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Allstate Insurance Co. is an adversary that plaintiffs’ personal injury lawyers love to hate, due to its hard-nosed settlement positions. But even the plaintiffs’ trial bar was quietly rooting for an Allstate victory at the Connecticut Supreme Court, in its case against Bridgeport Superior Court judge William Mottolese. The issue was a litigant’s right to a day in court, even in the face of a judge who’s adamant that the parties should settle. And in an Aug. 20 opinion, Connecticut Supreme Court Chief Justice William Sullivan, writing for a unanimous court, came down against the trial judge, solidly supporting a litigant’s right to trial. The controversial story began with a simple two-car accident, when David Distasio was hit from the rear by Robert Morgan. Since the case was not likely to be worth $50,000, it was assigned to mandatory court-annexed arbitration. That process resulted in an arbitrator recommending a settlement of $2,450. Allstate, however, had initially offered $2,050. It was recalcitrant, refusing to change its first and final offer. In April of 2001, Mottolese scheduled a pretrial conference and demanded the presence of Allstate’s adjuster, Stephen Coppola, who isn’t a lawyer. When Coppola refused to budge from the original figure Allstate had offered, Mottolese awarded $500 in attorney fees to Morgan, which he explained in a written opinion. “[T]his court deems [Allstate's] refusal to participate in a resolution of this case in a reasonable manner as the functional equivalent of a failure to attend a pretrial,” he wrote. He blamed the Northbrook, Ill., insurance giant for making “an unwarranted imposition on scarce judicial resources,” adding that it also made “a mockery of Connecticut’s court annexed arbitration program.” GLOVES OFF Allstate asked for a written explanation — was the sanction against the motorist, the adjuster or the insurance company? Before answering, Mottolese raised the stakes by appointing former U.S. Attorney Harold J. Pickerstein, of the Fairfield, Conn., office of Hartford, Conn.-based Peper & Hazard to serve as a special master to assist in preparing the articulation, and to look into Allstate’s settlement practices. But Allstate lawyer Terence A. Zemetis, of Wallingford, Conn.’s Delaney, Zemetis, Donahue, Durham & Noonan, protested that Mottolese was improperly attempting to find new grounds to amplify his existing order. Mottolese, defended by Glenn E. Coe of Hartford’s Rome McGuigan Sabanosh, ultimately dispensed with the special master, concluding tersely that Allstate was the sole target of the court sanction. In Allstate’s appeal on a writ of error, Zemetis faced a receptive panel for arguments March 20. Associate Justice David M. Borden quizzed Coe sharply, asking whether Mottolese was taking the position that it can be contemptuous to reject a pretrial settlement offer and insist on going to court. In the court’s ruling, Sullivan made the point that a right to a jury trial was established in the state constitution of 1818. In order to alleviate court congestion, the legislature authorized the alternative of pretrial arbitration. After a recommendation from the arbitrator, both parties have 20 days to file for a trial. “Once a claim for trial de novo is filed in accordance with the rules, a decision of an arbitrator becomes null and void,” Sullivan noted, quoting the 1988 appellate court case of Shelby Mutual v. Bishop, Kirk & Saunders. WRONG PUNISHMENT Mottolese made a mistake when he invoked Practice Book � 14-13 as a basis for fining Allstate representative Coppola, Sullivan wrote. Insurance adjusters are required by statute to be available to assist in settlement negotiations, and if they fail to make themselves available, they face potential punishment. But refusing to budge is not the same as refusing to appear, and the judge misused the punishment, the high court ruled. Sullivan wrote that the court views with disfavor “all pressure tactics, whether employed directly or indirectly, to coerce settlement by litigants, their counsel and their insurers.” And failing to agree with what a court deems a reasonable settlement recommendation “should not result in any retributive sanctions” on litigant, lawyer or insurer. In short, Sullivan observed, “the failure to negotiate is not equivalent to the failure to appear in court.” Coe was joined on the brief to the high court by Joseph B. Burns, Julie D. Blake and Richard F. Banbury. Coe said Mottolese was attempting to address a significant problem — one that still looms. There will be costly consequences, he said, if Allstate’s intransigent policy is copied by other insurers, because that would increase the civil trial backlog, require increasing judicial expenditures and further delay compensation of injured victims. “You’re not engaged in good-faith mediation if you never change your position,” he said.

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