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Dziadek v. The Charter Oak Fire Insurance Co.

United States District Court, D. South Dakota, Southern Division

September 30, 2016




         Plaintiff, Laura Dziadek (Dziadek), sued Defendant, Charter Oak Fire Insurance Company, doing business as Travelers (Charter Oak), making claims sounding in contract and tort relating to a commercial insurance policy issued by Charter Oak (the Policy). Doc. 15. Dziadek's Amended Complaint asserted that she was entitled to declaratory judgments that she is an insured under the Policy's underinsured motorist (UIM) endorsement with Charter Oak owing her a duty of good faith and fair dealing, that $1, 000, 000 of UIM coverage for her exists under the Policy, and that she is an insured under the Policy's medical payments endorsement. Doc. 15 at ¶¶ 15-51. Dziadek further alleged that Charter Oak breached the insurance contract and engaged in unfair trade practices, fraud and deceit, and bad faith in its dealings with Dziadek. Doc. 15 at ¶¶ 52-95. She sought compensatory damages, punitive damages, and attorney's fees. Doc. 15 at ¶¶ 96-102; Doc. 15 at 13-14. Charter Oak acknowledged coverage after the lawsuit was filed and, on February 21, 2012, paid Dziadek $900, 000 under the Policy's UIM coverage[1]and $5, 000 under the Policy's medical payments coverage. After discovery, Charter Oak moved for summary judgment on all claims. Doc. 118. This Court granted summary judgment on the unfair trade practices claim but otherwise denied Charter Oak's motion. Doc. 153 at 28. The case proceeded to a jury trial in May 2016.

         On May 27, 2016, the jury returned a verdict for Dziadek on the claims of deceit and breach of contract for UIM coverage. Doc. 300. The jury found for Charter Oak, however, on Dziadek's claims of breach of contract for medical payments coverage, insurance bad faith, and fraud. Doc. 3 00. The jury awarded prejudgment interest on the $900, 000 of UIM coverage from December 15, 2009, on both the deceit claim and the breach of contract for UIM benefits claim, $250, 000 for out-of-pocket expenses on the deceit claim, plus an additional $500, 000 for "[a]ny other harm . . . including mental and emotional harm."[2] Doc. 300. The jury then, in phase two of the trial, returned a verdict for Dziadek on her punitive damages claim for $2.75 million. Doc. 305.

         On May 31, 2016, this Court entered a preliminary judgment on the jury verdict, but identified three issues that required resolution: (1) whether Dziadek's declaratory judgment claims are now moot; (2) whether a 10% prejudgment interest rate or some different rate applies to calculate prejudgment interest; and (3) whether a deceit claim can support an award for "mental and emotional harm." Doc. 311. Both parties have filed briefs on the three issues discussed in the preliminary judgment. Charter also moved for judgment as a matter of law on the claims of deceit and breach of contract for UIM coverage, as well as the punitive damages award. Doc. 317. Charter Oak alternatively moved for a new trial on these claims. Doc. 318.

         I. Summary of Facts

         Charter Oak issued the commercial insurance policy at issue to Billion Empire Motors, Inc. (Billion), an auto dealership in Sioux Falls, South Dakota, for the period of July 1, 2008 to July 1, 2009. Pl's Ex. 25. The Policy included UIM and medical payments coverage. Pl's Ex. 25. Billion loaned one of its vehicles to a customer, Lori Peterson (Peterson), while her vehicle was in for repairs. Peterson and Dziadek took a trip together to the Black Hills, during which Dziadek stopped at a hospital to do some nursing work. On September 22, 2008, while returning from the Black Hills, Peterson lost control of the Billion vehicle in or near a construction zone on Interstate 90 in South Dakota, causing the vehicle to crash in a ravine. Doc. 313-6 at 22-28. Dziadek was a passenger in the Billion vehicle driven by Peterson and was very badly injured. Dziadek hired Jeffrey A. Cole (Cole) of Zimmer, Duncan, and Cole in December 2008 to represent her in matters stemming from that motor vehicle accident.

