William Riordan v. State Farm Mutual Automobile I ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
WILLIAM RIORDAN,  No. 08-35874
Plaintiff-Appellee,
D.C. No.
v.
 9:07-cv-00038-
STATE FARM MUTUAL AUTOMOBILE DWM
INSURANCE COMPANY,
OPINION
Defendant-Appellant.

Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted
July 7, 2009—Portland, Oregon
Filed December 10, 2009
Before: Harry Pregerson, Pamela Ann Rymer and
A. Wallace Tashima, Circuit Judges.
Opinion by Judge Pregerson;
Partial Concurrence and Partial Dissent by Judge Rymer
16359
16362 RIORDAN v. STATE FARM MUTUAL
COUNSEL
Travis Dye, Kalkstein & Johnson, P.C., Missoula, Montana,
for the defendant-appellant.
Justin Starin, Tornabene & McKenna, PLLC, Missoula, Mon-
tana, for the plaintiff-appellee.
OPINION
PREGERSON, Circuit Judge:
Under the American Rule, civil litigants are generally
required to pay their own attorney fees. The state of Montana,
however, recognizes an exception to the American Rule in the
RIORDAN v. STATE FARM MUTUAL 16363
context of insurance disputes. We consider whether the claim-
ant here, who was forced into litigation in order to recover the
full benefit of his insurance contract, may recover attorney
fees incurred as a result of that litigation. We have jurisdiction
under 28 U.S.C. § 1291, and we affirm the district court’s
award of attorney fees.
I. BACKGROUND
A. Riordan’s Accident and Recovery of Benefits Prior
to Litigation.
On October 21, 2004, William Riordan was injured in a car
accident. It is undisputed that the other driver was at fault. At
the time of the accident, Riordan and his wife were insured
under three State Farm automobile insurance policies. Each
policy provided uninsured motorist (“UIM”) coverage with
limits of $50,000 per person and $100,000 per accident.
In January 2005 Riordan retained an attorney, Mary Kay
Starin, to help him obtain benefits from State Farm. Between
the end of January and August 2006, State Farm paid Riordan
UIM benefits totaling $30,586.59.
B. Commencement of Litigation to Recover Benefits.
Represented by new counsel, Justin Starin, Riordan filed
suit against State Farm in federal district court on March 28,
2007, seeking “$150,000.00, less that which State Farm has
already paid” and “for other and further relief as the Court
shall deem just and proper.” Riordan asserted that State Farm
was required to provide $150,000.00 of UIM coverage, the
“stacked” total of UIM coverage under the three policies.
After being served with Riordan’s Complaint but before filing
an Answer, State Farm paid Riordan an additional $45,413.43
in UIM benefits. This brought the total UIM benefits paid by
State Farm to $76,000, leaving $74,000 in UIM benefits
remaining under the insurance policies’ limits.
16364 RIORDAN v. STATE FARM MUTUAL
State Farm filed its Answer to the Complaint on June 14,
2007. In its Answer, State Farm flatly “denie[d] liability for
payment of uninsured motorist benefits requested by [Rior-
dan] on the grounds that [Riordan] has been reasonably com-
pensated for his alleged injuries.” State Farm denied that the
nature, cause and extent of Riordan’s damages were caused
by the car accident. Further, while it did not dispute the exis-
tence of UIM coverage, State Farm asserted that Riordan was
“not entitled to recover further under his underinsured motor-
ist coverage . . . because his damages do not exceed amounts
already received by him.” The district court set a trial date for
February 25, 2008.
Shortly before trial, on February 14, 2008, State Farm
agreed to pay Riordan the approximately $74,000 in UIM
benefits remaining under Riordan’s insurance policies. The
district court ordered the parties to brief the issue whether
Riordan was entitled to attorney fees. Riordan then filed his
motion for attorney fees on February 29, 2008.
