Progressive narrowly avoids getting struck

(Or at least the insurer’s answers in the lawsuit)

by Anne Koppel Conway

BEDFORD HILLS, NY—North State Custom’s long drawn-out countersuit against Progressive Insurance alleging tortuous interference, deceptive business practices (steering) and injurious falsehoods (negative statements about the shop) is stretching out even longer.

In February the New York Supreme Court judge in the case, the Honorable Gerald E. Loehr, had been understandably miffed by Progressive’s stalling maneuvers in not delivering in full to North State owner Greg Coccaro the requested 800 or so auto damage claim documents. (To see how annoyed His Honor was, check out the April issue of the Collision Standard, www.oregoniansforsafeautorepair.com/html/collision_standard.html.)

Loehr gave Progressive until the April 23 compliance conference to produce the remaining unsubmitted docs or His Honor announced that the casualty company’s answers would be stricken.

The judicial striking option is actually a biggy. If that happened, Progressive wouldn’t pass go, to use a Monopoly term – they wouldn’t get to go to trial, because they wouldn’t be able to defend the case. Instead, it would more than likely be an automatic loss for the insurer and the case would go directly to the damages phase of the trial.

But it didn’t happen that way.

“If it were me [in Progressive’s shoes],” joked Coccaro, “I’d be in jail already.”

Even though Progressive did not produce the requested documents at the April 23 compliance conference, the judge extended the deadline until May 28 for them to hand over to North State the claim files both in electronic and hard copy versions – at the insurer’s expense. Judge Loehr stipulated that if Progressive does not provide all of the requested documents, they would once again face having their answers stricken.

No doubt the judge is being extra cautious so that his rulings – if he chooses to strike Progressive’s answers – do not get overturned.

The Judge “has given [Progressive] every opportunity in the world to comply and conform, and they haven’t done it to date,” said Coccaro.

At the compliance hearing Progressive’s attorney Michael R. Nelson, a partner in Nelson Levine de Luca and Horst in Blue Bell, Pennsylvania, and Judge Loehr had some interesting verbal exchanges:

NELSON, “If you think I would come here with Your Honor obviously considering striking answers and give you a lot of noise or a song and dance . . . that wouldn’t be very wise on my part. We have done everything we possibly can in this short period of time; [North State] hasn’t.”

His Honor, “There is nothing in this file that indicates a short period of time, Mr. Nelson. I have seen few files where discovery has been carried out like this. It is clear to me that there has been an intent and an effort to frustrate orderly discovery in this case.”

When Loehr gave the defendants an extension until May 28 to produce the missing documents, Nelson told the judge, “I can assure you we will make our best efforts to comply.”

His Honor told him, “I can assure you, if you don’t comply, you won’t have to make any more efforts.”

Once the document discovery phase of the trial is complete, conceivably by May 28, then each side will begin taking depositions.

Check back with the Collision Standard to keep up with the latest developments in the North State Custom Auto v. Progressive Northeast Insurance Company case.