         The Policy contained a provision titled, "Duties In The Event Of Accident, Claim, Suit Or Loss, " which required the named insured, Billion, to provide notice of accident or loss. Pl's Ex. 25. Charter Oak[3] received notice of the accident from Billion's insurance agent on January 29, 2009, and on that same day, Faith Styles (Styles), Charter Oak's claims representative, began to investigate. Def.'s Ex. 1034. Styles learned that Peterson was the driver in a single car accident and that Peterson may have fallen asleep while driving to cause the accident. Def.'s Ex. 1034. She also learned that Dziadek was a passenger in the car at the time of the accident, that Dziadek was seriously injured as a result of the accident, and that Peterson was insured under a Progressive Insurance Company (Progressive) policy. Def.'s Ex. 1034. Styles contacted a Progressive adjuster and learned that Peterson had a $100, 000 liability coverage limit under the Progressive policy, that Dziadek was a nurse, and that Dziadek's medical bills already had exceeded $100, 000. Def.'s Ex. 1034. Shortly thereafter, on February 2, 2009, Styles received information about Dziadek's injuries from Dziadek's sister, Mae Schafer (Schafer). Def.'s Ex. 1034. As a result of injuries from the accident, Dziadek's vocal cords were partially paralyzed so Schafer communicated with Styles on Dziadek's behalf. Def.'s Ex. 1034. Styles began referring to Dziadek as a "claimant" in her claims notes and assigned her a claim number. Def.'s Ex. 1034.

         On February 6, 2009, Styles created a "Bodily Injury Worksheet" for Dziadek which r included a liability analysis; she assigned 0% liability for Dziadek and Billion and 100% liability for Peterson. Def.'s Ex. 1095; Doc. 313-12 at 66. Styles spoke with Cole that same day. Def.'s Ex. 1034. Cole testified at trial that although he could not remember the exact words of his February 6, 2009 telephone conversation with Styles, Doc. 313-6 at 112; Doc. 313-7 at 87, he knew they discussed insurance coverage for Dziadek under the Billion Policy, Doc. 313-6 at 112, 116. A note Cole made while speaking with Styles recorded:

Garage Policy
Claim no coverage
Claim no excess coverage

Pl's Ex. 1; Doc. 313-6 at 113. Cole testified that he believed that Styles said there was no coverage of any kind for Dziadek under the Billion Policy. Doc. 313-6 at 114-116; see also Doc. 313-6 at 120. According to Cole, he was interested in any type of coverage for Dziadek; he therefore did not have any reason to focus on liability coverage only when speaking with Styles. Doc. 313-6 at 116, 120.

         Styles met with her supervisor Tim Westbrook and an in-house coverage lawyer on February 12, 2009. Def's Ex. 1034; Doc. 313-11 at 94. According to Styles's testimony, the three Charter Oak employees determined that the Policy did not provide liability coverage for Peterson. Doc. 313-11 at 94.

         Styles then wrote a letter to Cole that same day regarding "YOUR CLIENT: Laura Dziadek." Pl's Ex. 3. The letter stated:

We have reviewed the facts of this loss in conjunction with the policy issued to our insured and it is our determination that no coverage for your client exists under this policy. Under the terms of the policy, Lori Peterson's liability coverage would be primary. If she did not have insurance or if the limits of her policy were less than the minimum required limits for South Dakota, then she would qualify as an insured under our insured's policyat [sic] amount is $25, 000. It is my understanding that Ms. Peterson had a liability limit of $100, 000 so she would not qualify as an insured under this policy.

Pl's Ex. 3. Cole understood the letter as meaning that there was no coverage for Dziadek under any of the provisions in the Billion Policy. Doc. 313-6 at 119-20. Nevertheless, Cole sent Styles a letter on February 18, 2009, requesting the declaration sheet for the Billion Policy and "a true and correct copy" of the Policy itself. Doc. 313-6 at 121; Pl's Ex. 4. Styles sent Cole the declarations page, but only excerpts of the Policy defining an "insured" for purposes of liability coverage, together with a letter telling Cole to "pay particular attention to the pages which I have marked because they address the issue of 'who is an insured.'" Pl's Ex. 7; Doc. 313-11 at 116-17. Styles did not send Cole the Policy provisions on UIM or medical payments coverage that Dziadek actually met.

