address: 1302 Concourse Drive
Suite 300
City: LinthicumState:MDZip Code:21090
posted by de void at 12:09 PM on August 14, 2012 [2 favorites]

Not bloody likely. Auto insurance is a legal requirement. It's not like people are going to refuse to buy insurance.

People don't come away from this story thinking "I won't buy insurance", they think "I won't buy insurance from Progressive". Other companies will want to avoid having similar bad press about themselves.
posted by East Manitoba Regional Junior Kabaddi Champion '94 at 12:10 PM on August 14, 2012 [1 favorite]

Putting a family through hardship and even appearing to defend the man who killed my daughter or sister (even indirectly)? That's pretty fucking immoral.

For you to know how much the insurance company has to pay out you have to know how much the client has actually been injured. This involves either an agreed amount in settlement or an amount determined at trial.

Otherwise we might as well have Carnac the Magnificent just open a random fucking envelope to determine your windfall.
posted by Talez at 12:10 PM on August 14, 2012 [4 favorites]

Putting a family through hardship and even appearing to defend the man who killed my daughter or sister (even indirectly)? That's pretty fucking immoral.

Seriously, why? The hardship here was caused by the other driver, not Progressive. It wasn't their fault that the guy did what he did. Not their fault she's dead. And just because she is dead doesn't mean that other people, including the other driver, suddenly lose all of their rights to defend their interests.

It may be unpleasant, but there's nothing immoral about it.
posted by valkyryn at 12:10 PM on August 14, 2012 [3 favorites]

Putting a family through hardship and even appearing to defend the man who killed my daughter or sister (even indirectly)? That's pretty fucking immoral.

Seriously, why?

Oh, I see the problem now. Lawyers were involved.
posted by Mental Wimp at 12:12 PM on August 14, 2012 [9 favorites]

How can we possibly change this system? What could we replace insurance with?
posted by Apocryphon at 12:12 PM on August 14, 2012

Fisher is simply wrong on one of his claims. The negligent driver was not represented by an agent of Progressive insurance.

http://www.millerandzois.com/Nationwide-claims-settlements.html

Most lawsuits involving drivers insured by Nationwide are defended by the Law Offices of Andrew Greenspan which now covers all of Maryland. This law firm is actually what we call an “in-house” firm; the lawyers are all employees of Nationwide Insurance. If Nationwide assigns lawyers other than their in-house lawyers, this is because they are concerned that the case may exceed Nationwide’s policy limits. Mr. Greenspan is a well respected lawyer, as are most of the lawyers that work for him.

So I wonder why he has the impression that he does? Did he see Progressive lawyers conferring with Nationwide lawyers, or the defendant himself?
posted by de void at 12:16 PM on August 14, 2012 [1 favorite]

How can we possibly change this system? What could we replace insurance with?

A state insurance company that everyone contributes to as part of their car registration and pays out standard amounts for events determined by a formula.

But in the USA that would be mistakenly called "socialism" and "a heartless bureaucrat putting a dollar value on a human being's life".
posted by Talez at 12:16 PM on August 14, 2012 [22 favorites]

Oh, and the case was only tried last week. Verdict was handed down on August 8, 2012. Yelling that Progressive hasn't cut a check already is a little premature, no? Hasn't even been three full business days. Heck, by the time they're satisfied that lienholders have been satisfied, it could be September before the family gets their money. Progressive will pay what the policy says they're to pay soon enough.
posted by valkyryn at 12:16 PM on August 14, 2012 [2 favorites]

ok - so lets just go along and say everything up through the case was totally legitimate and not at all scummy. why is the response from progressive "and now can continue to work with the Fisher family to reach a resolution" instead of cutting them a check?
posted by nadawi at 12:17 PM on August 14, 2012 [1 favorite]

it's not that they haven't cut the check, it's that by their own wording they're indicating that there's still negotiations to be had.
posted by nadawi at 12:17 PM on August 14, 2012 [1 favorite]

So I wonder why he has the impression that he does? Did he see Progressive lawyers conferring with Nationwide lawyers, or the defendant himself?

I'm guessing that what he saw is Progressive siding with the defendant. Again, their interests were aligned, so this makes sense, and that could easily be misinterpreted by a naive observer like Fisher.
posted by valkyryn at 12:18 PM on August 14, 2012 [1 favorite]

Again, their interests were aligned, so this makes sense, and that could easily be misinterpreted by a naive observer like Fisher.

Stupid brother, being upset at an insurance company whose interests are aligned with the man who killed his sister instead of being interested in paying out the policy.

Hope it saved them lots of money. I'm sure they won't have to pay a ton to the PR/crisis management firm they probably just had to hire.
posted by inturnaround at 12:21 PM on August 14, 2012 [6 favorites]

why is the response from progressive "and now can continue to work with the Fisher family to reach a resolution" instead of cutting them a check?

Probably lienholders. Progressive, like all insurance companies, wants to identify anyone other than the family who might have an interest in the proceeds of the policy so that those people don't come after Progressive for money that's already been paid.

Say the deceased was taken by ambulance from the scene to a hospital, where she underwent surgery but nonetheless died of her injuries. I don't know that that's what happened, but work with me here. Those are going to be some significant medical bills. The hospital and ambulance company are going to want to get paid, and they therefore have an interest in anything the family recovers. So would her heath insurer, if the health insurer paid those bills already. So Progressive is likely just trying to figure out who they actually owe money to. So these aren't "negotiations" as such, but they are things that need to happen before any check is cut.

This will likely happen quickly, as all this information should be available, but it doesn't happen instantly.
posted by valkyryn at 12:21 PM on August 14, 2012 [7 favorites]

What I want to know is why people are trying to defend a fucking insurance company?

They are scum. Fuck them and fuck their legalism.
posted by AElfwine Evenstar at 12:22 PM on August 14, 2012 [8 favorites]

I'm sure they won't have to pay a ton to the PR/crisis management firm they probably just had to hire.

Kind of doubt this happened. They did what the law required, and it's not like anyone can just decide that they're not going to have car insurance anymore. Progressive is a big company that's competitive on rates. They'll be okay. They could sue this guy into next Tuesday for defamation, but they don't need to.
posted by valkyryn at 12:23 PM on August 14, 2012 [1 favorite]

That's just the way that works.

I don't know how much of this story is true, how much might've been inevitable, or how much Progressive may or may not be morally culpable—if legally in the clear—and, honestly, I don't really care all that much. But when I hear "That's just the way it works" I suddenly entertain fantasies of burning the home office to the ground and hanging Flo from a lamppost.

"Come off it Mr Dent, you can't win you know. There's no point in lying down in the path of progress Progressive."
posted by octobersurprise at 12:25 PM on August 14, 2012 [4 favorites]

Stupid brother, being upset at an insurance company whose interests are aligned with the man who killed his sister instead of being interested in paying out the policy.

Jesus christ this isn't a windfall. That would be life insurance. The type of policy is SPECIFICALLY to cover the difference between a defendant's policy and the award amount given by the court for injury.

To figure out the award you have to go through a trial to figure that number out.

Then once you have that award you take it to your insurance company and say "the defendant's policy is exhausted and they're out of money, pay up". Then they would pay out on that policy up to its exhaustion.
posted by Talez at 12:25 PM on August 14, 2012 [8 favorites]

Just when you think you could not loathe insurance companies more...
posted by Sassenach at 12:26 PM on August 14, 2012 [1 favorite]

They'll be okay. They could sue this guy into next Tuesday for defamation, but they don't need to.

Oh, thank God. I was worried for Flo there for a second.
posted by inturnaround at 12:26 PM on August 14, 2012

I'm guessing that what he saw is Progressive siding with the defendant...

Huh. Fisher's blog post sounds a lot less nebulous than that:

...At the trial, the guy who killed my sister was defended by Progressive’s legal team.

If you are insured by Progressive, and they owe you money, they will defend your killer in court in order to not pay you your policy. ..

Is there any law or rule that would prevent Progressive's legal team from working directly with Nationwide's team, seeing how their interests were aligned at that point?
posted by de void at 12:26 PM on August 14, 2012

What I want to know is why people are trying to defend a fucking insurance company?

Because insurance is significantly what makes modern society possible, and most people don't understand how it works. More than 60-70% of claims are settled without suit having to be filed, and the vast majority of the rest of them--upwards of 90% depending on the company--get settled without going to trial. The vast majority of the time, people get paid what they think they're owed, or at least close enough so as not to be worth fighting about it. Indeed, in many cases the claimant gets money he isn't owed, but it's cheaper to just pay than fight about it.

Really, the only remarkable thing about this case is how ignorant Fisher is and the fact that he's got a himself a bullhorn. I see cases like this one go down every week, and they never make the news.
posted by valkyryn at 12:26 PM on August 14, 2012 [29 favorites]

Is there any law or rule that would prevent Progressive's legal team from working directly with Nationwide's team, seeing how their interests were aligned at that point?

Not really. There isn't any rule preventing any party from working with any other if the parties think it's a good idea. That may well have happened here. But it doesn't mean that Progressive paid for the defendant's defense.
posted by valkyryn at 12:27 PM on August 14, 2012

why people are trying to defend a fucking insurance company

Because they're paid to.

Or maybe because the shrill substitution of legal convention for human feelings gives them a squinting sense of control over a cosmos which is neither built for, nor sustained by human beings.

Which is to say, they do so because they aren't yet suffering themselves.
posted by R. Schlock at 12:28 PM on August 14, 2012 [10 favorites]

To figure out the award you have to go through a trial to figure that number out.

But that doesn't mean that Progressive had to put their hand on the lever to try their best to not pay ANYTHING.

What's legal isn't always moral. What's moral isn't always legal.
posted by inturnaround at 12:28 PM on August 14, 2012 [2 favorites]

Seriously, why? The hardship here was caused by the other driver, not Progressive. It wasn't their fault that the guy did what he did. Not their fault she's dead. And just because she is dead doesn't mean that other people, including the other driver, suddenly lose all of their rights to defend their interests.

The crux is the determination of fault: Does the policy say "we pay if you get hit by someone who's uninsured," or "we pay if you get hit by someone who's uninsured and it's 100% not your fault" or "we pay if you get hit by someone who's uninsured, it's 100% not your fault and you prove that by suing the other driver". The difference between 2 and 3 is crucial --- everyone expects the insurance company to send out their own claims guy to verify the facts of the accident. If the facts are obviously on your side, very few people expect their insurance company to drag them through court anyway hoping to roll the dice on forcing a settlement for less than the policy because of the time and expense. That's the part that strikes people as outrageous: I paid extra for protection in the event of X, X happened, you know X happened, and you're still making me jump through hoops to prove it happened.

Again --- obviously Fisher's a little fuzzy on his deets, the actual facts matter a great deal. Maybe there's more grey here than it seems. But if there's a police report and witness statements out there saying the other driver ran the light, the determination of negligence seems less a matter of actual disputed facts than of making a grieving family jump through hoops in the hopes they'll stumble and you'll wriggle out of your promise. That's what seems immoral.
posted by Diablevert at 12:28 PM on August 14, 2012 [21 favorites]

One more reason to hate Flo.
posted by homunculus at 12:29 PM on August 14, 2012 [2 favorites]

Which is to say, they do so because they aren't yet suffering themselves.

I defend it because due process running to its absolute end is a step up in civility from Deuteronomy 19:21.
posted by Talez at 12:30 PM on August 14, 2012 [1 favorite]

de void: [From Nationwide's FAQ, emp. mine] Mr. Greenspan is a well respected lawyer, as are most of the lawyers that work for him.

Wow, I guess you just have to cross your fingers and hope you get one of the respected lawyers. "This claim is a bit steep, is it? Assign one of our... less respected... lawyers, if you would." You can imagine the steepling of fingers yourself.
posted by gilrain at 12:32 PM on August 14, 2012 [5 favorites]

shrill substitution of legal convention for human feelings

Nobody is talking about feelings here. The family wants money. Progressive didn't want to have to pay said money unless they wanted to.

I'm not going to demonize the family and claim that they were being greedy or overly-litigious or anything, but what is wrong with applying "legal convention" to matters involving finance?

Fisher's family shouldn't get the money just because they are really really sad. (which, dude -- I dont' think I can blame her brother for lashing out like this, I don't know how I could take losing a sibling so suddenly and senselessly)
posted by sparklemotion at 12:32 PM on August 14, 2012 [3 favorites]

unless they had to.

Not wanted to.

bah.
posted by sparklemotion at 12:33 PM on August 14, 2012

Wow, I guess you just have to cross your fingers and hope you get one of the respected lawyers...

Yeah, my intent in posting that blurb was to show that that law office did indeed routinely work for Nationwide, not to evidence any particular attorney's "respectability".
posted by de void at 12:34 PM on August 14, 2012

I know, de void, just had a laugh to myself about their poor phrasing and wanted to share.
posted by gilrain at 12:35 PM on August 14, 2012

At the risk of driving Valkryn's blood pressure up a few more points, I've long said that insurance is much easier to understand if you simply replace every occurrence of the word "insurance" with the word "fraud."

More seriously, this is why private, for-profit insurance is a disqualifier for a civilized society. Whenever you create a massive financial incentive for a company to leave people to suffer at precisely the moment they need help, you're literally demanding an endless stream of horror stories like this one. Which is exactly what we have. This guy just did a better job of screaming about it than most.

