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Harvieux v. Progressive Northern Insurance Co.

Supreme Court of South Dakota

July 3, 2018

NICOLE M. HARVIEUX, Plaintiff and Appellant,
v.
PROGRESSIVE NORTHERN INSURANCE COMPANY, Defendant and Appellee.

          CONSIDERED ON BRIEFS MARCH 19, 2018

          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 Rapid City, South Dakota Attorneys for plaintiff and appellant.

          MARK J. ARNDT of May & Johnson, P.C. Sioux Falls, South Dakota Attorneys for defendant and appellee.

          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.

         [¶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 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.

         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. ...


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