C. Riordan’s Motion for Attorney Fees.
A magistrate judge held two hearings related to the claim
for attorney fees. The first hearing on March 14, 2008 focused
on the issue of State Farm’s liability for fees. At State Farm’s
request, the magistrate judge held a second evidentiary hear-
ing on July 15, 2008 on the issue of the value of the legal ser-
vices received by Riordan. On July 16, 2008, the magistrate
judge issued findings of fact and recommended that Riordan
be awarded attorney fees totaling $30,759. The magistrate
judge considered Riordan’s recovery from State Farm in three
categories: (1) UIM benefits received before Riordan filed
suit; (2) UIM benefits received after Riordan filed suit but
before State Farm filed its Answer; and (3) UIM benefits
received on the eve of trial. The magistrate judge recom-
mended that Riordan receive no attorney fees for the UIM
benefits received before Riordan filed suit. With respect to the
$45,413.43 in UIM benefits received by Riordan shortly after
RIORDAN v. STATE FARM MUTUAL 16365
suit was filed, the magistrate judge found that Riordan should
receive attorney fees “at an appropriate market rate for the
attorney time reasonably spent” and recommended an award
of $4,859. With respect to the $74,000 paid by State Farm on
the eve of trial, the magistrate judge recommended an award
of $25,900, an award based on the thirty-five-percent contin-
gency fee Riordan entered into with his second attorney who
represented him in the litigation.
State Farm objected to the magistrate judge’s findings and
recommendations and also moved to certify to the Montana
Supreme Court the question whether State Farm was liable to
Riordan for attorney fees. The magistrate judge responded
with new findings and recommended denying the motion for
certification. The magistrate judge reasoned that the state law
issue was reasonably clear and provided the district court with
a principled basis for its award of attorney fees. The magis-
trate judge also recommended that the district court decline to
exercise its discretion to certify questions to the Montana
Supreme Court in light of the fact that State Farm was dila-
tory and waited to seek certification until after it received an
adverse determination on the claim for fees.
On September 29, 2008, the district judge adopted in full
the magistrate judge’s findings and recommendations and
declined to certify State Farm’s questions to the Montana
Supreme Court. State Farm timely appeals.
II. DISCUSSION
We must first consider State Farm’s motion to strike from
the Record on Appeal portions of depositions and a proposed
pre-trial order included in Riordan’s Supplemental Excerpts
of Record, and to strike the portions of Riordan’s Answering
Brief relying on those documents.
[1] Federal Rule of Appellate Procedure 10(a) states in per-
tinent part that “[O]riginal papers and exhibits filed in the dis-
16366 RIORDAN v. STATE FARM MUTUAL
trict court” are part of the record on appeal. Fed. R. App. P.
10(a) (emphasis added). “A paper is filed by delivering it” to
the clerk or to a judge who agrees to accept it for filing.1 Fed.
R. Civ. P. 5(d)(2) (emphasis added).
[2] The deposition excerpts Riordan relied on before this
court were appended as an exhibit to his Second Motion in
Limine. The Second Motion in Limine was filed with the dis-
trict court with the exhibits attached. Accordingly, the deposi-
tion excerpts constituted “an exhibit filed in the district court”
for the purposes of Federal Rule of Appellate Procedure 10(a)
and are properly before us as part of the Record on Appeal.2
We deny State Farm’s motion to strike.
State Farm argues that the final pretrial order was never
“filed” but was merely “lodged” by the parties with the dis-
trict court, and is therefore not properly part of the record on
appeal. The pre-trial order is stamped “LODGED” with the
name of the clerk of the court. The district court docket also
contains an entry showing that the pre-trial order was “sub-
mitted for review” on February 8, 2008.
[3] Here, the pre-trial order bears the clerk’s stamp, show-
ing that the document was in the possession of the clerk. This
indicates that it was “delivered to the clerk” in compliance
with Rule 5(d)(2), governing the filing of documents. That the
proposed pre-trial order was delivered to the court is also
reflected in the district court docket entered by the clerk,
which shows that the proposed final pretrial order was “[sub-
mitted] for review by William Riordan, State Farm Mutual
Automobile Insurance Co.” Riordan also specifically pointed
1
Electronic filing is also permitted by local rule. Fed. R. Civ. P. 5(d)(3).
2
State Farm’s reliance on Barcamerica International USA Trust v.
Tyfield Importers, Inc., 289 F.3d 589 (9th Cir. 2002) is misplaced. There
was no dispute in that case that “portions of . . . depositions and exhibits
filed appended to the motion to summary judgment” were part of the
record on appeal. Id. at 594.
