#26442-aff in part, rev in pt & rem-SLZ

2013 S.D. 44

                           IN THE SUPREME COURT
                                   OF THE
                          STATE OF SOUTH DAKOTA

                                      ****
BONNIE J. BERTELSEN,                         Plaintiff and Appellee,

v.

ALLSTATE INSURANCE COMPANY,
AN INSURANCE CORPORATION,                    Defendant and Appellant.

                                ****
                   APPEAL FROM THE CIRCUIT COURT OF
                      THE SECOND JUDICIAL CIRCUIT
                   MINNEHAHA COUNTY, SOUTH DAKOTA

                                ****
                    THE HONORABLE PATRICIA C. RIEPEL
                                Judge
                                ****

MICHAEL W. STRAIN of
Morman Law Firm
Sturgis, South Dakota

and

PAUL T. BARNETT
SCOTT G. HOY
JAMES L. HOY of
Hoy Trial Lawyers, Prof., LLC
Sioux Falls, South Dakota                    Attorneys for plaintiff
                                             and appellee.

CATHERINE M. SABERS
THOMAS G. FRITZ of
Lynn, Jackson, Shultz & Lebrun, PC
Rapid City, South Dakota                     Attorneys for defendant
                                             and appellant.

                                      ****
                                             ARGUED FEBRUARY 12, 2013

                                             OPINION FILED 06/12/13
#26442

ZINTER, Justice

[¶1.]        Bonnie Bertelsen sued Allstate Insurance Company for breach of

contract and bad faith arising out of Allstate’s failure to timely pay medical benefits

under Bertelsen’s personal automobile insurance policy. On the breach of contract

claim, the circuit court granted a judgment as a matter of law for $33,000. On the

bad faith claim, the jury awarded $150,000 in compensatory damages and

$1,500,000 in punitive damages. Allstate appeals. We affirm in part, reverse in

part, and remand for a new trial.

                            Facts and Procedural History

[¶2.]        This case has been before us on two prior occasions: Bertelsen v.

Allstate Insurance Co. (Bertelsen I), 2009 S.D. 21, 764 N.W.2d 495, and Bertelsen v.

Allstate Insurance Co. (Bertelsen II), 2011 S.D. 13, 796 N.W.2d 685. As we noted in

those opinions, Bertelsen was employed by Universal Pediatric Services (UPS) as an

in-home registered nurse. On December 26, 2006, she was injured in an automobile

accident while driving her employer’s vehicle to a patient’s home to perform her

nursing duties. Bertelsen spent six weeks in the hospital recovering from life-

threatening injuries. She underwent numerous surgeries, lost eight months of

work, and incurred $382,849.92 in medical expenses as a result of the accident.

[¶3.]        Bertelsen filed a claim for worker’s compensation benefits (including

medical expenses) with American International Group (AIG), her employer’s

worker’s compensation carrier. AIG denied the claim on January 10 and February

7, 2006. AIG contended that Bertelsen’s injuries had not arisen out of and in the

course of her employment with UPS.


                                          -1-
#26442

[¶4.]         Bertelsen had a personal automobile insurance policy with Allstate

that provided $100,000 in medical payments coverage. In February 2006, Bertelsen

advised Allstate that AIG had denied her worker’s compensation claim, and she

filed a medical payments claim with Allstate. Bertelsen provided Allstate with her

AIG claim number as well as the AIG claims adjuster’s name and contact

information. Allstate subsequently spoke with AIG’s claims adjuster, confirmed the

denial, and noted the basis for AIG’s denial in Allstate’s claim file. Allstate then

requested written proof of loss. Bertelsen provided Allstate with her medical

records and bills, which by that time exceeded Allstate’s policy limits. Bertelsen

demanded the $100,000 policy limits for medical payments, but Allstate continued

to investigate Bertelsen’s claim into the spring of 2006.

[¶5.]         Contrary to its claims manual, Allstate raised a worker’s compensation

exclusion in its policy for the first time in a June 2006 letter to Bertelsen. 1 By that

time, Bertelsen’s medical expenses were approaching $300,000. The letter also

contained another request for the AIG claims adjuster’s name and contact

information. Allstate indicated that it was going to investigate AIG’s denial of

Bertelsen’s worker’s compensation claim. The letter stated: “Rest assured, once

investigation is complete and all available coverage is exhausted, Allstate will move

quickly to resolve [Bertelsen’s] claim.”




1.      Allstate’s claims manual required immediate notice to policyholders of any
        coverage issue.


                                           -2-
#26442

[¶6.]         Bertelsen’s attorney at that time, Thomas Blake, promptly sent

Allstate the AIG claims adjuster’s name and contact information. 2 At trial, the

parties disputed whether Allstate contacted Bertelsen following receipt of this

information. Bertelsen alleged that Allstate failed to further investigate AIG’s

denial and did not contact her until approximately one year later. Allstate denied

these allegations. Norm Tierney, an Allstate claims adjuster, testified that he

contacted Blake on June 26, 2006. He contended that Blake agreed to suspend

Bertelsen’s claim with Allstate to pursue the worker’s compensation claim.

Although Allstate conceded that the phone call was not documented in its claim file,

Allstate introduced a call log indicating that a call was placed from Randall Blake’s 3

office to Allstate’s 800 telephone number on July 13, 2006. Thomas Blake, however,

denied that any phone conversation occurred with Tierney.

[¶7.]         By the spring of 2007, Bertelsen had not received medical payments

benefits from Allstate, and she was experiencing increasing demands for payment

from medical providers. On December 19, 2007, Bertelsen filed a petition with the

South Dakota Department of Labor formally seeking worker’s compensation

benefits. AIG answered Bertelsen’s petition on January 22, 2008, and for the first

time admitted coverage for “all past, present, and future medical, hospital, and




2.      Thomas Blake did not represent Bertelsen in these breach of contract and
        bad faith suits.

3.      Randall Blake, Thomas Blake’s brother, was an attorney who handled
        personal injury cases in Sioux Falls. Although Randall Blake and Thomas
        Blake shared a fax line prior to March 2005, they had separate offices and
        telephone lines.

