A Wisconsin man went hunting last fall hoping to take out Bambi’s mom but instead his thumb became the only casualty of the outing.  Let’s talk specific. In November, Cyril Korte found himself deer hunting with a TenPoint Phantom crossbow he purchased at a Cabela’s Retail Store in 2009.  Unfortunately for Mr. Kote, as he fired the crossbow, he stuck his thumb in the path of the bow string, which is a major no-no.  In so doing, he severed part of his thumb; making matters worse, the missing piece could not be reattached.  Mr. Kote has, of course, filed a lawsuit against Hunter’s Manufacturing Company (d/b/a TenPoint) and Cabela’s Retail.

I’m not particularly familiar with the operation of crossbows, but it would seem to me that keeping your digits out of the path of the bow string is common sense.  I found the 2009 owners manual for the TenPoint Phantom crossbows.  Sure enough, it states, quite clearly:  “Never allow your fore-grip hand’s fingers or thumb to move above the barrel’s flight deck or into the bow string or cables’ release path.  If you do, you will injury yourself severely when you fire your crossbow.”

Plaintiff has made a few interesting claims in his suit.  First, the complaint states that TenPoint should have know of the crossbow’s dangerous propensities and that “injuries to users’ fingers or thumb are the most common injuries associated with the use of Tenpoint’s crossbows and TenPoint was at all relevant times aware of this fact.”   For any product, there is always going to be a “most common” injury regardless of whether it is defectively designed.  The real question is, of course, whether the foreseeable injury could have been reduced or avoided by a reasonable alternative design.  To that end, Plaintiff”s real claim is that the crossbow should have some sort of grip guard to keep people from sticking their thumbs into the path of the bow string.

The second interesting allegation Plaintiff made in his lawsuit is that he relied on expertise of the Cabela’s staff in selecting the crossbow and he was apparently he was told that the TenPoint Phantom was the “best and safest” crossbow on the market.  So what? Was this some sort of express warranty that Plaintiff couldn’t severe his thumb if he didn’t use the cross bow properly?  The “best and safest” of anything, especially weapons, will typically still cause injuries if used improperly.  What if a person goes out and buys the “best and safest” car based on the car salesman’s recommendation, then later proceeds to slam on the gas peddle with his friend standing in front of the car?  Of course an injury will occur, even though the car may have, in fact, been the best and safest car on the market.  The real question is here is whether other crossbows sold in 2009 had a grip guard that could have prevented the injury.

In the end, this case just seems like another classic example of “if there is a way to get injured there is someone out there who will find it.”  That someone will inevitably file a lawsuit thereafter.

For years, I have watched others obsess over their fantasy teams – fantasy football, fantasy baseball, fantasy soccer – on and on and on.  I don’t really understand the draw – making up fake teams cobbled together with players from real teams, and then “playing” these fake teams against other fake teams to see whose fake team is the best.  A strange pastime, if you ask me, and one that requires time and effort I simply don’t have.

At least for me, it’s hard to get into something that doesn’t have any application or consequences in the real world, unless you have some money riding on it.

That said, I have discovered a fantasy league I can get excited about.  Wait for it . . . .

There is a fantasy SCOTUS league!  FantastySCOTUS is an online fantasy league created by Josh Blackman, head of the Harlan Institute. It involves enthusiasts of constitutional law predicting how each member of the United States Supreme Court will rule on any given case. In its second season, over 5,000 players have registered with the website. A high school version has been created to help improve education in constitutional law. The Harlan Institute is a nonprofit organization with the mission to “bring a stylized law school experience into the high school classroom to ensure that our next generation of leaders has a proper understanding of our most fundamental laws.”  FantasySCOTUS is one of the tools that the institute uses to educate and engage high schoolers on SCOTUS.

How does the league work?  Members earn points by correctly predicting how each justice will rule on any given case:

A Justice can either vote to AFFIRM, REVERSE the lower court, or RECUSE from the case and not cast a vote. Users can make predictions at any point before the case is decided, though predictions will be disabled on all days the Supreme Court announces that opinions will be released.