RIORDAN v. STATE FARM MUTUAL 16367
to the pre-trial order in his brief in support of his motion for
attorney fees, noting the pre-trial order’s docket number and
quoting it as saying that “Bill Riordan ‘will seek attorney’s
fees pursuant to the insurance exception to the American
Rule.’ ” The pre-trial order was properly called to the district
court’s attention and is part of the Record on Appeal.3
A. Whether the Claim for Attorney Fees was Properly
Raised.
Turning to Riordan’s claim for attorney fees, State Farm
next argues that the claim was not properly raised. State Farm
asserts that Riordan was required to specifically request attor-
ney fees in his complaint, and that it suffered prejudice
because Riordan “surprised” it on the eve of trial with the
claim for attorney fees, depriving State Farm of adequate
notice. The district court concluded that under Federal Rule
of Civil Procedure 54(d)(2), Riordan properly raised his claim
for attorney fees by motion after filing his complaint.
Whether Riordan followed the correct procedure to raise
the claim is a question of federal law, which we review de
novo. Carnes v. Zamani, 488 F.3d 1057, 1059 (9th Cir. 2007)
(citing In re Larry’s Apartment, L.L.C., 249 F.3d 832, 837-38
(9th Cir. 2001)) (“In a diversity case, the law of the state in
which the district court sits determines whether a party is enti-
tled to attorney fees, and the procedure for requesting an
award of attorney fees is governed by federal law.”); P.N. v.
Seattle Sch. Dist. No.1, 474 F.3d 1165, 1168 (9th Cir. 2007)
(citing Carbonell v. INS, 429 F.3d 894, 897 (9th Cir. 2005)
and Barrios v. Cal. Interscholastic Fed’n, 277 F.3d 1128,
3
In any event, review of the pre-trial order in the Supplemental Excerpts
of Record does not affect our disposition. On appeal, Riordan uses the pre-
trial order to support his argument that State Farm had adequate notice of
his claim for attorney fees. As explained below, even without considering
the pre-trial order, we have no difficulty concluding that State Farm had
adequate notice of Riordan’s claim for attorney fees.
16368 RIORDAN v. STATE FARM MUTUAL
1133 (9th Cir. 2003)) (“[E]lements of legal analysis and statu-
tory interpretation underlying the district court’s attorneys’
fees decision are reviewed de novo[.]”) We also review de
novo a district court’s interpretation of the Federal Rules of
Civil Procedure. Schwarzschild v. Tse, 69 F.3d 293, 295 (9th
Cir. 1995).
State Farm relies on the notice and pleading requirements
of Rule 8(a) (requiring the pleader to make a demand for
judgment for the relief the pleader seeks) and Rule 9(g)
(requiring special damages to be specifically pleaded in the
complaint) to argue that Riordan was required to specifically
request attorney fees in his complaint. State Farm contends
that it suffered prejudice because Riordan “surprised” it on
the eve of trial with the claim for attorney fees, rendering
State Farm unable to conduct discovery on the fees claim,
challenge the claim through summary judgment, or conduct a
complete evaluation of Riordan’s claim. These arguments fail.
Riordan was not required to raise his claim in his complaint.
Under Federal Rule of Civil Procedure 54(d)(2), Riordan
properly raised his claim by motion.
[4] Rule 54(d)(2) provides that claims for attorney fees
must be made by motion, and then sets out exceptions to that
general rule. Subparagraph A of Rule 54(d)(2) provides that
“[a] claim for attorney’s fees and related nontaxable expenses
must be made by motion unless the substantive law requires
those fees to be proved at trial as an element of damages.”