                                          -3-
#26442

health care expenses for her work-related injury.” Bertelsen later settled her

worker’s compensation claim with AIG for $150,000.

[¶8.]        Bertelsen also settled claims with other insurers. She received medical

payments benefits in the amount of $30,000 (the policy limits) from UPS’s

automobile insurer, Hartford Insurance Company. She also settled an

underinsured motorist claim with Hartford for $900,000. Bertelsen settled a

liability claim with State Farm, the negligent tortfeasor’s automobile insurance

company, for $100,000. Additionally, she received $157,433.87 in medical expense

coverage from Avera Health, her health insurer. Bertelsen’s other health insurers,

Sanford Health Plan and Blue Cross of California, paid additional health benefits.

Ultimately, Bertelsen recovered approximately $1.2 million from these insurers.

After subrogation and the payment of medical bills, she retained approximately

$660,000. Bertelsen, however, claimed that she was also entitled to the $100,000

policy limits from Allstate under the medical payments provision of Allstate’s

automobile policy.

[¶9.]        In December 2007, Bertelsen initiated this breach of contract and bad

faith action. Relying on SDCL 62-1-1.3, 4 she alleged that Allstate breached the



4.      SDCL 62-1-1.3 provides:

             If an employer denies coverage of a claim on the basis that the
             injury is not compensable under this title due to the provisions
             of subsection 62-1-1(7)(a), (b), or (c), such injury is presumed to
             be nonwork related for other insurance purposes, and any other
             insurer covering bodily injury or disease of the injured employee
             shall pay according to the policy provisions. If coverage is
             denied by an insurer without a full explanation of the basis in
             the insurance policy in relation to the facts or applicable law for
                                                               (continued . . .)
                                           -4-
#26442

insurance contract by failing to pay medical benefits immediately after learning

that AIG initially denied her worker’s compensation claim. Bertelsen contended

that Allstate’s failure to immediately pay medical benefits was “frivolous,”

“unfounded,” and constituted bad faith. She also contended that Allstate’s alleged

bad faith caused her emotional distress up to the point in time when she began

receiving settlements from the other insurance carriers.

[¶10.]         In Bertelsen I, we reversed a circuit court decision granting summary

judgment in favor of Allstate. 2009 S.D. 21, ¶ 22, 764 N.W.2d at 501. On the

breach of contract claim, we held that “Allstate breached its contractual and

statutory duty to immediately pay medical benefits for bodily injury after

[Bertelsen]’s workers’ compensation claim was denied.” Id. On the bad faith claim,

we held that Allstate’s duty was not fairly debatable because “Allstate’s obligation

was clear from the statutory language alone[.]” Id. ¶ 20. Because genuine issues of

material fact remained, we remanded the matter for a trial to determine contract

damages and Allstate’s intent in failing to pay benefits. Id. ¶ 22.

[¶11.]         On remand, a jury awarded Bertelsen $33,000 for breach of contract,

but the jury rejected her bad faith claim. 5 Bertelsen appealed that decision, and in


________________________
(. . . continued)
               denial, the director of the Division of Insurance may determine
               such denial to be an unfair practice under chapter 58-33. If it is
               later determined that the injury is compensable under this title,
               the employer shall immediately reimburse the parties not liable
               for all payments made, including interest at the category B rate
               specified in § 54-3-16.

5.       In June 2010, Allstate paid Bertelsen $51,127.36, which included the $33,000
         award, prejudgment interest, and costs. According to an agreement entered
                                                            (continued . . .)
                                           -5-
#26442

Bertelsen II we concluded that instructional and evidentiary errors required a new

trial. 2011 S.D. 13, ¶ 62, 796 N.W.2d at 705-06. We held that the jury should have

been instructed that Allstate breached its contractual and statutory duty to pay

medical benefits immediately after it learned AIG had denied Bertelsen’s worker’s

compensation claim. Id. ¶ 32. With respect to bad faith, we concluded that genuine

issues of material fact remained regarding Allstate’s intent in failing to timely pay

benefits. Id. ¶ 62. We also held that Bertelsen should have been allowed to develop

an evidentiary record on punitive damages. Id. ¶ 41. We remanded for a new trial

on the issues of contract damages, bad faith, and punitive damages. Id. ¶ 62.

[¶12.]       On remand from Bertelsen II, the matter was assigned to Judge Riepel.

The contract and bad faith claims were bifurcated from the punitive damages claim.

Over Allstate’s objection, the circuit court refused to allow the jury to hear evidence

that in 2008, AIG accepted the worker’s compensation claim. The court also refused

to allow the jury to hear evidence of the settlements with other insurers and

Bertelsen’s pre-accident bankruptcy. At the close of evidence, the court granted

Bertelsen’s motion for judgment as a matter of law on contract damages and

awarded $33,000. Allstate’s motions for judgment as a matter of law on the bad

faith and punitive damages claims were denied. The jury returned a verdict of

$150,000 in compensatory damages and $1,500,000 in punitive damages.

[¶13.]       After trial, Bertelsen argued that as a matter of law she was entitled to

an additional $67,000 on the breach of contract claim. She contended that the

________________________
(. . . continued)
         by the parties, the purpose of paying the judgment was to stop the accrual of
         post-judgment interest.

                                          -6-
#26442

additional amount was necessary to reach a total award of the $100,000 policy

limits because Allstate was estopped from asserting its subrogation rights.

Bertelsen also moved for attorney’s fees of $534,230. Allstate renewed its motions

for judgment as a matter of law. In the alternative, Allstate moved for a new trial

or remittitur. The circuit court denied Allstate’s motions, granted Bertelsen’s

request for a judgment equivalent to the $100,000 policy limits, and awarded

Bertelsen $180,561.51 in attorney’s fees.

