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Nobody likes being ignored. But for a client of Stamford, Conn., trial lawyer Stewart M. Casper, being ignored proved lucrative. The simple fact that Allstate Insurance Co. and another insurer ignored early settlement offers has increased the potential recovery by at least $150,000. When New York teacher Katie Grammatikakis’ auto accident case was referred to him in 1997, Casper acted promptly. He determined that the Rhode Island driver who struck her red Saab was insured by Allstate with a $25,000 policy. The crash occurred on I-95 in Greenwich on New Year’s Day, 1996. Casper made a formal offer of judgment for that amount, inviting Allstate to settle within a 30-day period. “As is so often the case,” Casper said, “the time for responding to the offer of judgment came and passed without anybody saying boo.” He said ignoring offers of judgment can be equivalent to playing Russian roulette. The offer of judgment can be a powerful litigation strategy to induce defendants to settle cases, and to force plaintiffs to make their lowest possible offer. If the defendant refuses the offer, and the plaintiff wins more at trial, the plaintiff is entitled to 12 percent annual interest on the award, dating back to the moment the offer of judgment was made. However, if the plaintiff fails to win a larger amount at trial, there is no benefit. NONCHALANCE Following a requirement of New York law, Casper also asked Grammatikakis’ underinsured motorists’ carrier, a subsidiary of the Utica Mutual Insurance Co., to consent to Allstate settling. But again, Casper was ignored. “They just kind of blew it off,” he said April 30, in an interview from a hospital bed. (He was being treated for heart problems brought on by trial stress.) Allstate, represented at the time by staff counsel in the Shelton, Conn., law offices of Ida Pullo, could have settled by paying the $25,000. But the case had much different facts at its outset, said Bridgeport, Conn.’s Gene Zingaro, of Zingaro & Cretella. “Mr. Casper is both skillful and lucky,” Zingaro noted. At the time the case was open for offer of judgment settlement, the plaintiff’s medical bills were less than $5,000. She later developed symptoms of traumatic brain injury and posttraumatic stress disorder, Zingaro noted, and her lost income soared to $180,000. From the early view of the case, Allstate’s risk appeared to be cushioned by Grammatikakis’ underinsured motorists’ policy, through Utica Mutual Insurance Co., with limits of $250,000. DIVIDE, CONQUER From the start Casper said he believed the case was worth at least $25,000. When Allstate balked, Casper came up with a novel strategy. He charged both Allstate and Utica with multiple counts of breaching their obligations of good faith and fair dealing under their policies. Casper combined both insurance defendants and both tort and bad-faith claims in a single case. Utica, interested in cutting its potential losses, was willing to negotiate. If Casper released it from a court battle, Utica agreed it would not seek more than $25,000 of whatever he won from Allstate as a credit against its underinsured liability. With only Allstate at the defense table, Casper presented a pretrial memorandum illustrated with a hypothetical $500,000 jury win, in order to press for settlement during jury selection last month. The original offer of judgment relates back to Nov. 13, 1997, when it was filed. The memo noted that if a “verdict were to be returned at $500,000, it would carry interest totaling 48.33 percent over 4.33 years, and yield a total recovery of $741,650.” Utica negotiated a deal to have its remaining underinsured motorists’ liability determined in arbitration. Allstate called in Zingaro less than a week before trial. He did not have a medical expert to counter a small legion of Grammatikakis’ doctors, and fully recognized Casper’s trial accomplishments. Casper is a former president of the Connecticut Trial Lawyers’ Association, and Zingaro made it clear to headquarters that the company was not facing a rookie “or even a mid-level attorney.” The Northbrook, Ill., insurer opted to settle for $195,000 on its $25,000 policy, rather than face both the uncertainties of a bad-faith action for its failure to settle back in 1997, and medical conditions that had grown dramatically more severe in the intervening years. “The outlook of the case changed dramatically over time,” said Zingaro, who said the strategic calls made at the Pullo firm were entirely sound, under the circumstances.

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