Harvieux v. Progressive N. Ins. Co. , 915 N.W.2d 697 ( 2018 )

#28159-a-SRJ
2018 S.D. 52IN THE SUPREME COURT
OF THE
STATE OF SOUTH DAKOTA
****
NICOLE M. HARVIEUX, Plaintiff and Appellant,
v.
PROGRESSIVE NORTHERN
INSURANCE COMPANY, Defendant and Appellee.
****
APPEAL FROM THE CIRCUIT COURT OF
THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA
****
THE HONORABLE HEIDI LINNGREN
Judge
****
ROBIN L. ZEPHIER of
Abourezk, Zephier & LaFleur, P.C.
Rapid City, South Dakota
JAMES L. JEFFRIES Attorneys for plaintiff and
Rapid City, South Dakota appellant.
MARK J. ARNDT of
May & Johnson, P.C. Attorneys for defendant and
Sioux Falls, South Dakota appellee.
****
CONSIDERED ON BRIEFS
MARCH 19, 2018
OPINION FILED 07/03/18
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JENSEN, Justice
[¶1.] Nicole Harvieux filed an action under her uninsured motorist
insurance coverage (UM) with Progressive Northern Insurance Company for
injuries she sustained in a car accident. Harvieux also filed claims of bad faith and
barratry against Progressive. The UM claim was bifurcated from the other claims
and resulted in a jury verdict of $16,296.75. Following the jury verdict, the circuit
court granted Progressive’s renewed motion for summary judgment on the claims
for bad faith and barratry. Harvieux appeals. We affirm.
Background
[¶2.] On November 29, 2007, Harvieux’s vehicle was struck from behind by
an uninsured motorist. No injuries were reported at the scene of the accident, but
Harvieux later drove herself to an emergency room after experiencing neck pain.
She was diagnosed with neck strain and discharged. Two weeks later, a doctor
again diagnosed Harvieux with neck strain and referred her for physical therapy.
Harvieux filed a first-party claim under the medical payments coverage provision
(MPC) and UM provisions of her automobile insurance policy.
[¶3.] Following the accident, Harvieux intermittently sought additional
treatment for neck pain, including physical therapy and pain injections. An MRI
taken in 2011 showed Harvieux suffered a minimal disc bulge, but the neurologist
conducting the MRI did not render an opinion whether the bulge was related to the
2007 car accident. Progressive paid Harvieux’s medical bills up to the $5,000
maximum under the MPC.
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[¶4.] In May of 2011, Progressive offered to pay Harvieux $9,000 under the
UM coverage (in addition to the $5,000 Progressive already paid under the MPC), in
exchange for a complete release of her claims. The adjustor for Progressive believed
that Harvieux’s attorney verbally accepted the offer. Progressive then sent a letter
to Harvieux’s attorney to confirm the settlement. The letter included a $9,000
check and a settlement release providing for a release of all claims by Harvieux
against Progressive. Harvieux then hired new counsel, who informed Progressive
that Harvieux would not accept the $9,000 settlement offer. Harvieux did not sign
the release or negotiate the check. Harvieux instead demanded the $100,000 policy
limits under the UM coverage. Progressive declined. Harvieux then sued
Progressive for her injuries under the UM coverage and for bad faith.
[¶5.] On March 5, 2014, after deposing Harvieux, Progressive moved to
enforce the $9,000 as a binding oral settlement agreement between the parties. In
response, Harvieux moved to amend her complaint to add a claim for barratry and
additional claims of bad faith against Progressive. She alleged that the motion to
enforce the settlement was frivolous and filed in bad faith. On April 29, 2014, the
circuit court denied Progressive’s motion to enforce the settlement and granted
Harvieux’s motion to amend her complaint.
[¶6.] In May of 2015, the circuit court granted Harvieux’s motion to
bifurcate her UM claim from her claims of bad faith and barratry. A jury trial was
held on the UM claim in August of 2016. Harvieux claimed lost wages of over
$250,000 due to her discharge from the South Dakota National Guard. She claimed
her discharge was based in part upon her inability to perform an annual Army
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Physical Fitness Test. However, evidence showed that Harvieux was able to take
and pass the test 11 months after her accident and score over 90%. The jury
awarded Harvieux $8,296.75 in medical bills, $2,000 for pain and suffering, and
$6,000 for lost wages. After deducting the $5,000 previously paid by Progressive
under the MPC and adding prejudgment interest on the past medical bills and lost
wages, the circuit court entered a judgment of $16,724.79 on Harvieux’s UM claim.