[¶14.]         Allstate raises numerous issues on appeal. We address: (1) whether

the circuit court erred in denying Allstate’s motions for judgment as a matter of law

on the bad faith and punitive damages claims; (2) whether the circuit court erred in

excluding evidence that AIG accepted the worker’s compensation claim in 2008; and

(3) whether the circuit court erred in awarding Bertelsen attorney’s fees. Because

we are remanding for a new trial, we also address some evidentiary and

instructional issues that are likely to arise again. In light of the new trial, we do

not reach Allstate’s other issues. 6



6.       One of those other issues is the circuit court’s award of $100,000 in contract
         damages. Allstate argues that the court erred in supplementing the $33,000
         jury award to reach the $100,000 policy limits. The court reasoned that
         Allstate waived or was estopped from asserting its subrogation rights. In
         Bertelsen II, we determined that in certain instances an insurer may waive
         its right to subrogation or be estopped from asserting its right to subrogation
         if it unreasonably delayed payment.

               We agree that an insurer should not escape liability for breach
               of contract when it has acted in bad faith or unreasonably
               delayed the payment of benefits. An insurer may thus waive the
               right to subrogation or be estopped from asserting it when it has
               unreasonably delayed the payment of benefits.

                                                              (continued . . .)
                                            -7-
#26442

                                         Decision

Allstate’s Motions for Judgment as a Matter of Law

[¶15.]         Allstate argues that the circuit court abused its discretion in denying

Allstate’s renewed motion for judgment as a matter of law on the bad faith claim.

Allstate contends that there was insufficient evidence to support bad faith. Allstate

specifically contends that Bertelsen’s evidence only reflected mistakes, errors in

judgment, sloppy business practices, or negligence. It further contends that it could

not have acted in bad faith because its primary claims adjuster was unaware of

SDCL 62-1-1.3, the statute requiring immediate payment from Allstate. Allstate

also challenges the court’s ruling on its motion for judgment as a matter of law on

the punitive damages claim. Allstate argues that there was insufficient evidence of

malice to support punitive damages.

[¶16.]         This Court reviews both a motion for judgment as a matter of law and

a renewed motion for judgment as a matter of law for an abuse of discretion.

Jacobs v. Dakota, Minn. & E. R.R. Corp., 2011 S.D. 68, ¶ 9, 806 N.W.2d 209, 212;

Selle v. Tozser, 2010 S.D. 64, ¶ 14, 786 N.W.2d 748, 752. We “view the evidence and

________________________
(. . . continued)
               ...

               The issue of contract damages is thus related to [Bertelsen’s]
               bad faith claim. . . . Allstate’s intent in failing to pay medical
               benefits is an important factor in deciding whether Allstate is
               estopped from asserting its subrogation rights.

         2011 S.D. 13, ¶¶ 23-24, 796 N.W.2d at 694. Because we are remanding
         Bertelsen’s bad faith claim for a new trial, and because Allstate’s intent in
         failing to pay medical benefits is an important factor in determining waiver
         and estoppel, we do not reach Allstate’s argument on the court’s $100,000
         breach of contract award.

                                            -8-
#26442

testimony in a light most favorable to the verdict.” Jacobs, 2011 S.D. 68, ¶ 9, 806

N.W.2d at 212. “Then, ‘without weighing the evidence, the [C]ourt must decide if

there is evidence which would have supported or did support a verdict.’” Selle, 2010

S.D. 64, ¶ 14, 786 N.W.2d at 752 (quoting Alvine Family Ltd. P’ship v. Hagemann,

2010 S.D. 28, ¶ 18, 780 N.W.2d 507, 512). “If sufficient evidence exists so that

reasonable minds could differ, [judgment as a matter of law] is not appropriate.”

Roth v. Farner-Brocken Co., 2003 S.D. 80, ¶ 8, 667 N.W.2d 651, 659 (quoting In re

Estate of Holan, 2001 S.D. 6, ¶ 9, 621 N.W.2d 588, 591). “In resolving sufficiency of

evidence issues on appeal, this [C]ourt should examine the record to determine only

if there is competent and substantial evidence to support the verdict.” Id. ¶ 20

(quoting Kjerstad v. Ravellette Publ’ns, Inc., 517 N.W.2d 419, 424 (S.D. 1994)). “All

conflicts are resolved and all reasonable inferences are drawn in favor of the

prevailing party.” Id.

Bad Faith

[¶17.]       To prevail on a bad faith cause of action, “a claimant must demonstrate

that the claim was denied with knowledge of the absence of a reasonable basis for

the denial or in reckless disregard of whether a reasonable basis existed.”

McDowell v. Citicorp U.S.A., 2007 S.D. 53, ¶ 15, 734 N.W.2d 14, 19 (citing

Champion v. U.S. Fid. & Guar. Co., 399 N.W.2d 320, 324 (S.D. 1987)). However,

“an insurance company . . . may challenge claims which are fairly debatable and

will be found liable only where it has intentionally denied (or failed to process or

pay) a claim without a reasonable basis.” Dakota, Minn. & E. R.R. Corp. v. Acuity,

2009 S.D. 69, ¶ 17, 771 N.W.2d 623, 629 (quoting Walz v. Fireman’s Fund Ins. Co.,


                                          -9-
#26442

1996 S.D. 135, ¶ 7, 556 N.W.2d 68, 70). When evaluating whether an insurer has

engaged in bad faith, we must look to “the facts and law available to [the] [i]nsurer

at the time it made the decision to deny coverage.” Id. ¶ 19 (alteration in original).

“The question of whether an insurer has acted in bad faith is generally a question of

fact.” Id.

[¶18.]       In Bertelsen I, we determined that Allstate’s statutory duty to

Bertelsen was not “fairly debatable.” 2009 S.D. 21, ¶ 20, 764 N.W.2d at 501 (“[T]he

language of SDCL 62-1-1.3 is plain, unambiguous, and not susceptible to debate. . . .

