Mlekush v. Farmers Ins. Exch.

• Decision Date: 20 October 2015
• Docket Number: No. DA 15–0066.,DA 15–0066.
• Citation: 2015 MT 302,358 P.3d 913,381 Mont. 292
• Parties: Tanya L. MLEKUSH, Plaintiff and Appellant, v. FARMERS INSURANCE EXCHANGE, Defendant and Appellee.
• Court: Montana Supreme Court

381 Mont. 292
358 P.3d 913
2015 MT 302

Tanya L. MLEKUSH, Plaintiff and Appellant
v.
FARMERS INSURANCE EXCHANGE, Defendant and Appellee.

No. DA 15–0066.

Supreme Court of Montana.

Submitted on Briefs Aug. 26, 2015.
Decided Oct. 20, 2015.

358 P.3d 914

For Appellant: Rick Pyfer, Patrick T. Fox, Doubek, Pyfer & Fox, LLP; Helena, Montana.

For Appellee: Paul R. Haffeman, Derek J. Oestreicher, Davis, Hatley, Haffeman & Tighe, PC; Great Falls, Montana.

For Amicus Curiae Montana Trial Lawyers Association: John F. Lacey, McGarvey, Heberling, Sullivan & Lacey, PC; Kalispell, Montana.

For Amicus Curiae Montana Defense Trial Lawyers: Nicholas J. Pagnotta, Peter B. Ivins, Williams Law Firm, PC; Missoula, Montana.

Opinion

Justice JAMES JEREMIAH SHEA delivered the Opinion of the Court.

381 Mont. 293

¶ 1 Tanya Mlekush appeals an order of the First Judicial District Court, Lewis and Clark County, denying her motion for attorney fees and nontaxable costs. We reverse and remand for further proceedings consistent with this opinion.

¶ 2 We address the following issue:

Whether the District Court erred in determining that Mlekush could not recover attorney fees and litigation costs from Farmers Insurance Exchange.

PROCEDURAL AND FACTUAL BACKGROUND

¶ 3 On January 15, 2011, Mlekush was involved in a vehicle collision with another driver, Shaunagh McGoldrick. McGoldrick admitted liability for the accident and for Mlekush's resulting injuries, and Mlekush recovered McGoldrick's $50,000 insurance policy limit for bodily injuries.

¶ 4 At the time of the accident, Mlekush's vehicle was insured with Farmers Insurance Exchange (Farmers) under a policy that included underinsured motorist (UIM) coverage with a $200,000 policy limit. Mlekush executed a contingency fee agreement with Doubek, Pyfer & Fox, LLP (Mlekush's attorneys) to represent her on her UIM claim. On August 20, 2012, Mlekush's attorneys sent Farmers a letter of representation and asked Farmers to open a medical payments claim. Correspondence continued over the

358 P.3d 915

following months, and the parties exchanged information regarding Mlekush's ongoing medical treatment, including medical bills and reports, prior related injuries,

381 Mont. 294

and claims for lost wages.

¶ 5 On January 21, 2013, Farmers sent Mlekush's attorneys a letter requesting additional medical and wage-loss information and stating, “Please understand we are not denying any demands. We are merely requesting additional information which is necessary for all parties to fully evaluate this matter.” On January 22, 2013, Mlekush's attorneys sent Farmers medical records and billing for surgeries Mlekush underwent in November 2012, along with an updated medical cost summary.

¶ 6 On January 24, 2013, Mlekush filed a complaint in the District Court, requesting “all sums due and owing” under her insurance policy with Farmers. On February 26, 2013, Farmers filed an answer admitting that McGoldrick was negligent but contending that it did not have sufficient information to determine the validity of Mlekush's claims. Farmers also filed a third-party complaint against McGoldrick seeking indemnification. The District Court eventually granted summary judgment to McGoldrick on Farmers' third-party claim against her, concluding: “Farmer[ ]s must seek its subrogation claim for the insured in good faith. By filing its third-party claim against a judgment-proof tortfeasor in the current action, Farmers unavoidably impairs and diminishes Mlekush's ability to recover her damages.” (Emphasis in original.) Over the course of the next seventeen months, the parties exchanged several settlement offers, but the case did not settle. After a jury trial on July 7–9, 2014, the jury returned a verdict of $450,000 in favor of Mlekush. Mlekush stipulated to entry of judgment against Farmers for her UIM policy limit of $200,000.

¶ 7 On July 14, 2014, Mlekush filed a memorandum of costs seeking a total of $1,757.45. On July 21, 2014, Farmers moved to tax costs under § 25–10–502, MCA, arguing that $996.45 of Mlekush's requested costs were not allowed under § 25–10–201, MCA. On August 1, 2014, Mlekush filed a motion for attorney fees and nontaxable costs. Mlekush sought attorney fees under the insurance exception to the American Rule, discussed below, and nontaxable costs totaling $10,439.30 minus the amount of costs deemed recoverable by the District Court in its pending resolution of Farmers' motion to tax costs. Farmers opposed Mlekush's motion. On January 12, 2015, the District Court issued an order denying Mlekush's motion for attorney fees and nontaxable costs and granting in part and denying in part Farmers' motion to tax costs. Relevant to the issue on appeal, the District Court concluded that the insurance exception did not apply to Mlekush's attorney fees and

381 Mont. 295

related costs.¹ Mlekush appeals the District Court's denial of her motion for attorney fees and nontaxable costs.

STANDARDS OF REVIEW

¶ 8 The parties dispute the applicable standard of review. Mlekush argues that we should review the District Court's application of the law for correctness, while Farmers argues that the appropriate standard is whether the District Court abused its discretion. We review a district court's factual findings for clear error. BNSF Ry. Co. v. Cringle, 2012 MT 143, ¶ 16, 365 Mont. 304, 281 P.3d 203. A district court's determination whether legal...