On November 30, 2016, Harvieux filed an application for taxation of costs. The
circuit court entered an order denying the application.
[¶7.] Following the jury trial on the UM claim, Progressive renewed its
motion for summary judgment on Harvieux’s claims of bad faith and barratry.
Harvieux filed a motion to defer ruling on Progressive’s motion for summary
judgment to conduct further discovery. The circuit court granted Progressive’s
motion for summary judgment on the bad faith and barratry claims and denied
Harvieux’s motion to defer ruling.
[¶8.] Harvieux appeals the circuit court’s rulings, asserting three issues for
our review:
1. Whether the circuit court erred in granting Progressive’s
motion for summary judgment as to Harvieux’s claims of
bad faith.
2. Whether the circuit court erred in granting Progressive’s
motion for summary judgment as to Harvieux’s claim of
barratry.
3. Whether the circuit court erred in denying Harvieux’s
application for taxation of costs.
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Standard of Review
[¶9.] “We review a circuit court’s entry of summary judgment under the de
novo standard of review.” Wyman v. Bruckner, 2018 S.D. 17, ¶ 9, 908 N.W.2d 170,
174 (quoting Heitmann v. Am. Family Mut. Ins. Co., 2016 S.D. 51, ¶ 8, 883 N.W.2d
506, 508). We will affirm a circuit court’s “grant of a motion for summary judgment
when no genuine issues of material fact exist, and the legal questions have been
correctly decided.” Id. (quoting Estate of Lien v. Pete Lien & Sons, Inc., 2007 S.D.
100, ¶ 9, 740 N.W.2d 115, 119).
[¶10.] “A circuit court’s refusal to grant additional discovery prior to
awarding summary judgment is reviewed for abuse of discretion.” Gores v. Miller,
2016 S.D. 9, ¶ 14, 875 N.W.2d 34, 39 (quoting Stern Oil Co. v. Border States Paving,
Inc., 2014 S.D. 28, ¶ 24, 848 N.W.2d 273, 281). A circuit court’s award or denial of
costs and disbursements is also reviewed for an abuse of discretion. McLaren v.
Sufficool, 2015 S.D. 19, ¶ 4, 862 N.W.2d 557, 558.
Analysis
1. Whether the circuit court erred in granting Progressive’s
motion for summary judgment as to Harvieux’s claims of
bad faith.
[¶11.] Harvieux claims Progressive initially acted in bad faith in valuing and
discussing settlement of the UM claim. Harvieux argues the settlement offers
constituted “lowball” offers that did not take into account Harvieux’s policy limits;
medical treatment and expenses; potential lost wages; and mental, emotional, and
financial stress. Harvieux also attacks what she characterizes as “systematic,
institutional bad-faith conduct of Progressive.” She asserts Progressive engages in
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unfair practices in order to force its insureds to accept unreasonable settlement
offers. Harvieux argues that Progressive also acted in bad faith when it filed a
frivolous motion to enforce the $9,000 settlement offer knowing that she had not
accepted that offer. Finally, Harvieux claims that she should have been allowed to
conduct further discovery before the circuit court heard the motion for summary
judgment.
[¶12.] Progressive argues that there is no evidence to prove bad faith.
Progressive claims that Harvieux’s damages were reasonably in dispute before and
after her lawsuit was filed. Progressive points out that it offered $9,000 before
Harvieux filed her lawsuit and that it offered $20,000 prior to trial. Progressive
claims that Harvieux unreasonably refused to discuss any settlement below the
$100,000 UM policy limits and that Progressive properly defended the UM claim
thereafter. Progressive also asserts that it valued Harvieux’s claim correctly as the
$16,000 jury verdict was nearly the same as Progressive’s offer and far below
Harvieux’s demand. Finally, Progressive claims that it properly filed the motion to
enforce the $9,000 settlement and that the motion was not relevant to the bad-faith
claim under Dakota, Minnesota & Eastern Railroad Corp. v. Acuity, 2009 S.D. 69,
¶ 14, 771 N.W.2d 623, 628.