         Cole testified that in his experience, he could trust that an insurance adjuster would send the applicable policy provisions when asked to do so. Doc. 313-7 at 36. He explained that he had never dealt with a commercial garage policy like the Billion Policy. To Cole, it made sense that the definition of an insured that Styles sent him applied to the entire policy. Doc. 313-7 at 39-40. Because Dziadek was not an insured under the definition of an insured Styles sent him, Cole did not follow up with Charter Oak at that time.

         Progressive offered Peterson's $100, 000 liability limits to Dziadek on February 24, 2009, in exchange for a full release. Pl's Ex. 6; Doc. 313-6 at 122-23. Cole declined the offer because Dziadek's medical bills already had exceeded $100, 000, because Dziadek was receiving workers' compensation benefits, and because Cole was hopeful to collect more from Peterson, possibly from other alleged tortfeasors, and their insurers. Doc. 313-6 at 122-24.

         Cole spent the next two years pursuing other avenues of recovery for Dziadek. He hired an investigator to determine whether a problem with the Billion vehicle caused the accident, but found nothing to support that theory. Doc. 313-7 at 24. He pursued workers' compensation coverage for Dziadek. He sued Peterson in September 2009. Doc. 313-7 at 22; Def. Ex. 1014. About one year later, Cole and another attorney in his office, Daniel Brendtro (Brendtro), filed a second lawsuit on Dziadek's behalf against the State of South Dakota, a road contractor, and a signage company (DOT case), alleging that the configuration and maintenance of the Interstate 90 construction zone caused or contributed to the accident. Doc. 313-7 at 4-8; Doc. 313-12 at 84-85, 89. By June 2011, however, discovery in the DOT case had convinced Cole and Brendtro that Dziadek did not have a viable claim against the defendants in the DOT case. Doc. 313-7 at 8.

         More than two years had passed since Styles had communicated with Cole and provided information that there was no coverage under the Policy for Dziadek. Before accepting Progressive's $100, 000 limits, Brendtro decided to pour through the firm's Dziadek file to see if something possibly was missed. Doc. 313-12 at 91-92. Looking back at what Styles had sent, Brendtro found a reference to UIM coverage in the declarations page, Doc. 313-12 at 95-96, and realized that the UIM provision was not part of the provisions Styles had sent, Doc. 313-12 at 102-03; Doc. 313-13 at 56-57. Brendtro instructed his paralegal Jennifer Doubledee (Doubledee) to contact Styles for a copy of the entire policy. Doc. 313-12 at 97. Doubledee called Styles on July 15, 2011, asking for the entire Policy, but Styles refused to send it, saying that the Policy could be over 2, 000[4] pages and that Doubledee would need to request specific provisions. Doc. 313-12 at 100; Pl's Ex. 19. Doubledee emailed Styles back that same day asking only for the UIM and uninsured motorist provisions. Doc. 313-12 at 101; Def. Ex. 1055. Styles, however, did not immediately send the requested policy provisions. Def. Ex. 1055; Doc. 313-12 at 101. After Doubledee repeated her request on July 21, 2011, Styles provided the UIM and uninsured motorist policy provisions to Cole and Brendtro's firm on July 22, 2011. Def. Ex. 1055.

         Brendtro reviewed the UIM policy language and on July 28, 2011, sent Styles a letter seeking to confirm that Dziadek had UIM coverage under the Policy. Def.'s Ex. 1056. Charter Oak received the letter on August 1, 2011, but did not respond.[5] When Charter Oak still had not responded by September 20, 2011, Dziadek filed this lawsuit. Charter Oak's answer admitted the existence of UIM coverage and medical payments coverage for Dziadek, although it denied other claims and matters.