Any law student, however, can tell you that sometimes a justice will vote to affirm in part and reverse in part; in those situations, FantasySCOTUS decides whether the vote was more of an “affirm” or “reverse” vote, and award points accordingly.  And, as one would expect from such a league as this, there is a way to appeal the scoring of a particular case, using the “clearly erroneous” standard.  Challenges to the rules themselves are reviewed using the “abuse of discretion” standard.  Changes are made via blog, and players are charged with constructive notice of such changes.

Sports fans often wear the jerseys of their favorite team or player when they watch sports and update their fantasy teams.  I wonder if FantasySCOTUS will start selling Scalia or Sotomayor robes for the sake of authenticity.

Depicted above is the cover of Showcase #44, published way, way back in 1963. That issue was dedicated to the exploits of Tommy Tomorrow of the Planeteers who, at that point, was apparently “wanted for treason.” Treason is apparently a popular crime for comic book super heros. Here’s our question, though: If all the other inmates are wearing traditional prison garb, why does Tommy Tomorrow get to wear his own costume while in custody? No fair! In fact, this is an issue that seems to come up again and again. What gives?

Gallivan, White & Boyd, P.A.’s own Jennifer Johnsen recently published a new article on the Metropolitan Corporate Counsel website offering insights into how in-house counsel should protect their directors and officers in a “5 o’clock bombshell” lawsuit. To read the article, entitled “D&O Insurance In The Dodd-Frank Era: What You Need To Know To Protect Your Directors And Officers,” please click here (PDF).

In case you weren’t aware, most courts here in Charlotte, North Carolina will be closed during the week of the Democratic National Convention.  Quite frankly, of all the DNC related happenings, we’re more concerned about the special Foo Fighters “Rock the Vote” concert, which they say sold out in eight seconds. Wow.

Did you know that you can follow our writer and contributor, Stuart Mauney, on Twitter? Just yesterday, he authored a post on a 76 year old road trip to Texas which, of course, does not have much to do with products liability. But, we’re not just litigators here, we’re also storytellers and chroniclers of the human experience. So, to follow him on Twitter, simply click here.

Seventy six years ago this month, on August 10, 1936, the small town of Shelby, North Carolina coped with a muggy Monday morning.  My dad, Grady Mauney, then 16 years old, and his best friend, George Watson, sat on the front porch of the Mauney home on North Lafayette Street.  They started talking about how fun it might be to go to the Texas Centennial Exposition, in Dallas, Texas that year.  But, that was a long way from Shelby!  “Wonder how long it would take us to thumb rides to Dallas?” they asked themselves.

Before they realized what they were doing, Grady and George had both scraped together a little money, packed a bag, and found themselves hitchhiking their way to Texas.  Grady chronicled his journey in a series of postcards sent home from the road.  Oh, one other thing, Grady left town without telling his parents!  The two would-be adventurers simply left a note at the drugstore where they had been working that they were headed to the Texas Centennial.

Grady’s first postcard was addressed to his mother, postmarked Royston, Georgia, 4:30 p.m., August 10, 1936.  My dad’s sister told me that she always heard that my grandmother, Macy, spent three days holed up in a closet, worried about her son.

Dear Mother,

I thought if I told you that I was going to Texas, you wouldn’t let me so I didn’t tell you.  I got $25.00 and I am now in a little town in Georgia.  It is 4:00 and we have already come nearly 200 miles.  We are going to stay in Atlanta, GA, with George’s sister tonite.  I will write you along.

Grady, Jr.

The next day, Grady wrote that it was Tuesday morning and that they had stayed with George’s brother in Atlanta, but had decided to stay for the day and tour around the area.  They hoped to make it to Texas by Saturday.

On Wednesday, August 12, Grady sent another note to his mother, postmarked Lanette, Alabama.

Dear Mother,

We just arrived in Lanette, Alabama.  It is 10:30 Wed. morning.  We have got a ride into Montgomery, Alabama.  We spent the day with George’s brother in Atlanta Monday and Tuesday.  It is a lot of fun riding with a traveling salesman in a big car.  We have had lots of luck.  We looked over Atlanta yesterday.  It is about three times larger than Charlotte.

Grady, Jr.

