Daniel Athey v. Farmers Insurance ( 2000 )


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  •                      United States Court of Appeals
    FOR THE EIGHTH CIRCUIT
    ___________
    No. 00-1206
    ___________
    Daniel Athey,                           *
    *
    Plaintiff - Appellee,      *
    * Appeal from the United States
    v.                         * District Court for the
    * District of South Dakota.
    Farmers Insurance Exchange;             *
    Illinois Farmers Insurance Company,     *
    *
    Defendants - Appellants. *
    ___________
    Submitted: October 19, 2000
    Filed: December 6, 2000
    ___________
    Before HANSEN, MURPHY, and BYE, Circuit Judges.
    ___________
    MURPHY, Circuit Judge.
    Daniel Athey was injured in December 1993 when his automobile was hit by
    Robert Hajek, who had failed to stop at a stop sign and was underinsured. Athey
    sustained soft tissue damage to his back and made a claim on his underinsurance policy
    with Farmers Insurance Exchange. Farmers Insurance Exchange and Athey could not
    agree on a settlement, and Athey brought this diversity action against his insurer and
    Illinois Farmers Insurance Company (collectively Farmers), alleging that Farmers had
    breached its contract in bad faith. The district court1 denied defense motions to
    bifurcate the breach of contract and bad faith claims and for summary judgment, and
    the case went to trial. The jury returned a verdict in favor of Athey and awarded him
    $60,000 for breach of contract, as well as $125,000 compensatory damages on the bad
    faith claim and $450,000 in punitive damages. Farmers moved for a new trial or
    judgment as a matter of law. The district court 2 denied the motion, and Farmers
    appeals. We affirm.
    I.
    The driver who hit Athey was only 14 years old and was covered by a $25,000
    liability insurance policy from Dairyland Insurance Company (Dairyland). Athey's own
    insurance policy with Farmers provided $20,000 no fault coverage and $100,000
    underinsured motorist coverage. Between March 1994 and September 1996, Athey
    collected $12,536.30 from Farmers in no fault benefits to pay his medical bills.
    Shortly after his injury, Athey hired Sioux Falls attorney James Hertz to help him
    recover. Hertz obtained medical information from his client and his doctors and hired
    an expert to calculate the vocational loss that resulted from his injuries. After
    examining the records and reports, Hertz concluded that Athey's losses exceeded the
    policy limits of Dairyland and Farmers. Hertz sent the insurance companies a letter
    requesting $25,000 from Dairyland and $75,000 from Farmers' underinsured motorist
    policy. The letter detailed Athey's losses and included copies of medical records and
    related reports.
    1
    The Honorable Lawrence L. Piersol, Chief United States District Judge for
    the District of South Dakota.
    2
    The Honorable John B. Jones, United States District Judge for the District of
    South Dakota, who also presided at trial.
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    Charles Schechter, a resident representative in Farmers' Shoreview, Minnesota claims
    office, responded that the underinsured motorist claims were premature because
    Dairyland's policy limits had not been exhausted.
    Dairyland offered to pay Athey $25,000, which represented the limit of the other
    driver's liability coverage, but it conditioned payment on the release of further claims
    by him and Farmers. Hertz wrote Farmers and requested that it either release the
    underinsured driver and Dairyland so that Athey could accept Dairyland's offer, or it
    could pay him the $25,000. George Liegakos, the Shoreview Claims Manager,
    informed Hertz that Farmers would not make the $25,000 payment, but that it would
    release its claims against the other driver. It refused to waive its right to reimbursement
    with respect to the no fault benefits it had already paid, however.
    Schechter later wrote Hertz that Farmers had evaluated Athey's claim to be in the
    $25,000 range and would waive its right to seek reimbursement if Athey would release
    his underinsured motorist claim against Farmers. A release of the underinsured
    motorist claim against Farmers would have prevented Athey from recovering any losses
    in excess of $25,000, and he would have had to return the benefits Farmers had already
    paid once he obtained the $25,000 from Dairyland. Schechter informed Hertz that if
    the offer was unacceptable to Athey, he should “follow the dictates of South Dakota
    law in this regard.”
    Two days after Hertz received Farmers' evaluation of Athey's claim, Hertz also
    received a release form and a $25,000 check copayable to Farmers and Athey from
    Dairyland. Hertz sent the Dairyland check and release form on to Farmers and
    demanded that it waive its right to seek reimbursement and endorse the check. He
    threatened to bring a bad faith action if Farmers did not comply. Since Liegakos was
    unfamiliar with South Dakota law, he forwarded the check to Dave Thue, a claims
    representative in Farmers' South Dakota claims office. After he evaluated the claim,
    Thue informed Hertz that Farmers had changed its position. It would no longer allow
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    Athey to release his claims against the other driver, but it would substitute its draft for
    $25,000 in place of the Dairyland check. Hertz wrote Thue that the offer was contrary
    to his agreement with the Farmers office in Minnesota and turned it down. Thue
    endorsed the Dairyland check and sent it to Hertz but said that Farmers wanted to
    conduct an independent medical examination of Athey and would not release its
    subrogation rights until it had reviewed the results. Hertz called Thue to complain that
    Athey could not cash the check without a complete release of the underinsured driver
    and Dairyland, but Thue refused to waive Farmers' subrogation rights.