Spreading risk is the exact definition of a public good that should be handled publicly rather than by the private sector.
posted by Naberius at 12:35 PM on August 14, 2012 [34 favorites]

Ironic you should quote talion law in support of your case. The idea of lex talionis (innovated, btw, by Hammurabi and not the biblical legists), is one of proportionality in the ascription of punishment. Without it, legal disputes would be settled always in favor of the more powerful party. What "an eye for an eye, a tooth for a tooth" and all the entailments from that spelled out in Exod 21 do is to position an abstract principle of justice (punishments should fit crimes) over local configurations of force.

It is, perhaps, the first legal codification in human history of the rights of the underdog.
posted by R. Schlock at 12:36 PM on August 14, 2012 [8 favorites]

The crux is the determination of fault: Does the policy say...

The policy's going to say that the insurance company will pay for damages the insured is entitled to recover from an underinsured motorist that exceed the value of said underinsured motorist's liability limits. That's what the statute requires it to say.

Now in this case, because it's Maryland, that means that they'll only pay if it were 100% not your fault, because if it were even 1% your fault, you wouldn't be entitled to recover anything from the other driver. Progressive would have had that in mind when they made their decision not to pay the full value of the policy without going to trial.

And the family might have been well advised to take the offer. The jury could have awarded nothing.
posted by valkyryn at 12:37 PM on August 14, 2012 [1 favorite]

Yes, let us all engage our humor modules at these foolish humans for not acting like soulless mathematical automatons and computing the proper valuation for their dead relative.

That's partly what lawyers and expert witnesses are for. People pay them to be soulless mathematical automatons and fight for their interests while they grieve.
posted by jedicus at 12:38 PM on August 14, 2012 [4 favorites]

Seriously, why? The hardship here was caused by the other driver, not Progressive. It wasn't their fault that the guy did what he did. Not their fault she's dead. And just because she is dead doesn't mean that other people, including the other driver, suddenly lose all of their rights to defend their interests.

Presumably US car insurance in different to how it is in the UK.

If this happened in the UK and the driver was underinsured, the money would come out of a pool that all insurance companies have to pay into to cover underinsured drivers.

But even if that wasn't the case, I believe there's a certain degree of cover on my own policy that would handle some degree of damage. I had a bump last week. It was completely my fault. There was no damage done, but had there been, my insurance would have paid for that damage. Presumably, if the damage had necessitated medical bills, they'd have covered that as well -- and my insurer would then sue either the other insurer (or apply to the pool) for reimbursement of those costs.

How can the system be so different in the USA? Presumably, the potential for enormous damages must have some impact there?
posted by PeterMcDermott at 12:41 PM on August 14, 2012 [2 favorites]

Fisher may well not understand how insurance works. It is pretty nailed on that Progressive didn't defend the other driver.

But by the same token that this is how insurance works, this is how marketing works.

One man can take the ax to millions of dollars of paid advertising and years of goodwill by exposing a simple fact: that the company you pay in good faith - *you pay* - to cover you in the event of an accident can act against your interests when the horrible event you've paid them to cover you for arises.

On the actuarial side this might make sense. But insurance companies fundamentally have customers, not numbers or risk profiles.

If an insurance company chooses to push its advertising to talk about great value, or "we're so wacky" or "we'll be there for you" and not engage more truthfully with their customers then they're making a marketing choice. Which comes with its own risks. And like most shitstorms that tug at one's emotions companies, and here an insurance company, has covered off one financial risk without properly assessing the risks, assuming they could quantify them.

That's marketing. That's the power of social media - its ability to overwhelm large organisations with a tide of sentiment. Yes, Fisher's sister's case is how insurance works. It's not how insurance has to work. I stay with my (UK) insurer and pay a higher premium because they didn't dick me about when I needed to make a claim despite the marketplace being competitive, cut throat, cost driven and price sensitive.
posted by MuffinMan at 12:41 PM on August 14, 2012 [37 favorites]

But that doesn't mean that Progressive had to put their hand on the lever to try their best to not pay ANYTHING.

It does and they should. If we require people (even large corporations) to ignore their own interests and stop their own line of inquiry, where do we draw the line where we ask people or corporations to stop before it becomes "immoral"? Do we stop it when it's immoral to everyone? To 1% of the population? To 51% of the population? Do we ask individuals to stop? Small businesses? Large businesses?

There is no line in the sand here that can be drawn to the satisfaction of everyone. It's far better that everyone in the system be able to benefit from the same due process and not have to forfeit their right to defend their interests.
posted by Talez at 12:41 PM on August 14, 2012 [2 favorites]

Indeed, in many cases the claimant gets money he isn't owed, but it's cheaper to just pay than fight about it.

I have no idea (and no idea how to really get a valid answer), but I'm curious how often it goes this way, versus how often it swings the other way. One side has a giant staff of in-house lawyers, the other side doesn't.
posted by inigo2 at 12:44 PM on August 14, 2012

they'll only pay if it were 100% not your fault, because if it were even 1% your fault, you wouldn't be entitled to recover anything from the other driver.

Gee, I sure would like to know how they determine that 1%.
posted by octobersurprise at 12:44 PM on August 14, 2012

Because insurance is significantly what makes modern society possible, and most people don't understand how it works.

My problem isn't with the concept of insurance, just the way the current system operates. As several others have suggested I believe insurance should be a public system not private...along with energy generation and healthcare. But of course the god damn capitalists fuck shit up every time they get their greedy little fingers touch anything. As someone above suggested a moral system of insurance would probably be run at the state level with all residents paying in.

to ignore their own interests

Why is providing a service one has been paid to provide against their interest? Unless of course there interest is to make as much money as possible no matter the consequences or trail of human misery they leave in their wake. Again this should not be a for profit industry.
posted by AElfwine Evenstar at 12:45 PM on August 14, 2012 [3 favorites]

Gee, I sure would like to know how they determine that 1%.

The jury makes an agonizing decision.

Again this should not be a for profit industry.

It shouldn't. But for whatever reason it is. That doesn't change the fact that nobody should have to forfeit the right to defend their interests.
posted by Talez at 12:46 PM on August 14, 2012 [1 favorite]

Gee, I sure would like to know how they determine that 1%.

A jury of citizens decides it. After being shown the best evidence that each side is able to present.
posted by sparklemotion at 12:47 PM on August 14, 2012

We can split hairs about it or just read the gospel truth from the trial itself as linked above by De Void and referenced by those defending Progressive here:

It is this 19th day of May, 2011, by the Circuit Court For Baltimore City, hereby ORDERED

1. That Progressive Advance Insurance Company be and is hereby allowed to intervene as a party Defendant.

2. That Progressive Insurance Company is GRANTED all rights to participate in this proceeding as if it were an original party to this case.

That's pretty fucking damning.

Want to guess who was nominated as being the intervening defendant?

Name: Moffet, Esq, Jeffrey R

So I guess the guy with the bullhorn isn't really so ignorant after all.
posted by Slackermagee at 12:52 PM on August 14, 2012 [27 favorites]

There is no line in the sand here that can be drawn to the satisfaction of everyone.

The notion that businesses should not work in the public interest and deal fairly with their customers is baloney. Even Adam Smith recognized that.
posted by Slap*Happy at 12:53 PM on August 14, 2012 [1 favorite]

A litigator reads this and thinks, "well, yeah."

Not this litigator.
posted by prefpara at 12:53 PM on August 14, 2012 [4 favorites]

If we require people (even large corporations) to ignore their own interests and stop their own line of inquiry, where do we draw the line where we ask people or corporations to stop before it becomes "immoral"?

No one is requiring Progressive to ignore its own interests. But since people who feel they have been wronged can so easily communicate this to the world now, it may be in Progressive's best interests to avoid the appearance of assisting in the defense of someone who killed Progressive's insured. The same is true of any other insurer.
posted by grouse at 12:54 PM on August 14, 2012 [3 favorites]

**Meant to write "That sounds pretty fucking damning" as I am not a lawyer and may have misinterpreted 'allowed to intervene as a party defendant'
posted by Slackermagee at 12:54 PM on August 14, 2012

to defend their interests.

Making as much money as possible no matter the cost is not an interest, it's a pathology.
posted by AElfwine Evenstar at 12:54 PM on August 14, 2012 [4 favorites]

That's pretty fucking damning.

Want to guess who was nominated as being the intervening defendant?

Name: Moffet, Esq, Jeffrey R

So I guess the guy with the bullhorn isn't really so ignorant after all.

* * *

may have misinterpreted 'allowed to intervene as a party defendant'

Yeah, that's not what you think that means. It just means that Progressive was allowed to enter the suit as a party to protect its interests. The other driver was still a party to the action.
posted by valkyryn at 12:55 PM on August 14, 2012 [4 favorites]

even appearing to defend the man who killed my daughter or sister (even indirectly)? That's pretty fucking immoral.

This just in. It is now immoral to even appear to be doing something wrong. (and, as valkyryn has explained, that isn't even the case)
posted by Tanizaki at 12:56 PM on August 14, 2012 [1 favorite]

I'm guessing that what he saw is Progressive siding with the defendant. Again, their interests were aligned, so this makes sense, and that could easily be misinterpreted by a naive observer like Fisher.

Observing Progressive's attorneys siding with the defendant, and attempting to get the court to find in favor of the defendant, and concluding that Progressive is defending the defendant is not a misinterpretation.

That is, in fact, what is happening then. Progressive is performing an act, and that act is to defend the defendant against the claims of their own client.

Granted, that is almost certainly not what a lawyer would mean by "defending the defendant," which is probably limited to "was formally the legal representative of the defendant," but that doesn't really matter here. Progressive was acting in the defense of the man who killed their client, against the interests of their client. And in normal colloquial American English, which the victim's brother was using, the verb used for "to act in the defense of someone or something" is, guess what, "to defend."
posted by ROU_Xenophobe at 12:57 PM on August 14, 2012 [33 favorites]

The jury makes an agonizing decision.

Well, yeah. I really wanted to know how it is determined that a party was at 1% fault.
posted by octobersurprise at 12:57 PM on August 14, 2012

So what does the phrase "its interests" mean?

Practically here, it means to deny the claim and not pay the family a dime. Let's not lose sight of that. They wanted to make sure they didn't have to pay anything so they tried their best to make the woman who died look at all culpable. So it was their opinion that she was somehow responsible even 1% for her own death, thus invalidating her family's claim.

Still seems ghoulish and wrong.
posted by inturnaround at 12:59 PM on August 14, 2012 [3 favorites]

Yeah, that's not what you think that means. It just means that Progressive was allowed to enter the suit as a party to protect its interests. The other driver was still a party to the action.

So they're defending their interests by intervening (I'm reading that as helping) with the defense and against the plaintiff.

That isn't 'defending the guy who killed my sister' but it certainly would look like 'helping to defend the guy who killed my sister' which is still sickening.
posted by Slackermagee at 12:59 PM on August 14, 2012

It is now immoral to even appear to be doing something wrong.

You appear to be doing something wrong here.
posted by octobersurprise at 1:00 PM on August 14, 2012 [1 favorite]

I'm surprised at the outrage over this as seen on FB and other social media. I've been lucky to not have any dealings with my insurer like this, but fully understand that this is how the system works.

You're surprised that the intersection of insurance companies and legal proceedings -- two of the biggest villains in the minds of average folks -- creates hair-trigger OutrageFilter?
posted by aught at 1:01 PM on August 14, 2012 [2 favorites]

Spreading risk is the exact definition of a public good that should be handled publicly rather than by the private sector.

I see. We just "spread risk". Care to explain how that would have worked in this case?

Let's pretend that the situation happened as described, with the other driver negligently plowing into the sister's car and killing her. How would "spreading the risk" work?
posted by Tanizaki at 1:02 PM on August 14, 2012

I mean, they could have dipped a pinky toe into the state of affairs of the defense at trial and it would still scream unethical to me. It wouldn't even be a case study in context, it would just be them getting involved to screw their client.

Which at the end of the day is what BullHornMan is screaming about.
posted by Slackermagee at 1:03 PM on August 14, 2012

That isn't 'defending the guy who killed my sister'

Yes, it is. It just isn't "is formally the attorney of the guy who killed my sister." Attempting to reduce the guy's liability is defending him.
posted by ROU_Xenophobe at 1:03 PM on August 14, 2012 [9 favorites]

That isn't 'defending the guy who killed my sister'

Yes, it is. It just isn't "is formally the attorney of the guy who killed my sister." Attempting to reduce the guy's liability is defending him.

I think you missed the last part of that comment you referenced.
posted by Slackermagee at 1:05 PM on August 14, 2012

I intended to amplify what you were saying.
posted by ROU_Xenophobe at 1:07 PM on August 14, 2012 [1 favorite]

Do people really think that insurance companies should simply pay up on all claims without ever contesting any of them? Or is it only that insurance companies should immediately pay up on all claims where somebody dear to someone else has either died or been injured? Is that really the argument that is being made here? Because if it is, then you'd best be prepared to pay some unbelievably high premiums.

If, on the other hand, you want your premiums to stay reasonably affordable, then you also want your insurance company to employ the normal legal means available to it not to pay out fraudulent claims or claims for which it is not legally liable. That will mean that grief-stricken people will often find themselves tangled up in litigation over legal concerns they do not fully understand. Those are pretty much our choices: either unaffordable insurance, or occasional cases like this one.
posted by yoink at 1:07 PM on August 14, 2012 [13 favorites]

I think people generally have the expecation that insurers will pay on a policy when what happened is clear. I don't think anyone is aghast at the thought that an insurance company may want a trial to determine fault where it's not clear where the fault lies. I do think people generally share the intuition that when fault is clear, it's immoral for an insurance company to attempt to avoid its obligation to pay by pushing for a trial.