Grady further wrote that they stayed in Montgomery, the capital of Alabama, and expected to cross the Mississippi River the next day.  On Thursday, August 13, Grady sent a postcard from Jackson, Mississippi, reporting that they had stayed in a hotel in Jackson, having traveled about 250 miles that day.  They still expected to arrive in Dallas by Saturday and anticipated it would be August 25 before they returned home.

On Friday, August 14, my dad sent a postcard from Vicksburg, Mississippi, addressed to his father, R.G. Mauney, in care of A. Blanton Company in Shelby, North Carolina.  He said he was having lots of fun and that he “might go on to California if my money holds out.  I bet Mother is cussing because I left.”  The cost of the postage stamp was 1 cent.  That same day, Grady sent a separate postcard to his mother.

Dear Mother,

I am in Vicksburg, Miss., getting ready to cross the Mississippi River.  Getting nearer to Dallas, Texas.  I still got about $25.00.

While most of the postcards were sent to his mother, Grady also wrote his younger brother and sister, Charles and Martha:  “I am having a good time hitchhiking it.  We hadn’t had to stand on the road over 10 minutes before we caught a ride.  It is lots of fun thumbing a ride.  We will be in Texas by Saturday.”

My mom recalls my dad saying that one night they stayed in a Hooverville, the name given for shanty towns built by homeless people during the Great Depression.  If that was the case, such was not documented in his postcards.  Maybe he didn’t want to worry his already distraught mother!

As they neared Dallas, they became more anxious to arrive and caught a bus from Greenwood, Mississippi to Dallas.  “It is costing us a good much but we wanted to get in Dallas tonite.”

Grady and George arrived in Dallas on Saturday night, August 16, 1936, six days after they left Shelby.  The next morning, he wrote a letter home to his mother and father.

Dear Mother and Daddy,

We arrived in Dallas last nite.  We had to ride a bus from Greenwood because we wanted to get in here before Sunday.  We got up this morning early and went to the fair and stayed all day.  We got enough of this place so we are leaving for home in the morning.  The Centennial sure is a big fair.  They say it is bigger and better than the World’s Fair was.  It cost over 6 million of dollars to build it.  Dallas is about three times larger than Charlotte.

Well I will tell you about our trip out here.  Monday we caught a ride from Shelby to Spartanburg and from Spartanburg to Royston, GA.  From Royston to Athens, GA, from Athens to Atlanta, and stayed in Atlanta with George’s brother for the nite.  The next day we stayed in Atlanta which is about three times as large as Charlotte, and let George’s brother show us over the town.  We saw lots of interesting things there but I will wait until I get home.  So it was Wednesday before we started on the road again.  We came 170 miles Wed. and stayed at Montgomery, the capital of Alabama.  Thursday we came 233 miles and stayed in Jackson, the capital of Mississippi that nite.  Friday we came 171 miles and stayed in a little town named Ruston.  Saturday we came 290 miles.

Each nite after we get our room, we would take a bath and go to the picture show.  The next morning we’d get up about 8:30 and start hitch-hiking.

We have had lots of fun but we are ready to come home.  We will be there by Saturday.

We have ridden in all kinds of cars.  I will tell you more about the fair and our trip when I get home.

Grady, Jr.

This final letter was postmarked Dallas, Texas, August 17 at 10:30 a.m.  The envelope was from the New Dallas Hotel, 310 South Ervay Street.

According to Google Maps, traveling their likely route, the journey would be 1,014 miles.  By today’s standards, that’s about a 17-hour drive.  Grady’s estimate of the miles they traveled was 1,063, which is remarkably close to Google’s estimate.  He must have asked each driver to keep track of how many miles they had driven that day.

The Texas Centennial Exposition lasted six months and attracted over 6 million visitors.  I suspect none of them had more fun than those two teenage boys from Shelby, North Carolina.

A few months ago, friend of the blog and legal writer Walter Olson tweeted a link to a blog post by Jim Romenesko, referencing generally “the stories newspapers missed by not having reporters read new court filings.”  In his blog post, Romenesko profiled the efforts of an intrepid courthouse news reporter, Dave Tartre, who came across a particularly interesting priapism lawsuit brought against a automobile company. (Yes, you read that last part correctly.).

