                                                                                               01/10/2017


                                          DA 16-0326
                                                                                           Case Number: DA 16-0326

                  IN THE SUPREME COURT OF THE STATE OF MONTANA

                                          2017 MT 6N



JEANNETTE MUNDEL,

              Plaintiff and Appellant,

         v.

FARMERS INSURANCE EXCHANGE,
THE FARMERS INSURANCE GROUP
OF COMPANIES, and DOES 1-15,

              Defendants and Appellees.



APPEAL FROM:            District Court of the Eleventh Judicial District,
                        In and For the County of Flathead, Cause No. DV-11-1252(D)
                        Honorable Amy Eddy, Presiding Judge


COUNSEL OF RECORD:

                For Appellant:

                        Evan F. Danno, Danno Law Firm, Kalispell, Montana

                For Appellees:

                        Mark S. Williams, Nicholas Pagnotta, Amanda Duman, Williams Law
                        Firm, P.C., Missoula, Montana

                        Monique P. Voigt, William J. Mattix, Crowley Fleck, PLLP,
                        Billings, Montana



                                                    Submitted on Briefs: December 7, 2016

                                                               Decided: January 10, 2017


Filed:

                        __________________________________________
                                          Clerk
Chief Justice Mike McGrath delivered the Opinion of the Court.


¶1     Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2     Jeannette Mundel (Mundel) appeals from an April 26, 2016 post-trial order

denying her attorney’s fees and costs, in a case involving litigation of uninsured motorist

insurance coverage. We affirm.

¶3     On September 1, 2011, Mundel was stopped at a traffic light in Kalispell,

Montana, when her vehicle was rear-ended by Zona Bauer (Bauer). Neither Mundel nor

Bauer called the police. Mundel drove herself to the Hospital in Whitefish, Montana,

where she received medical treatment.       Bauer’s insurance company, Allstate, paid

Mundel its bodily injury liability limit of $25,000. Mundel was insured by Farmers

Insurance (Farmers) and carried underinsured motorist coverage (UIM) with a $100,000

bodily injury liability limit. Mundel made a claim under her Farmers UIM policy.

Farmers denied her claim. Mundel filed a complaint in District Court alleging breach of

contract and damages.

¶4     After Farmers denied key matters in its answer, Mundel served discovery requests

for admissions on Farmers to admit: the accident was caused solely by Bauer, Mundel

was injured in the accident, and Mundel’s medical bills compilation may be admitted into


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evidence as a summary of her medical expenses.           Farmers denied her requests for

admissions noting the police were not called, Bauer and Mundel’s versions of the

accident differed, Mundel failed to cooperate with the injury investigation, and Farmers

believed the summary of medical expenses called for a legal conclusion. At trial, these

matters were resolved in Mundel’s favor.

¶5     The jury awarded Mundel $19,731.02 for bodily injury damages.               As such,

Mundel did not qualify for UIM coverage under her Farmers’ policy because Bauer was

not underinsured. Allstate had paid her more than the jury awarded. The District Court

denied Mundel’s post-trial motion for attorney’s fees and costs and entered judgment in

favor of Farmers.

¶6     A trial court has authority to impose discovery sanctions pursuant to M. R. Civ. P.

37. The Montana Supreme Court reviews sanctions imposed pursuant to M. R. Civ. P. 37

for an abuse of discretion. Maloney v. Home & Inv. Ctr., Inc., 2000 MT 34, ¶ 27, 298

Mont. 213, 994 P.2d 1124; Kraft v. High Country Motors, Inc., 2012 MT 83, ¶ 23, 364

Mont. 465, 276 P.3d 908. We generally defer to the trial court’s judgment on the

decision to impose sanctions for discovery violations because “the trial court is in the best

position to know whether parties are disregarding the rights of opposing parties in the

course of litigation and which sanctions for such conduct are most appropriate.”

McKenzie v. Scheeler, 285 Mont. 500, 506, 949 P.2d 1168, 1172 (citing Smith v.

Butte-Silver Bow County, 276 Mont. 329, 332, 916 P.2d 91, 93 (1996)). See also Linn v.

Whitaker, 2007 MT 46, ¶ 13, 336 Mont. 131, 152 P.3d 1282.



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¶7     Mundel argues the District Court should have granted her attorney’s fees and costs

pursuant to M. R. Civ. P. 37(c)(2) when Farmers failed to admit matters in requests for

admissions thus needlessly requiring litigation of those issues.       Mundel bases her

argument on the assumption that after a party fails to admit what is later proven true,

M. R. Civ. P. 37(c)(2) requires a district court to order payment of attorney’s fees

incurred in proving the fact. M. R. Civ. P. 37(c)(2) provides:

              (2) Failure to Admit. If a party fails to admit what is requested
       under Rule 36 and if the requesting party later proves a document to be
       genuine or the matter true, the requesting party may move that the party
       who failed to admit pay the reasonable expenses, including attorney fees,
       incurred in making that proof. The court must so order unless:
              (A) the request was held objectionable under Rule 36(a);
              (B) the admission sought was of no substantial importance;
              (C)the party failing to admit had a reasonable ground to believe that
       it might prevail on the matter; or
              (D) there was other good reason for the failure to admit.

¶8     Mundel argues the District Court completely failed to apply the factors in

M. R. Civ. P. 37(c)(2) to her request for attorney’s fees. Under M. R. Civ. P. 37(c)(2) the

district court must order sanctions unless, among other things, “there was other good

reason for the failure to admit.” M. R. Civ. P. 37(c)(2)(D); Tempel v. Benson, 2015 MT

84, ¶ 21, 378 Mont. 401, 346 P.3d 342. “When it is not possible for this Court to make a

ready, confident, and accurate determination of a party’s good faith in the discovery

process, we presume the correctness of the District Court's action under Rule 37.” Owen

v. F. A. Buttrey Co., 192 Mont. 274, 280-81, 627 P.2d 1233, 1237 (1981).

¶9     The District Court denied Mundel’s post-trial motion for attorney’s fees and costs

stating, “upon review of the discovery requests in this matter, the Court does not find it


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appropriate to award sanctions to Ms. Mundel under Rule 37, Mont. R. Civ. P.” The

District Court found it was not appropriate to award sanctions, and we defer to the

District Court.

¶10    Mundel further argues, citing Mountain W. Farm Bureau Mut. Ins. Co. v. Brewer,

2003 MT 98, ¶ 36, 315 Mont. 231, 69 P.3d 652, that she is entitled to attorney’s fees as

the prevailing party in the action. Here, Mundel was not the prevailing party. As the

District Court noted, “because Ms. Mundel failed to prove that her total damages

exceeded Ms. Bauer’s available bodily injury limit, the Court concludes that Farmers is

the prevailing party.” As she remains the non-prevailing party, Mundel is not entitled to

attorney’s fees under Brewer.

¶11    We have determined to decide this case pursuant to Section I, Paragraph 3(c) of

our Internal Operating Rules, which provides for memorandum opinions. In the opinion

of the Court, the case presents a question controlled by settled law or by the clear

application of applicable standards of review.

¶12    Affirmed.

                                                 /S/ MIKE McGRATH

We Concur:

/S/ JAMES JEREMIAH SHEA
/S/ LAURIE McKINNON
/S/ BETH BAKER
/S/ MICHAEL E WHEAT




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