Allstate’s obligation was clear from the statutory language alone, and an

interpretive decision from this Court was not necessary for Allstate to have

determined its duty under its policy.”). Thus, we must review the factual record to

determine whether there was sufficient evidence for the jury to find that Allstate

delayed payment with knowledge of the absence of a reasonable basis to delay

payment or in reckless disregard of the absence of a reasonable basis to delay

payment.

[¶19.]       The evidence was sufficient to support the bad faith verdict. Bertelsen

introduced evidence showing that she advised Allstate of AIG’s denial and provided

Allstate with AIG’s claims adjuster’s name and contact information. Thereafter,

Allstate contacted AIG’s claims adjuster, confirmed the denial, and noted the basis

for the denial in its claim file. There is also record evidence that Bertelsen provided

proof of loss information and Allstate promised to promptly investigate the claim.

Yet, under Bertelsen’s version of the evidence, there were no further

communications between the parties for approximately one year. This was


                                         -10-
#26442

sufficient evidence for the jury to find that Allstate knew of or recklessly

disregarded its obligation to immediately process and pay the claim after it learned

of AIG’s denial.

[¶20.]       Allstate, however, points out that while Blake was communicating

with Tierney, Blake never claimed that Allstate engaged in inappropriate delay or

wrongful conduct, and Blake never mentioned SDCL 62-1-1.3. These facts do not

support Allstate’s argument. In Walz v. Fireman’s Fund Insurance Co., we held

that an “[i]nsurer cannot rely upon claimants to provide a copy of legal authority,

especially in the absence of a request.” 1996 S.D. 135, ¶ 13, 556 N.W.2d at 72. We

further observed that the insurer “could have contacted legal counsel or even

consulted a table of cases to obtain the [controlling law].” Id. Accordingly, Allstate

cannot escape liability solely because it may have been unaware of SDCL 62-1-1.3.

Because there was sufficient evidence to support the bad faith verdict, the circuit

court did not err in denying Allstate’s motion for judgment as a matter of law.

Punitive Damages

[¶21.]       Allstate argues that there was insufficient evidence of malice to

support the punitive damages verdict. Allstate contends that Bertelsen failed to

present evidence that Allstate acted with “a conscious realization that [its] conduct

would in all probability . . . harm [Bertelsen].”

[¶22.]       “Malice is an essential element of a claim for punitive damages.” Selle,

2010 S.D. 64, ¶ 30, 786 N.W.2d at 757 (quoting Isaac v. State Farm Mut. Auto. Ins.

Co., 522 N.W.2d 752, 761 (S.D. 1994)). “Malice can be actual (malice in fact) or

presumed (legal malice).” Id. “A showing of either type is sufficient to support


                                          -11-
#26442

punitive damages.” Id. Whereas, “[a]ctual malice is a positive state of mind,

evidenced by the positive desire and intention to injure another, actuated by hatred

or ill-will towards that person[;]” presumed malice can be “infer[ed] from or

impute[d] to certain acts.” Id. Accordingly, even in the absence of hatred or ill-will,

“malice may . . . be imputed if [Allstate] act[ed] willfully or wantonly to the injury of

[Bertelsen].” See id. Although merely engaging in an “injurious act is not sufficient

to constitute presumed malice[,] . . . [a] claim for presumed malice can be shown by

demonstrating a disregard for the rights of others.” Id. (internal citation and

quotation marks omitted).

[¶23.]       At trial, Bertelsen presented evidence that Allstate did not contact her

for one year after it promised to investigate AIG’s denial and promptly resolve her

claim. Allstate responded, claiming that Tierney contacted Blake in late June 2006.

To support its argument, Allstate introduced a call log, which indicated that a call

was placed from Randall Blake’s office to Allstate’s 800 telephone number on July

13, 2006. Bertelsen disputed Allstate’s response, noting that the call log showed the

alleged phone call was placed from the wrong line on the wrong date. Whether

Tierney timely contacted Blake was important in determining whether there was

presumed malice. It was also a dispute of fact for the jury. “Factual disputes

generally prohibit granting a judgment as a matter of law.” Alvine Family Ltd.

P’ship, 2010 S.D. 28, ¶ 19, 780 N.W.2d at 513. Accordingly, the circuit court did not

abuse its discretion in denying Allstate’s motion for judgment as a matter of law on

the punitive damages claim.




                                          -12-
#26442

AIG’s Acceptance of Bertelsen’s Worker’s Compensation Claim

[¶24.]         Allstate argues that the circuit court abused its discretion in excluding

evidence that AIG accepted Bertelsen’s worker’s compensation claim in January

2008. 7 Allstate points out that Bertelsen repeatedly argued and presented

testimony to support her bad faith claim that “[t]o this day [the time of trial in

2012], Allstate ha[d] not paid a dime towards [Bertelsen]’s medical bills.”

(Emphasis added.) To respond, Allstate attempted to introduce evidence

establishing that by January 2008, AIG had accepted the worker’s compensation

claim and agreed to pay all of Bertelsen’s past, present, and future medical

expenses. Under Allstate’s policy, AIG’s acceptance of the worker’s compensation

claim would have relieved Allstate of any further duty to pay medical benefits.

Therefore, AIG’s acceptance of the worker’s compensation claim would have

justified Allstate’s failure to pay medical benefits during the four years between

AIG’s acceptance of the claim in 2008 and the time of trial in 2012.

[¶25.]         The circuit court denied Allstate’s offer. The court ruled that the

parties could only mention that the worker’s compensation claim had been

“resolved” (at an undisclosed time) and that Bertelsen’s medical bills were paid by

other insurers. To the court, the date and details of AIG’s acceptance were


7.       “[W]e afford broad discretion to circuit courts in deciding whether to admit or
         exclude evidence.” Surgical Inst. of S.D., P.C. v. Sorrell, 2012 S.D. 48, ¶ 16,
         816 N.W.2d 133, 139 (quoting Ronan v. Sanford Health, 2012 S.D. 6, ¶ 8, 809
         N.W.2d 834, 836). “The trial court’s evidentiary rulings are presumed correct
         and will not be overturned absent a clear abuse of discretion. An abuse of
         discretion refers to a discretion exercised to an end or purpose not justified
         by, and clearly against reason and evidence.” Id. (quoting St. John v.
         Peterson, 2011 S.D. 58, ¶ 10, 804 N.W.2d 71, 74).