Fed. R. Civ. P. 54(d)(2)(A). The text of Rule 54(d)(2) lays out
a general rule that a claim for attorney fees must be made by
motion, with the exception that when the substantive law
requires those fees to be proved at trial as an element of dam-
ages. The text of the rule supports the conclusion that Riordan
properly raised the attorney fees claim by motion.4
4
The advisory committee notes accompanying Rule 54(d)(2) also sup-
port the district court’s ruling that Riordan properly raised his claim for
attorney fees by motion. Subdivision (d)(2) was added to Rule 54 in 1993
RIORDAN v. STATE FARM MUTUAL 16369
[5] In examining this Rule, our court has held that raising
claims for attorney fees by motion is proper. We specifically
rejected the argument that such a claim must be raised in the
pleadings:
[T]he Federal Rules of Civil Procedure . . . establish
the method by which a federal litigant must obtain
attorneys’ fees . . . . Each party [in this case] has
assumed that some form of initial pleading—either
a complaint or a counterclaim—is the appropriate
manner by which the [party seeking attorneys’ fees]
should seek its costs. Yet, such is not generally the
case in our federal system. Federal Rule of Civil Pro-
cedure 54(d)(2)(A) establishes that “[c]laims for
attorneys’ fees and related nontaxable expenses shall
be made by motion unless the substantive law gov-
erning the action provides for the recovery of such
fees as an element of damages to be proved at trial.”
(emphasis added). And the Rules make clear that
pleadings and motions are distinct. Compare Fed. R.
Civ. P. 7(a) (defining “Pleadings,” including coun-
terclaims), with Fed. R. Civ. P. 7(b) (defining “Mo-
tions and Other Papers”).
Port of Stockton v. W. Bulk Carrier KS, 371 F.3d 1119, 1120-
21 (9th Cir. 2004). Our discussion in Port of Stockton makes
clear that, (subject to the exceptions laid out by Rule
54(d)(2)), it is proper to raise a claim for attorney fees by
motion, and not in the pleadings.
Our examination of the text of Rule 54(d)(2) leads us to
conclude that Riordan properly raised the claim for attorney
because attorney fees were not expressly addressed by the Rules. Fed. R.
Civ. P. 54 Advisory Committee’s Note (1993). The purpose of the revision
was “to provide for a frequently recurring form of litigation not initially
contemplated by the rules—disputes over the amount of attorneys’ fees to
be awarded in the large number of actions in which prevailing parties may
be entitled to such awards . . . .” Id.16370 RIORDAN v. STATE FARM MUTUAL
fees by motion. Port of Stockton also undermines State
Farm’s argument that Riordan should have included his claim
for attorney fees both in his complaint and again by motion.
As explained in Port of Stockton, pleadings and motions are
distinct, and there is no requirement that the fees claim be first
raised in the complaint, then again by motion. Port of Stock-
ton, 371 F.3d at 1121.
[6] State Farm’s argument that it was prejudiced by lack of
notice is not persuasive. Rule 54(d)(2) allows parties to sub-
mit evidence and arguments regarding attorney fees, and pro-
vides that the motion may be referred to a magistrate judge
for disposition. Fed. R. Civ. P. 54(d)(2)(C), (D). State Farm
was afforded all these procedural protections. The attorney
fees claim was fully briefed by the parties and referred to a
magistrate judge for consideration. At State Farm’s request,
the magistrate judge held an evidentiary hearing at which
Riordan presented witnesses attesting to the value of the legal
services Riordan received, and State Farm cross-examined
those witnesses. State Farm filed objections to the magistrate
judge’s findings and recommendations, and both the magis-
trate judge and the district judge responded to those objec-
tions. State Farm cannot credibly claim it was prejudiced after
availing itself of the full protections available under Rule
54(d)(2). We hold that Riordan properly raised his attorney
fee claim by motion.
B. Entitlement to Fees.
We now consider whether the district court erred when it
determined that Riordan was entitled to attorney fees under
Montana’s insurance exception to the American Rule.
[7] “Montana follows the general American Rule that a
party in a civil action is not entitled to attorney fees absent a
specific contractual or statutory provision.” Mountain W.
Farm Bureau Mut. Ins. Co. v. Brewer, 69 P.3d 652, 655
(Mont. 2003) (citing Mountain W. Farm Bureau Mut. Ins. Co.
RIORDAN v. STATE FARM MUTUAL 16371
v. Hall, 38 P.3d 825, 828 (Mont. 2001)). Montana recognizes
an exception to the American Rule, however, where “the
insurer forces the insured to assume the burden of legal action
to obtain the full benefit of the insurance contract . . . .”
Brewer, 69 P.3d at 660.