[¶13.] A claim of first-party bad faith is an intentional tort that “typically
occurs when an insurance company consciously engages in wrongdoing during its
processing or paying of policy benefits to its insured.” Hein v. Acuity, 2007 S.D. 40,
¶ 10, 731 N.W.2d 231, 235. “In [bad faith] cases, the [insurer and the insured] are
adversaries, and therefore, an insurer is permitted to challenge claims that are
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fairly debatable. However, a frivolous or unfounded refusal to comply with a duty
under an insurance contract constitutes bad faith.” Id. In order to be successful on
a claim of bad faith, a plaintiff must prove: “(1) an absence of a reasonable basis for
denial of policy benefits, and (2) the insurer’s knowledge of the lack of a reasonable
basis for denial.” Mordhorst v. Dakota Truck Underwriters & Risk Admin. Servs.,
2016 S.D. 70, ¶ 9, 886 N.W.2d 322, 324 (quoting Hein, 2007 S.D. 40, ¶ 18,
731 N.W.2d at 237).
[¶14.] The undisputed facts show that, shortly after the accident, Progressive
determined there was no dispute concerning liability or UM coverage. Progressive
began paying Harvieux’s medical bills under the MPC shortly after the accident but
was unwilling to pay benefits under the UM coverage without a final release from
Harvieux. The initial medical records available to Progressive show that Harvieux
was diagnosed with neck strain from the accident. Harvieux began receiving
physical therapy and later received injections to treat her pain. By July of 2008,
Harvieux had exhausted her $5,000 MPC.
[¶15.] In September of 2008, Progressive offered to pay all of Harvieux’s
outstanding medical bills, plus $3,000 for pain and suffering, in exchange for a final
release. Harvieux indicated she was unwilling to settle until she was back to her
pre-accident condition. Harvieux continued to receive physical therapy and
complain of neck pain. In May 2009, Progressive increased its offer to settle the
UM claim by paying all medical expenses to date plus $5,000 for pain and suffering.
Harvieux rejected the offer. In October 2009, Harvieux requested the UM policy
limits of $100,000. Progressive then sent all of the medical records to an orthopedic
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surgeon for a medical review. Following this review, the doctor opined that
Harvieux suffered a “mild cervical strain” from the accident and that the amount
and duration of medical care based upon this diagnosis was unusual and prolonged.
The doctor also determined that Harvieux should have reached maximum medical
improvement within approximately one year of the accident and that there was no
evidence in the medical records that Harvieux sustained a permanent injury as a
result of the accident. Based upon this review, Progressive denied Harvieux’s
demand for the $100,000.
[¶16.] Later in 2010, Harvieux retained an attorney. In early 2011, the
attorney renewed Harvieux’s demand for $100,000, advising Progressive that
Harvieux may be required to leave her position with the National Guard because of
her injuries from the accident. Harvieux had already incurred over $10,000 in
physical therapy bills by this time. In May of 2011, Progressive increased its
settlement offer to $9,000 plus the $5,000 already paid. This was the offer that
Progressive’s adjustor claimed was accepted by Harvieux’s counsel and that was the
basis for Progressive’s later motion to enforce the settlement.
[¶17.] In December of 2011, Harvieux had an MRI of her neck, which showed
that she had a minimal disc bulge that was not causing any nerve impingement. No
opinion was rendered whether this bulged disc was caused by the accident.
Harvieux claimed that she was discharged from the National Guard due to the
injuries sustained in the 2007 accident and that she lost $250,000 in wages. The
extent of Harvieux’s injuries were disputed up to and throughout trial.
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[¶18.] Based upon the record, the severity of Harvieux’s injuries arising from
the accident were fairly debatable. The respective valuations of the case by
Progressive and Harvieux were extremely divergent. However, the facts taken most
favorable to Harvieux fail to show that Progressive did not have a reasonable basis
for its valuation of Harvieux’s injuries. Further, the record also fails to create a jury
question that Progressive knew there was not a reasonable basis for its valuation.
[¶19.] Harvieux also claims bad faith by Progressive in failing to pay her
medical bills under the UM coverage after the MPC limits were exhausted.
Progressive paid $5,000 of Harvieux’s medical bills under the MPC coverage, but by
the time of trial she claimed more than $10,000 in medical expenses arising from
the accident. Harvieux claims that because liability was undisputed it was bad
faith for Progressive to refuse to pay her medical expenses above the $5,000 MPC
limit. Although liability was never in dispute, the extent of Harvieux’s injuries and
related medical expenses were in dispute throughout the case. The facts show that
Progressive relied upon the medical diagnosis of a “mild neck strain” and an
orthopedic surgeon’s 2010 opinion that Harvieux’s claims for medical treatment
were “unusual and prolonged.” Harvieux failed to present evidence to show this
reliance was unreasonable. “[A]n insurer is permitted to challenge claims that are
fairly debatable.” Hein, 2007 S.D. 40, ¶ 10, 731 N.W.2d at 235.