    Negotiations apparently had reached a standstill. Hertz filed this action on
    August 22, 1996, and on the same day Farmers was served with a summons and
    complaint. Count I alleged that Farmers had breached its contract by failing to pay
    Athey $75,000 (the policy limits less the $25,000 sought from Dairyland). Count II
    requested a declaratory judgment that Farmers had waived its subrogation rights
    against Hajek and Dairyland. Count III alleged that Farmers’ failure to pay Athey
    underinsured motorist benefits was vexatious and without reasonable cause and entitled
    him to attorney fees under S.D.C.L. § 58-12-3. Count IV alleged that Farmers had
    acted in bad faith by failing to investigate Athey’s claims and by delaying his
    settlement.
    After litigation began, Farmers allowed Athey to settle with Dairyland but
    eventually terminated his no fault benefits. Farmers had scheduled an independent
    medical examination of Athey, but it suspended his no fault benefits after he missed
    the appointment and soon waived its right to seek reimbursement. Athey then
    completed his settlement with Dairyland and the underinsured driver, and he submitted
    to an independent medical examination by Dr. Robert Fielden. After Dr. Fielden
    reported that Athey should stop all medical and chiropractic treatment, Farmers
    terminated his no fault benefits.
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    Farmers moved for partial summary judgment on the grounds that Athey's bad
    faith claim was premature and that his request for declaratory judgment was moot.
    Farmers also moved to bifurcate his claims so that the bad faith claim would be tried
    after that for breach of contract. The district court allowed Athey to file an amended
    complaint without the request for declaratory relief, but it denied the motions to dismiss
    the bad faith claim and to bifurcate. Shortly after its motion for summary judgment was
    denied, Farmers reevaluated the underinsured motorist claim and sent Athey an
    additional $15,000. On February 4, 1997, United States Magistrate Judge Mark
    Marshall conducted a settlement conference between Athey and Farmers. Farmers
    refused to offer any amount to settle the underinsured motorist claim unless Athey
    agreed to abandon his bad faith claim. Athey refused, and the conference ended
    without a resolution of any of the claims. Later, after a substantial amount of discovery
    had been completed, Farmers again moved unsuccessfully for summary judgment.
    Shortly before trial, Hertz concluded that he would have to testify in order to
    prove the bad faith claim so he moved to withdraw as trial counsel. The motion was
    granted, and Hertz wrote Athey a letter explaining the contingency fee arrangement
    between himself and new trial counsel. The letter stated, "even though I cannot
    represent you at trial, I will continue to be involved and provide assistance to you and
    your new counsel." During the trial Hertz did not act as trial counsel or sit at counsel
    table. He testified at length about his negotiations with Farmers, including its refusal
    to settle the underinsured motorist claims without the abandonment of Athey's bad faith
    claim. The jury also heard evidence that an attorney representing Farmers had
    recommended that the independent medical examination be conducted by Dr. Fielden
    because that doctor had a reputation for regularly recommending the cessation of
    medical treatment for patients who had suffered back injuries.
    After a two day trial the jury returned its special verdict that Farmers had
    breached its contract with Athey and had acted in bad faith. Athey was awarded
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    $60,000 on the breach of contract claim and $125,000 in compensatory and $450,000
    in punitive damages on the bad faith claim. Farmers moved for a new trial or judgment
    as a matter of law which the district court denied.
    Farmers appeals, arguing that it was prejudiced by having to try the breach of
    contract and bad faith claims together because evidence admitted on the latter inflamed
    the jury. Farmers also asserts that the refusal to bifurcate put it at a disadvantage
    because its claim files were made discoverable and that there was insufficient evidence
    to support the jury findings of bad faith, compensatory damages for emotional distress,
    and punitive damages. Farmers also argues that the admission of evidence of the
    settlement conference violated Fed. R. Evid. 408 and that Hertz’s testimony
    disregarded a South Dakota law that prohibits an attorney from acting as both advocate
    and witness. Athey responds that Farmers was not prejudiced by having to try the
    claims at the same time; that there was sufficient evidence to support the jury’s
    determination that Farmers acted in bad faith and the award of punitive and
    compensatory damages; and that the district court did not err in its evidentiary rulings.
    II.
    A.
    The denial of a motion to bifurcate under Fed. R. Civ. P. 42(b) is reviewed for
    abuse of discretion. See Equal Employment Opportunity Comm'n v. HBE Corp., 
    135 F.3d 543
    , 551 (8th Cir. 1998). Farmers has not shown that Athey's access to its claim
    files prejudiced its case. The district court did not abuse its discretion when it did not
    bifurcate the claims.
    -6-
    B.