The Montana Supreme Court provided a lengthy discussion
of Montana’s insurance exception in Brewer. Id. at 652. In
that case, the parents of a child injured in a car accident suc-
cessfully established through litigation that the at-fault driv-
er’s insurance company was obligated to cover them. Id. at
654. They then moved for attorney fees. Id.On appeal, the Montana Supreme Court examined Montana
and other states’ insurance exceptions to the American Rule.
Id. After a detailed examination of the law in other jurisdic-
tions and other persuasive legal authority, the court held:
We decline to further propagate the arbitrary legal
fiction that a substantive distinction exists between
a breach of the duty to defend and the breach of the
duty to indemnify. It seems inherently inconsistent
that courts universally afford attorney fees incurred
to establish a contested duty to defend and yet,
simultaneously, reject such an award incurred in
coverage disputes brought to preserve or eviscerate
the obligatory defense . . . .
Accordingly, we hold that an insured is entitled to
recover attorney fees, pursuant to the insurance
exception to the American Rule, when the insurer
forces the insured to assume the burden of legal
action to obtain the full benefit of the insurance con-
tract, regardless of whether the insurer’s duty to
defend is at issue.
16372 RIORDAN v. STATE FARM MUTUAL
Id. at 660.5
The first paragraph of Brewer quoted above focuses on the
distinction between an insurance company’s duty to defend
and its duty to indemnify. State Farm argues that because
Riordan’s claim involves neither the duty to defend nor the
duty to indemnify, Riordan’s claim does not fall under Mon-
tana’s insurance exception to the American Rule.
[8] On the other hand, the second paragraph of Brewer
quoted above plainly holds that insureds who are forced to sue
their insurers to obtain their bargained-for insurance benefits
are entitled to attorney fees. Reading that clear language, the
district court concluded that this case falls squarely within the
holding of Brewer because Riordan was forced to litigate in
order to receive the full benefit of his insurance policies.
The Montana Supreme Court has further discussed its hold-
ing in Brewer in subsequent cases and has emphasized the
importance of the contractual relationship between insureds
and insurers in applying its insurance exception to the Ameri-
can Rule. In Sampson v. National Farmers Union Property &
Casualty Co., the Montana Supreme Court described its hold-
ing in Brewer this way:
[W]e have held that an insured is entitled to recover
attorney fees under the “insurance exception” to the
American Rule when the insurer forces the insured
to commence legal action to obtain the full benefits
of the insurance contract between them; however, we
have declined to extend this exception to third party
actions, where there is no privity of contract—no
“previously bargained for benefit”—that the third
party was forced into litigation to vindicate. See
Brewer, [69 P.3d at 661].
5
The plaintiffs in Brewer were nevertheless denied attorney fees,
because they were third-party claimants who were not in privity with the
insurance companies they sued. Id. at 661.
RIORDAN v. STATE FARM MUTUAL 16373
Sampson, 144 P.3d 797, 801 (Mont. 2006). In Sampson, the
Montana Supreme Court observed that the key similarity
between Brewer and Sampson was that the plaintiffs in both
cases were third-party claimants and therefore not covered by
the insurance exception. This reading of Brewer further sup-
ports the view that the Montana insurance exception encom-
passes the claim of Riordan, who is a first-party claimant. See
also Jacobsen v. Allstate Ins. Co., 215 P.3d 649, 656 (Mont.
2009) (“Our decision in Brewer was based upon the lack of
fiduciary duty running from an insurer to a third-party claim-
ant . . . . The rationale underlying the insurance exception to
the American Rule is the existence of a fiduciary duty, and no
such duty exists here.”)
[9] We conclude that the Montana Supreme Court’s deci-
sion in Brewer and the Montana Supreme Court’s subsequent
interpretation of Brewer‘s language supports the district
court’s award of attorney fees. By its own terms, Brewer
states that “an insured is entitled to recover attorney fees, pur-
suant to the insurance exception to the American Rule, when
the insurer forces the insured to assume the burden of legal
action to obtain the full benefit of the insurance contract . . . .”
Brewer, 69 P.3d at 660. Riordan’s first-party claim against his
insurance company falls within Montana’s exception.
[10] State Farm unequivocally denied further liability to
Riordan, and only settled with Riordan on the eve of trial.