Walter’s tweet got us thinking about the nature of news coverage of legal pleadings, particularly plaintiffs’ initial complaints.  Over the years, we’ve seen various news stories reporting on complaints and new lawsuits, and we have to say that news reporting on such things can sometimes be unsatisfactory.  General publications typically recite the allegations of the complaint, quote the plaintiff’s lawyer, who is only happy to expound upon the legal theories and purported negligence of the defendant, and leave it at that.  This is not always good. There are several reasons why this is the case, and we list some of them here today.

1.  The complaint offers only side of the case, and it’s not always correct.  Obviously, by its very nature, the complaint includes only the plaintiff’s bare bones account of an alleged injury and often times, there are mistakes, errors, and misstatements in that document.  Usually, there are exaggerations to bolster the characterization of the claim, and there’s often boilerplate language, when taken out of context by the reporter, may sound unfairly suggestive or sinister. However, as we all know, during the course a lawsuit, plaintiffs learn new facts or abandon old legal theories based on previous mistakes or new impressions of certain old or recently discovered facts.

2.  Typically, a news reporter cannot reach the defendant (or a defendant’s representative) in time to meet the relevant publishing deadline to report upon the filing of the complaint.  Because the reporter only has a summons and complaint, he or she may not know how to contact the appropriate in-house counsel or claim agent at the defendant’s corporate headquarters.  Even if they do know how to reach the appropriate person for comment, the defendant may be unaware of the new lawsuit.  Even if they are aware, they may be unable to comment on brand new pending litigation which, most likely, is only just being investigated by the defendant.  Typically, this inability to obtain a meaningful comment from a defendant’s representative results in the token paragraph included in such an article that the defendant either could not be reached or could not comment if reached.  This omission does not stop the reporter from publishing the piece, and it grants some credibility to the allegations in the complaint which, as noted above, may be exaggerated, boilerplate, or even factually inaccurate under the circumstances.

3.  Many times, the news report about the initial filing is never followed up with a subsequent article reporting on the results of the case.  So, if the case is promptly dismissed, or if the defendant wins a motion for summary judgment, the news goes unreported. Perhaps in the most high profile of cases we learn such results, but you never see a subsequent article in which the plaintiff is called to task for fabricating certain facts in a deposition or the case being dismissed for other reasons.

This is not to say that one should not report on new filings.  In fact, there could be great value of such coverage.  Take a look at the coverage at Popehat on the recent Carrion v. Inman matter.  Those suits and claims were dissected by lawyer bloggers who foresaw the potentially long litigious process which may result from the filing of a complaint.

(Hat Tip: Walter Olson).

Lawyers are notoriously nuts about certain things, and we all have our pet peeves which drive us to the brink of insanity.  These are often, very, very trivial things.  For the most part, they are so minute and inconsequential that they have no bearing whatsoever on the substance of the litigation.  However, because we, as lawyers, are perfectionists, or at least like to think that we are, these little irksome things can drive us up the wall if we allow them to do so.

I write today not to urge caution, reasonableness, of diligence in the mitigation of such things. This post is reserved only for unreasonable and petty complaining about my legal pet peeves.

So, today, I share with you the two things in the practice that drive me absolutely bonkers.

First, when there is a singular individual suing a defendant in a lawsuit, you refer to that individual as the plaintiff, not plaintiffs.  For some reason or another, wherever I practice, wherever I go, I always seem to run into lawyers who refer to an individual, single plaintiff in the plural rather than the singular.  This must be a widespread phenomenon because I recall people making that error as far back as my law school days.  Surely, I’ve made the same mistake myself, but this is so commonplace that there must be something out there prompting this outrageous conduct.  (Don’t get me started on the use of an apostrophe after the “s” when we are referring to a single plaintiff using the possessive form).

But more vexing, and thankfully, less often encountered, is the manner in which we refer to requests for production and requests for admission.  How many discovery templates have we seen where we are being served with “request for production” or “request for admission?”  If there is more than one request, then you call the document “requests for production” or “requests for admission,” right? Were I far more cavalier in the practice of law, I would object under Rule 26 or whatever rule applies – even if that rule does not deal with discovery limitations – and say that if a party has titled their discovery document as a “request for production” or a “request for admission” then I will only be answering the first listed request since they did not use the plural in their caption.