My interpretation of the outrage around this situation is that most people think fault is clear - pedestrial with green light vs. car with red light - and so they think it's immoral for Progressive to refuse to pay out the policy in the hopes that a jury will get it wrong. When you add to that the visual of grieving parents walking into court only to see the insurer's counsel sitting at the same table as the defendant, you get... the outrage we're seeing.
posted by prefpara at 1:09 PM on August 14, 2012 [9 favorites]

I intended to amplify what you were saying.

My bad!
posted by Slackermagee at 1:09 PM on August 14, 2012

Do people really think that insurance companies should simply pay up on all claims without ever contesting any of them? Or is it only that insurance companies should immediately pay up on all claims where somebody dear to someone else has either died or been injured? Is that really the argument that is being made here? Because if it is, then you'd best be prepared to pay some unbelievably high premiums.

That's not what, some of us, are contesting here. At issue is the attempt of the insurance company to meddle in the trial as opposed to sitting back and letting the trial play itself out as... you know... an objective thing that determines fault.
posted by Slackermagee at 1:11 PM on August 14, 2012 [6 favorites]

Well, yeah. I really wanted to know how it is determined that a party was at 1% fault.

Maybe I don't understand your point, but that's already been answered: The jury makes an agonizing decision. Quite literally, the jury must apportion blame.
posted by Slothrup at 1:12 PM on August 14, 2012

I think people generally have the expecation that insurers will pay on a policy when what happened is clear.

And where do you imagine that a "clear" version of "what happened" will be determined other than in legal proceedings if the issue is subject to dispute?
posted by yoink at 1:12 PM on August 14, 2012 [2 favorites]

That's not what, some of us, are contesting here. At issue is the attempt of the insurance company to meddle in the trial as opposed to sitting back and letting the trial play itself out as... you know... an objective thing that determines fault.

Why should the insurance company be unable to make it's best case at the trial when the insured are allowed to make their best case?

"Meddle" implies that they're buying off the jury or some such. No such improper behavior seems to have occurred here and the jury appears to have been entirely capable of arriving at the decision that everyone in this thread thinks is the right one.
posted by yoink at 1:16 PM on August 14, 2012 [2 favorites]

when you're interpleaded into a trial, you're not meddling in it.
posted by crush-onastick at 1:16 PM on August 14, 2012 [2 favorites]

Spreading risk is the exact definition of a public good that should be handled publicly rather than by the private sector.

See... not really. At least not for everything. A few thoughts here.

First of all, let's start by drawing a sharp line between personal and commercial insurance. The law certainly does. Personal insurance is basically auto and homeowners stuff. Auto is generally a legal requirement, and homeowners is frequently a contractual one. This is the sort of insurance that individuals have for the exposures of just living life in a modern society. Even if all you do is go to work and drive home, that's a serious exposure for which there should be insurance coverage. Commercial lines are for exposures having to do with running a business. Everything from your barber up to Wal-Mart has insurance. Some of it looks a lot like a personal lines policy, but this stuff can get mad esoteric, like catastrophe bonds, which, for example, I believe Disney used to cover the exposure of Disney World Tokyo.

Second, despite stories like this one, property and casualty insurance basically works in this country. The vast majority of the time, claims are settled without incident, and all parties are more-or-less satisfied with the outcome. It's a highly regulated industry in terms of both the content and pricing of insurance policies, and state departments of insurance tend to be pretty active. This isn't something that the general public knows or cares much about, but believe you me, insurance regulation is a Big Deal.

Third, the way insurance companies work is that they collect premium, but they also have a huge amount of assets, called "surplus," under management which they use for the payment of claims. The way it's supposed to work is that annual claims are less than annual premium, resulting in what's called an "underwriting profit." But insurance companies aren't allowed to just pay claims as they come in, nor should they be. Premium comes in like clockwork, but losses are really spiky. So insurers have what are called "reserves," i.e., money they've set aside for the payment of particular claims. This means that (1) the insurance company won't ever have temporary liquidity problems if they have a really bad month, and (2) they've got the money to pay for a really bad year.

With those things in mind... insurance wouldn't really work all that well as a public entity. And there are examples of public insurance entities which establish this pretty well. I'm going to ignore Medicare for the moment, though it's a really good reason why* and just focus on a few actuL P&C entities that various US governments have created. For example, several states along the Gulf and Atlantic coasts have wind pools for their hurricane exposures. A lot of insurance companies have realized it's impossible to write this coverage profitably--no one could afford the premium--so the states have created what amounts to state-run insurance companies to cover that exposure. These things are always short of money and a constant drain on the public coffers. Why? Because the legislature is never willing to impose the actual cost of the coverage on their constituents. No one likes raising taxes. Same goes with federal flood insurance offered by FEMA. Uninsurable risk assumed by the federal government, constantly in the red.

But those are rather unique risks which the private market won't cover at all. You want to know what more traditional public P&C insurance looks like? Workers' compensation. The plaintiffs' bar is deathly afraid that this will happen, because it means the complete elimination of home-run verdicts. Damages are computed by formula. You get your medical bills, and if there are permanent injuries, you get what the table says you get. Period. No millions of damages for pain and suffering. Nothing at all for "emotional distress". Nothing for loss of consortium (though that's pretty worthless anyway).

I'd might be in favor of this, despite the fact that I'd basically be out of a job. It would be an enormously business-friendly way of doing things that would radically reduce the number and severity of lawsuits in this country. But understand what it means: the family in this case would be getting a fraction of what they're likely to end up getting. The jury wouldn't have been permitted to award $760,000. They'd have had a trial on liability, and the damages would be computed by formula. So understand, if you want public P&C insurance, you're necessarily arguing that you want smaller payouts for plaintiffs.

Not sure it would work though. One of the reasons insurance works is because it spreads risk amongst a lot of different companies. The states won't actually let a single company have more than a certain percentage of the market, and this has nothing to do with anti-trust. It has everything to do with wanting to make sure that if there is a really bad loss, that no insurer becomes insolvent trying to cover it. It's a real risk. By making there be competition, you ensure that losses get paid. Insurer insolvencies are really messy, the states are really careful to be sure that deserving claimants don't get stiffed. Concentrating all of the losses on a single entity could easily overwhelm it if things got bad, and that could easily blow a hole in the state's annual revenue. Do you really want legislatures to have to choose between education and insurance? Because I don't.

And that's a real danger. If a private insurance company has a bad year, hey, it has a bad year, but it's got reserves, and it pays the loss. Governments don't work that way. If a government insurance company has a bad year, the government has to borrow funds to pay for the difference. If you believe for one second that the legislature wouldn't raid its insurance reserves to avoid raising taxes, you're more naive than Fisher. Making the insurance claims function a function of legislative discretion would mean exposing them to voter displeasure. Plaintiffs that deserve to get paid would find that, sorry, there's just not enough money available this year. Too bad, so sad. No, the private system we've got is immune from that sort of conflict. True, there's an incentive to not pay claims, but there's also the government telling them what claims they have to pay. If it were the government itself deciding, we'd be singing a different tune.

So no. We probably do want a private insurance sector, if only because that means that the government is out there to regulate it without putting pressure on the public purse. The government has enough to pay for without worrying about paying for tort losses.

*TL;DR version: substituting political incentives for actuarial science is a fantastic way of creating an unsustainable financial entity.
posted by valkyryn at 1:17 PM on August 14, 2012 [40 favorites]

(not that I know this was an interpleader, but that's pretty common in insurance suits)
posted by crush-onastick at 1:17 PM on August 14, 2012

Do people really think that insurance companies should simply pay up on all claims without ever contesting any of them?

I think it would be reasonable to demand that Progressive limit its activities to observation intended to verify that the legal process was being correctly followed and the provision of verifiably objective information as an amicus, rather than to actively attempt to show that its client was negligent.

Really, for forms of insurance like this I would be satisfied if there were a required disclosure to the effect of NOTE: IN ORDER FOR A CLAIM UNDER THIS PROVISION TO SUCCEED, YOU WILL BE REQUIRED TO FILE SUIT AGAINST THE OTHER DRIVER OR RELEVANT PARTY TO PROVE THEIR NEGLIGENCE AND DETERMINE THE AMOUNT OF DAMAGES. BE AWARE THAT DURING THIS PROCESS, WE WILL MAKE EVERY LEGALLY PERMISSIBLE EFFORT TO REDUCE THE AMOUNT OF THOSE DAMAGES AND TO ESTABLISH YOUR OWN NEGLIGENCE TO THE MAXIMUM POSSIBLE EXTENT. UNDER MARYLAND LAW, YOU WILL BE UNABLE TO COLLECT ANY CLAIM IF YOU ARE FOUND EVEN SLIGHTLY NEGLIGENT. INITIAL HERE IF YOU UNDERSTAND THAT WE WILL BE IN AN ADVERSARIAL RELATIONSHIP TO YOU BEFORE WE PAY ANY CLAIM UNDER THIS PROVISION, AND THAT YOU CAN ONLY COLLECT UNDER THIS PROVISION IF YOU PREVAIL OVER OUR ATTEMPTS TO PORTRAY YOU AS NEGLIGENT.
posted by ROU_Xenophobe at 1:17 PM on August 14, 2012 [26 favorites]

And where do you imagine that a "clear" version of "what happened" will be determined other than in legal proceedings if the issue is subject to dispute?

What I am telling you is that most people think there are times when it's not necessary to have a trial to determine what happened. It's a spectrum, where at one end you have pedestrian standing calmly on sidewalk + drunk driver runs him over + everything is caught on video and on the other end you have something like two cars, both speeding, both with the light, no witnesses. I think that the general expectation is that for situations at the far end of the clarity spectrum, the moral insurer just pays up even though he can insist on a trial.

You may disagree about where on the spectrum this falls. Understand that I am not saying that it's wrong for insurers to want a trial when it's not clear what happened.

What I am saying is that I think most people look at pedestrian with the light + car with a red light and think that fault is sufficiently clear that it's not moral for the insurer to insist on a trial in order to avoid paying out. And that makes them angry. Because most people think that insisting on a trial is not moral when you do not have a good faith belief that the pedestrian was at fault.
posted by prefpara at 1:18 PM on August 14, 2012 [5 favorites]

My interpretation of the outrage around this situation is that most people think fault is clear - pedestrial with green light vs. car with red light - and so they think it's immoral for Progressive to refuse to pay out the policy in the hopes that a jury will get it wrong.

According to the brother's description, both parties were driving.
posted by mr_roboto at 1:19 PM on August 14, 2012

And where do you imagine that a "clear" version of "what happened" will be determined other than in legal proceedings if the issue is subject to dispute?

But, again, there is a trial going on already to find out where the blame lies. I don't think anyone is expecting Progressive to pay in advance of that trial. But that's a very different thing from actively helping the other party in the trial against their own customer. That's not trying to accurately determine fault or get to the bottom of what happened. That's trying to pay as little as possible at the expense of your own customer - it's doing everything in your power to avoid providing the service that you're being paid to provide.
posted by Ragged Richard at 1:19 PM on August 14, 2012 [3 favorites]

According to the brother's description, both parties were driving.

My mistake.
posted by prefpara at 1:20 PM on August 14, 2012

I see. We just "spread risk". Care to explain how that would have worked in this case?

I don't get what you're asking. Clearly you understand what insurance fundamentally is. I'm not arguing that it's the basic nature of insurance that should be changed. I'm arguing that the profit motive needs to be removed because it creates incentives for companies to sell you or I something and then, as far as legally possible, not deliver it to us. In this case, it pits people who are by definition going through something horrible against teams of lawyers skilled in finding legal justification for screwing them precisely when they need the coverage they've been paying for.

In this case, in a civilized America (or maybe Canada) there wouldn't even be two companies taking different tactics here. The one insurance provider who covered both drivers would confirm that the woman had been killed and that her policy provided X coverage in the event she was killed in an accident. It would pay that amount because there wouldn't be some sociopath figuring he can get a bonus if he screws the beneficiaries over and keeps profits up.

As for the guy who caused the accident, he'd have liability coverage with the same company, so it's not like he'd be paying for this out of pocket. (Criminal actions are a separate matter, of course.) Basically, the insurance provider would be out the cost of the damage done, and since everyone's paying into the pool, that means it would cost everyone a little. So the risk would be, well, spread.
posted by Naberius at 1:24 PM on August 14, 2012 [1 favorite]

What I am saying is that I think most people look at pedestrian with the light + car with a red light

Yeah, except that we're not even going to get into the facts here. We don't know what they were. Apparently, there was something in there which convinced Progressive that there was a reasonable shot at convincing a jury that Fisher was at fault.
posted by valkyryn at 1:26 PM on August 14, 2012

Valkyryn: I'd be interested to hear your opinion of this reddit comment about the same blog post. Does itsound like good advice to you?

I've run many claims against many of the big insurance carriers in my capacity as an attorney. If you're looking for consumer advice, here's what I can offer: stay away from the following carriers: State Farm, Allstate, Geico, Progressive, Farmers Insurance, and American Family. I repeat: STAY AWAY.

A good rule of thumb is this - the more money they spend on marketing, the more screwed you will be when the time comes to collect on your policy.

Here's some of the good ones: the Hartford, USAA, Farm Bureau, and Country Insurance. (If you have USAA or can get them, it's a no brainer. USAA has some of the best customer service, most reasonable claims professionals, and usually values claims correctly).

posted by Coventry at 1:29 PM on August 14, 2012 [9 favorites]

Are there insurance equivalents to credit unions?
posted by Apocryphon at 1:31 PM on August 14, 2012

Apparently, there was something in there which convinced Progressive that there was a reasonable shot at convincing a jury that Fisher was at fault.