[¶20.] Harvieux’s claims of companywide bad faith by Progressive through its
employee-bonus plan and other internal claims policies also fail. Harvieux
presented evidence from unrelated cases suggesting the internal policies of
Progressive were contrary to the terms of Progressive’s insurance contracts with its
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insureds and that such internal policies were unreasonable. However, Harvieux
presented no evidence that her claims were not fairly debatable or that
Progressive’s internal policies caused it to unreasonably investigate or evaluate her
UM claim.
[¶21.] The circuit court also did not err in granting summary judgment on
Harvieux’s amended bad faith claim pertaining to Progressive’s motion to enforce
the $9,000 settlement, nor did the court err in denying Harvieux’s request to take
the depositions of Progressive’s defense counsel and in-house counsel. The circuit
court determined that Progressive’s decision to file the motion to enforce the
settlement was not unreasonable or frivolous. The court also relied on Dakota,
Minnesota & Eastern Railroad Corp. v. Acuity, determining that the post-filing
conduct by Progressive of filing the motion to enforce settlement was not admissible
to support the bad-faith claim.
[¶22.] We have held that litigation conduct by the insurer is generally not
relevant to a claim of first-party bad faith. “[W]e believe it would be a rare case
where the insurer’s decisions and conduct in the underlying litigation would be
admissible in a first party bad faith claim.” Dakota, Minn. & E. R.R. Corp.,
2009 S.D. 69, ¶ 42, 771 N.W.2d at 635. In determining whether to receive such
evidence, “[t]he appropriate inquiry for the circuit court . . . is whether the insurer’s
post-filing conduct sheds light on the reasonableness of the insurer’s decision or
conduct in denying insurance benefits.” Id. On this record, the circuit court
properly determined that the motion to enforce the settlement did not shed light on
or otherwise impact Progressive’s investigation or valuation of the case. The circuit
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court properly denied the motions to compel the depositions, and it properly granted
summary judgment on the bad-faith claim.
[¶23.] Finally, Harvieux claims the circuit court should have continued the
summary judgment hearing under SDCL 15-6-56(f) to afford her additional time to
conduct discovery on her claim for bad faith. The circuit court determined that
Harvieux had opportunities to conduct discovery going back to 2011. The discovery
Harvieux sought related mostly to Progressive’s policies for handling claims, but
Harvieux failed to show how this information would refute the evidence that the
extent of her injuries were fairly debatable. The circuit court has discretion under
SDCL 15-6-56(f) to determine whether a party has demonstrated that additional
discovery is necessary to defeat the motion for summary judgment. Gores, 2016
S.D. 9, ¶ 14, 875 N.W.2d at 39. The circuit court did not abuse its discretion in
denying the request for additional discovery under SDCL 15-6-56(f).
2. Whether the circuit court erred in granting Progressive’s
motion for summary judgment as to Harvieux’s claim of
barratry.
[¶24.] Harvieux argues Progressive’s motion to enforce the verbal settlement
of $9,000 was frivolous and malicious so as to justify a cause of action for barratry.
She claims Progressive’s motion to enforce the oral settlement agreement caused
her more expense and unnecessarily delayed the litigation. Progressive argues the
circuit court properly granted summary judgment because Harvieux was unable to
produce any evidence of barratry.
[¶25.] SDCL 20-9-6.1 provides:
Barratry is the assertion of a frivolous or malicious claim or
defense or the filing of any document with malice or in bad faith
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by a party in a civil action. Barratry constitutes a cause of
action which may be asserted by filing a pleading in the same
civil action in which the claim of barratry arises or in a
subsequent action. A claim of barratry shall be determined in
the same manner as any other substantive cause of action
asserted in that civil action.
[¶26.] This Court has previously defined a frivolous action as one that
exists when the proponent can present no rational argument
based on the evidence or law in support of the claim. To fall to
the level of frivolousness there must be such a deficiency in fact
or law that no reasonable person could expect a favorable
judicial ruling. Frivolousness connotes an improper motive or a
legal position so wholly without merit as to be ridiculous.
