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A West Virginia jury has awarded $39 million to a man who sued an insurance company over the loss of a foot. The trial judge became so incensed at the insurer that he denied it the right to complete its defense. Defense counsel Elliot Hicks of the Charleston, W.Va., firm Hawkins & Parnell had put only two witnesses on the stand for the Oxford Life Insurance Co. when the judge entered a default judgment against the company on all counts. Hicks said the ruling by Wetzel County Circuit Court Judge Mark Karl left him and Oxford “hog-tied in the middle of the courtroom” with nowhere to turn in the case. Kocher v. Oxford Life Insurance, No. 00-C-51K. Robert Fitzsimmons of the Fitzsimmons Law Firm in Wheeling, W.Va., attorney for the plaintiff, said the judge acted after learning that an Oxford employee had posed as a Federal Express worker to get directions to the plaintiff’s trailer home in the woods. An Oxford vice president then went to the trailer and talked to the plaintiff, Charlie Kocher, without a lawyer present. Fitzsimmons said it was unusual for a judge to throw out a defense “but it happens for conduct when the defense doesn’t give answers.” The co-counsel for the plaintiff, Michael McGuane, a solo practitioner in Wheeling, said the judge also acted because Oxford had failed to provide documents and expert witnesses for depositions in the case. In his ruling, Karl said of Oxford that he had “never seen conduct of a more serious nature” in 31 years as a lawyer and judge. The six-member jury was directed by the judge to come up with figures for punitive and compensatory damages. It recently awarded $5 million in compensatory damages, $34 million in punitives and $12,000 for contract damages. Hicks said he is preparing an appeal. The case revolved around a life, dismemberment and disability policy Kocher bought along with a used truck in April 1999. A month later Kocher lost most of one foot in a lawn mower accident. Kocher wanted Oxford to pay off his loan for the truck, totaling about $12,000. But Hicks said Oxford refused because of questions over how much of Kocher’s foot was gone and whether he was permanently disabled. The policy called for a payoff if the entire foot was gone to or above the ankle. Initially, Kocher still had the back of the foot, although he eventually had to have an amputation to the knee. Hicks said Oxford also had a hard time getting medical information and forms from Kocher. But according to Fitzsimmons, “They denied the claim and didn’t tell Kocher why.” Kocher said he had to chain his truck to his trailer to keep it from being repossessed. Eventually he sold the truck and paid off the loan except for $96. Fitzsimmons said Oxford paid that final portion. Kocher sued Oxford, alleging breach of contract and violations of West Virginia’s unfair claims and settlements act, and the covenant of good faith and fair dealing implied in insurance contracts. During the case, Karl imposed sanctions and fines against Oxford for numerous breaches, including disobeying court orders. Apparently the visit to Kocher by the Oxford vice president was the last straw. Hicks had been able to put on some defense, but the judge’s order meant that several expert medical and insurance witnesses were not allowed to testify for Oxford. Hicks said the Oxford vice president, Larry Goodyear, just wanted to apologize to Kocher for any inconvenience. “They talked for 40 minutes, and Goodyear had a glass of water,” Hicks said. He added that the assistant identified herself as a Federal Express employee with a package for Kocher because she couldn’t get his address any other way. She has since resigned from Oxford. Hicks also said he was hampered because he was brought into the case only a month before trial, after Oxford had fired its first lawyer and lost a second because of a conflict of interest.

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