                                           -13-
#26442

irrelevant because the breach occurred when Allstate did not pay benefits to

Bertelsen in 2006, as required by SDCL 62-1-1.3. But Allstate maintains that the

court’s ruling erroneously allowed the jury, in determining whether Allstate acted

in bad faith, to believe that it could consider Allstate’s failure to pay for the four

years from 2008 through the 2012 trial. We agree with Allstate.

[¶26.]         Allstate’s policy specifically excluded medical payments coverage “to

the extent that the treatment [was] covered under any workers’ compensation law.”

Accordingly, once AIG accepted liability and agreed to pay all of Bertelsen’s past

and future medical expenses in January 2008, Allstate was no longer violating any

duty to pay Bertelsen’s medical expenses. Yet Bertelsen repeatedly asserted that

“[t]o this day, Allstate has not paid a dime towards [Bertelsen]’s medical bills.”

Although AIG’s acceptance of the worker’s compensation claim in 2008 may not

have been relevant to Allstate’s initial breach of contract, the evidence was critical

to the issue whether Allstate acted in bad faith and was liable for punitive damages

for its conduct from 2008 through the 2012 trial. The court abused its discretion in

excluding AIG’s January 2008 acceptance of the worker’s compensation claim. We

reverse and remand for a new trial. 8



8.       Allstate also appeals the circuit court’s exclusion of evidence of Bertelsen’s
         pre-accident bankruptcy and settlements with other insurers. Allstate claims
         Bertelsen’s pre-accident bankruptcy was relevant to impeach Blake’s denial
         that he led Allstate to believe it could withhold payment while Blake pursued
         the worker’s compensation claim. Allstate also claims that the bankruptcy
         was relevant to impeach Blake’s credibility and explanation why he held a
         $100,000 check from State Farm in his desk drawer for approximately one
         year. Allstate finally claims that Bertelsen’s settlements with other insurers
         were relevant to prove that Bertelsen was fully compensated for the injuries
         she sustained in the accident. Although this evidence was admitted in the
                                                                (continued . . .)
                                              -14-
#26442

Attorney’s Fees

[¶27.]         The circuit court granted a judgment as a matter of law for $33,000 in

contract damages, and Allstate does not appeal that decision. Allstate does,

however, appeal the court’s award of attorney’s fees incurred in obtaining the

contract damages. Allstate contends the court erred in awarding Bertelsen any

attorney’s fees. In the alternative, Allstate contends the award was excessive.

[¶28.]         “[A]ttorney fees may only be awarded by contract or when specifically

authorized by statute.” Biegler v. Am. Family Mut. Ins. Co., 2001 S.D. 13, ¶ 56, 621

N.W.2d 592, 606. “The party requesting an award of attorneys’ fees has the burden

to show its basis by a preponderance of the evidence.” Arrowhead Ridge I, LLC v.

Cold Stone Creamery, Inc., 2011 S.D. 38, ¶ 25, 800 N.W.2d 730, 737.

[¶29.]         Bertelsen requested attorney’s fees under SDCL 58-12-3, which

authorizes the recovery of attorney’s fees if the insurer’s refusal to pay was


________________________
(. . . continued)
         first trial, the court excluded the evidence in the second trial. The court ruled
         that Bertelsen’s pre-accident bankruptcy was more prejudicial than
         probative, and it could not be used for impeachment because there was no
         expert testimony explaining the effect that the bankruptcy might have had
         on holding the State Farm check. The court finally ruled that Bertelsen’s
         settlements with other insurers were not relevant and/or were inadmissible
         under SDCL 19-12-10 (Rule 408).

         We have concerns with the circuit court’s SDCL 19-12-10 (Rule 408) ruling.
         Allstate did not offer evidence of Bertelsen’s settlements with other insurers
         “to prove liability for or invalidity of the [bad faith claim] claim or its
         amount.” See id. With respect to the court’s other rulings, the admissibility
         of Bertelsen’s pre-accident bankruptcy and her settlements with other
         insurers is dependent upon the issues presented and the nature of the
         evidence introduced at trial. On remand, the court will have to determine the
         relevancy and the prejudice versus probative value questions in the context of
         the evidence presented.

                                          -15-
#26442

“vexatious or without reasonable cause.” “[T]he obvious objective of SDCL 58-12-3

is to discourage contesting insurance coverage and to reimburse an insured for any

reasonable attorney’s fees necessarily incurred in defending or enforcing a valid

insurance contract right.” Tripp v. W. Nat’l Mut. Ins. Co., 664 F.3d 1200, 1205 (8th

Cir. 2011) (quoting All Nation Ins. Co. v. Brown, 344 N.W.2d 493, 494 (S.D. 1984)).

The statute is “given a liberal construction with a view to effect its objects and to

promote justice.” Id.

[¶30.]       “Before attorney’s fees may be awarded under [SDCL 58-12-3], the

trial court must find ‘that the insurance company refused to pay the full amount of

the insured’s loss and that [the] refusal was either vexatious or without reasonable

cause.’” Sawyer v. Farm Bureau Mut. Ins. Co., 2000 S.D. 144, ¶ 29, 619 N.W.2d

644, 651-52 (quoting Brooks v. Milbank Ins. Co., 2000 S.D. 16, ¶ 17, 605 N.W.2d

173, 178). The court must also determine “what is a reasonable charge for the work

performed . . . .” Biegler, 2001 S.D. 13, ¶ 56, 621 N.W.2d at 606.