I feel pretty good about my chances at a motion to compel hearing defending that response, actually.

Really, the only solution for these issues is legal education.  Therefore, I call upon all law schools to incorporate these paramount issues into their first year curriculum.

Well, or, at the very least, people should read this blog post and really contemplate this subject matter.

Friend of the blog Max Kennerly of the Litigation and Trial blog recently tweeted something about an opposing counsel leaving his iPhone at his office.  This struck a chord with me because very recently I left my iPad at a local courthouse and did not realize it until later in the evening. What horror!  What fear fell upon me!  Concern and trepidation rained down upon me!

This, I now realize, is what parents must feel when they briefly lose sight of their children at the supermarket. Without my iPad, after all, I am incomplete.

(Fortunately, I had taken all of the relevant precautions to securitize my iPad with password protection and the “Find My iPhone” app to permit me to track its location by GPS).

Whatever the case, shortly thereafter, I arrived back at my hotel and realized my grievous error.  By that time, the courthouse was closed, and no one in the building was there to answer my frantic telephone calls.  I thought to call the local county sheriff’s office to see if I might be permitted entry into the courthouse after hours to retrieve it, but they advised that I would need to wait until the next day.  Fortunately, the events that brought me to the courthouse that day were a series of depositions noticed by a plaintiff’s lawyer who, rather than selecting an office or hotel conference room, chose the grand jury room of that courthouse as the site of the depositions.  Fortunately for me, the plaintiff’s counsel had noticed so many depositions that she had scheduled them across two days, meaning that I would be returning to the courthouse the following day.  Whew. However, the fact that I was to return to the courthouse a half a day later did nothing to ameliorate my fear and concern.

It was a long night.  But here is the really interesting component of the story.  As aforementioned, on both my iPhone and my iPad, I had installed the “Find My iPhone” app.  This utility allows the user to log in, on a mobile device, tablet, or desktop computer, to Apple’s services and utilize the GPS function of the missing mobile device to identify its exact location.  The utility will then produce a map – which can be converted to an overhead satellite image – with a blinking dot indicating the precise – or almost precise – location of the missing device.  Knowing this, I immediately used this on both my iPhone and laptop to locate my iPad, which I was certain was plugged into the wall charging in the corner of the courthouse’s grand jury room.  The “Find My iPhone” app confirmed the suspicion, and the blinking dot, when placed on the overhead satellite image, appeared exactly where it should have been on the overhead image of the local courthouse.  However, there is also something perilously inexact about this utility. Depending on when the users login, how they login, what Internet connection service they use to login, and what device they use to login, they may receive an ever so slightly different result.  Thus, five minutes later, when I, in my paranoid state, sought to again confirm the location, the dot had moved slightly away from what I suspected was the grand jury room to a new position: the parking lot.  Seeing the blinking dot on the overhead aerial map in the parking lot shook me.  However, when I hit refresh, the dot returned to its original location on the aerial map image to the grand jury room.  Refreshing the image would often cause the dot to move slightly sometimes across the street, sometimes to the parking lot, sometimes to a different portion of the building.  Although I knew that this was probably just the result of the inexactness of the program, it did little to calm my nerves.

The next morning, I woke up extra early and was the first person at the courthouse at 7:59 AM.  I immediately made my way to the grand jury room where I found my iPad waiting for me.

There are several lessons to be learned from this incident.  Fortunately, I already knew to heavily securitize the iPad.  Fortunately, I store little work information on my iPad, but I had protected it in various ways, including password entry.  I flirted with deleting the contents of my iPad from afar – something that one can do using the “Find My iPhone” utility – but I decided that if there was one safe place one can leave one’s iPad overnight – it is the grand jury room of a county courthouse.

But of course, the main lesson to be learned is to keep better track of one’s mobile devices.

Depicted above is the cover of Batman: Gotham City Police Department #2, published not so long ago in the halcyon days of 1996.  The cover is dominated by Harvey Bullock, a controversial Gotham City detective.  We know that citizens maintain certain rights when confronted by a police officer. There are many, many criminal procedure law blogs out there that explain these rights to citizens and other lawyers alike. But based on Detective Bullock’s Wikipedia entry, we’re going to stay clear of him and not invoke any legalisms in his presence. We’re too scared. Unless Batman’s around, we guess. But he’s pretty scary, too, no?