Johnson v. Miller, 2012 S.D. 61, ¶ 12, 818 N.W.2d 804, 808 (quoting Citibank (S.D.),
N.A. v. Hauff, 2003 S.D. 99, ¶ 31, 668 N.W.2d 528, 537). “A malicious action is one
brought for an improper, unjustifiable motive.” Hauff, 2003 S.D. 99, ¶ 32,
668 N.W.2d at 537.
An action is malicious if it is begun in malice, and without
probable cause to believe it can succeed, and which finally ends
in failure. Malice exists when the proceedings are instituted
primarily for an improper purpose. An improper purpose occurs
in situations where:
the plaintiff in the original action was actuated by any
unjustifiable motive, as where he did not believe his claim
would be held valid, or where his primary motive was
hostility or ill will, or where his sole purpose was to
deprive the defendant of a beneficial use of his property or
to force a settlement having no relation to the merits of
the claim.
Id. (quoting Stratmeyer v. Engberg, 2002 S.D. 91, ¶ 20, 649 N.W.2d 921, 926).
[¶27.] Here, Progressive’s motion to enforce the oral settlement agreement
was neither frivolous nor malicious, as this Court has previously held that an
attorney may orally bind a client to a settlement. See Melstad v. Kovac, 2006 S.D.
92, ¶ 10, 723 N.W.2d 699, 703 (recognizing the validity of an oral settlement
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agreement between the attorney for the plaintiff and the insurer in the context of a
personal injury claim). Progressive presented sworn testimony in support of its
claim that Harvieux’s original attorney orally agreed to accept the $9,000 on
Harvieux’s behalf. Both Harvieux’s first attorney and Harvieux denied that she had
agreed to the settlement, and the circuit court denied the motion to enforce
settlement. But these facts are insufficient to create a jury question on the barratry
claim.
[¶28.] The law regarding oral settlement agreements and the facts of this
case show that there was probable cause to support Progressive’s motion to enforce
the purported $9,000 oral settlement agreement. Therefore, Progressive’s motion
was neither frivolous nor malicious, and Harvieux’s claim of barratry fails as a
matter of law. The circuit court did not err in granting Progressive’s motion for
partial summary judgment on Harvieux’s barratry claim.
[¶29.] Harvieux also argues that additional discovery was needed to prove
her claim of barratry and that the circuit court erred in denying her request to
depose defense counsel and in-house counsel for Progressive. Harvieux made no
showing in her affidavit under SDCL 15-6-56(f) how the testimony of either of
Progressive’s attorneys would support her claim for barratry. There is nothing in
the record to show that either attorney was initially involved in handling the claim
or involved in the discussions regarding potential settlement of the case in 2011.
Further, because there was a factual and legal basis for the motion to enforce the
alleged settlement, any claim that the motion was filed frivolously or maliciously
would fail. Therefore, the circuit court did not abuse its discretion in determining
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that the additional discovery would not defeat the motion for summary judgment.
Because the circuit court was within its discretion to deny the depositions of the
attorneys under SDCL 15-6-56(f), it is unnecessary to address whether the
discovery of defense counsel and in-house counsel was privileged. The circuit court
properly granted summary judgment for Progressive on Harvieux’s claim of
barratry.
3. Whether the circuit court erred in denying Harvieux’s
application for taxation of costs.
[¶30.] Following the entry of the judgment on the UM claim, Harvieux filed
an application and affidavit for taxation of costs in the amount of $6,997.38. At the
hearing on the application, the circuit court contrasted Progressive’s $20,000 offer,
made just before trial, with Harvieux’s $100,000 pretrial demand. The circuit court
noted that Progressive’s offer exceeded the jury’s verdict on the UM claim.
However, as noted by Harvieux’s counsel, the $20,000 offer was not made as an
offer to confess judgment on the UM claim, but rather as an offer to settle all of
Harvieux’s claims. The circuit court orally denied Harvieux’s costs application,
stating that it was exercising its discretion on the facts that “this was not under all
of the circumstances, a plaintiff’s verdict.”
[¶31.] In its oral ruling on the application, the circuit court further stated:
It is my intention to deny the taxation of costs based on my
ruling on the other matters regarding summary judgment. The
manner in which the judgment came in, and combined with the
totality of the record and most recent submissions, I feel that
based on my decision on the other matters, that the taxation of
costs would not be appropriate under [this]of facts and the jury
verdict.
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In the written order denying Harvieux’s costs application, the circuit court stated
that Harvieux “was not the prevailing party” in the action. Harvieux argues the
circuit court erred because she was the prevailing party on the UM claim by virtue
of the jury verdict and entry of judgment in the amount of $16,724.99. Progressive
argues that regardless of whether Harvieux was the prevailing party on the UM
claim, a circuit court has discretion to award or deny costs and disbursements to a
prevailing party and that the court properly did so in this case.