[¶31.]       Proof of bad faith does not necessarily entitle a claimant to recover

attorney’s fees under SDCL 58-12-3. Id. ¶ 58 (“[A] finding of bad faith on the part of

an insurance company does not mean ‘ipso facto’ that its conduct was vexatious or

without reasonable cause[.]”); Crabb v. Nat’l Indem. Co., 87 S.D. 222, 233, 205

N.W.2d 633, 639 (1973) (“[A] finding that an insurer lacked good faith does not

signify its conduct was ‘vexatious or without reasonable cause,’ as a matter of law.”).

Moreover, “[p]ursuant to SDCL 58-12-3, attorney’s fees are allowed only in an

action against an insurer based upon the policy.” Sawyer, 2000 S.D. 144, ¶ 31, 619

N.W.2d at 652. Consequently, “the portion of attorney’s fees related to the bad faith


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claim, as opposed to the contractual claim, should [be] excluded.” Isaac, 522 N.W.2d

at 763.

[¶32.]       In this case, Bertelsen initially submitted a request for $534,230 in

attorney’s fees. This request did not segregate the time spent pursuing the

contract, bad faith, and punitive damage claims. The circuit court subsequently

ordered Bertelsen to submit an itemized billing and instructed Allstate to submit

specific objections. Bertelsen submitted an itemized billing totaling 121 pages. The

itemization contains time entries showing the hours expended and services

performed by Bertelsen’s attorneys. Allstate’s response includes a specific objection

for each time entry challenged. The court reviewed the submissions and issued a

memorandum decision, findings of fact and conclusions of law, and order awarding

Bertelsen a reduced fee award of $180,561.51. In concluding that Bertelsen was

entitled to attorney’s fees under SDCL 58-12-3, the court found that Allstate’s

breach was without reasonable cause and that the fees awarded were reasonable.

[¶33.]       Allstate first argues that the evidence was insufficient to find that its

refusal to pay benefits was without reasonable cause. Allstate contends the

attorney’s fees award improperly “hinged on the bad faith verdict.”

[¶34.]       In Bertelsen II, we concluded that Allstate breached the insurance

contract as a matter of law. 2011 S.D. 13, ¶ 21, 796 N.W.2d at 694. We must now

determine whether the circuit court clearly erred in finding that Allstate’s breach

was without reasonable cause. See Biegler, 2001 S.D. 13, ¶ 58, 621 N.W.2d at 606

(“Whether [the insurer]’s conduct was vexatious or without reasonable cause is a

question of fact, reviewed by this [C]ourt under the clearly erroneous standard.”).


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[¶35.]       In determining that Allstate’s refusal to pay was without reasonable

cause, the circuit court examined Allstate’s pre-litigation conduct, noting that

“Bertelsen notified Allstate that other insurance coverage had been exhausted and

[that] [Bertelsen] sought the $100,000 under her policy with Allstate.” The court

also listened to the evidence and judged the credibility of the witnesses supporting

and opposing Allstate’s justification for its failure to immediately pay benefits.

Considering the conflicting evidence and the court’s superior position to resolve

those conflicts, we find no clear error in the court’s finding that Allstate did not

have reasonable cause to fail to timely pay benefits.

[¶36.]       Allstate also argues that the circuit court’s award was excessive.

Allstate contends that Bertelsen’s documentation was insufficient and that the

individual time entries are vague and generally do not segregate fee-recoverable

claims from non-fee-recoverable claims. Allstate also contends that the court should

not have awarded fees incurred after June 2010, when Bertelsen first obtained a

verdict on the breach of contract claim and received $33,000 plus interest from

Allstate. Alternatively, Allstate contends that Bertelsen should not have recovered

attorney’s fees incurred after this Court decided Bertelsen II. Allstate points out

that, at that point, the breach of contract issue was resolved, Bertelsen pursued no

additional discovery on contract damages in preparation for the second trial, and

the same contract damage evidence was presented in both trials. Allstate finally

contends that Bertelsen should not have recovered attorney’s fees incurred after

December 27, 2012, because Allstate offered Bertelsen a $225,000 settlement.




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[¶37.]       We review “[t]he trial court’s fee award . . . under the abuse of

discretion standard.” Biegler, 2001 S.D. 13, ¶ 60, 621 N.W.2d at 607. If fees are

awarded, they are limited to a “reasonable sum.” SDCL 58-12-3.

[¶38.]       The circuit court awarded a reasonable sum. The court first found that

$250 per hour was a reasonable rate. The court observed that this was “a highly

contentious case,” in which “a great deal of time [had been] expended by Bertelsen’s

attorneys.” The court also considered the case to be relatively complex, which

required skill and experience and likely precluded other employment by the

attorneys. The court further considered: the experience, reputation, and ability of

the attorneys; the fees customarily charged in the locality; the amount involved; and

the results obtained.

[¶39.]       The circuit court then examined Bertelsen’s attorneys’ itemized

statement and limited the attorney’s fees to those incurred pursuing the breach of

contract claim. Where the itemized statement did not reflect work related solely to

the contract claim, Bertelsen was only awarded one-third of the requested amount.

The court explained:

             Where Bertelsen’s attorneys have not specifically stated that
             time for work unrelated to the breach of contract has not been
             charged, I have reduced the amount sought by [two-thirds] in
             those cases where the work is so intertwined with the non-fee
             recoverable claims that it cannot be otherwise separated. It is
             my finding that it is equitable and fair to attribute one-third of
             that such time to the breach of contract claim and two-thirds to
             the bad faith and punitive damages claims.

The court also included a spreadsheet reflecting a ruling on each itemized request.

[¶40.]       The circuit court’s analysis demonstrates that it considered the

reasonableness factors required by this Court. See Crisman v. Determan

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#26442

Chiropractic, Inc., 2004 S.D. 103, ¶ 28, 687 N.W.2d 507, 514 (setting forth factors

for the circuit court to consider in awarding attorney’s fees). The court also

painstakingly analyzed and ruled on each itemized request. The court did not

abuse its discretion in awarding attorney’s fees relating to the breach of contract

claim. Moreover, attorney’s fees were awardable after the verdict was rendered on

the breach of contract claim in June 2010, after our decision in Bertelsen II, and

after the settlement offer. Notwithstanding those occurrences, Bertelsen’s claim to

$100,000 in contract damages was not resolved in Bertelsen II and Bertelsen was

required to re-prove contract damages in the last trial. Based on our review of the

record, the court did not abuse its discretion in awarding attorney’s fees.