         On January 17, 2011, Cole ultimately demanded that Charter Oak pay both the UIM and medical payments limits. Def.'s Ex. 1070. Cole then requested assent from Charter Oak to settle Dziadek's claims against Peterson and Progressive for the $100, 000 liability limit on February 3, 2012. Def.'s Ex. 1071. Charter Oak, on February 16, 2012, consented to that settlement and also consented to Dziadek's dismissal of the DOT case. Def.'s Ex. 1075. On February 21, 2012, Charter Oak sent two checks totaling $905, 000 to pay the UIM and medical payments coverage claims of Dziadek. Def.'s Ex. 1076. Charter Oak did not pay any interest on these amounts, and Dziadek did not release any claims against Charter Oak.

         Charter Oak's defenses at trial included that it had done nothing wrong because Cole had, not made a claim for UIM coverage in February 2009. Charter Oak argued that Cole should have realized that UIM coverage was available and made a request for payment under the UIM provision earlier. Charter Oak also claimed at trial that the delay in receiving the $905, 000 actually benefited Dziadek in terms of the money she received from workers' compensation. The jury obviously rejected Charter Oak's defense theories on the breach of contract, deceit, and damages claims.

         II. Motion for Judgment as a Matter of Law and Motion for New Trial

         A. Standards

         Rule 50(b) allows a party that previously moved for judgment as a matter of law to renew that motion after entry of final judgment. Judgment as a matter of law is proper "[i]f a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue." Fed.R.Civ.P. 50(a)(1). In diversity cases such as this, a court considering a motion for judgment as a matter of law typically applies the sufficiency-of-the-evidence standard of the state in which it sits, at least where the state and federal standards are similar. Mich. Millers Mut. Ins. Co. v. Asoyia, Inc., 793 F.3d 872, 877-78 (8th Cir. 2015). The federal sufficiency-of-the-evidence standard is essentially the same as the South Dakota standard: courts draw all reasonable inferences in the nonmoving party's favor and, without weighing the evidence, determine whether there is a sufficient evidentiary basis to support the verdict. Garcia v. City of Trenton, 348 F.3d 726, 727 (8th Cir. 2003); Stensland v. Harding Cty., 872 N.W.2d 92, 95 (S.D. 2015). Judgment as a matter of law should be granted only when "all of the evidence points in one direction and is susceptible to no reasonable interpretation supporting the jury verdict." Garcia, 348 F.3d at 727 (quotation omitted); accord Stensland, 872 N.W.2d at 95 ("If sufficient evidence exists so that reasonable minds could differ, judgment as a matter of law is not appropriate." (quoting Huether v. Mihm Transp. Co., 857 N.W.2d 854, 860 (S.D. 2014))).

         The standard for granting a new trial under Rule 59 is different. White v. Pence, 961 F.2d 776, 779-82 (8th Cir. 1992). The governing question under Rule 59 is whether a new trial is required to avoid a miscarriage of justice. Greaser v. Mo. Dep't of Corrs., 145 F.3d 979, 983 (8th Cir. 1998). Grounds for granting a new trial include a verdict that is against the weight of the evidence, an excessive damage award, and erroneous jury instructions or evidentiary rulings. Children's Broad. Corp. v. Walt Disney Co., 245 F.3d 1008, 1017 (8th Cir. 2001). "In /determining whether a verdict is against the weight of the evidence, the trial court can rely on its own reading of the evidence-it can 'weigh the evidence, disbelieve witnesses, and grant a new trial even where there is substantial evidence to sustain the verdict.'" White, 961 F.2d at 780 (quoting Ryan v. McDonough Power Equip., 734 F.2d 385, 387 (8th Cir. 1984)). However, district courts may not "reweigh the evidence and set aside the jury verdict merely because the jury could have drawn different inferences or conclusions or because judges feel that other results are more reasonable." Id. (quoting Fireman's Fund Ins. Co. v. Aalco Wrecking Co., 466 F.2d 179, 186 (8th Cir. 1972)). Erroneous evidentiary rulings do not justify a new trial "unless [the wrongful admission or exclusion of] the evidence was so prejudicial that a new trial would likely produce a different result." Diesel Mach.. Inc. v. B.R. Lee Indus., Inc., 418 F.3d 820, 834 (8th Cir. 2005) (quoting Harrison v. Purdy Bros. Trucking Co., 312 F.3d 346, 351 (8th Cir. 2002)). Similarly, courts will grant a new trial based on erroneous jury instructions "only 'if the error misled the jury or had a probable effect on its verdict.'" Bamford. Inc. v. Regent Ins. Co., 822 F.3d 403, 410 (8th Cir. 2016) (quoting Acuity v. Johnson, 776 F.3d 588, 596 (8th Cir. 2015)).

