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Relying on a consent protective order that its discovery would stay confidential, State Farm Mutual Automobile Insurance produced thousands of documents in a Georgia state court fraud and racketeering suit against the company. Now, plaintiff Katherine A. Merritt’s lawyers want a judge to let them give those documents to the Georgia Insurance Commissioner. In a motion filed last month in the Fulton County, Ga., court, plaintiff’s lawyers Kathie G. McClure, of McClure & McClure, and Robert Altman, a sole practitioner, allege that the documents show State Farm has systematically failed to reveal, in a timely manner, the existence of umbrella policies in violation of state law. The insurance commissioner can sanction such conduct, McClure and Altman argue, adding “There is a strong public policy interest in providing the Commissioner of Insurance with the evidence that has been developed.” Merritt v. State Farm, No. 01VS023598-J (Fult. St. motion Oct. 21, 2002). Merritt’s suit claims that State Farm hid the existence of a $1 million umbrella policy from her. She had filed a claim against State Farm’s insured as a result of a traffic accident. She now alleges that she settled for far less than she would have had she known about the umbrella policy. She maintains that State Farm’s concealment was intentional and is common practice for the insurer. State Farm, represented by Powell, Goldstein, Frazer & Murphy attorneys E.A. Simpson Jr., Linda G. Birchall, C. Scott Greene and John C. Patton, admitted it had not disclosed the policy before settling with Merritt, but said it was an oversight, not intentional. Plaintiff’s lawyers contend that, out of 112 State Farm claim files, umbrella policies existed in 53 of the claims. But, in 60 percent of the claims, the policy was not revealed in a timely fashion. In five cases, they add, the umbrella policy was not disclosed prior to judgment or settlement. The State Farm lawyers responded last week to the motion, arguing that they relied on the protective order and now Merritt is trying “to get in through the back door what she cannot through the front: making State Farm documents public that she expressly agreed to keep private.” Merritt, they add, is trying to act as an investigative arm for the commissioner, but has no authority to act in that manner. Providing documents to the commissioner, they argue, would violate State Farm’s due process rights to adjudicate the lawfulness of any commission investigation.

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