Riordan was forced to litigate to obtain the full benefit of his
contract with State Farm. He is entitled to attorney fees under
the insurance exception recognized in Brewer.
C. The District Court’s Decision to Award Attorney
Fees to Riordan
State Farm next argues that the district court should not
have awarded attorney fees on the facts of this case. We
review the district court’s decision to award attorney fees for
abuse of discretion. Tutor-Saliba Corp. v. City of Hailey, 452
16374 RIORDAN v. STATE FARM MUTUAL
F.3d 1055, 1059 (9th Cir. 2006). “A district court abuses its
discretion if its ruling on a fee motion ‘is based on an inaccu-
rate view of the law or a clearly erroneous finding of fact.’ ”
Richard S. v. Dep’t of Dev’l Servs. of Cal., 317 F.3d 1080,
1086-87 (9th Cir. 2003) (quoting Barjon v. Dalton, 132 F.3d
496, 500 (9th Cir. 1997)). As explained above, the district
court’s view of the law was not inaccurate. The remaining
question is whether the fee award was based on a clearly erro-
neous finding of fact.
[11] Under Montana law, a district court may award the full
amount agreed upon under a contingency fee agreement so
long as the amount of attorney fees is reasonable. Stimac v.
State, 812 P.2d 1246, 1249 (Mont. 1991). The district court
awarded Riordan a total of $30,759 in attorney fees. This fee
award was not based on a clearly erroneous finding of fact.
State Farm argues that, assuming Riordan was entitled to
fees, he should not have been awarded more than $1,233.40.
Riordan’s agreement with his first attorney, Mary Kay Starin,
who represented him before litigation commenced, required
Riordan to pay Ms. Starin one-third of any recovery. State
Farm calculates this as one-third of $74,000, or $24,666.64.
Riordan’s agreement with his second attorney, Justin Starin,
who represented him during the litigation, required Riordan to
pay Mr. Starin thirty-five percent of any recovery. State Farm
calculates this amount as thirty-five percent of $74,000, or
$25,900. State Farm contends that Riordan should receive the
difference between what he would have paid his first attorney
had she recovered the full amount of the benefits owed, and
the amount he owes his second attorney he retained for litiga-
tion. State Farm calculates the difference as $1,233.40.
[12] We agree with the district court that State Farm’s argu-
ment lacks merit. Although State Farm provides its own pro-
posal of what Riordan’s attorney fees should be, State Farm
does not explain why the district court’s calculation of the fee
award was clearly erroneous. The district court based its fee
RIORDAN v. STATE FARM MUTUAL 16375
award on Riordan’s contingency fee agreement and took into
consideration proper factors articulated in Stimac, including
the experience and skill of the attorneys, the time and labor
required to perform the legal services, the ability of Riordan
to pay for the services, and the risk to Riordan of no recovery.
See Stimac, 812 P.2d at 1249. It was not clear error for the
district court to follow Montana law and calculate the award
according to a reasonable hourly rate and the contingency fee
agreement.
State Farm posits that even if Brewer applies, the district
court erred by ignoring its argument that attorney fees are not
warranted on the facts of this case. In State Farm’s view, there
were “significant questions” regarding whether Riordan’s
more recent medical treatment stemmed from injuries from
the car accident, and awarding fees would be unjust where it
was merely investigating Riordan’s new claims. Contrary to
State Farm’s contentions, the district court did not largely
ignore this argument. The district judge and the magistrate
judge both considered State Farm’s argument and rejected it
as lacking merit. Before the trial court, State Farm had flatly
denied that it was responsible for any further payments to
Riordan. We cannot say that the district court abused its dis-
cretion in awarding fees here.
D. State Farm’s Motion to Certify Questions to the
Montana Supreme Court.
Lastly, State Farm argues that the district court should have
granted its motion to certify questions to the Montana
Supreme Court. See Montana Rule of Appellate Procedure
15(3) (permitting the Montana Supreme Court to answer a
question of law certified by a court of the United States). We
review for abuse of discretion the district court’s decision
whether to certify a question to a state supreme court. See
Eckard Brandes, Inc. v. Riley, 338 F.3d 1082, 1087 (9th Cir.
2003) (“The decision to certify a question to a state supreme
court rests in the ‘sound discretion’ of the district court.”