         B. Deceit

         In denying Charter Oak's motion for summary judgment on Dziadek's deceit claim, this Court concluded that Charter Oak had an obligation to refrain from making statements intended to deceive Dziadek about the coverage available to her and that this obligation was separate and apart from Charter Oak's duties under the Policy. Doc. 153 at 22-23. Charter Oak moved to reconsider, arguing first that the deceit claim failed under the independent tort doctrine and \ second that Charter Oak did not owe Dziadek a duty to disclose information about the UIM coverage. Doc. 173. This Court denied Charter Oak's motion to reconsider, explaining that a contractual relationship does not insulate a party from fraud claims and reiterating that Charter Oak had an obligation to refrain from deceiving Dziadek about the existence of coverage for her that was independent of its duties under the Policy. Doc. 218 at 11-12. Charter Oak raised the duty issue again during settling of instructions when it argued that, under the Supreme Court of South Dakota's decision in Taggart v. Ford Motor Credit Co., 462 N.W.2d 493 (S.D. 1990), parties in arm's-length business transactions have no duty to disclose absent an employment or fiduciary relationship. Doc. 313-13 at 113. Relying in part on Trouten v. Heritage Mutual Insurance Co., 632 N.W.2d 856 (S.D. 2001), this Court concluded that the relationship of an insurer to its insured is akin to that of a fiduciary rather than a typical arm's-length business transaction. Doc. 313-13 at 112. Moreover, Charter Oak did not simply fail to disclose the existence of $900, 000 of UIM coverage available to Dziadek, but actively deceived Dziadek and her attorney into believing that there was no such coverage. Charter Oak once again raises the same arguments it asserted previously.

         Dziadek's deceit claim is a tort action separate though related to an insurance contract. The Supreme Court of South Dakota has recognized that '"an omission to perform a contract obligation is never a tort, ' but. . . that the breach of a legal duty upon which a tort is based 'may arise out of a relation or state of facts created by contract.'" Karas v. Am. Family Ins. Co., 33 F.3d 995, 998 (8th Cir. 1994) (quoting Smith v. Weber, 16 N.W.2d 537, 539 (S.D. 1944)). As a result, "[w]hile the matters complained of. . . [may have] had their origin in a contract, the gist of the action is for alleged wrongful and tortious acts of defendant." Id. (alterations in original) (quoting Smith, 16 N.W.2d at 539). Here, Charter Oak had a legal duty not to violate the South Dakota deceit statutes, SDCL Ch. 20-10, in providing information to Dziadek and her attorney Cole. Charter Oak had an obligation to refrain from making statements intended to deceive Dziadek about the existence of coverage for her, separate and apart from its duties under the Policy. See Grynberg v. Citation Oil & Gas Corp.. 573 N.W.2d 493, 501 (S.D. 1997) (finding duty independent of the obligations under the contract and stating, "[s]imply put, a contract is not a license allowing one party to cheat or defraud the other"). Even though the torts "grow out of or are "coincident with" the Policy, Charter Oak is "not immune . . . from the penalty that is ordinarily visited upon tort-feasors." Smith, 16 N.W.2d at 539.