According to news reports, there may not be any hot coffee lawsuits against McDonald’s in Mumbai for a while. That’s because the franchise has run out of beans!

This week, we discussed the viral firestorm that has befallen Progressive Insurance Company after one man claimed it “defended his sister’s killer in court” over a UIM claim. (We still maintain that the whole ordeal is premised on a fundamental misunderstanding of the role of UIM insurance and claims over same.). Since that time, news about the underlying trial has come to light. As we expected, at issue was the alleged contributory negligence of the man’s sister. Despite testimony from the police department’s accident reconstructionist and other witnesses that the sister ran a red light, the jury found her not to be negligent. The estate was awarded $760k in damages, but there is still no news on the limits of Progressive’s UIM policy. We will keep you posted as more information surfaces, as it appears that everyone on the Internet is still talking about this one.

Did you know that you can follow our fearless leader, Mills Gallivan, on Twitter? To do so, simply click here.

It’s been a big month for mankind’s space exploration. On August 5, NASA’s “Curiosity” rover executed a technically flawless controlled crash-landing onto the surface of Mars. Hopefully, once and for all, we’ll establish that our red-tinged neighbor is both rocky and barren. Haha! Just kidding, NASA. This is a totally cool project that is sure to reap tremendous scientific dividends. Great work; keep it up.

This piqued my interest about space torts, though. Who is liable in the event that a space vehicle—or more realistically, a piece of a space vehicle—comes crashing back to earth, causing injury or damage to the people down below? Somewhat to my surprise, this unusual legal question appears to have an answer. Granted, this circumstance doesn’t happen often. The rigors of atmospheric re-entry usually solve the issues presented by falling space debris long before they can become a problem. However, from time to time, what goes up makes it all the way back down. For example, in 1978, the Soviet-launched Cosmos 954 satellite crashed in Canada. In 1979, the United States’ Skylab crashed in Western Australia. And in 2011, debris from the United States’ UARS satellite crashed in Canada. So, there’s some concern that at some point, some space vehicle that’s outlived its useful life will go out in a true-life blaze of glory, and it may very well cause personal injury or property damage that should be compensated.

So who do we sue and how do we do it? This is largely determined by identifying, first, who launched the vehicle, and second, where the injury was sustained. In many cases, the country that launched a space vehicle is not going to be the country where the object comes crashing down. In these cases, the procedure for determining liability and obtaining compensation is addressed by the 1972 Space Liability Convention. The SLC provides that claims for personal injury or damage must be presented and resolved through international diplomatic channels; however, this does not necessarily displace any ordinary judicial process that may otherwise be available.

But what happens if a United States vehicle comes crashing back to Earth on United States soil? Presumably, in these cases, a person’s claim for injuries or damages could be pursued through the Federal Tort Claims Act, 28 U.S.C. § 2674. The specific procedure for bringing claims against the Government is laid out at 28 U.S.C. § 1346(b). Furthermore, the statute of limitations for claims under the FTCA is two years, 28 U.S.C. § 2401(b), and the only damages that can be awarded are those that are available under the law of the state in which the case is tried. In other words, if the state has an applicable cap on governmental liability, the feds get the benefit of that cap.

It’s actually somewhat quaint that we would be talking about liability for “space torts” in terms of the country that launched the vehicle. Most countries that engage in space exploration are able to do so only because they contract with private industry. To that extent, the economy of space exploration is sophisticated, globalized, and comprised of relatively few actors within private industry that have that resources and expertise available to support a country’s efforts to go into space. Therefore, in the event that a space vehicle comes crashing down, it may be wise to consider (from a litigation perspective) who the private industrial actors were who built and operated the vehicle, because they may be the same actors regardless of whether the vehicle is American, Russian, European, or Chinese.

In any event, there is almost a zero-percent chance that you will be impacted (haha…) by falling space junk. And if you are, then you probably won’t care about any of this discussion. Because, frankly, fate had cast your lot and it was time to go.