I understand that you're giving Progressive the benefit of the doubt. But you're guessing. People who are not giving Progressive the benefit of the doubt are also guessing, it's true. But I do want to defend their intuition as correct (even if these facts don't end up being relevant). It is an immoral abuse of the legal system to proceed to trial in the hopes of avoiding having to pay what is owed. A courtroom should not be, and too often is, a place to roll the dice and attempt the beat the odds. Just because a policy of pushing bad faith cases to trial may pay off in terms of profit doesn't mean it's the right thing to do.
posted by prefpara at 1:33 PM on August 14, 2012 [1 favorite]

There are a lot of people talking down to others here - telling them that modern insurance would be impossible without things that appear to almost everyone to be morally offensive.

Have you considered that the insurance companies should simply reprice their insurance based on their not doing morally offensive things?

That is to say, they guarantee that they won't ever, for example, use their legal muscle to defend someone who killed one of their clients, and then put their rates up the, say, 0.5% or so this would cost, net, spread over all their clients?

I doubt the small price raise would kill them. People don't just buy insurance based on the cheapest value but for multiple, emotional reason. I'd certainly pay quite a bit more for insurance which guaranteed that my insurance company would never be squaring off in court on the side of my killer...

I should add that I have a reasonable understanding of the financial mathematics here, and I still find the insurance company's action deeply offensive. There is absolutely nothing forcing an insurance company to fight tooth and nail to prevent outlays in cases where there is basically no doubt as to what happened, just in case they get lucky and unfairly (although legally) don't have to pay as much as they "should". The extra margin is, as I've said, no doubt a fraction of a percent, and to claim that they have a right to use "any means necessary" to get this small extra return shows a lack of understanding of human emotions and the concept of "fairness" and "decency".
posted by lupus_yonderboy at 1:33 PM on August 14, 2012 [6 favorites]

Something else: I think the room really doesn't understand the concept of "bad faith" in the insurance context.

Some have suggested that Progressive was just fighting the claim, hoping that the family would settle for less, though it knew it was required to pay. If that were true, Progressive would probably be liable for damages far in excess of the policy, because that would constitute "bad faith."

This is basically the plaintiff's lawyer's home run. If an insurance company knows it's obligated to pay and is just jerking the insured around, the plaintiff's lawyer is going to be on that like white on rice, because there's the potential for millions in damages. Juries hate that sort of thing, for obvious reasons.

I work with insurance companies every day, and they're paranoid about this. Oh, and this here:

some sociopath figuring he can get a bonus if he screws the beneficiaries over and keeps profits up.

...is actually illegal in most states. It's mostly illegal to tie the compensation of claims personnel to the outcome of their cases. It's what's called an "unfair trade practice." So is pressuring the insured to settle for less than the company knows the claim is worth, deceiving the insured about the value of the claim, and making unreasonable settlement offers. An insurance company that does any of those things can expect to get its butt sued off.

And this absolutely happens. Heck, many plaintiff's firms will just throw bad faith in there as a matter of course any time they're going up against an insurance company just to inflate the value of the claim.

But the idea that insurance companies can just screw with you is wrong. The plaintiff's bar is completely aware of those things and has every incentive in the world to nail insurance companies to the floor when they misbehave.

Heck, I had a claim come in last month where the insurer asked me to evaluate. My response "Umm, guys, you screwed up on this one, and if you don't pay the claim like now you should just grab your ankles."

Bad faith is real. It's infrequent, but it happens. And when it does, plaintiff's lawyers go home happy and wealthy.
posted by valkyryn at 1:34 PM on August 14, 2012 [6 favorites]

Valkyryn: I'd be interested to hear your opinion of this reddit comment about the same blog post. Does itsound like good advice to you?

Not really. True, those companies tend to be a little feistier than average, but they still wind up settling their claims without suit 60-70% of the time. Smaller companies may be closer to 70-80%, but it's not a huge difference.

The small fry can afford to be a little "nicer" because they're basically riding on the coat-tails of the bigger players.

But yeah, in the vast majority of cases, no lawsuit is filed. And in the vast majority of cases where suit is filed, they settle. This is true of all carriers.
posted by valkyryn at 1:36 PM on August 14, 2012

It is an immoral abuse of the legal system to proceed to trial in the hopes of avoiding having to pay what is owed.

True. And I see no indication that that's what happened. All we have is Fisher's version of the facts. He is, obviously, an interested party.
posted by valkyryn at 1:37 PM on August 14, 2012

Presumably the Progressive legal team defended the at-fault driver in hopes of proving some negligence on the part of their policy holder.

Isn't it illegal in most states for real estate agents to act simultaneously as representatives for buying and selling parties, because of the clearly obvious financial conflict of interest when an agent does whatever possible to maximize her cut?

So why aren't insurance companies prevented from doing the same? Isn't there an obvious financial conflict of interest here, when an insurance company will do whatever it takes to minimize its outlay and maximize shareholder return, specifically by acting as representative for both defendant and plaintiff?
posted by Blazecock Pileon at 1:38 PM on August 14, 2012 [2 favorites]

So is pressuring the insured to settle for less than the company knows the claim is worth, deceiving the insured about the value of the claim, and making unreasonable settlement offers.

So the company could make a bad offer, but for it to be in 'bad faith' the plaintiff would have to prove that the company knew the offer was a low ball? How is that accomplished, in practice?
posted by Slackermagee at 1:38 PM on August 14, 2012

So the company could make a bad offer, but for it to be in 'bad faith' the plaintiff would have to prove that the company knew the offer was a low ball? How is that accomplished, in practice?

Discovery is amazing. You basically get to depose everyone involved in the claim, get most of the claim file, etc. Defending bad faith claims is an enormous pain in the ass.
posted by valkyryn at 1:40 PM on August 14, 2012 [3 favorites]

Lest we forget, a young woman died here.
posted by tommasz at 1:42 PM on August 14, 2012 [2 favorites]

it's not like anyone can just decide that they're not going to have car insurance anymore

Actually, I just now canceled a policy I had with Progressive.
posted by the man of twists and turns at 1:42 PM on August 14, 2012 [4 favorites]

Discovery is amazing. You basically get to depose everyone involved in the claim, get most of the claim file, etc. Defending bad faith claims is an enormous pain in the ass.

Well damn, I would have thought most of the onus would be on the plaintiffs, having to dig around to prove intent and all that. It makes sense though, there would be a lot of things to have to understand/be aware of in order to defend adequately.
posted by Slackermagee at 1:44 PM on August 14, 2012

Lest we forget, a young woman died here.

Nah, it's way more fun to talk like a grownup about insurance companies being "feisty" when they deny claims, sue policyholders, and occasionally aid in the legal defense of those who've killed their clients.
posted by R. Schlock at 1:44 PM on August 14, 2012 [8 favorites]

valkyryn I assume you are aware that public insurance already exists in Canada. Take Canada, for example, where consumers in the four provinces with public auto insurance, British Columbia, Saskatchewan, Manitoba and Quebec pay the lowest rates. Some consumers in Toronto pay up to 500% more for auto insurance than do equivalent consumers in provinces with public auto systems. (source) It seems Canada has a hybrid system of private and public insurance so your fear mongering seems to be unfounded. It also seems that at least public auto and liability insurance can be run with out collapsing...at least it has since implemented in the 70's.
posted by AElfwine Evenstar at 1:45 PM on August 14, 2012 [5 favorites]

did i mention i'm redundant...and i wish i had an edit button. Take the edit button, for example...
posted by AElfwine Evenstar at 1:46 PM on August 14, 2012

So why aren't insurance companies prevented from doing the same? Isn't there an obvious financial conflict of interest here, when an insurance company will do whatever it takes to minimize its outlay and maximize shareholder return, specifically by acting as representative for both defendant and plaintiff?

Well... kind of. Here's an example from my practice. I represented an insurance company that was suing its insured over a coverage dispute. Facts of the loss aren't important beyond the fact that the insured was the defendant in the underlying loss.

So I'm hired by the insurance company to sue the insured. At the same time, the insurance company hires a different firm to defend the insured in the underlying lawsuit. We did not talk to that law firm, because there was a conflict of interest there. We only even started talking when it came to settlement, and we decided to try to settle both the tort and coverage issues all at once. And the insured had a third law firm defending them in the coverage action.

Further, the people handling the coverage dispute and the underlying loss are generally different. Responsible carriers tend to split those two sides of a claim between different personnel to avoid exactly the kind of conflict you're talking about. To do otherwise is almost asking for a bad faith claim. So what you get is one representative of the insurance company really trying to settle the case, and another disputing coverage. It's a sort of "left hasn't doesn't know what right hand is doing," but it works most of the time.

The thing is, insurance companies don't really act as representatives for their insureds. Lawyers might, but no lawyer or firm can take two sides of the same case. So here, the Fishers were represented by their own lawyer, and the insurance company was represented by a different lawyer.
posted by valkyryn at 1:47 PM on August 14, 2012 [1 favorite]

valkyryn I assume you are aware that public insurance already exists in Canada

Yep. Two questions. First, does it actually make a difference in terms of claims handling? Because I've not seen any indication that it has. Second, are tort claims worth even a fraction of what they are here? Because I've not seen any indication that they are.

Also, Canada has a difference health system, so damages are just going to be less anyway. That's a whole n'uther conversation. But yes, people, reforming the health care system will lower your car insurance premiums. As if we needed another incentive to do something about that...
posted by valkyryn at 1:52 PM on August 14, 2012 [9 favorites]

Everybody hold on a minute. valkyryn helpfully found the case number, and de void provided a link to the website that lists the case information.

I went to look, because I wanted to see if there was any information about whether or not the defendant ran a red light. I wanted to rant about screw you that Fisher should have checked the cross streets even though her light was green so she was partially at fault.

At the bottom of the case log I found this

8.9.12 Judgment in favor of the Pltfs. Joan Fisher, Personal
8.9.12 Representative of the Estate of Kaitlynn E. Fisher
8.9.12 and Joan and Stephen Fisher, as Parents of Kaitlynn E.
8.9.12 Fisher, deceased and against the Deft's. Ronald Kevin
8.9.12 Hope, III and Progressive Advanced Insurance Co. in the 8.9.12 amount of $760,000.00. plus costs. Geller, J

Does that say what I think it says?
posted by ob1quixote at 1:58 PM on August 14, 2012 [2 favorites]

Those are pretty much our choices: either unaffordable insurance, or occasional cases like this one.

So you're saying that premiums outside the two (and a bit) states that have this are outrageously high?
posted by the man of twists and turns at 2:01 PM on August 14, 2012

Does that say what I think it says?

What do you think it says?
posted by grouse at 2:01 PM on August 14, 2012 [2 favorites]

The thing is, insurance companies don't really act as representatives for their insureds.

I do not mean that insurance companies literally come into court.

The mechanics of the process of representation are not particularly relevant to my question, I do not believe.

What I meant was that we have a company supposedly acting on its customer's behalf, while also acting on behalf of the person who killed said customer.

If Progressive was acting in the interests of its customer, it would not defend her killer in an attempt to reduce the payout to its customer.

Regardless of Progressive's motives for wanting to reduce that payout, or whether Progressive is so big that "one hand doesn't know what the other is doing", this action seems to result in a clear and obvious financial conflict of interest.

This type of conflict of interest is not in the public interest and is legally proscribed in other situations.

Does someone familiar with the law in this matter know why insurance companies are allowed to do what is proscribed in other, similar commercial transactions?
posted by Blazecock Pileon at 2:07 PM on August 14, 2012 [2 favorites]

How is that different from a criminal case in which the DA is prosecuting an alleged criminal, while the public defender is defending them?
posted by NotMyselfRightNow at 2:10 PM on August 14, 2012

How is that different from a criminal case in which the DA is prosecuting an alleged criminal, while the public defender is defending them?

The financial, private interest seems to be one major difference (to me). Progressive is apparently acting of behalf of both sides, presumably to minimize its outlays and secure financial interests. The DA and public defender do both act as agents of the public, but they are not colluding, to my limited knowledge, to further private financial interests.
posted by Blazecock Pileon at 2:20 PM on August 14, 2012 [1 favorite]

> Those are pretty much our choices: either unaffordable insurance, or occasional cases like this one.

Sorry, that simply doesn't add up, and I mean mathematically.

If the insurance company loses a little more money in "occasional" cases like this, it means a tiny increase in insurance premiums.

As I mentioned above, I think most people would be glad to pay some sort of premium for a less tooth-and-nail insurance, even if it simply was a guarantee that an insurance company would never represent someone who'd injured someone they insured.
posted by lupus_yonderboy at 2:21 PM on August 14, 2012

Lest we forget, a young woman died here.
posted by tommasz at 1:42 PM on August 14 [+] [!]

But if your daily business is dealing with lawsuits regarding people who have died horrendous deaths, I suspect you get inured to the human side of things. It's why some on this thread are outraged and others see it as business as usual.
posted by Mental Wimp at 2:23 PM on August 14, 2012 [1 favorite]

Is there such thing as a co-op insurance companies? That would eliminate the conflict between making money for shareholders and paying out claims to customers.
posted by no regrets, coyote at 2:23 PM on August 14, 2012 [1 favorite]

grouse: What do you think it says?

I saw this bubbling up on Twitter last night, but apparently I didn't really read the blog post in question. People were pretty heated, especially after the Flo-bot started with the cut-and-paste replies.