    Although evidence of conduct during settlement negotiations generally is
    inadmissible to prove a party's liability for the underlying claim, it may be admitted
    "when the evidence is offered for another purpose, such as proving bias or prejudice
    of a witness, negativing a contention of undue delay, or proving an effort to obstruct
    a criminal investigation or prosecution." FED. R. EVID. 408. Under South Dakota law,
    an insurer's attempt to condition the settlement of a breach of contract claim on the
    release of a bad faith claim may be used as evidence of bad faith. See Harter v. Plains
    Ins. Co., Inc., 
    579 N.W.2d 625
    , 634 (S.D. 1998); Isaac v. State Farm Mut. Auto. Ins.
    Co., 
    522 N.W.2d 752
    , 761(S.D. 1994); see also Crabb v. Nat'l Indem. Co., 
    205 N.W.2d 633
    , 637 (S.D. 1973) (insurer's refusal to enter into meaningful settlement
    negotiations is bad faith). Evidence of Farmers' conduct during the settlement
    conference was not inadmissible under Rule 408 because it was "offered for another
    purpose," and the district court did not abuse its discretion by admitting it.
    Farmers also claims that Hertz's testimony was inadmissible because he had not
    completely withdrawn from the case, and South Dakota law prohibits an attorney from
    participating in a trial in which he also testifies. See S.D. CODIFIED LAWS § 19-1-3
    (Michie 1995). Farmers did not object during trial on this basis, but included this
    argument in its motion for a new trial when it offered evidence that Hertz spent 198.5
    hours assisting in preparation of the case after his withdrawal. A new trial should not
    be granted on the basis of the erroneous admission of evidence unless a timely
    objection is made at trial or the evidentiary ruling was plain error. See FED. R. EVID.
    103(a); Qualley v. Clo-Tex Int'l, Inc., 
    212 F.3d 1123
    , 1127 (8th Cir. 2000); HBE 
    Corp., 135 F.3d at 551
    . The admission of Hertz's testimony was not plain error, and the
    district court did not abuse its discretion when it denied the motion for a new trial.
    -7-
    C.
    Denial of a motion for judgment as a matter of law is reviewed de novo. See
    Peerless Corp. v. United States, 
    185 F.3d 922
    , 926 (8th Cir. 1999). A jury verdict
    should not be overturned unless there is a complete absence of facts to allow the jury
    to reach its conclusion. See Henderson v. Simmons Foods, Inc., 
    217 F.3d 612
    , 615
    (8th Cir. 2000). In considering such a motion, a court should "assume as proven all
    facts that the nonmoving party's evidence tended to show, give [him] the benefit of all
    reasonable inferences, and assume that all conflicts in the evidence were resolved in
    [his] favor." 
    Id. (citations omitted).
    There was sufficient evidence to support the jury's verdicts of bad faith and
    punitive damages. Under South Dakota law, a plaintiff may show that an insurer acted
    in bad faith by showing that the it denied policy benefits without a reasonable basis and
    with a reckless indifference to proofs submitted by the insured. See Walz v. Fireman's
    Fund Ins. Co., 
    556 N.W.2d 68
    , 70 (S.D. 1996); Champion v. United States Fidelity and
    Guar. Co., 
    399 N.W.2d 320
    , 324 (S.D. 1987). There is ample evidence in the record
    that Farmers ignored proofs of losses incurred by Athey and denied his claim without
    a reasonable basis. Furthermore, conditioning the settlement of an underinsurance
    policy on the release of a bad faith claim has been found sufficient to support an award
    of punitive damages against an insurer in South Dakota. See 
    Harter, 579 N.W.2d at 634
    ; 
    Isaac, 522 N.W.2d at 761-62
    ; see also Helmbold v. LeMars Mut. Ins. Co., 
    404 N.W.2d 55
    , 57 (S.D. 1987) ("A covenant is implied in an insurance contract that
    neither party will do anything to injure the rights of the other in receiving the benefits
    of the agreement. This covenant includes a duty to settle claims without litigation in
    appropriate cases." (citation omitted)).
    The award of compensatory damages for emotional distress was also supported
    by sufficient evidence. To recover damages for emotional distress in South Dakota, a
    -8-
    plaintiff must establish that he sustained a pecuniary loss because of the bad faith of an
    insurer. See Kunkel v. United Sec. Ins. Co. of N.J., 
    168 N.W.2d 723
    , 734 (S.D. 1969).
    Athey proved that Farmers' refusal to release Hajek and Dairyland prevented him from
    finalizing the $25,000 settlement with Dairyland, and Athey was forced to pay for his
    own medical treatment after his independent medical review and Farmers' termination
    of no fault benefits. The jury also could have inferred from the testimony of Patricia
    Athey that her husband had to forego certain medical treatment because of lack of
    funds. The jury could reasonably find that the pecuniary loss Athey endured caused
    him mental anguish.
    III.
    Farmers has not shown that it is entitled to judgment as a matter of law or to a
    new trial. Accordingly, we affirm the judgment of the district court.
    A true copy.
    Attest:
    CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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