NICOLE M. HARVIEUX, Plaintiff and Appellant,
PROGRESSIVE NORTHERN INSURANCE COMPANY, Defendant and Appellee.
CONSIDERED ON BRIEFS MARCH 19, 2018
FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT
PENNINGTON COUNTY, SOUTH DAKOTA THE HONORABLE HEIDI LINNGREN
L. ZEPHIER of Abourezk, Zephier & LaFleur, P.C. Rapid
City, South Dakota JAMES L. JEFFRIES Rapid City, South Dakota
Attorneys for plaintiff and appellant.
J. ARNDT of May & Johnson, P.C. Sioux Falls, South Dakota
Attorneys for defendant and appellee.
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
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.
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
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.
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.
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.
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
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.
"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. ...