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the court, in a nonjury trial, shall make findings of fact or, in a jury trial, the jury shall return a special verdict which shall state:

(1) The amount of the damages which would have been recoverable if there had been no contributory negligence; and

(2) The degree of negligence of each party, expressed as a percentage.

(c) Upon the making of the finding of fact or the return of a special verdict, as is contemplated by subsection (b) above, the court shall reduce the amount of the verdict in proportion to the amount of negligence attributable to the person for whose injury, damage or death recovery is made, provided, however, that if the said proportion is equal to or greater than the negligence of the person against whom recovery is sought, then, in such event, the court will enter a judgment for the defendant.

MAINE
Tit. 14, § 156 Maine Rev. Stat. Ann. (Supp. 1968)

Where any person suffers death or damage as a result partly of his
own fault and partly the fault of any other person or persons, a claim
in respect of that death or damage shall not be defeated by reason of
the fault of the person suffering the damage, but the damages recov-
erable in respect thereof shall be reduced to such extent as the jury
thinks just and equitable having regard to the claimant's share in the
responsibility for the damage.
Where damages are recoverable by any person by virtue of this sec.
tion subject to such reduction as is mentioned, the jury shall find and
record the total damages which would have been recoverable if the
claimant had not been at fault and the extent to which those damages
are to be reduced.
Fault means negligence, breach of statutory duty or other act or
omission which gives rise to a liability in tort or would, apart from
this section, give rise to the defense of contributory negligence.
If such claimant is found by the jury to be equally at fault, the
claimant shall not recover.

MISSISSIPPI § 1454 of the Mississippi Code Ann. (1942) provides:

Contributory negligence no bar to recovery of damages-jury may diminish damages. In all actions hereafter brought for personal injuries, or where such injuries have resulted in death, or for injury to property, the fact that the person injured, or the owner of the property, or person having control over the property may have been guilty of contributory negligence shall not bar a recovery, but damages shall be diminished by the jury in proportion to the amount of negligence attributable to the person injured, or the owner of the property, or the person having control over the property.

NEBRASKA $ 25-1161 of Nebraska Rev. Stat. (1943) provides:

Actions for injuries to person or property; contributory negligence; comparative negligence. In all actions brought to recover damages for injuries to a person or to his property caused by the negligence of another, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery when the contributory negligence of the plaintiff was slight and the negligence of the defendant was gross in comparison, but the contributory negligence of the plaintiff shall be considered by the jury in the mitigation of damages in proportion to the amount of contributory negligence attributable to the plaintiff; and all questions of negligence and contributory negligence shall be for the jury.

PUERTO RICO Puerto Rico Laws Ann., Tit. 13, § 5141

A person who by an act or omission causes damage to another through fault or negligence shall be obliged to repair the damage so done. Concurrent imprudence of the party aggrieved does not exempt from liability but entails a reduction of the indemnity.

SOUTH DAKOTA § 20-9-2 of the South Dakota Compiled Laws of 1967 provides:

Comparative negligence Reduction of damages.-In all actions brought to recover damages for injuries to a person or to his property caused by the negligence of another, the fact that the plaintiff may have been guilty of contributory negligence shall not bar the recovery when the contributory negligence of the plaintiff was slight in comparison with the negligence of the defendant, but in such case, the damages shall be reduced in proportion to the amount of plaintiff's contributory negligence.

WISCONSIN $ 895.045 of Wisconsin Stat. Ann. provides:

Contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages for negligence resulting in death or in injury to person or property, if such negligence was not as great as the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of negligence attributable to the person recovering.

ILLINOIS INSURANCE INFORMATION SERVICE,

Chicago, Ill., June 30, 1967. To: Officers and Directors, Illinois Insurance linformation Service.

GENTLEMEN : At the request of Chief Judge John S. Boyle of the Cook County Circuit Court, Illinois Insurance Information Service has completed an exhaus. tive canvass of claims executives of our companies on practices of retained counsel in reaching settlement on tort claims immediately preceding trial. The results of that canvass are detailed in the enclosed memorandum.

For your information, I am sending copies of this memorandum to your claims people who, at your direction, cooperated in this canvass. Sincerely,

THOMAS F. REYNOLDS,

General Manager.

ILLINOIS INSURANCE INFORMATION SERVICE,

Chicago, Ill.

COOK COUNTY (ILL.) CIRCUIT COURT PROPOSAL FOR SPECIAL PER DIEM GUARANTEE

FOR DEFENSE COUNSEL

Pursuant to the request of Chief Judge John S. Boyle of the Cook County (Illinois) Circuit Court, the Illinois Insurance Information Service has polled principal Illinois-domiciled casualty companies. Purpose of the Canvass was to ascertain the facts in undocumented assertions that one factor in delay of pretrial settlements in Cook County Circuit Court tort cases is a tendency of some defense counsel to delay settlement to procure at least one trial day of per diem fees.

At a conference with Judge Boyle and, the then Justice of the U.S. Supreme Court, Tom Clark in May, we received the impression that the New York City bar and bench, encountering such practices, solved the problem by an arrangement whereby insurance companies guaranteed defense counsel at least one day of per diem fees regardless of whether settlement occurred before trial began.

