The brother of a woman who was killed in car accident is accusing her insurance company of defending the person he said is her killer in an insurance legal dispute, including calling a witness to the stand against her.
Kaitlynn Fisher, called Katie by her brother and who had engineering degrees from Johns Hopkins University, died in a car accident on June 19, 2010 in Baltimore after another driver ran a red light. She was 24.
On Monday, Matthew Fisher, 33, her brother and a comedian based in Brooklyn, published a blog post, saying the insurance company Progressive "refused to pay the policy to my sister's estate."
Fisher wrote that "someday when you have your accident, I promise that there will be enough wiggle room for Progressive's bottomless stack of in-house attorneys to make a court case out of it and to hammer at that court case until you or your surviving loved ones run out of money."
Chris Wolf, a claims general manager with Progressive, offered a statement to ABC News, saying, "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," Wolf said in the statement. "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."
A spokesman for Progressive declined to comment further.
Fisher fired back against Progressive's statement in another blog post on Tuesday night, saying Progressive's attorney not only sat next to the other driver during the trial, but conferred with the defendant "in and out of the courtroom."
"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," Fisher said in a statement on Tuesday evening. "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," Fisher said in his statement on Tuesday.
In his blog post, Fisher said that he doesn't "discount the possibility that Katie was at fault in the accident, but it never really looked that way."
He said a witness stated that "Katie had the light."
The jury awarded the Fishers $760,000 and Progressive will have to pay at minimum $100,000, the amount on Katie's policy, within 30 days.
Fisher and a family spokeswoman directed ABC News to their attorney, Allen W. Cohen.
Allen Cohen, an attorney for the Fisher family, said while Progressive's claim is technically correct that they did not serve as an attorney for the defendant, "Progressive did everything in their power to show that their own insured did something wrong. They were fighting against the person who paid them premiums."
That included calling a witness to the stand who claimed that Katie ran a red light.
"Maryland law requires that an insurance company act in good faith as it works with its own insured," Cohen said, but "we question the good faith behavior of Progressive."
Because of that question of "good faith," Cohen said the family is exploring avenues of additional damages.
"One indication that the case was pretty open-and-shut was that the other guy's insurance company looked at the situation and settled with my sister's estate basically immediately," Fisher wrote in his blog.
However, complications arose because the other driver was uninsured, but his sister "carried a policy with Progressive against the possibility of an accident with an underinsured driver," Fisher wrote in the blog.
"So Progressive was now on the hook for the difference between the other guy's insurance and the value of Katie's policy," Fisher wrote.
"In hopes that a jury would hang or decide that the accident was her fault, they refused to pay the policy to my sister's estate," he wrote.
"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," he wrote.
Complications arose because, Fisher wrote, because, "In Maryland, you may not sue an insurance company when they refuse to fork over your money."
Therefore, the family listed Progressive as a co-defendant as permitted by Maryland in the case of an underinsured motorist claim.
Maryland state law uses "contributory negligence" to settle civil suits, which means "if you are even 1 percent at fault for the accident you are barred from any recovery," one insurance analyst told Consumerist.com.
Tom Baker, law professor at University of Pennsylvania and an insurance expert, said that without analyzing the legal documents, it sounded like Progressive was following Maryland's rules regarding under-insured motorist claims.
In order to collect coverage you bought in case of an accident with an uninsured motorist, you have to prove that the accident was the other driver's fault.
"The fact that the other driver's insurance company paid its limits quickly does not mean that it was the other driver's fault," Baker said. "The insurance policy may have been so small that the insurance company decided that it wasn't worth fighting about."
Fisher's parents had to sue the other driver and establish his negligence in court to force Progressive to pay the policy. Progressive made a series of offers, "never higher than 1/3 the amount they owe," according to Matthew Fisher's Monday blog post, and then let it go to trial.
To the surprise of Fisher, "At the trial, the guy who killed my sister was defended by Progressive's legal team," he wrote. "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."
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