From the talk here, I gathered that this was still dragging on in court. So I thought it was weird that it looked like a judgement was entered for the plaintiffs. Going back and re-reading the post, I now see that at the end it is revealed that the jury in fact did find for the plaintiffs.

So uh… never mind I guess.
posted by ob1quixote at 2:29 PM on August 14, 2012

The system works!
posted by mazola at 2:29 PM on August 14, 2012

Are there insurance equivalents to credit unions?

Is there such thing as a co-op insurance companies?

Mutual insurance companies are owned by the policyholders. Benjamin Franklin founded the first mutual insurance company in the United States! Big mutual insurance companies in the US right now include Liberty Mutual, State Farm, Northwestern Mutual, and Amica.

That would eliminate the conflict between making money for shareholders and paying out claims to customers.

It would not, however, eliminate the conflict between maintaining the funds to insure policyholders and paying out claims to other policyholders. If you hold an insurance policy, it is in your interest for your insurer to not pay claims to other policyholders. This is doubly true if you're also an owner of the insurance company.
posted by mr_roboto at 2:31 PM on August 14, 2012 [6 favorites]

Thank you, valkyryn, for taking the time to explain. You and I may not agree on all points, but letting this place turn into an echo chamber would be bad for everyone.

To me, the horror of this case is the contributory negligence law, which should be changed. I mean, holy crap, that law is just wrong.
posted by BeeDo at 2:37 PM on August 14, 2012 [17 favorites]

Is there such thing as a co-op insurance companies?

Yep. But they aren't available to you unless you belong to a non-profit.

A similar question was post on Ask a few years ago.

The problem with a non-profit insurance company is limitations on how much they can 'make'. Being non-profit would limit their ability to find enough revenue streams to insure they can cut big checks when disaster strike. A private company is simply going to have more access to financial tools to invest their surplus and assets t to borrow during liquidity issues.
posted by MiltonRandKalman at 2:46 PM on August 14, 2012 [1 favorite]

Needless to say, these people have to be hammered.

Indeed
posted by ShutterBun at 2:51 PM on August 14, 2012

If you hold an insurance policy, it is in your interest for your insurer to not pay claims to other policyholders.

Good point. But to me it still seems like it like it would provide a check on the worst behaviour, since the policy holders can vote for board members and influence corporate policy. In a housing co-op it's in each members' financial best interest for the board not to pay for renovations to other peoples' units (no renovations=lower rent), but that's not necessarily how people will vote.
posted by no regrets, coyote at 2:52 PM on August 14, 2012

I see. We just "spread risk". Care to explain how that would have worked in this case?

Let's pretend that the situation happened as described, with the other driver negligently plowing into the sister's car and killing her. How would "spreading the risk" work?

In exactly the way it does in New Zealand, through "comprehensive, no-fault personal injury cover for all New Zealand residents and visitors". It's not fucking rocket science.
posted by howfar at 2:53 PM on August 14, 2012 [1 favorite]

Wikipedia link

And the homepage of the Accident Compensation Corporation.
posted by howfar at 2:53 PM on August 14, 2012

The mechanics of the process of representation are not particularly relevant to my question, I do not believe.

What I meant was that we have a company supposedly acting on its customer's behalf, while also acting on behalf of the person who killed said customer.

That's the same thing.
posted by valkyryn at 2:54 PM on August 14, 2012

Sorry, that simply doesn't add up, and I mean mathematically.

If the insurance company loses a little more money in "occasional" cases like this, it means a tiny increase in insurance premiums.

If it is considered morally wrong for an insurance company to go to court in order to determine the extent of its obligations in every single case where someone has died or been seriously injured and where members of their family are very strongly of the opinion that the insured was in the right and that the insurance company should pay (and that is the sole bar that has been suggested in this thread) then the increased costs to insurance companies--should they henceforth choose not to contravene this (strange) moral code--will be astronomical.

Somehow you all seem to be assuming that no insurance company ever goes to court in circumstances like these and discovers that the claim is a bogus one. You also all seem to be assuming that noone will take advantage of a declaration by insurance companies that they will cease to avail themselves of legal protection in all cases where A) serious injury is claimed to have occurred and B) a family member is willing to swear to being distressed and to vouch for the claimant's honesty.
posted by yoink at 2:56 PM on August 14, 2012 [5 favorites]

Is there such thing as a co-op insurance companies? That would eliminate the conflict between making money for shareholders and paying out claims to customers.

Yes! There absolutely is! And I wanted to punch myself for forgetting this earlier!

They're called "mutual" insurance companies. They're owned by their insureds, not by shareholders, and their only "profit motive" is keeping premiums as low as they possibly can.

And you know what the biggest one is? State Farm Mutual Auto, widely derided as the most aggressive insurance company in terms of contesting disputed claims.
posted by valkyryn at 2:57 PM on August 14, 2012 [4 favorites]

In exactly the way it does in New Zealand, through "comprehensive, no-fault personal injury cover for all New Zealand residents and visitors". It's not fucking rocket science.

From what I can find on the web, the ACC survivor's grant is about 6,000NZD which would get paid to the deceased's spouse and about 2,000 each to any children. The deceased in this case seems to have been unmarried and not to have had children. Oh, there's also a funeral grant of about 4,000.

I think there's a lot to be said for ACC, by the way, but Valkyryn is right that the payouts are tiny compared to US private insurance (though, again, having a national healthcare system makes some of that a moot point).
posted by yoink at 3:08 PM on August 14, 2012 [3 favorites]

valkyryn: " And you know what the biggest one is? State Farm Mutual Auto, widely derided as the most aggressive insurance company in terms of contesting disputed claims."

Because they aren't really at risk of pissing somebody off in this way; "Everybody should boycott State Farm because they are trying to save them money!" isn't really a workable rallying cry.
posted by MCMikeNamara at 3:08 PM on August 14, 2012

Matt Fisher updated his blog today, responding to the question about whether the lawyer was employed by Progressive:

Today, in response to my blog post entitled “My Sister Paid Progressive Insurance to Defend Her Killer In Court,” Progressive released a statement saying that ”Progressive did not serve as the attorney for the defendant” in my sister’s case. I am not a lawyer, but this is what I observed in the courtroom during my sister’s trial:

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.
posted by hellbient at 3:09 PM on August 14, 2012 [23 favorites]

If a lawyer says he works for Progressive, sits with the defendant, advised the defendant, and argued the case before the court, I feel pretty comfortable saying Progressive was working for the defendant. Even if somebody else was technically the attorney of record.

I'm not passing judgment on whether Progressive should have paid out in this case. But to try to wash their hands of the whole thing when a lawyer in their employ made opening and closing arguments on behalf of the defendant, etc, is bullshit.

Oh, won't someone rid me of this turbulent priest and all that.
posted by Justinian at 3:19 PM on August 14, 2012 [3 favorites]

If it is considered morally wrong for an insurance company to go to court in order to determine the extent of its obligations in every single case where someone has died...

What ARE you talking about? When did I say that?

Of course in some cases the insurance company and policy owners will end up in court. What sane person would consider preventing this?

I explicitly listed exactly one category of actions that are offensive - paying for legal representation for the person who killed the policy holder. I very clearly listed only this each time I wrote. To jump to that to "Insurance companies can't go to court" is mangling my words.

There are probably other categories of "scumbag behavior" that we could come up with, but, as all the legal people here have assured us repeatedly, these are all uncommon events, and as such would only add small amounts to premiums.
posted by lupus_yonderboy at 3:20 PM on August 14, 2012

I think there's a lot to be said for ACC, by the way, but Valkyryn is right that the payouts are tiny compared to US private insurance (though, again, having a national healthcare system makes some of that a moot point).

Of course. I was only disagreeing with the notion that spreading the burden is in some way unthinkable. However, I don't have any problem with compensation that reflects actual costs suffered, rather than hurt feelings.

Tort law is an instrument increasingly maladapted to solving the problem it is applied to. A hammer will get the screws into the wood, but you'd be a fool to choose it when there are other tools to hand. Social justice and personal justice are not the same end, and using a tool adapted for achieving the latter in an attempt to bring about the former is wasteful, harmful and generally ill-advised.
posted by howfar at 3:21 PM on August 14, 2012 [3 favorites]

Progressive is absolutely in the right here. This guy is frustrated because he doesn't understand how insurance works. Which is unsurprising, but not Progressive's fault. And I guarantee you, every other company in the country would almost certainly have done exactly what Progressive did here, and would be justified in doing so. That's just the way that works.

The problem is that insurance companies hire ad agencies, and the ad agencies trick you into trusting the insurance company. "Like a good neighbor!"

People don't understand fiduciary relationships. It is a shame there is no mechanism to teach people not to trust anyone they pay premiums to. My Dad always said, "You want a friend? Buy a dog. The insurance company ain't your friend."
posted by jefficator at 3:21 PM on August 14, 2012 [2 favorites]

Have insurance companies considered the possibility that fighting claims tooth and nail, using dirty tricks and armies of lawyers, might somewhat devalue insurance in the public perception? I mean, you can't really work around some forms of insurance - the auto and homeowner's insurance listed above, health insurance, and some forms of commercial insurance - but some kinds are optional (renter's insurance, better auto and health insurance than is legally necessary, dental and optical, etc). However, if you can't trust insurance to pay out, why would you ever buy more of it than you absolutely have to?
posted by Mitrovarr at 3:27 PM on August 14, 2012 [1 favorite]

Plaintiffs that deserve to get paid would find that, sorry, there's just not enough money available this year. Too bad, so sad. No, the private system we've got is immune from that sort of conflict.

Just like all the countries with nationalised healthcare have worse healthcare outcomes than the US for more money? Oh no, wait! I got that wrong!

The argument you're making is no more convincing than the Sarah Palin death panels claim.
posted by howfar at 3:33 PM on August 14, 2012 [2 favorites]

Of course in some cases the insurance company and policy owners will end up in court. What sane person would consider preventing this?

I explicitly listed exactly one category of actions that are offensive - paying for legal representation for the person who killed the policy holder.

What's the practical difference, if the liability of the insurance company to the policy owner is determined in a lawsuit between the policy owner['s estate] and the person who killed the policy owner? Or is this just fainting-couch-y posturing?
posted by eugenen at 3:46 PM on August 14, 2012

Maybe I'm misunderstanding, but if there was no practical difference then why would the insurance company do it?
posted by ODiV at 3:57 PM on August 14, 2012

> What's the practical difference, if the liability of the insurance company to the policy owner is determined in a lawsuit between the policy owner['s estate] and the person who killed the policy owner?

1. You get an insurance policy and pay the premiums for years.
2. Someone, call him Mike, kills you in an accident.
3. At the trial, your insurance company provides Mike with legal representation and your family with none.

I would also note that it appears that they do this as a matter of course. They lost this case, it doesn't appear as if they had much of a leg to stand on either.

Given a choice, I would never pay money to an insurance company that might spend money defending my killer against having killed me. I think most people wouldn't.

> Or is this just fainting-couch-y posturing?

Is that polite? It is not polite.
posted by lupus_yonderboy at 3:58 PM on August 14, 2012 [6 favorites]

1. You get an insurance policy and pay the premiums for years.
2. Someone, call him Mike, kills you in an accident.
3. At the trial, your insurance company provides Mike with legal representation and your family with none.

1a. You get an insurance policy and pay the premiums for years.
2a. Someone, call him Mike, kills you in an accident.
3a. Since you don't live in Maryland, you're able to sue the insurance company directly rather than having to go after Mike. Your insurance company provides itself with legal representation and your family with none.

What's the difference? Or is it your view that the insurance company isn't allowed to fight such claims in court under any circumstances?
posted by eugenen at 4:02 PM on August 14, 2012 [1 favorite]

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.

There goes any defamation claim.

Listen, Progressive has got a real issue here. They will need to balance out the value of contesting this claim and similar ones with the potential negative issues from defending such cases in the manner they did in this case. Obviously, there will be a loss of business. Could Mr. Moffat have increased the chances that Nationwide would have won? Probably not by much. Nationwide had attorneys in the courtroom who had an ethical duty to represent the defendant in the case.

So whatever minimal value Moffat brought to Progressive might very well have been completely wiped out by the loss of business which Progressive might suffer. Put another way, if Moffat was doing a great service to Progressive, they sure did lose. So what is Progressive's gain by trying to prevent its policy holder from collecting on the PIP amount? Very little, it appears.
posted by Ironmouth at 4:02 PM on August 14, 2012 [10 favorites]

eugenen: What's the difference? Or is it your view that the insurance company isn't allowed to fight such claims in court under any circumstances?

I expect the insurance company to pay for their own representation in a contract dispute against me. I don't expect the insurance company to pay for the representation of a third party in a finding-of-fact case in which they are not a direct party.
posted by Mitrovarr at 4:31 PM on August 14, 2012 [1 favorite]

1. You get an insurance policy and pay the premiums for years.
2. Someone, call him Mike, kills you in an accident.
3. At the trial, your insurance company provides Mike with legal representation and your family with none.

Okay, but 3 didn't happen. The insurance company provided itself with legal representation, and that representation did its job by attempting to prove contributory negligence.
posted by kafziel at 4:50 PM on August 14, 2012 [2 favorites]

Because insurance is significantly what makes modern society possible

*looks at modern society*

you secretly hate insurance companies, don't you?
posted by pyramid termite at 4:51 PM on August 14, 2012

I think the insurance company had the right to do what they did. But this is a moral, and ultimately business failure on their part. In the end, consumers are not going to want to pay a company who attempted to argue against their insured's interest in recovering a death settlement. It makes terrible business sense to do this. It goes against the entire idea of what they are trying to sell.