16376 RIORDAN v. STATE FARM MUTUAL
(quoting Louie v. United States, 776 F.2d 819, 824 (9th Cir.
1985)); Micomonaco v. Washington, 45 F.3d 316, 322 (9th
Cir. 1995) (same).
[13] Even where state law is unclear, resort to the certifica-
tion process is not obligatory. See Lehman Bros. v. Schein,
416 U.S. 386, 390 (1974). Furthermore, “[m]ere difficulty in
ascertaining local law is no excuse for remitting the parties to
a state tribunal for the state tribunal for the start of another
lawsuit.” Id. The district court did not abuse its discretion
when it declined to certify to the Montana Supreme Court the
question whether “Montana’s insurance exception to the
American Rule governing attorney’s fees extend[s] to first-
party claims where the dispute is over the value of the claim
rather than the existence of a duty to defend or indemnify.”
As explained above, the language of Brewer and the Montana
Supreme Court’s subsequent holdings illustrate that Mon-
tana’s insurance exception to the American Rule encompasses
Riordan’s claim.6
[14] On appeal, State Farm renews its motion to certify and
asks us in an exercise of our discretion to certify the same
questions to the Montana Supreme Court. As explained above
we do not find it necessary to further prolong these proceed-
ings where the state law is clear. We deny State Farm’s
motion to certify attorney fee questions to the Montana
Supreme Court.
III. CONCLUSION
State Farm’s Motion to Strike Documents from Appellee’s
6
The dissent relies on Burkett v. State Farm Mutual Automobile Insur-
ance Co., No. DDV-05-076, Mont. 8th Jud. Dist. Ct., Cascade County
(May 23, 2007) for the proposition that Montana courts disagree on the
reach of Brewer. We note that in Burkett, State Farm, the appellant here,
received an adverse ruling, but did not appeal that ruling to the Montana
Supreme Court.
RIORDAN v. STATE FARM MUTUAL 16377
Supplemental Excerpts of Record and Corresponding Argu-
ment in Response Brief is DENIED. State Farm’s Motion to
Certify Questions to the Montana Supreme Court is also
DENIED. The district court’s award of attorney fees is
AFFIRMED.
RYMER, Circuit Judge, concurring in part and dissenting in
part:
I agree that Riordan did not need to plead attorney’s fees
in order to seek them, but disagree that we should decide
whether Montana’s insurance exception to the American Rule
extends to disputes over value of an UIM claim. I would cer-
tify this question.
Neither in Mountain W. Farm Bureau Mut. Ins. Co. v.
Brewer, 69 P.3d 652 (Mont. 2003), nor elsewhere has the
Montana Supreme Court addressed whether the insurance
exception extends beyond the duty to indemnify, to cover
claims and disputes over UIM benefits of the sort presented
here. Montana courts disagree about whether Brewer extends
to this context. See Burkett v. State Farm Mut. Auto. Ins. Co.,
No. DDV-05-076, Mont. 8th Jud. Dist. Ct., Cascade County
(May 23, 2007) (awarding attorney’s fees under Brewer
where the plaintiff sought UIM benefits under a contract
because “this is a first-party insurance action that [the plain-
tiff] was required to prosecute in order to obtain the benefit
of her contract.”); Rand v. State Farm Mut. Auto. Ins. Co.,
No. DV-03-312, Mont. 18th Jud. Dist. Ct., Gallatin County
(Mar. 4, 2005) (denying award of attorney’s fees under
Brewer where plaintiff had brought an action for UIM bene-
fits under his contract because Brewer concerned the duty to
indemnify, which did not involve UIM benefits). UIM cover-
age does not fit either recognized exception, where the duty
to defend, or the duty to indemnify, is at issue.
16378 RIORDAN v. STATE FARM MUTUAL
It makes sense to give the Montana Supreme Court the first
shot at the question. Montana trial courts see Brewer differ-
ently, the issue of attorney’s fees in insurance disputes is
obviously important, and insurance is quintessentially a mat-
ter of state law. To do otherwise also raises the spectre of
forum shopping. Accordingly, I would certify the question
whether Montana’s insurance exception to the American Rule
extends to first-party claims for underinsured motorist cover-
age where the dispute is over value of the claim.