         Charter Oak argues next that Dziadek failed to present sufficient evidence to prove deceit. Dziadek had to prove six elements to succeed on her deceit claim: (1) Charter Oak had a duty to disclose a material fact to Dziadek; (2) Charter Oak willfully concealed a material fact or willfully gave information of other facts which were likely to mislead because of Charter Oak's failure to communicate the material fact; (3) Charter Oak acted with the intent to induce Dziadek to alter her position to her injury or risk; (4) the undisclosed information was something Dziadek could not discover by acting with reasonable care; (5) Dziadek relied on the lack of information to her detriment; and (6) Dziadek was legally caused damages as a result. Doc. 229 at 24; SDCL §§20-10-1 to 20-10-2. South Dakota Pattern Jury Instructions: Civil § 20-110-25 (2008 ed. with 2016 revisions).

         Charter Oak focuses on the fourth element first, arguing that Dziadek failed to show that the existence of UIM coverage for her was something Cole could not have discovered by acting with reasonable care. The evidence is sufficient to find in Dziadek's favor on the fourth element of deceit. Cole asked Styles whether there was any type of coverage available for Dziadek under the Policy. Doc. 313-6 at 114-120. Despite Styles telling Cole on the phone and later in writing that no Coverage existed, Doc. 313-6 at 114-116; Pl's Ex. 3, Cole followed up and asked Styles for a copy of the entire Policy, Doc. 313-6 at 121; PI. Ex. 4. Styles responded by sending Cole a portion of the policy containing a definition of insured under which Dziadek did not qualify and a letter telling Cole to pay particular attention to this definition. PI. Ex. 7; Doc. 313-11 at 117. Cole, who had never dealt with a commercial garage policy before and whose experience taught him that he could trust a claims adjuster to send the applicable policy provisions when asked to do so, believed that the definition of an insured Styles sent him applied to the entire Policy. Doc. 313-7 at 36, 39-40. Charter Oak's argument has irony to it; Charter Oak is essentially arguing that trusting what Charter Oak had said, written, and sent is not exercising reasonable care. A reasonable jury could conclude from the evidence that Cole and in turn Dziadek could not have discovered the deceit by acting with reasonable care.

         Charter Oak next complains that Dziadek failed to prove the second and third elements of deceit. Again, there is a sufficient evidentiary basis for the jury's decision on these elements. First, Styles was no stranger to UIM coverage in February 2009; she handled one or two UIM claims a month, Doc. 313-11 at 88, and had received praise from her supervisor in January 2009 for seeking offsets on UIM claims, Pl's Ex. 158. Second, by the time Styles spoke with Cole on February 6, 2009, she knew enough to realize that the Policy's UIM provision might apply to Dziadek. Specifically, Styles knew that Dziadek had been seriously injured in an accident which Peterson had caused, that Peterson's insurance policy with Progressive had a $100, 000 liability coverage limit, and that Dziadek's medical bills already had exceeded $100, 000. Def.'s Exs. 1034, 1095. Third, Styles orally and in writing told Cole there was no coverage under the Policy for Dziadek when, in fact, Dziadek met the UIM provision's definition of an insured. Doc. 313-6 at 114-116; Pl's Ex. 3. Fourth, rather than send Cole the entire Policy as he asked, Styles sent Cole provisions of the Policy under which Dziadek could not recover. Pl's Ex. 7; Doc. 313-11 at 117. Finally, Styles refused to send Doubledee the entire Policy in July 2011, stating erroneously that the Policy could be over 2, 000 pages. Doc. 313-12 at 100; Pl's Ex. 19. She also delayed sending the UIM provision until Doubledee requested the provision a second time. Doc. 313-12 at 101; Def. Ex. 1055. A reasonable jury could conclude that Charter Oak in 2009 willfully misled Dziadek and Cole about the existence of UIM coverage with the intent to avoid having to pay Dziadek the $900, 000.