Rather, they are better served by charging the higher premiums required to make sure they aren't doing this and pushing against their own business model.

This is especially problematic in the three contributory negligence states where the effect of their argument against their own customer could preclude any award for the customer.
posted by Ironmouth at 4:55 PM on August 14, 2012 [3 favorites]

Okay, but 3 didn't happen. The insurance company provided itself with legal representation, and that representation did its job by attempting to prove contributory negligence.

In effect, providing representation for the negligent motorist who killed their customer.
posted by Ironmouth at 4:57 PM on August 14, 2012

Since the motorist wasn't going to have to pay any money, he doesn't need any more defense than he already has from Nationwide.

The optics are bad, it's true, and somebody at Progressive's legal team did a bad job evaluating the fact pattern if they thought they had 2:1 odds in their favor. But ultimately, if somebody asks me for $760,000, I call my lawyer.

How do you walk away with a big check like that and complain about the other guy's profit motives?
posted by anotherpanacea at 5:07 PM on August 14, 2012 [1 favorite]

Contesting a disputed claim is not immoral.

Contesting a disputed claim in the hopes that you can find something to screw your client's heirs out of the benefit you cheerfully collected premiums against on the other hand....
posted by Kid Charlemagne at 5:11 PM on August 14, 2012 [6 favorites]

he optics are bad, it's true, and somebody at Progressive's legal team did a bad job evaluating the fact pattern if they thought they had 2:1 odds in their favor. But ultimately, if somebody asks me for $760,000, I call my lawyer.

Part of the problem is that the optics strike right at the heart of their own reputation as a company whose job it is to protect its customers from these sorts of problems. I'm going to bet that they are making calls to PR flacks now and its gonna cost them a lot more in damage control and lost business than the $750,000.
posted by Ironmouth at 5:32 PM on August 14, 2012 [3 favorites]

What I am telling you is that most people think there are times when it's not necessary to have a trial to determine what happened. It's a spectrum, where at one end you have pedestrian standing calmly on sidewalk + drunk driver runs him over + everything is caught on video and on the other end you have something like two cars, both speeding, both with the light, no witnesses.

Your hypothetical describes a criminal act. Do you intend to argue that "most people" think that it is not necessary for a criminal defendant to have a trial?

In fact, not only would the criminal defendant be entitled to a trial, but he would be entitled to a lawyer at public expense. (this is considered to be one of the greatest triumphs of American jurisprudence). In other words, the survivor's family and friends are footing the bill. Yet for some reason, a company protecting its rights under contract is beyond the pale?
posted by Tanizaki at 5:37 PM on August 14, 2012 [1 favorite]

Think of it this way--if this makes 300 people to not buy $1000 worth of policies for 3 years, the result will be a net negative, even with interest.
posted by Ironmouth at 5:38 PM on August 14, 2012 [3 favorites]

If it is considered morally wrong for an insurance company to go to court in order to determine the extent of its obligations in every single case where someone has died...

No, but it's considered a dick move when the eyewitness reports make it clear that the deceased was killed by a guy running a red light. It's an even worse move if you send your lawyers to defend the killer in front of the dead woman's family. And it's a colossally stupid move in a regulated industry where rates are often set by the state and your reputation and goodwill are pretty much the only competitive advantages you have.

I worked in marketing for an insurance company once. The lawyers and actuaries absolutely run the show there, so I do understand how it happened. But it's not an accident that the commercials are all about tv presidents and cute cartoon animals. Reputation is all they have, and I assure you someone is freaking out about the "Progressive: will fight tooth and nail to deny your claim" brand hit here.
posted by snickerdoodle at 5:58 PM on August 14, 2012 [6 favorites]

Shoot, I still refuse to do business with Geico since they bought LIDAR speed guns for police departments back in the early 90s.

God. I hate insurance companies.
posted by hwyengr at 6:03 PM on August 14, 2012

If it is considered morally wrong for an insurance company to go to court in order to determine the extent of its obligations in every single case where someone has died...

This isn't every single case. This is an individual case. Is it morally wrong in this case for the company to go up and argue that its dead customer, who paid it for this coverage, was not entitled to receive any of the value of the policy it sold them?

Yes. Yes it is.
posted by Ironmouth at 6:10 PM on August 14, 2012 [5 favorites]

How do you walk away with a big check like that and complain about the other guy's profit motives?

Better to ask the survivors that one. Maybe the money will help them take care of the victim's responsibilities (children, mortgage, etc.).
posted by Blazecock Pileon at 6:49 PM on August 14, 2012

Why not look into the rules of conduct and file a bar grievance VS the attorneys involved?

As I understand the process is private - so the insurance companies only know that one was filed and not the outcome. As they stack up, so should the cost of the malpractice insurance.

Word is, if you are only out of law school a year and ya get 2 of 'em - you become uninsurable.
posted by rough ashlar at 7:02 PM on August 14, 2012

Why not look into the rules of conduct and file a bar grievance VS the attorneys involved

There is zero conflict here. The attorneys represented Progressive. Nor does the company owe a fiduciary duty to the customer. The attorneys for Progressive have no duty to the insured customer here.
posted by Ironmouth at 7:20 PM on August 14, 2012

I expect insurance companies to act like amoral sociopaths. What's (more) outrageous here is the insane contributory negligence law that encourages insurance companies to act against their own insured's interests. I would not be surprised to find these laws were pretty much handwritten by the insurance industry.
posted by dirigibleman at 7:37 PM on August 14, 2012 [4 favorites]

There is zero conflict here. The attorneys represented Progressive. Nor does the company owe a fiduciary duty to the customer. The attorneys for Progressive have no duty to the insured customer here.


Advocate
Rule 3.1 Meritorious Claims And Contentions

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous,

(was the claim without merit? Claim it was. Let 'em defend themselves)


http://www.wvodc.org/sopc.htm - PREAMBLE

Society at this time seems to be accepting a fundamental loss of common courtesy as a trend that accompanies the fast-paced existence most Americans now live. Perhaps instant communication, in which more information needs to be assimilated more rapidly, has rendered thoughtfulness nearly impossible. Perhaps it is simply the cynicism inherent in a society that values winning at all costs.

As an example - the State will use high sounding language to justify the "rules" - look to those high minded claims used by the public relations arm of the ABA in the State and use that as part of your grievance letter. In this case - the argument seems to be 'to win' and the State I picked says 'we are here talking about this cuz of a win at all cost tude' . So go look at the State rules and craft your grievance. Cost you a stamp if you are really offended by the conduct and you get to do something old fashioned like a letter.
posted by rough ashlar at 7:49 PM on August 14, 2012

"I'm guessing that what he saw is Progressive siding with the defendant. Again, their interests were aligned, so this makes sense, and that could easily be misinterpreted by a naive observer like Fisher."

Well, no. If Progressive's counsel, which was present, acted as Fisher said they did: Providing opening and closing statements, cross-examining witnesses, it can entirely fairly be said that his sister paid Progressive to defend the man who killed her, if the context of "defend" is not the legal, technical term meaning serve as direct counsel, and instead means that they acted adversarially and impugned his dead sister. Your continued bleating over defamation claims is bullshit in that it rests on a technical claim and not the broader, common understanding of the word "defend."

"It does and they should. If we require people (even large corporations) to ignore their own interests and stop their own line of inquiry, where do we draw the line where we ask people or corporations to stop before it becomes "immoral"? Do we stop it when it's immoral to everyone? To 1% of the population? To 51% of the population? Do we ask individuals to stop? Small businesses? Large businesses?

There is no line in the sand here that can be drawn to the satisfaction of everyone. It's far better that everyone in the system be able to benefit from the same due process and not have to forfeit their right to defend their interests."

Yeah, no, that's a horseshit appeal to the undefined middle. We can totally say that some things are immoral for corporations to do: Corporations should not be allowed to murder people. Unfortunately, due to the morass of laws governing individual liability, it gets harder the more abstract the crime is — the legal responsibility of Dow Chemical or Union Carbide is less than their moral culpability.

So what we can say is that if this behavior from Progressive is legal, it speaks to a distorted incentive to immoral behavior (barratry to beg a question) and that because of that laws should change even if it ends up costing Progressive money, or even American jobs. Because we can say that in cases such as these the emotional burden can create an unjust difference in power, forcing the Fishers to endure indignity and a perversion of their interest as consumers of insurance.

(It would totally fuck the practical function of the civil justice system, but civil cases should come with the equivalent of public defenders to at least in some way remedy the power disparity.)
posted by klangklangston at 8:45 PM on August 14, 2012 [6 favorites]

was the claim without merit? Claim it was. Let 'em defend themselves

IAAL, and this is not how it works. First, some random member of the public cannot grieve a lawyer. Grievances are filed by clients, judges, or other lawyers.

Even if Joe Concerned Citizen could grieve any lawyer he pleased, the "frivolous claim" basis is about as weak as it gets. First, there are already procedural devices for dealing with such bogus claims/defenses such as Rule 11 in federal court or various state law equivalents. The first thing the bar is going to want to know is if such devices were made use of in the trial court. If not, the bar is not going to get involved. The judge and parties involved in the trial court would have the best knowledge of whether a bogus defense was asserted, so if they didn't report it, the bar would listen to some person who got offended after reading a blog post.

And, guess what? The bar knows that lawyers are adversarial and therefore get people pissed off, so they will see right through a frivolous grievance (which would be grounds for discipline against the citizen - did you know that the bar can sanction non-lawyers?). Bar complaints are usually things like misappropriation of client funds, substance abuse, failure to communicate with clients et cetera. Some random person saying "that lawyer's defense made me mad" is a non-starter.
posted by Tanizaki at 8:58 PM on August 14, 2012 [2 favorites]

Better to ask the survivors that one. Maybe the money will help them take care of the victim's responsibilities (children, mortgage, etc.).

Here's what the post says: "Out of a sense of honor, and out of a sense of the cost of my sister’s outstanding student loans, my folks opted to try to go after the money through legal channels."

Doesn't look like she had dependents, either, which is reasonable, because you need life insurance to ensure that dependents and mortgages are taken care of in case you don't die in the car.

It's 760k plus fees, so probably about $1 million total award, right? (1/3 of 760k is 253k, so $1.013 million.) I'm not familiar with tort sums in auto accidents, but that seems high. Perhaps I need to recalibrate: for instance, there's a lot of gov't data that uses $6 million as the statistical cost of death for cost-benefit calculation purposes.
posted by anotherpanacea at 9:12 PM on August 14, 2012

Because insurance is significantly what makes modern society possible, and most people don't understand how it works.

There's always this "blame the ignorant consumer" mentality when it comes to matters like this. Completely ignoring the fact that the ignorance of the consumer is due to the existence of a multibillion dollar advertising industry who's primary job is to keep the consumer ignorant.

Insurance is sold to people as the exact opposite of what it actually is. Maybe if they spent a fraction of the money they spent on the "you're in good hands, good neighbor, we're there when you need us the most" bullshit on actual consumer education, there would be less outrage when they're in a position like this one.

They may have been working within their legal rights as a business, but they were way outside the boundaries of what they claim to be in order to get their customer's money.
posted by billyfleetwood at 9:29 PM on August 14, 2012 [4 favorites]

These facts are horrible, and horrifically sad, and one particular part of what's sad is that the dead woman had to buy her killer's insurance, because he didn't buy enough himself. But she did exactly that (and lots of us do). And the insurance she bought for her underinsured killer did exactly what it was supposed to do in this horrible set of circumstances.

Some schmucks are going to drive around without enough insurance to take care of folks they hurt That's just a fact. Knowing that, the woman who was killed paid HER OWN insurance company extra premium to effectively become that schmuck's liability insurance company AS WELL AS her own. Not only is that how it works, that's really ALL UM/UIM coverage does.

The simplest way to look at this is that the underinsured schmuck effectively becomes Progressive's own liability insured, in terms of the UM/UIM coverage bought by the woman who was killed. It does not mean Progressive "automatically pays the difference." It means the guy is provided with a surrogate policy of insurance to put into play, courtesy of the financial beneficence and forethought of his victim. It's right there in the name: "Underinsured Motorist Coverage." And whether he's a deadly schmuck or not, every insured is entitled to a defense in court. Yes, it sucks in this case, and cases like it--but that's the trade-off for not having proceedings where some cloaked official, or spokesperson for a group of angry citizens, just gets to "say" who's a witch, and have that be the end of it, off with your head.

Moreover, insurance companies pay for defenses EVERY DAY ALL DAY LONG that they do not "control." That's fundamental to the process. That's a major part of what you're buying when you buy liability insurance: the right to have a defense provided for you, even if you are "really" to blame. In almost all states you can choose your own defense counsel, even if it's your best friend or brother, and the carrier has to pay for that defense (assuming it's conducted within the bounds of reason, of course; not drunkenly, absently, etc.).

So, yes, Progressive's interests ended up aligned with Nationwide's with respect to the UM/UIM coverage only, because the girl who was killed paid extra for just that result: namely, that Progressive would also have coverage in play when this did her harm. And in order to pay out under that surrogate policy the dead person bought for the schmuck, the schmuck HAD to be legally adjudicated as liable. Because, again, we're past the days of just being able to point a finger and "declare" someone legally to blame.