Jury Instructions

[¶41.]         Allstate contends that the circuit court abused its discretion in

instructing the jury. Our standard of review for jury instructions is well-

established:

               A trial court has discretion in the wording and arrangement of
               its jury instructions, and therefore we generally review a trial
               court’s decision to grant or deny a particular instruction under
               the abuse of discretion standard. However, no court has
               discretion to give incorrect, misleading, conflicting, or confusing
               instructions; to do so constitutes reversible error if it is shown
               not only that the instructions were erroneous, but also that they
               were prejudicial.

Bertelsen II, 2011 S.D. 13, ¶ 26, 796 N.W.2d at 695. “Erroneous instructions are

prejudicial when in all probability they produced some effect upon the verdict and

were harmful to the substantial rights of a party.” Id.

[¶42.]         Allstate first argues that the second paragraph of Jury Instruction 14

improperly allowed the jury to speculate whether Allstate had paid Bertelsen. This

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paragraph advised the jury that “the Court has determined that Allstate breached

its contractual and statutory duty to pay as a matter of law[,]” and that the jury did

not need to address the issue of contract damages. 9 To Allstate, the circuit court

should have included the amount of the breach of contract award ($33,000) and the

date of payment (June 2010). We agree. Although the jury was presented with the

breach of contract evidence, the judgment as a matter of law eliminated the need for

the jury to determine contract damages. However, the payment amount and the

payment date were relevant to the jury’s consideration of bad faith and punitive

damages. Additionally, without knowledge of the payment, the jury was free to

believe Bertelsen’s argument that to the time of trial in 2012, Allstate, in bad faith,

had not “paid a dime towards [Bertelsen’s] medical bills[.]” On retrial, the court

should modify Instruction 14 to include the $33,000 breach of contract award and

the payment date.

[¶43.]         Next, Allstate argues that the circuit court abused its discretion in

refusing to supplement Jury Instruction 15 with Allstate’s Proposed Jury




9.       Jury Instruction 14 provided:

               At all times material to this case, South Dakota law provided
               that when a workers’ compensation claim is denied, other
               insurers have a statutory duty to pay their contractual benefits
               and resolve workers’ compensation coverage and subrogation
               issues at a later date.

               The Court has already determined that Allstate breached its
               contractual and statutory duty to pay as a matter of law. The
               breach of contract claim has been resolved and you need not
               determine the issue of damages for the breach of contract.


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Instructions 16 10 and/or 17A. 11 Jury Instruction 15 informed the jury that: “Every

insurance contract includes the duty of good faith and fair dealing. This duty

means that neither party will do anything to injure the rights of the other in

receiving the benefits of the agreement. The breach of that duty is called bad faith.”

(Emphasis added.) Allstate argues that absent further explanation – and in

particular the substance of Allstate’s proposed instructions – the jury could take

Instruction 15 to mean that breaches of duties other than bad faith (for instance

negligence) could constitute bad faith regardless of the insurer’s intent. We agree.

[¶44.]         This was a suit for first-party bad faith. “First-party bad faith . . . is

an intentional tort and 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.

               For proof of bad faith, there must be an absence of a reasonable
               basis for denial of policy benefits or failure to comply with a duty
               under the insurance contract and the knowledge or reckless
               disregard of the lack of a reasonable basis for denial, implicit in


10.      Allstate’s Proposed Jury Instruction 16 provided:

               An insurance company, such as Allstate, is not liable for bad
               faith where its decision on a claim constitutes an error in
               judgment, a mistake, or simply negligent [sic].

11.      Allstate’s Proposed Jury Instruction 17A provided:

               An insurer does not breach its duty of good faith simply because
               it makes a mistake or acts negligently. A person or entity acts
               negligently when it fails to conduct itself as a reasonable
               prudent person or entity would under the same or similar
               circumstances. For an insurance company’s conduct to
               constitute bad faith its actions must be intentional, or
               accompliashed [sic] with knowledge of or reckless disregard of a
               lack of reasonable basis for its actions.

                                            -22-
#26442

             that test is our conclusion that the knowledge of the lack of a
             reasonable basis may be inferred and imputed to an insurance
             company where there is a reckless disregard of a lack of
             reasonable basis for denial or a reckless indifference to facts or
             to proofs submitted by the insured.

Dakota, Minn. & E. R.R. Corp., 2009 S.D. 69, ¶ 17, 771 N.W.2d at 629. Thus, an

insurance company “will be found liable [for bad faith] only where it has

intentionally denied (or failed to process or pay) a claim without a reasonable basis.”

Id.

[¶45.]       But Instruction 15, and particularly the last two sentences, permitted

the jury to award damages for bad faith based on “anything [that would] injure the

rights of the other in receiving the benefits of the agreement.” Thus, under

Instruction 15, the jury could have found bad faith based on breaches of duties

arising from a mere error in judgment, mistake, or negligence. Accordingly, on

retrial, the circuit court should qualify Instruction 15 along the lines suggested by

Allstate.

[¶46.]       Allstate next contends that Jury Instruction 18 unduly emphasized

one piece of Bertelsen’s evidence at trial. In Instruction 14, the circuit court

instructed that Allstate breached its contract with Bertelsen. In Instruction 18, the

court instructed that: “A clear breach of contract is strong evidence of bad faith.”

Citing Wallahan v. Black Hills Elec. Co-op, Inc., 523 N.W.2d 417, 423 (S.D. 1994),

Allstate argues that “[a] trial court errs when, through its instructions, it places

undue emphasis on one piece of evidence.” This Court has stated that “it is

improper for the trial court to unduly emphasize one party’s position or evidence.”