For whatever reason, insurance companies may not have the best reputations. So, it comes as no one surprise that a recent Tumblr post entitled, “My Sister Paid Progressive Insurance to Defend Her Killer in Court,” has gone viral and garnered much attention across the Internet. The piece, penned by comedian Matt Fisher, documents his family’s struggle to recover underinsured motorist (UIM) benefits under a Progressive auto policy. Fisher’s sister, Katie, was  killed  in a motor vehicle accident after another driver reportedly ran a red light.    The liability carrier for the other motorist tendered its policy limits shortly after the accident.  Thereafter, the family turned to Progressive for additional UIM benefits.  For reasons not specifically documented in his post, Progressive denied coverage.  In order to pursue those benefits, the family filed suit against the other driver.  Progressive, as the UIM carrier, appeared in the matter and defended the case.  Although the jury ultimately returned a verdict for the Fishers in the matter following a trial last week, Matt Fisher was none too pleased with Progressive’s conduct, leading him to write a series of posts on the issue.

First off, it should be noted that there is not much information in the public record about the specifics of this case, other than Fisher’s original post and a brief reply from Progressive.  Accordingly, it’s challenging to opine about the specifics of this case without access to trial transcripts, court orders, policy documents, or other information that might usually be available in a reported case. But, as we see it, much of the confusion here lies in the very nature of UIM coverage.

Indeed, following Fisher’s post, a firestorm was unleashed against Progressive.  Celebs such as Wil Wheaton and Patton Oswalt took to Twitter, campaigning against the company.  The story has also been well-documented on other sites, including Thought Catalog and Gawker.  Despite this fanfare, however, Progressive appears to be getting a bad rap, primarily because of a great misunderstanding of the sometimes counterintuitive nature of UIM coverage and benefits.

For starters, we do not know exactly why Progressive denied coverage in the first place.  As noted above, we do not have access to many of the relevant documents in this case, including any letters explaining the denial of coverage. But, we imagine it may have had something to do with perceived liability.  In his own post, Fisher, who attended the trial, admits that there may have been some issue with his sister’s comparative fault:

Now, I don’t discount the possibility that Katie was at fault in the accident, but it never really looked that way. The only witness who gave a statement on the day said that Katie had the light, etc. The totality of the evidence left some room for argument, but that will be the case any time there’s a catastrophic car accident that doesn’t happen underneath an array of video cameras.

Further, as Ted Frank of the Point of Law blog notes:

Maryland is one of the few remaining contributory negligence states: if Katie was 1% at fault in the accident, there is no liability to the other driver or Progressive.

In other words, under Maryland law, if Katie played any role – no matter how slight – in contributing to the accident, Maryland state law would not permit her to recover.  Thus, we must consider “the totality of the evidence” and Maryland’s adherence to the contributory negligence doctrine when analyzing Progressive’s initial coverage decision and subsequent actions in defending the case (as was its right to do so).

Second, a simple explanation of the UIM concept may help to clarify the misguided notion that “Progressive defended Katie’s killer.”  In reply to a Progressive statement that  it did not serve as an attorney for the defendant, Fisher outlined the conduct of “Progressive’s legal team” at trial in support of his argument.  In this instance, both Fisher and Progressive are correct – to a degree.  Progressive did employ lawyers – not in-house – to represent its interests in the matter.  While Progressive essentially stepped into the shoes of the defendant at trial, however, it did not serve as his attorney.  The lawyers represented Progressive.  Even though the defendant may have sat in the chair right next to Progressive’s lawyer, there was not an attorney-client relationship.

To the lay person, it may be a strange dynamic when one’s own insurance company technically “defends” the underinsured motorist.  However, here, Progressive had an ostensibly legitimate coverage position, and this was the forum available to the insured in which to litigate it. While we do not know all of the facts in this matter, nor are we aware of  Progressive’s internal decision-making process, UIM cases are very common and sometimes do culminate in a trial where this very dynamic comes into play.

We recognize Fisher’s frustration.  Sitting through a civil trial and fighting with an insurer is the last thing anyone wants to do after the loss of a loved one.  Just as every accident does not necessitate the insurer paying under its policy, every accident with an uninsured/underinsured policy does not necessarily entitle the insured to UM/UIM benefits.  Insurers, including Progressive, should investigate every accident and accordingly make coverage determinations based on liability and damages.