         Charter Oak's last argument about the elements of deceit is that Dziadek failed to show that she relied on Charter Oak's misleading statements concerning the existence of coverage under the Policy. Ample evidence supported the jury's finding on this element as well. Dziadek testified that she relied on the insurance company to "do the right thing" in addition to relying on Cole. Doc. 313-6 at 76. Cole, in turn, relied on Styles's misleading statements that Dziadek did not have any coverage under the Policy. Cole and Dziadek delayed for over two years accepting Progressive's tender of its limits and pursued an ultimately futile lawsuit against defendants named in the DOT case, because of a reliance on Charter Oak's 2009 statements and letters.

         Charter Oak also makes two arguments concerning the jury's verdict on deceit in its motion for a new trial. Charter Oak argues first that it is entitled to a new trial on the deceit claim for the same reasons expressed in its motion for judgment as a matter of law. Although the ' standard for a new trial is less stringent than the standard for judgment as a matter of law, the evidence discussed above demonstrates that there was no miscarriage of justice in the jury's finding for Dziadek on the deceit claim. This Court cannot order a new trial simply because the jury conceivably could have drawn different conclusions. White, 961 F.2d at 780.

         Charter Oak complains second that it was error not to define the words "willfully" and "materially" in the jury instruction on deceit. Charter Oak argued during trial that this Court should define "willfully, " Doc. 313-13 at 20, but did not propose an instruction defining this term, either before the jury's verdict or in its post-trial motions, see Docs. 197, 285, 319, 320, 339, 340. A court within this district has held that a party must offer a proposed instruction along with the party's objection to preserve a claim of instructional error. Skrovig v. BNSF Ry. Co., 916 F.Supp.2d 945, 970 (D.S.D. 2013). Even if Charter Oak preserved its argument, it has not cited any cases holding that "willfully" is a technical term that must be defined for the jury. Instead, Charter Oak notes that after this Court defined the term "reckless" at the jury's request, the jury found in Charter Oak's favor on the fraud and bad faith claims.[6] Docs. 295, 209. Charter Oak then speculates that the jury misunderstood the term "willfully" and might have found for Charter Oak on the deceit claim if that term been defined. This argument overlooks that Dziadek's three tort claims had different elements and that she faced issues proving fraud and bad faith that she did not face in proving deceit. The more reasonable inference is that the jury understood the term "willfully" but still found that Charter Oak engaged in deceit. After all, the jury sent a jury note asking for a definition of "reckless?" but did not ask for a definition of "willfully." The jury demonstrated that it knew how to seek guidance during deliberations on a term in the jury instructions on which it was unclear. Charter Oak's arguments do not establish that the failure to define "willfully" was in error or had a probable effect on the outcome of this case.

         Charter Oak's argument that this Court should have defined "material" is similarly unconvincing. Charter Oak wanted an instruction stating that "a misrepresentation is not material if the person has consulted a lawyer before acting, and the lawyer is charged by law with having knowledge of the fact represented." Doc. 197 at 45. The only support Charter Oak offered for this instruction was the South Dakota pattern jury instruction on attorney malpractice. Doc. 197 at 45. The South Dakota pattern instruction on attorney malpractice does not mention the word "material, " let alone support Charter Oak's proposed instruction that a plaintiffs consultation with a lawyer can render a fact immaterial. And even if Charter Oak had a legal basis for its proposed instruction on the word "material, " it has not shown that the failure to give this instruction had a probable effect on the jury's verdict.

         C. Breach of Contract

         Charter Oak argued that it could not be liable for breach of contract to Dziadek because it eventually paid Dziadek the $900, 000 owed for UIM coverage, albeit after Dziadek discovered the deceit and after Dziadek sued Charter Oak. The elements for breach of contract under South Dakota law typically are "(1) an enforceable promise; (2) a breach of the promise;, and, (3) resulting damages." Bowes Constr.. Inc. v. S.D. DOT, 793 N.W.2d 36, 43 (S.D. 2010). Charter Oak's Policy is the enforceable promise or contract at issue. However, Charter Oak argued that it did not breach the contract and that Dziadek has no breach-of-contract damages. Doc. 133 at 21-25.

