Matter of Deziret Adair ( 2010 )

October 5 2010
DA 10-0098
IN THE SUPREME COURT OF THE STATE OF MONTANA
2010 MT 211N
IN THE MATTER OF THE
CONSERVATORSHIP OF:
DEZIRET ADAIR,
A minor.
APPEAL FROM: District Court of the Eighteenth Judicial District,
In and For the County of Gallatin, Cause No. DG 08-4C
Honorable John C. Brown, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Geoffrey C. Angel, Angel Law Firm, Bozeman, Montana
For Appellee:
J. Fred Simpson, Stefan Farr; Bohyer, Simpson & Tranel, P.C.,
Missoula, Montana
Submitted on Briefs: September 15, 2010
Decided: October 5, 2010
Filed:
__________________________________________
Clerk
W. William Leaphart delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(d)(v), Montana Supreme Court 1996 Internal
Operating Rules, as amended in 2006, the following memorandum decision shall not be
cited as precedent. It shall be filed as a public document with the Clerk of the Supreme
Court, and its case title, Supreme Court cause number, and disposition shall be included
in this Court’s quarterly list of noncitable cases published in the Pacific Reporter and
Montana Reports.
¶2 Deziret Adair appeals the ruling of the District Court that she was not entitled to
recover attorney’s fees incurred in a conservatorship proceeding. The conservatorship
proceeding arose out of a motorcycle accident occurring in June of 2007, when Adair was
16 years of age. Adair was a passenger on the motorcycle, which was uninsured. She
subsequently made a claim for uninsured motorist benefits under a policy issued by
Safeco Insurance Company of Illinois (“Safeco”). All parties agreed that the $25,000
policy limit would be exceeded by Adair’s injuries. Safeco petitioned the District Court
to appoint Adair’s mother, Shauna Thompson, as special conservator for the limited
purpose of accepting the maximum amount payable under the policy. Adair and
Thompson objected to the appointment of a conservatorship as unnecessary and
burdensome, among other contentions.
¶3 In a February 2008 hearing, the District Court appointed Thompson as conservator
over Adair and Thompson’s objections, noting that § 72-5-410(1)(e), MCA, prioritized
Thompson’s appointment as conservator as Adair’s parent. Thompson continued to
refuse her appointment, and requested through counsel that Safeco wait until Adair
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turned 18 in September 2008 to dispense the settlement funds. Safeco complied with this
request and sent the full amount to Adair’s counsel on September 11, 2008. Three
months later, Adair and Thompson filed a motion for attorney’s fees incurred in
appearing and contesting Safeco’s conservatorship petition. The District Court denied
the motion, finding Adair’s arguments as to why she was entitled to attorney’s fees
unpersuasive, and finding the motion untimely as Adair had not requested an award of
attorney’s fees at any time during the prior proceedings and had waited a full six months
after the conservatorship appointment to file. Adair also filed suit in United States
District Court, seeking to recover attorney’s fees incurred in the conservatorship
proceeding and damages under the Montana Unfair Trade Practices Act in the handling
of her claim. The U.S. District Court denied Adair’s motion for attorney’s fees in May of
2010.
¶4 The state District Court dismissed the conservatorship proceeding in February of
2010 on Safeco’s motion. Adair appeals from the order of the District Court of
January 5, 2009, denying her motion for attorney’s fees.
¶5 We review a District Court’s grant or denial of attorney’s fees for an abuse of
discretion. Prescott v. Innovative Resource Group, LLC, 2010 MT 35, ¶ 16, 355 Mont.
220, 225 P.3d 1253. Adair admits that she is not entitled to attorney’s fees under statute
or contract, but urges us to adopt her view that she is entitled to the fees under the
“insurance exception” to the general rule that each party pays its own fees unless
otherwise provided by statute or contract. The “insurance exception,” in brief, holds that
a party forced to litigate in order to receive the full benefit owed them under an insurance
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policy is entitled to the attorney’s fees incurred in such litigation. Jacobsen v. Allstate
Ins. Co., 2009 MT 248, ¶ 22, 351 Mont. 464, 215 P.3d 649, citing Mountain West Farm
Bureau Mut. Ins. Co. v. Brewer, 2003 MT 98, ¶ 36, 315 Mont. 231, 69 P.3d 652.
¶6 Here, however, Adair was not forced to litigate to receive the full benefit owed her
under the policy. Safeco agreed to pay the full amount available to Adair under the
policy, and did so. Adair’s decision to contest the conservatorship proceeding was not
related to obtaining the full benefit of the policy. Safeco agreed to pay out the full
amount available under the policy before Adair hired counsel and before any court action,
and subsequently did pay out that amount. Adair gained no additional benefit and was
not forced to litigate to receive the full amount owed her. We cannot square Adair’s
claim that there existed an “overwhelming need for counsel to protect her interests in the
conservatorship proceeding,” with the fact that Safeco had already agreed to pay her the
full amount and instituted the conservatorship proceeding for the sole purpose of
dispensing the funds to Adair through her mother (as Adair was a minor). Any alleged
trouble over the release sought by Safeco cannot overcome the simple fact that Adair did
not need to litigate to recover the full benefit under the policy, and therefore the insurance
exception does not apply.
¶7 In any case, especially as Adair’s motion was filed months after the conclusion of
the proceedings and payment of the full amount due under the policy, we cannot
conclude that the District Court abused its discretion in dismissing the motion.
¶8 We have decided to determine this case pursuant to Section I, Paragraph 3(d) of
our 1996 Internal Operating Rules, as amended in 2006, which provides for
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memorandum opinions. It is manifest on the record before us that the District Court did
not err in its disposition of this matter. We therefore affirm.
/S/ W. WILLIAM LEAPHART
We concur:
/S/ MIKE McGRATH
/S/ MICHAEL E WHEAT
/S/ JAMES C. NELSON
/S/ JIM RICE
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