In short, to the extent Progressive participated in the guy's defense, they did so because the dead woman paid them money in exchange for their promise to do precisely that. Had she not bought the UM/UIM coverage, this confusing part of the tale would have been avoided. But also the recovery would have automatically been limited to the killer's Nationwide policy only, because that's the only policy the killer would have had in play.
posted by azaner at 9:32 PM on August 14, 2012 [14 favorites]

Nice analysis, azaner.
posted by Kwine at 10:08 PM on August 14, 2012

Rough Ashlar, let's look at your quote of Rule 3.1. You pasted the following:

Rule 3.1 Meritorious Claims And Contentions

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis in law and fact for doing so that is not frivolous,

You cut off the Rule where the comma is. Is that really right? Let's look at what Rule 3.1 says in the Maryland Rules (BTW I am a Maryland Lawyer):

Rule 3.1 Meritorious Claims and Contentions

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, unless there is a basis for doing so that is not frivolous, which includes, for example, a good faith argument for an extension, modification or reversal of existing law. A lawyer may nevertheless so defend the proceeding as to require that every element of the moving party's case be established.

You omitted the key part of the rule, that a lawyer can require every part of a party's case to be proven. This gives a false impression of the Rule's scope and effect.

Here, Fisher was the plaintiff, and upon her the burden of proof resided. Although contributory negligence is a affirmative defense and (if I remember correctly from bar review) has to be proven by the defendant, your sole basis for asserting that there were no facts to support it are what you read in a blog post You actually have no facts at all upon which to claim anything, let alone that no colorable claim to contributory negligence existed.

Your claim of an ethical violation is simply without basis. You also have no standing to file a complaint, as you are not involved in the case and have seen none of the facts as plead, or testified to in open court.

I stand by my claim that this was not moral and was, from a business point of view, incredibly self-damaging to Progressive. But your claim that it was an violation of the Maryland Rules of Lawyer's Professional Conduct is without merit.
posted by Ironmouth at 10:09 PM on August 14, 2012 [2 favorites]

snickerdoodle: "No, but it's considered a dick move when the eyewitness reports make it clear that the deceased was killed by a guy running a red light."

Yeah, and if that's the case, then the court battle is an open-and-shut case....which it was in this instance. It may have been an unnecessary formality, but the system seems to have worked just fine here.

Would you rather the decision have been made behind closed doors without the involvement of a jury? Sending things to the courts might not be the most comforting outcome for the victim, but it does seem to guarantee the greatest amount of transparency and fairness.

Also, again, people here are severely understanding what UM/UIM does. I just checked my policy, and this stuff isn't even buried in the fine print. It's very obvious that UM/UIM is legally convoluted, and would require me to sue the underinsured person, who would presumably need some sort of fair defense that actually had an interest in defending against the claim (otherwise UM/UIM trials would settle 100% of the time, and the thing would never be affordable to anybody).
posted by schmod at 10:11 PM on August 14, 2012

In short, to the extent Progressive participated in the guy's defense, they did so because the dead woman paid them money in exchange for their promise to do precisely that. Had she not bought the UM/UIM coverage, this confusing part of the tale would have been avoided.

Except that PIP coverage, as thoroughly discussed, quoted and cited above, is mandated by statute in Maryland. The Plaintiff must buy it, and the insurance company must offer it. Progressive was fully within their rights to do what they did, but was morally wrong to do so. The Plaintiff had zero choice to buy PIP coverage. State law required it. She has no fault, moral or otherwise here.
posted by Ironmouth at 10:15 PM on August 14, 2012 [1 favorite]

It's very obvious that UM/UIM is legally convoluted, and would require me to sue the underinsured person, who would presumably need some sort of fair defense that actually had an interest in defending against the claim (otherwise UM/UIM trials would settle 100% of the time, and the thing would never be affordable to anybody).

Except the Defendant was represented by Nationwide's attorneys. The problem isn't that there was a trial, it was that Progressive chose to bring a lawyer in to assist the defendant who killed its policyholder through negligence. It was superfulous and only damaged its own reputation of serving its policyholders.
posted by Ironmouth at 10:18 PM on August 14, 2012 [1 favorite]

PIP is not the same as un/underinsured motorist coverage.
posted by dirigibleman at 10:21 PM on August 14, 2012

I just checked my policy, and this stuff isn't even buried in the fine print. It's very obvious that UM/UIM is legally convoluted, and would require me to sue the underinsured person, who would presumably need some sort of fair defense that actually had an interest in defending against the claim

Let's also be clear. Nationwide's requirement to represent the defendant means that any lawyers it hires are required to zealously defend the defendant. They can't take a knee--it is the cardinal sin of lawyering.
posted by Ironmouth at 10:22 PM on August 14, 2012

Also, as indicated above UIM is mandated by law in Maryland, as is PIP.

I just think Progressive should have left this to Nationwide's defense of the Defendant. They will lose more in business.

One other point, fees are calculated as hourly here, then added to the award, and the lawyer takes a percentage of the combined total. I doubt there were 250k of fees as speculated above.
posted by Ironmouth at 10:42 PM on August 14, 2012

>>mandated by statute in Maryland

Yes. Mandated by her elected state representatives. Not somehow mandated by Progressive.

Those seeing a conflict of interest here, or "immorality" on the part of Progressive, are not seeing that it's really two different and separate policies. Her own coverage (apparently not in play in any way), and the UIM coverage she purchased for a bit extra premium (in play on the killer's behalf). The UIM coverage "steps into the shoes" (court term) of the policy the killer failed to buy on his own. Under which he would have gotten a defense.

It's no more a conflict of interest than if you and I are in a collision, and we both happen to be insured by Progressive (or by Allstate, GEICO, etc.). If we somehow manage to get all the way to trial, there are going to be attorneys in court paid by Progressive arguing for me, and attorneys in court paid by Progressive arguing against me. Really, it happens all the time.
posted by azaner at 11:16 PM on August 14, 2012 [2 favorites]

Just one thing more. I genuinely understand the reaction of folks here (and all over the web) who are disheartened and even disgusted at discovering the way UM/UIM actually works, especially in the context of such a heart-rending case, and who wish it were something closer to "carrier just writes a check for the difference." All I can say is that if it worked that way, it would simply never be offered by any carrier in the first place. (Or, alternatively, the premium to cover such undefended claims would be so high as to be absurd.) As it stands, UM/UIM is usually offered at a relatively minor additional cost, and it provides a chance at additional compensation when you're injured by someone without enough insurance, rather than zero chance at additional compensation.
posted by azaner at 11:35 PM on August 14, 2012 [1 favorite]

Insurance companies are bookies. Every year I bet AAA that my house will somehow be destroyed, at odds they set. Every year I lose the bet and they keep the stake. If I ever did win the bet, they would have to pay up, and I'd buy another house with the winnings, that's how it works.

What we have here, my friends, is a bookie welching on a bet. This woman bet Progressive that she'd be hit by by an uninsured motorist, she won the bet fair and square and now they are trying to welch.
Nobody wants to lay bets with a welcher, and I hope they lose a lot of business over this.
posted by w0mbat at 12:05 AM on August 15, 2012 [5 favorites]

I had to deal with an insurance company once.

I was riding my bike down from campus on the last day of class my senior year of college. The campus was up on the hill and I was cruising down in the right-hand bike lane going pretty fast but not as fast as the cars. Driver was coming up in the opposite direction and slowed to turn left, across my path, into his driveway. When I was still approaching, he turned into his driveway and stopped the car in the middle of the bike lane, cutting me off with not enough time to stop or get out of the way. I slammed on my brakes but still smashed into the right rear panel of his hatchback. Next thing I remember I was on my hands and knees. I took my backpack off and laid down on my back. Driver got out of his car, apologized profusely, and called for an ambulance. The ambulance came and took me to the hospital where I remained the next few hours. No broken bones, just some serious bruises, scrapes, and a pulled muscle in my wrist from the way my hand was positioned pulling the brake when I hit the car. I was very limpy for a while and didn't feel 100% for about a month.

When the ambulance (and two fire trucks and two police officers) came, an officer took the time to make out a police report. On the very last page of the report it said that the fault of the accident was the driver's for not making sure he was clear to turn before turning.

Property damage included my glasses ($150) and bike ($950) which were both destroyed. The fork on my frame was bent back enough that the wheel was in the way of the down tube. Medical bills (after insurance) totaled about $800. At this point I would have been happy to have $5k for the figurative and literal pain in my ass.

I unfortunately do not carry insurance for cycling, as most people do not, so I had to deal with Driver's insurance company directly. They took written statements and sent me their offers through the mail. Their first offer described the accident as 75% my fault and they offered me $750 to go away. This was clearly not sufficient so I explained to them as best as I could why their reasoning was wrong, why I could not "take evasive maneuvers" which would have put me into the middle of the street if I could have even turned that fast at all.

In the end what made them adjust their offer was when I reported the case to the state insurance commissioner to have them look it over for insurance fraud. Basically this was a huge amount of paperwork for them and a signal that I wasn't backing down easily and that I kinda sorta knew what I was doing. Their new offer? 50% fault and $2k. Remember the police report said it was 100% Driver's fault.

The letter writing went back and forth for two years with nothing changing and finally, as the statute of limitations approached, I decided to take them to small claims court. This meant scheduling a court date in a city I no longer lived in and meeting Driver face to face again. As the date approached I got very nervous. At 24 years old, who wants to stand in front of a court for the first time and explain all this? At court the judge said that everyone needs to first talk with mediators to see if we could save the court some workload. Instead of Driver, I found myself in a room with two mediators and Shonna Vlassopolous, the woman with whom I had been negotiation for two years. The first question was what my demands were: $7500, the full amount allowed in small claims court (I was pissed, but also this would allow the court to decide what amount was appropriate). She said this was ridiculous and never made a counter offer. Back in court, when the judge asked us to stand, Shonna was forced to explain why Driver was not there to defend himself. Driver was apparently in the military and was needed during the presidential inauguration. So the case was postponed.

On the way out, I asked her if we could just end this here, and she offered me $5k. That was that.

The impression I have is that insurance companies do not do what's right. If that were the case, they would have admitted full fault and given me a fair amount (maybe not $5k but certainly more than enough to at least cover damages). They saw someone that was not in a great position to stand up for himself and so they tried to screw me as best they could by dragging the case on and forcing me to take them to court. Insurance companies are there to make money, plain and simple, which more often than not directly opposes what is right and moral.
posted by cman at 12:31 AM on August 15, 2012 [12 favorites]

As a side note, the liberal position on uninsured/underinsured coverage is that it is necessary to cover those drivers from the lower and lower-middle classes who cannot afford insurance coverage beyond the minimum required. Uninsured/underinsured coverage is effectively a tax on the more well-to-do to bridge this economic gap.
posted by Ardiril at 12:32 AM on August 15, 2012

Corollary: you could say that in this case, Progressive is being progressive.
posted by Ardiril at 1:23 AM on August 15, 2012

Wait a fucking minute!!!

This is Matt Fisher of GBTV? Glenn Beck's GBTV?

People, I think you just got the living shit spun out of you. Conservatives have been trying to kill mandated UM/UIM policies since their introduction, and a Glenn Beck stooge just got the liberal blogosphere completely stirred up in support of a major conservative cause.
posted by Ardiril at 2:40 AM on August 15, 2012 [6 favorites]

What do you mean, "sunlight"? These policies are written to comply with state laws!

The law is an ass. Buy a few state senators and you can do most of what you want. And rather than providing the service Progressive was contracted to in good faith, Progressive appear to be trying to do as little of that as possible.

The big problem here, assuming everything is true, is the Contributory Negligance statute in Maryland. The 1% rule. On an actuarial basis that makes it always worth trying not to pay - there is always a chance the insurance companies can wriggle out of paying.

The second problem is that some jackasses use this excuse. Such as the insurance companies in question.

The answer to poor regulation is better regulation.
posted by Francis at 3:34 AM on August 15, 2012 [2 favorites]

Yeah, I'm starting to feel silly for having been trolled. If you buy insurance for underinsured motorists, you should expect that they'll then be insured. Presumably, if the other driver had been totally uninsured, Progressive *would* have had to supply representation. If anything else happened, that'd be pretty shitty.

The Glenn Beck connection is... Wow.
posted by anotherpanacea at 3:44 AM on August 15, 2012 [1 favorite]

This is Matt Fisher of GBTV? Glenn Beck's GBTV?

You know the saying that everyone's a liberal until the first time they get mugged? Well, I got a new one: everyone's a conservative until the first time a corporation tries to steal his dead sister's money from his parents.
posted by Slap*Happy at 4:50 AM on August 15, 2012 [1 favorite]

Shoot, I still refuse to do business with Geico since they bought LIDAR speed guns for police departments back in the early 90s.

Perhaps you forget that GEICO stands for "Government Employees Insurance Company" (originally specializing in policies for military personnel, if I recall correctly)? So it's not such a surprise after all that they might still have an institutional sympathy with police departments and law and order. Endearing British-accented mascot notwithstanding.

Also, you think you should be allowed to speed without risk of penalty? I hope you have a different insurance company than I do.
posted by aught at 5:21 AM on August 15, 2012

From talking to friends and family I have learned that when insurance companies pay you money on your claim they are a bunch of hard-nosed bastards out to cheat you of every penny you deserve and when they pay out a claim to someone else on your behalf they are suckers who throw away your hard paid premiums to scam artists and cheaters like old ladies feeding pigeons.
posted by interplanetjanet at 5:49 AM on August 15, 2012 [4 favorites]

One last thought. There actually is a pretty obvious way of making this situation different. It's called "tort reform." In exchange for making sure that they almost always get paid, plaintiffs trade away the chance at an outsized verdict. This is how workers' compensation works. The employer always pays, and quickly (unless there's some question about what actually happened), but the employee has zero shot at All The Money.

