Eccleston v. State Farm Mut. Auto. Ins. Co., s. 20253

Decision Date16 September 1998
Docket Number20363,Nos. 20253,s. 20253
Citation1998 SD 116,587 N.W.2d 580
PartiesKaren ECCLESTON, Plaintiff and Appellant, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant and Appellee. . Considered on Briefs
CourtSouth Dakota Supreme Court

Michael Abourezk, Rapid City, for plaintiff and appellant.

Curt Ireland, Rapid City, for defendant and appellee.

SABERS, Justice.

¶1 Karen Eccleston appeals an order denying her motion for costs and attorney fees and an order requiring her to pay State Farm's costs. We affirm in part, reverse and remand in part.


¶2 This case arose from a car accident involving Karen Eccleston and Brian Drexler which occurred on October 10, 1992. Following the accident, Eccleston began having back and neck pain. She incurred over $7,000 in medical expenses.

¶3 Eccleston sued Drexler. State Farm, Eccleston's underinsurance carrier, intervened and counterclaimed for its subrogation interest for medical payments. Eccleston eventually settled with Drexler's insurance company, American Family, for the policy limit of $25,000 and Drexler was dismissed from the lawsuit.

¶4 The first trial between Eccleston and State Farm for underinsurance coverage resulted in a mistrial requiring a second trial.

¶5 The first trial was scheduled for October 15-17, 1996, but was rescheduled to April 8, 1997 because the parties were uncertain whether it would be concluded in three days. The rescheduling required Eccleston to make an additional trip to South Dakota from Norway, where she moved following the accident.

¶6 In the first trial, Eccleston requested the identity of all expert witnesses State Farm intended to call, including their opinions and supporting data. Initially, State Farm provided a curriculum vitae for Dr. Scott, an expert from Biodynamic Research Corporation (Biodynamics), his testifying history for the past two years, a billing schedule, and copies of correspondences and his notes. On March 26, 1997, Eccleston filed a motion in limine to exclude Dr. Scott's testimony based on lack of foundation. She claims it was only at that time that State Farm provided additional discovery regarding Dr. Scott.

¶7 Eccleston also requested copies of any photographs in the possession of State Farm. State Farm stated in its answers to interrogatories dated June 24, 1996 that it did not have any photographs. At a pretrial conference on March 10, 1997, State Farm revealed it had two photos of Eccleston's car and three of Drexler's car. State Farm filed a supplemental answer on March 31, 1997 stating it recently acquired the photographs.

¶8 Eccleston initially requested information about the number of times State Farm paid Biodynamics for expert testimony in South Dakota cases. State Farm provided information on 12 cases in South Dakota and claimed that the information came from Biodynamics as State Farm did not keep a record of that information. State Farm later acknowledged that the information came from its own records.

¶9 Ten days before trial, Eccleston broadened the discovery request through a subpoena duces tecum to include nationwide information regarding State Farm's use of Biodynamics. State Farm moved to quash the subpoena claiming the request was too broad and that it would take hundreds of hours to compile the requested information.

¶10 Before voir dire, the trial court heard testimony from Michael Fergen, State Farm claims superintendent, regarding the impracticability of obtaining the information. The judge quashed the subpoena, but ordered Fergen to phone State Farm's legal department to see whether the information was available. On the second day of trial, it was revealed that Eccleston's attorney had already obtained the requested information from a plaintiff's attorney in an unrelated case with State Farm. The trial court and State Farm were unaware that Eccleston's attorney already possessed the information being sought. The information showed that State Farm had paid $7.5 million to Biodynamics between 1990-1995.

¶11 The trial court granted two motions in limine. First, the court ordered that Eccleston's prior settlement with Drexler not be mentioned. Instead, the jury was to be told that there was "inadequate insurance." The second motion involved the testimony of Dr. Scott. The court ruled he could not testify about Eccleston's injuries. It reserved a final ruling whether Dr. Scott could testify regarding force of impact until an offer of proof was made and ordered that no mention of Dr. Scott's testimony be made until such time.