         UIM is excess insurance to underlying liability coverage, and a person seeking UIM coverage must satisfy certain conditions precedent to recover UIM benefits. Specifically, Dziadek had to notify Charter Oak of her intention to accept the underlying liability limits, allow Charter Oak an opportunity to exercise its Schmidt/Clothier[7] rights, make a formal demand for UIM benefits, and show damages above the limits of the underinsured motorist.

         Under South Dakota law, a contract may be unenforceable when it contains a condition precedent that fails to occur and may be unenforceable until the condition precedent occurs. See Weitzel v. Sioux Valley Heart Partners, 714 N.W.2d 884, 896 (S.D. 2006); see also Johnson v. Coss, 667 N.W.2d 701, 705-06 (S.D. 2003) ("A condition precedent is a contract term distinguishable from a normal contractual promise in that it does not create a right or duty, but instead is a limitation on the contractual obligations of the parties."). South Dakota law recognizes the prevention doctrine as an exception to the requirement of a condition precedent to contract performance. Weitzel, 714 N.W.2d at 896. The South Dakota Supreme Court adopted the prevention doctrine as stated in the Restatement (Second) of Contracts:

Where a duty of one party is subject to the occurrence of a condition, the additional duty of good faith and fair dealing imposed on him . . . may require some cooperation on his part, either by refraining from conduct that will prevent or hinder the occurrence of that condition or by taking affirmative steps to cause its occurrence. . . . [N]on-performance of that duty when performance is due is a breach. . . . [I]t has the further effect of excusing the non-occurrence of the condition itself, so that performance of the duty that was originally subject to its occurrence can become due in spite of its non-occurrence.

Johnson, 667 N.W.2d at 706 (alterations in original) (quoting Restatement (Second) Contracts § 245 cmt. (a)). Stated another way, "if a party to a contract hinders the occurrence of a condition precedent, that condition is waived." Id. This doctrine "requires that the conduct have 'contributed materially' to the non-occurrence of the condition." Id. (quotation omitted). Application of the prevention doctrine is a question of fact reserved for the jury. Id.; see also Berry v. Time Ins. Co., 798 F.Supp.2d 1015, 1020-21 (D.S.D. 2011) (denying motion to dismiss on contract claim because prevention doctrine may excuse condition precedent where insured did not negotiate as required by the policy, initially provided inconsistent information to insured, and later imposed nonexistent and heighted restrictions). Therefore, this Court submitted to the jury Dziadek's breach of contract claim and whether Charter Oak prevented Dziadek from formalizing her UIM claim at an earlier time.

         Charter Oak makes four arguments for why it is entitled to judgment as a matter of law on Dziadek's breach of contract claim. To succeed on her breach of contract claim, Dziadek had to show: (1) that the Policy contained an enforceable promise to her; (2) that Charter Oak breached that promise by preventing her from formalizing her UIM claim; and (3) that Charter Oak's breach legally caused Dziadek's damage. Doc. 299 at 15. The jury found that Charter Oak breached the contract for UIM benefits and, if not for Charter Oak's actions, Dziadek would have formalized her UIM claim on December 15, 2009. Doc. 300 at 1.

         Charter Oak argues first that Dziadek had to establish the amount she was entitled to recover from any tortfeasor to become entitled to UIM benefits. Charter Oak's first argument fails because, as explained more fully below, neither the Policy nor South Dakota law imposed such a requirement.

         Charter Oak argues next that Dziadek could not have formalized her UIM claim until October 2011 because that is the first date she submitted any medical records to Charter Oak. This argument has no merit because it ignores the jury's finding that Charter Oak prevented Dziadek from formalizing her UIM claim earlier. Having been deceived by Charter Oak into thinking there was no coverage under the Policy, neither Cole nor Dziadek would have any reason to submit medical records to Charter Oak in 2009 or 2010.

         Charter Oak's next argument is equally baseless. Charter Oak contends that the prevention doctrine does not apply here because Dziadek had not satisfied the conditions precedent to receiving UIM benefits when it deceived her in 2009. Again, this argument overlooks the obvious fact that Charter Oak's ...

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