Insurance companies would generally jump at the chance, as it would make calculating their exposure a lot easier and therefore their business more profitable. The plaintiffs' bar hates the idea, because the workaday cases that they settle without filing suit keep the lights on, but it's the home run, million-dollar verdicts that pay for the beach house. And lemme tell you, plaintiff's lawyers aren't in it for the job satisfaction or the enjoyable work. Most of the ones I know absolutely loathe their clients, and with good reason. If it didn't pay as well as it does, they'd probably try to find something else to do. The defense bar is actually conflicted about this. We hate plaintiffs, but insurance companies pay us, so if there were fewer plaintiffs, we'd get paid less. But we generally wind up being in favor, because we don't really have a chance at the home run verdict anyway, and we get paid whether we win or lose. So while our income might go down a little, plaintiff's lawyers income would go down a ton.

You know who else hates it? The legislature. Why? Because legislators are mostly lawyers, and legislators frequently get called by constituents when they have a problem. At which point the legislators might say "Let me introduce you to my friend the plaintiff's attorney." The plaintiff's attorney will turn around and give the legislator a cut of the resulting fee. This is completely unethical and completely routine, and it's one of the reasons tort reform has been so difficult to implement: legislators have a direct, personal, financial incentive to oppose it.
posted by valkyryn at 5:55 AM on August 15, 2012 [4 favorites]

Well, I got a new one: everyone's a conservative until the first time a corporation tries to steal his dead sister's money from his parents.

And everyone's a Randian libertarian until they qualify for Medicare.
posted by PeterMcDermott at 7:21 AM on August 15, 2012 [4 favorites]

PeterMcDermott: "And everyone's a Randian libertarian until they qualify for Medicare enter primary school."

FTFY.
posted by tonycpsu at 7:24 AM on August 15, 2012

No matter how you put it, by intervening on behalf of your client's opponent, you're going to come across as an asshole. As a general rule, I try not to be an asshole, even if it results in me making sacrifices to be a decent human being. As long as corporations are persons, I don't think it's unreasonable to hold them to the same standards and let them suffer the consequences when they act in a way that most people consider to be immoral or at a bare minimum, indecent.
posted by jamincan at 8:28 AM on August 15, 2012

"And lemme tell you, plaintiff's lawyers aren't in it for the job satisfaction or the enjoyable work. Most of the ones I know absolutely loathe their clients, and with good reason. If it didn't pay as well as it does, they'd probably try to find something else to do."

Actually, most of the plaintiff's lawyers that I know really are in it to right injustice and keep little guys from being screwed, and most "tort reform" dramatically skews things in the interest of the large company over the individual plaintiff.

Our member Dios does plaintiff work, and while he often comes across here as relatively conservative, he's quite clear and cutting on tort reform.
posted by klangklangston at 8:37 AM on August 15, 2012 [2 favorites]

From the case:

Doc No./Seq No.: 2/2
File Date: 05/31/2011Close Date:Decision:
Document Name: Order of Court
It is this 19th day of May, 2011, by the Circuit Court For Baltimore City, hereby ORDERED

1. That Progressive Advance Insurance Company be and is hereby allowed to intervene as a party Defendant.

2. That Progressive Insurance Company is GRANTED all rights to participate in this proceeding as if it were an original party to this case.

(Brown,J)
posted by CrazyJoel at 9:27 AM on August 15, 2012 [2 favorites]

Interesting thread. My somewhat disconnected thoughts:

As has been mentioned a few times in this thread, the kernel of awfulness that enables and incentivizes this conduct (such that Progressive thought it was worth supporting the underinsured motorist's defense) is the rule of contributory negligence. It is a fossil, and the jurisdictions that still have it should be pressured by their citizens to get rid of it.

Insurance companies pay for defenses EVERY DAY ALL DAY LONG that they do not "control." That's fundamental to the process. That's a major part of what you're buying when you buy liability insurance: the right to have a defense provided for you, even if you are "really" to blame...
...So, yes, Progressive's interests ended up aligned with Nationwide's with respect to the UM/UIM coverage only, because the girl who was killed paid extra for just that result: namely, that Progressive would also have coverage in play when this did her harm. And in order to pay out under that surrogate policy the dead person bought for the schmuck, the schmuck HAD to be legally adjudicated as liable. Because, again, we're past the days of just being able to point a finger and "declare" someone legally to blame.

Right. It's the way that blame is apportioned in Maryland that's the problem here.

So what we can say is that if this behavior from Progressive is legal, it speaks to a distorted incentive to immoral behavior (barratry to beg a question) and that because of that laws should change even if it ends up costing Progressive money, or even American jobs.

This isn't barratry (or champerty, or maintenance). It's not even, as some people seem to think, a conflict of interest or a violation of fiduciary duty. I don't see any bad faith, although those are famously murky waters. It is, however, extremely ugly. But insurance defense isn't a beauty contest. And so this:

Insurance is sold to people as the exact opposite of what it actually is. Maybe if they spent a fraction of the money they spent on the "you're in good hands, good neighbor, we're there when you need us the most" bullshit on actual consumer education, there would be less outrage when they're in a position like this one...They may have been working within their legal rights as a business, but they were way outside the boundaries of what they claim to be in order to get their customer's money.

My question, then, is how is insurance different than any other corporate/financial business whose activities belie its marketing? Even taking the moral offensiveness at face value, and setting aside the particular legalities and costs/benefits to the insurer or to the economy, litigating against one's insured to reduce a payout seems miles less reprehensible from CDOs built to fail and bet against by the house marketing them.

IAAL, and this is not how it works. First, some random member of the public cannot grieve a lawyer. Grievances are filed by clients, judges, or other lawyers.

I'm not sure about Maryland, but in California anyone can report an attorney to the Bar. But that doesn't guarantee the Bar will look at it very seriously.

On tort reform: The defense bar is actually conflicted about this. We hate plaintiffs, but insurance companies pay us, so if there were fewer plaintiffs, we'd get paid less. But we generally wind up being in favor, because we don't really have a chance at the home run verdict anyway, and we get paid whether we win or lose. So while our income might go down a little, plaintiff's lawyers income would go down a ton.

I'm not a member of the bar yet, but the family firm does medmal defense and has done since the late '70s. I've worked there in various capacities from a young age, seeing a lot of attorneys, and clients and insurers come and go. I'm not too conflicted about the outcome of tort reform in that area. California's MICRA (often used as a model for tort reform), hasn't been unambiguously beneficial for anyone but insurance companies. Plaintiffs recover less, standards of care are eroded, but health care providers' insurance costs haven't been greatly reduced. Thirty year plus veteran defense litigators are getting hammered on their rates, because it's cheaper to lose. Insist on getting paid anything close to what one's experience and track record ought to justify--or even refusing to accede to cuts--results in being taken off the list and being left out in the cold by one's long-served clients in favor of some cut-rate competitor, or in-house operations. So providers also get a less effective defense. It's a snake eating its own tail...Insurance companies demand loyalty and concessions, but offer none. Maybe this is why lawyers are so unsurprised by this conduct. These are not malignantly immoral corporations, they are profoundly amoral corporations. They honor only structural constraints, and will exploit every structural advantage they can manage to install. It's the nature of the beast.

Also relevant here considering some questions asked upthread, No Fault auto insurance schemes have been tried some states. Often, the results are unpopular for the reasons Valkyryn explained.
posted by snuffleupagus at 9:35 AM on August 15, 2012

"And lemme tell you, plaintiff's lawyers aren't in it for the job satisfaction or the enjoyable work. Most of the ones I know absolutely loathe their clients, and with good reason. If it didn't pay as well as it does, they'd probably try to find something else to do."

Actually, most of the plaintiff's lawyers that I know really are in it to right injustice and keep little guys from being screwed, and most "tort reform" dramatically skews things in the interest of the large company over the individual plaintiff.

My SO does plaintiff's work. These two streams can and do co-exist in a busy practice. Championing the little guy is the motivator, but it's usually not enough on its own to provide stability. Although it's true that for some, it's all about the money. The same thing could be said of the defense bar and its members.
posted by snuffleupagus at 10:00 AM on August 15, 2012 [1 favorite]

You know the saying that everyone's a liberal until the first time they get mugged? Well, I got a new one: everyone's a conservative until the first time a corporation tries to steal his dead sister's money from his parents.

Yeah, the fight to eliminate UIM inorder to increase base premiums (so those damn freeloading poors aren't ripping me off by paying too little,) is a real liberal cause. Nothing a liberal or leftist likes to do more than making the poor pay more for things!

(Although with some of the so-called leftists around here I think that might be actually true for some of them.)
posted by Snyder at 10:45 AM on August 15, 2012

There actually is a pretty obvious way of making this situation different. It's called "tort reform."

Ah, of course.

Except we already have a plan that benefits insurance companies at the expense of injured parties, and it is called limited tort.
posted by Blazecock Pileon at 10:46 AM on August 15, 2012 [1 favorite]

Yeah, the fight to eliminate UIM...

I don't think the issue is to remove UM/UIM. I have that coverage here in RI, and I agree that it's necessary and approve of it.

I would be completely bullshit if my insurance company had the power to screw me out of a legit claim by putting their vast legal resources at the disposal of the idiot who crashed into my car. (Never mind killing a close family member)

Instead, here's how we roll in Lil' Rhodey:

(h) A person entitled to recover damages pursuant to this section shall not be required to make a claim against or bring an action against the uninsured or underinsured tortfeasor as a prerequisite to recover damages from the insurer providing coverage pursuant to this section.

The insurance companies have, through legislative capture, bought and paid for an "easy out" in Maryland law that allows them to wring huge concessions from customers with legitimate claims. Now they get to see the cost of taking advantage of that lovely little loophole... a little more than they had planned for in their lobbying budget.
posted by Slap*Happy at 12:33 PM on August 15, 2012 [1 favorite]

Those seeing a conflict of interest here, or "immorality" on the part of Progressive, are not seeing that it's really two different and separate policies. Her own coverage (apparently not in play in any way), and the UIM coverage she purchased for a bit extra premium (in play on the killer's behalf). The UIM coverage "steps into the shoes" (court term) of the policy the killer failed to buy on his own. Under which he would have gotten a defense.

There is no conflict. There is immorality when the insurers actions are an attempt to flat out deny its own policy holder any recovery when Nationwide already has attorneys representing it.

The fact that two different policies exist is immaterial to the analysis. (Actually it is the same policy but that's another argument) the fact is that they are trying to harm their own customer in a way that is not necessary.

And they will lose plenty of customers this way.
posted by Ironmouth at 1:51 PM on August 15, 2012 [1 favorite]

Christ, what an actuary.
posted by itstheclamsname at 2:31 PM on August 15, 2012 [2 favorites]

One thing we can predict and all agree on, for certain:

Within a year or so this insurance company will have a media blitz advert campaign with television spots featuring sunshine, puppies, kittens, cute human children, harp glissandos on audio, and a soothing voice-over intoning something along the lines of: "We Care About You."
posted by ovvl at 6:52 PM on August 15, 2012 [1 favorite]

Within a year or so this insurance company will have a media blitz advert campaign with television spots featuring sunshine, puppies, kittens, cute human children, harp glissandos on audio, and a soothing voice-over intoning something along the lines of: "We Care About You."

No, their shtick is a perky girl-next-door brunette who makes you forget to ask any questions about the quality of their coverage and customer service.
posted by Mental Wimp at 8:55 AM on August 16, 2012 [1 favorite]

Lessons from Progressive screw-up: When it's Twitter vs. lawyers, take Twitter.
posted by ericb at 8:26 AM on August 17, 2012

I think it's been the big lesson of the internet, and really of society in general, for a long while now. Facts and reason are always second to blind mob outrage.
posted by kafziel at 11:01 AM on August 17, 2012 [1 favorite]

Progressive Settles With Accident Victim's Family After Tale Went Viral -- "Insurance company Progressive felt the wrath of the Internet this week after the brother of a policyholder who died in a car crash posted a startling missive about how the family's claim was handled. Progressive has now reached a financial settlement with the family."
posted by ericb at 2:12 PM on August 17, 2012 [1 favorite]

Progressive's Update on the Fisher Case: Understanding Insurance

For the past week, Progressive has been in active settlement discussions with the family of Kaitlynn Fisher. Though there was considerable public interest in this case and we know many of you saw mentions of it on social media and news outlets, we also believed it was inappropriate to share further details while those discussions were ongoing. As of this morning, an agreement has been reached with the Fisher family to settle the claim. Prior to that, we were cautious with our responses, but now that the agreement has been reached, we’d like to further clarify Progressive’s role in the trial.

Ms. Fisher held a policy with Progressive that included Uninsured/Underinsured Motorist coverage, which protects drivers in the event they’re struck by an at-fault driver who’s either uninsured or doesn’t have enough coverage.

Under Maryland law, in order to receive the benefits of an underinsured driver claim, the other driver must be at fault. Sometimes this can be proven without the need for a trial, but in Ms. Fisher’s case, there were credible conflicting eyewitness accounts as to who was at fault.

A trial was necessary so that a jury could review all of the evidence and come to a decision. In those circumstances, under Maryland law, the insurance company providing the Underinsured Motorist coverage is considered a defendant. As a defendant in this case, Progressive participated in the trial procedures on our own behalf while Nationwide represented the other driver.

On Thursday, August 9, a jury determined that the other driver was at fault in the accident involving Ms. Fisher. In accordance with that decision, Progressive worked with the Fisher family and their legal representative to resolve the claim.

This was a tragic accident and our sympathies go out to the Fisher family.

posted by ericb at 2:15 PM on August 17, 2012 [1 favorite]