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Lawyer Says $12M Verdict Reasonable

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A Bernalillo County jury’s $12 million judgment this week against Progressive Insurance Co. was “very reasonable,” according to attorneys representing the family who sued.

Lawyer Janet Santillanes said that among the evidence jurors heard during the six-day trial was that Progressive altered its computer records 11 days after a Nov. 4, 2002, accident to make it appear the Vigil family did not have coverage at the time of the single-vehicle crash that was at the center of the case.

The company contended the policy lapsed about 90 minutes before the crash that killed one man and hospitalized five other passengers. Jurors also heard that Colleen Vigil called Progressive twice — two weeks before the crash and the day before — and was assured her policy was valid, with no payment due until Nov. 15, Santillanes said in a telephone interview with the Journal on Thursday.

She said Progressive’s policy is to record all conversations with policyholders, but the recordings of Colleen Vigil’s calls either were lost or never made.

A Bernalillo County District Court jury granted the Vigil family $11.7 million in punitive damages designed to punish Progressive for bad faith, and a few hundred thousand more in compensatory damages and for pain and suffering.

“The jury also heard evidence that Progressive’s profits are $3.8 million a day and (the company) had 11,700,000 policies in effect in 2010,” Santillanes said. “So the amount of damages to a multi-billion dollar corporation for a case that took nine years was very reasonable.”

Progressive’s attorney, Dan O’Brien, said earlier this week he plans to ask for a new trial based on evidence the jury didn’t hear. If that request is turned down, O’Brien said he would appeal the jury’s award.

He said the jury should have been able to hear circumstances of the accident.

On Thursday he referred questions about Santillanes’ claims to Progressive spokeswoman Brittany Senary.

“We don’t have anything more to add … except to say that we don’t believe we did anything wrong,” Senary wrote in a response to questions from the Journal. “A prior trial judge and jury previously found in our favor in this exact case. We are currently reviewing and determining any appropriate post-trial motions and appeals.”

Colleen Vigil’s stepson, Martin Vigil, was at the wheel of the family truck on Nov. 4, 2002, returning to Albuquerque from a Las Vegas, Nev., getaway when he lost control and crashed on a snow-covered stretch of Interstate 40 west of Gallup at 1:30 a.m.

Joseph Roybal, who was riding in the back seat, died. Vigil suffered cuts and injuries to the head, and told police he was in shock. Five of the truck’s six occupants were taken to Gallup area hospitals.

Vigil had a suspended driver’s license, and he admitted to police that he had been drinking. He was cited for vehicular homicide, careless driving and open container.

The criminal charges were later dropped, but civil lawsuits continued to bounce around the court system — until Tuesday when the jury ruled against Progressive.

The company had paid two $100,000 settlements in the case, but took the position that the policy lapsed at midnight — 90 minutes before the fatal crash.

The jury in this week’s case didn’t know about the previous payouts. Nor did the jury know Roybal had been killed in the crash.

Jurors also didn’t know the legal wrangling had begun less than two months after the crash, when Progressive sought a court ruling on the issue of whether the policy had lapsed and the Vigils filed a counterclaim asking that “the insurance policy they bought be paid,” Santillanes said.

In addition, Roybal’s father and the family of another of the truck’s occupants filed lawsuits that named Progressive. The insurance company settled the other family’s claims, then sued the Vigils for reimbursement of the $200,000 it had paid out.

That’s almost unheard of for Progressive, Santillanes said.

“No other insurance company in New Mexico has ever sued its own insureds like Progressive sued the Vigils,” she said. “Progressive has only sued one other insured in the United States like it did here.”

The Vigils’ case against Progressive had already been through state District Court.

In 2005, a judge ruled in favor of the company on whether the Vigils still had coverage at the time of the crash, and a jury found in favor of Progressive on other claims including bad faith and negligent misrepresentation.

The Vigils appealed, and the state Court of Appeals upheld the jury’s verdict on most of the claims against Progressive but remanded the questions of coverage and bad faith back to District Court.
— This article appeared on page A1 of the Albuquerque Journal

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