Id. Bertelsen, however, contends that this instruction was proper because it was a


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statement taken from this Court’s decision in Bertelsen II, 2011 S.D. 13, ¶ 32, 796

N.W.2d at 697 (“And because a clear breach of contract is strong evidence of bad

faith, the trial court’s failure to properly instruct the jury on Bertelsens’ breach of

contract claim prejudiced their substantial rights.”).

[¶47.]       Although Instruction 18 restated this Court’s conclusion in Bertelsen

II, we did not indicate that our legal analysis on whether prejudice resulted from

instructional error should be given as a jury instruction. Wallahan correctly states

the law that prohibits emphasizing a party’s position or evidence. Contrary to

Wallahan, Instruction 18 improperly emphasized Bertelsen’s position and evidence.

The instruction should not be given on retrial.

[¶48.]       Allstate also argues that the circuit court erred in denying Allstate’s

requested instruction on the liability of a principal for punitive damages arising

from the acts of an agent. Allstate requested South Dakota Pattern Jury

Instruction 50-100-40, which provides:

             Punitive damages may be awarded against a principal because
             of an act by an agent only in the following circumstances:

             (1)   The principal or a managerial agent authorized the doing
             and the manner of the agent’s act; or

             (2)   The agent was unfit and the principal or a managerial
             agent was reckless in employing or retaining the agent; or

             (3)   The agent was employed in a managerial capacity and
             was acting in the scope of employment; or

             (4)   The principal or managerial agent of the principal ratified
             or approved the agent’s act.

Allstate contends this instruction should be “given as a fundamental aspect of the

law of punitive damages.”

                                          -24-
#26442

[¶49.]         Allstate relies on Farmers Insurance Exchange v. Shirley, 958 P.2d

1040 (Wyo. 1998) and Jannotta v. Subway Sandwich Shops, Inc., 125 F.3d 503 (7th

Cir. 1997) (applying Illinois law). In Wyoming and Illinois, as well as in numerous

other jurisdictions, punitive damages cannot be assessed against a corporation for

acts of its agents or employees under the theory of respondeat superior. This Court

adopted that view in Dahl v. Sittner, 474 N.W.2d 897 (S.D. 1991).

[¶50.]         In Dahl, this Court noted that there are generally “two theories of

recovery: the scope of employment rule [respondeat superior], and the complicity

rule.” Id. at 902. After examining the justifications for the competing views, we

adopted the complicity rule. Id. at 903. Under that rule:

               Punitive damages can properly be awarded against a master or
               other principal because of an act by an agent if, but only if,

               (a)   the principal or a managerial agent authorized the doing
               and the manner of the act, or

               (b)   the agent was unfit and the principal or a managerial
               agent was reckless in employing or retaining him, or

               (c)    the agent was employed in a managerial capacity and was
               acting in the scope of employment, or

               (d)    the principal or a managerial agent of the principal
               ratified or approved the act.

Id. (quoting Restatement (Second) of Torts § 909) (1979).

[¶51.]         Allstate’s requested instruction followed the rule adopted in Dahl. 12

Because Allstate’s requested instruction correctly restated the law of punitive



12.      We acknowledge that Dahl involved an “agent” who was not an “employee” of
         a corporation. Nevertheless, our analysis and supporting authorities reveals
         that the rule adopted applies to both.

                                           -25-
#26442

damages in South Dakota, the circuit court erred in refusing to give that

instruction.

[¶52.]         Finally, in its argument to this Court, Allstate suggests that Bertelsen

I, Bertelsen II, and the jury instructions in these cases have created ambiguity in

the law on insurance bad faith. As previously stated, first-party bad faith is an

intentional tort, requiring proof of “an absence of a reasonable basis for denial of

policy benefits” and “the knowledge or reckless disregard of the lack of a reasonable

basis for denial.” Dakota, Minn. & E. R.R. Co., 2009 S.D. 69, ¶ 17, 771 N.W.2d at

629. But Allstate emphasizes that “an insurance company . . . may challenge claims

which are fairly debatable and will be found liable [for bad faith] only where it has

intentionally denied (or failed to process or pay) a claim without a reasonable basis.”

Id.

[¶53.]         In Bertelsen I, we concluded that Allstate’s legal duty to pay was not

fairly debatable after AIG denied worker’s compensation coverage. 2009 S.D. 21, ¶

20, 764 N.W.2d at 500-01 (“Allstate’s obligation was clear from the statutory

language alone, and an interpretive decision from this Court was not necessary for

Allstate to have determined its duty under its policy.”). However, we also concluded

that a disputed issue of fact remained regarding Allstate’s intent in failing to pay

benefits, and we remanded for a new trial. Id. ¶¶ 21-22. Those factual issues were

tried in Bertelsen II.

[¶54.]         Bertelsen I and II should only be understood to mean that upon AIG’s

denial of the worker’s compensation claim, Allstate’s legal duty was not fairly

debatable. A statute clearly controlled. However, the question of Allstate’s actual


                                           -26-
#26442

intent in delaying payment was a factual matter that was left open should Allstate

claim that its breach of duty occurred for reasons other than its legal obligation

under the statute. In other words, Allstate remained free to assert factual matters

such as negligence in processing the claim, an inadequate proof of loss, or an

agreement by the insured to delay payment. What our prior decisions prohibited

was an argument that Allstate reasonably believed it had no statutory duty to pay

upon AIG’s denial of worker’s compensation coverage.

                                  Conclusion

[¶55.]       We affirm the award of attorney’s fees and the court’s ruling denying

Allstate’s motions for judgment as a matter of law on the bad faith and punitive

damages claims. The circuit court erred in excluding Allstate’s evidence of AIG’s

acceptance of the worker’s compensation claim, and the exclusion of that evidence

prejudiced Allstate’s ability to defend the bad faith and punitive damages claims.

This matter is reversed and remanded for a new trial consistent with this opinion.

[¶56.]       GILBERTSON, Chief Justice, and KONENKAMP, SEVERSON and

WILBUR, Justices, concur.




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