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To recover for her non-economic loss, including pain and suffering, Schwimmer, a New York citizen, commenced this action against Allstate, an Illinois corporation.

Schwimmer was an insured under an Allstate insurance policy issued in Florida to her relatives, Max and Mildred Schwimmer.

When Schwimmer's relatives obtained the policy, they were residents of Florida, and that is where the policy was negotiated.

E.2d 936, 939-40 (1993); Lazard Freres, 108 F.3d at 1539.

In preparing the charge, the court told counsel: “it is important for the lawyers to know what the charge is going to be in advance of summations, the reason being, of course, the lawyers should never be put in a position where he says something inconsistent with the charge.” Counsel for Schwimmer subsequently stated that he was “concerned that when the jury-if the jury-awards money, that it not speculate in any fashion on what the underinsurance was or was not.

Schwimmer in turn argues that the jury understood that its award would be in addition to the ,000 because her attorney explained in his summation, with the approval of the court and without objection from Allstate, that “[t]he verdict sheet will ask you, if you reach that point ․ to find money for Frances Schwimmer in addition to the ,000 that she received from the van.” However, the verdict sheet made no mention of the ,000 settlement or its relation to the verdict to be rendered by the jury. In Allstate's view, the verdict sheet and instructions, to which plaintiff did not object, indicated to the jury that it should make an award of full damages (from which ,000 would be deducted in fashioning the judgment) and are controlling. However, the record is more complicated than Allstate suggests.

5001(a) (Mc Kinney 1992) (allowing prejudgment interest in contract cases). While Schwimmer might have had the burden of objecting to the charge or asking for clarification given the ambiguities surrounding this issue, it was certainly Allstate's obligation to correct any perceived error when the amount of the judgment was discussed, an omission that deprived the district court of an opportunity to correct any misunderstanding or erroneous conclusion.

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Manhattan Ford, Lincoln-Mercury, Inc., 176 Misc.2d 325, 672 N. S.2d 230, 235-36 (1997) (“In determining whether to award pre-verdict interest, it is not the theory of the claim that controls. S.2d 391, 393 (1982) (“It is not the theory of the claim that controls but whether the claim was the result of a financial or property loss, liquidated or not, intentional or otherwise that determines the date of fixation of interest.”).

Allstate Insurance Company appeals from Judge Leisure's judgment awarding Frances Schwimmer damages for past and future pain and suffering in the amount of 0,000 and prejudgment interest in the amount of ,123.

Schwimmer, with the approval of Allstate, her insurance company, subsequently settled with the van operator for his insurance-policy limit of ,000.

The policy provided for uninsured/underinsured coverage of 0,000 for one person injured in one accident.

Under the insurance contract, Allstate agreed to pay damages for bodily injury, sickness, disease or death, “which the person insured is legally entitled to recover from the owner or operator of an uninsured auto.” The term “uninsured auto” included “underinsured auto.”After trial, a jury awarded Schwimmer 0,000 for past pain and suffering and 0,000 for future pain and suffering.




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