The canvass of the Illinois-based companies, many of them heavily involved in New York underwriting, failed to develop any evidence to support existence of such a New York arrangement. One company epitomized the replies of the group with the following statement on this point :

"We have no knowledge of the existence of any such guarantee in New York. We are the largest insurer of automobiles in New York State and categorically say that this is not a common or accepted practice. We would oppose it if it were proposed in New York. Thus the inquiry is based on a false premise ..."

Another major national underwriter states : “We have never heard of the guarantee referred to with respect to the New York court. Our New York office does not employ it and one of our management people who is on the New York Court Congestion committee is not familiar with

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The Illinois Insurance Information Service canvass encompassed 14 primary Illinois-based companies. With their subsidiary companies, these underwriters total 24 companies writing the insurance on approximately 75 per cent of private automobiles in this state.

Thus these companies are generally involved in the Cook County Circuit Court, some of them extensvely. Without exception, their claims department as a matter of policy and dollar expedience as well as company pride, closely police the expeditious disposal of their cases pending in the Cook County docket.

Following is a precis of replies to specific questions by the Illinois companies :

Q. Has your company encountered any evidence that retained outside counsel may, on occasion, have delayed final settlement in tort cases until a jury is empaneled, or later, under circumstances which might give rise to suspicion that extra per diem was being sought? If the answer is yes, please indicate circumstances and the degree to which you believe such tactics may be used by defense counsel.

Without exception, the reply of all cmopanies was in the negative in respect to their retained counsel. One major company replied, however, that “we have encountered such delay in cases involving the Chicago Transit Authority as codefendant with our policyholder". Another replied: "We would not condone it if we had such knowledge. If the judges have knowledge of specific names of attorneys who utilize this practice we would welcome their names and in the alternative would suggest that the judges report them to Judge Boyle".

Q. Is the timing of the “moment of settlement" controlled by your claims department or by retained defense counsel handling the case once it has been assigned for trial by the Assignment Judge of Cook County Circuit Court?

The 14 company replies ranged from absolute control by company claims department, to joint control by claims department and retained counsel, to limited delegation of authority to counsel. Five replying companies reported absolute control retained by the claims department. As a practical matter, general procedure followed by most was described as follows: “This is a matter of close cooperation between retained defense counsel and the claim department. Usually the retained counsel recommends the amount and the time of settlement, but naturally he must obtain authorization from the company since it is its money that is involved ..." Limited delegation is described by one respondent as follows: "Our legal supervisors submit exact settlement authority, if any, to defense counsel prior to assignment to trial. Counsel is expected to make any offer the legal supervisor feels is warranted and has authority to settle within the figure advanced. If counsel is of the opinion that the amount is insufficient, he will recommend a different amount to the legal supervisor. Except for obtaining higher authority, the moment of settlement after assignment is in the hands of defense counsel".

Q. Do your arrangements with retained trial counsel lend themselves in any manner to delay by defense counsel in order to procure one or more days of per diem trial work? Please explain your defense procedures against such tactics.

Without exception, all responding companies replied in the negative. One downstate company reported that on occasion the claim manager has become suspicious of tactics of retained counsel and promptly calls in such counsel for consultation. Typical replies: “We pay on basis of time and work performed ..." "Our trial counsel are so busy, they would spurn any idea of this tactic ...” “We have found long ago that an insurance company makes no money in a court room. We insist in nearly all of our cases that our attorneys push for a quick trial or settlement in cases of liability. We would not hire attorneys who we have reason to believe delayed settlements merely to procure more per diem trial work ..." "Attendance by claim representative at court proceedings and the requirement of detailed breakdown on bills for legal services are calculated to prevent this type of occurrence..."

Q. What, in your estimation, would be the effect of guarantee by your company of one trial day of per diem regardless of whether settlement was reached after the case was assigned out for trial but before a jury was empaneled? Would such a guarantee be useful?

All responding companies stated that the one day guarantee would not be useful, would not accomplish its stated objective. Sample replies: "It would have the effect of costing us more money to defend law suits with no resulting benefit. . ." "There are too many good defense attorneys around to put up with such a tactic ..." "It would merely add to defense cost and would not aid in settlement ..." "We would consider any such practice to be wrong. Therefore, we see no justification for paying a premium to condone an immoral practice..."

Q. The above has emphasized asserted delay by defense counsel. Pleas list correctible practices of dilatory tactics by plaintiff counsel in your experience in Cook County Circuit Court.

Several companies canvassed on this point responded with "no comment", chossing not to engage in ex parte criticism of plaintiff counsel. A precis of responses, however, included the following points :

1. Failure to reply promptly to interrogatories. 2. Postponement of depositions.

3. Unrealistic demand-i.e. $10,000 demand until trial and then willingness to accept $250.

4. Pre-trial should be an ideal opportunity for settlement—if plaintiff's attorney will have his clients present and defendants (insuror) have, or extend, valid authority. Pre-trial is not being adequately used. If it can't be settled at that time it should be tried.

5. All too frequently, after five years of trial preparation, plaintiff's attorney capitulates at trial time and drops a case which he never intended to try to conclusion.

6. Trial specialist attorney who ordinarily tries cases for plaintiff's attorney is in court on other trial commitments.

7. Plantiff's counsel wants a last attempt to settle to avoid splitting a fee with a trial specialist.

8. Plaintiff's attorney has already made so much in preceding cases that he prefers to defer settlement until the ensuing tax year.

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