[¶32.] SDCL 15-6-54(d), SDCL 15-17-37, and SDCL 15-17-52 pertain to the
taxation of costs and disbursements in civil actions in South Dakota. SDCL 15-6-
54(d)(1) provides that “[e]xcept as otherwise provided by statute, costs and
disbursements, other than attorneys’ fees, shall be allowed as of course to the
prevailing party unless the court otherwise directs.” (Emphasis added.) This Court
has stated that the prevailing party is “the party in whose favor the decision or
verdict is or should be rendered and judgment entered.” Hewitt v. Felderman,
2013 S.D. 91, ¶ 28, 841 N.W.2d 258, 266 (quoting Picardi v. Zimmiond, 2005 S.D.
24, ¶ 16, 693 N.W.2d 656, 661). SDCL 15-17-37 provides:
The prevailing party in a civil action or special proceeding may
recover expenditures necessarily incurred in gathering and
procuring evidence or bringing the matter to trial. Such
expenditures include costs of telephonic hearings, costs of
telephoto or fax charges, fees of witnesses, interpreters,
translators, officers, printers, service of process, filing, expenses
from telephone calls, copying, costs of original and copies of
transcripts and reporter’s attendance fees, court appointed
experts, and other similar expenses and charges. These
expenditures are termed “disbursements” and are taxed
pursuant to § 15-6-54(d).
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SDCL 15-17-52 provides that a circuit court “may limit the taxation of
disbursements in the interests of justice.”
[¶33.] As to the grant of costs and disbursements to a prevailing party, this
Court has stated:
A [circuit] court is not required to grant recovery for
disbursements simply because a party has achieved the status of
a prevailing party. While SDCL 15-17-37 grants no discretion,
SDCL 15-17-52 allows a court to “limit the taxation of
disbursements in the interests of justice.” This statute grants
discretion to deny recovery of disbursements even though SDCL
15-17-37 does not.
DeHaven v. Hall, 2008 S.D. 57, ¶ 52, 753 N.W.2d 429, 445. (quoting Full House, Inc.
v. Stell, 2002 S.D. 14, ¶ 25, 640 N.W.2d 61, 67). Further, SDCL 15-17-53 grants a
circuit court the ability to “reduce or disallow a taxation of disbursements that
would be oppressive or work a hardship.”
[¶34.] Harvieux was the prevailing party on the UM claim based on the
$16,724.99 judgment entered, as she was “the party in whose favor the decision or
verdict is or should be rendered and judgment entered.” Hewitt, 2013 S.D. 91, ¶ 28,
841 N.W.2d at 266 (quoting Picardi, 2005 S.D. 24, ¶ 16, 693 N.W.2d at 661). To the
extent the circuit court concluded Harvieux was not the prevailing party on the UM
claim, this was incorrect, but the circuit court properly considered the “totality of
the record” in its decision to deny Harvieux’s costs application. The judgment on
the UM claim was entered on November 1, 2016, but Harvieux’s application for
costs was not considered until the circuit court had granted summary judgment in
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favor of Progressive on the claims for bad faith and barratry. The claims for bad
faith and barratry were bifurcated from the UM claim for trial under SDCL 15-6-
42(b), but all of the claims were filed in this action. The hearing transcript shows
that the circuit court determined that “the taxation of costs” on the UM claim
“would not be appropriate under [this set] of facts and the jury verdict.” The circuit
court properly considered that the verdict was significantly less than Harvieux’s
demand and close to Progressive’s offers to settle. The court also considered that
Harvieux was unsuccessful on the bad-faith and barratry claims. These latter
claims were a significant part of the discovery and pretrial motions in this case.
“The trial court has broad discretion under SDCL 15-17-52 to limit disbursements
to a prevailing party ‘in the interest of justice.’” Hewitt, 2013 S.D. 91, ¶ 30,
841 N.W.2d at 266. Given this record, we cannot say that the circuit court abused
its discretion in denying the application for costs.
Conclusion
[¶35.] We affirm the circuit court’s order granting Progressive’s renewed
motion for summary judgment on Harvieux’s claims of bad faith and barratry. We
also affirm the circuit court’s determination denying Harvieux’s application for
taxation of costs.
[¶36.] GILBERTSON, Chief Justice, and ZINTER and KERN, Justices, and
SEVERSON, Retired Justice, concur.
 Progressive did not file an application for costs as the prevailing party on
Harvieux’s claims for bad faith and barratry.
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