¶12 In its opening statement on April 8, 1997, State Farm said Eccleston had been fully compensated by the insurance coverage available on Drexler's car. Eccleston objected and the jury was removed from the courtroom. State Farm argued that Eccleston had opened the door in her opening statement by stating she had paid her premiums relying on State Farm to be there when she needed coverage and State Farm had not been there for her. The court refused to order a mistrial and told both sides to stay away from the settlement issue. State Farm then told the jury in its opening statement that an engineer would testify about force of impact.

¶13 On the second day of trial on April 9, Eccleston asked the trial court to bar Dr. Scott from testifying and impose sanctions on State Farm. The court offered to grant Eccleston a mistrial and order State Farm to pay $3,000 of her expenses and a ticket back to Norway. Eccleston wanted the court to order State Farm to pay her trial costs and attorney fees. The court refused and then denied the motion for mistrial and sanctions. The court ruled that Dr. Scott would not be allowed to testify because the probative value of his testimony would be outweighed by the prejudice.

¶14 On the third day of trial on April 10, Eccleston entered into evidence a videotaped deposition of Tor Tovsland, Eccleston's husband. State Farm had possession of the tape because it had taken the deposition and was responsible for editing the tape to comply with pretrial rulings on objections. In the presence of the jury, State Farm announced that the tape was marked as a defense exhibit because it had been taken by State Farm and that the tape had been edited because of objections. Eccleston played the tape for the jury and discovered that the tape had not been completely edited. The tape contained objections and comments made by counsel, including comments made by State Farm about a claim for lost wages that Eccleston was not seeking at trial.

¶15 Eccleston renewed her motion for a mistrial. State Farm supported the motion because it believed its own case was also prejudiced. In the interests of justice, the trial court granted the motion for mistrial, even though the violation of the order in limine was unintentional. Eccleston was asked to present her costs to the court for consideration.

¶16 Following a post-trial hearing, the court did not order State Farm to pay Eccleston's costs and attorney fees of $17,608.04 under SDCL 15-17-16.1 because it determined State Farm had acted recklessly, not intentionally, in causing the mistrial. The court stated in its findings of fact and conclusions of law that State Farm's comments about Dr. Scott and the unedited videotape "substantially contributed" to the granting of the mistrial. The court found that SDCL 15-17-44 did not provide supplemental authority for imposing costs, but, instead, was a companion to SDCL 15-17-37 which applies to prevailing parties. The court concluded it was not authorized by law to grant Eccleston's motion for costs and attorney fees.

¶17 A second trial, on June 16, 1997, resulted in a verdict for Eccleston of $15,039.36, but the trial court entered a judgment for a zero amount because the verdict was less than the $25,000 Eccleston received from Drexler's insurance company.

¶18 On October 1, 1997, the court entered judgment against Eccleston for State Farm's subrogation counterclaim of $3,919.28. The amount was offset for State Farm's prorata share of the costs and attorney fees expended in obtaining the settlement with Drexler.

¶19 On December 24, 1997, the court ordered Eccleston to pay State Farm's costs of $2,440.98 under SDCL 15-6-68 because State Farm had made an offer of judgment of $500 and a waiver of its subrogation interest and costs accrued, and Eccleston's subsequent recovery was less than the offer of judgment.


¶20 We review a trial court's ruling on the allowance or disallowance of costs and attorney fees under an abuse of discretion standard. Fullmer v. State Farm Insurance Co., 498 N.W.2d 357, 363 (S.D.1993). "The award of costs in civil actions is discretionary with the court unless otherwise stated by law." Id. (citations omitted). Conclusions of law are reviewed de novo and are given no deference on appeal. Harding County v. South Dakota State Land Users Ass'n, 486 N.W.2d 263, 264 (S.D.1992) (citing Rusch v. Kauker, 479 N.W.2d 496, 499 (S.D.1992)).


¶22 SDCL 15-17-16.1 states:

When a motion for mistrial is made successfully in any civil action, the court may impose against the party intentionally causing the mistrial the jury costs and attorneys' fees together with such other costs as may be appropriate.

The trial court found that State Farm acted recklessly in violating the court's prohibition regarding Dr. Scott and failing to properly edit the videotaped deposition. The trial court found insufficient evidence to conclude State Farm acted with the intent necessary for imposing costs and attorney fees under SDCL 15-17.16.1.

¶23 The trial court viewed State Farm's conduct and was in the best position to evaluate whether the conduct was intentional. "It is a well-settled principle of law that the intent...

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