#28159-a-SRJ
2018 S.D. 52

                             IN THE SUPREME COURT
                                     OF THE
                            STATE OF SOUTH DAKOTA

                                    ****

NICOLE M. HARVIEUX,                          Plaintiff and Appellant,

      v.

PROGRESSIVE NORTHERN
INSURANCE COMPANY,                           Defendant and Appellee.

                                    ****

                  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                            Attorneys for plaintiff and
Rapid City, South Dakota                     appellant.

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

                                    ****

                                             CONSIDERED ON BRIEFS
                                             MARCH 19, 2018
                                             OPINION FILED 07/03/18
#28159

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.




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[¶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


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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.




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#28159

                                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. (quoting Estate of Lien v. Pete Lien & Sons, Inc., 2007 S.D.

100, ¶ 9, 740 N.W.2d 115, 119).

[¶10.]       “A circuit court’s refusal to grant additional discovery prior to

awarding summary judgment is reviewed for abuse of discretion.” Gores v. Miller,

2016 S.D. 9, ¶ 14, 875 N.W.2d 34, 39 (quoting Stern Oil Co. v. Border States Paving,

Inc., 2014 S.D. 28, ¶ 24, 848 N.W.2d 273, 281). A circuit court’s award or denial of

costs and disbursements is also reviewed for an abuse of discretion. McLaren v.

Sufficool, 2015 S.D. 19, ¶ 4, 862 N.W.2d 557, 558.

                                      Analysis

             1.     Whether the circuit court erred in granting Progressive’s
                    motion for summary judgment as to Harvieux’s claims of
                    bad faith.

[¶11.]       Harvieux claims Progressive initially acted in bad faith in valuing and

discussing settlement of the UM claim. Harvieux argues the settlement offers

constituted “lowball” offers that did not take into account Harvieux’s policy limits;

medical treatment and expenses; potential lost wages; and mental, emotional, and

financial stress. Harvieux also attacks what she characterizes as “systematic,

institutional bad-faith conduct of Progressive.” She asserts Progressive engages in


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#28159

unfair practices in order to force its insureds to accept unreasonable settlement

offers. Harvieux argues that Progressive also acted in bad faith when it filed a

frivolous motion to enforce the $9,000 settlement offer knowing that she had not

accepted that offer. Finally, Harvieux claims that she should have been allowed to

conduct further discovery before the circuit court heard the motion for summary

judgment.

[¶12.]       Progressive argues that there is no evidence to prove bad faith.

Progressive claims that Harvieux’s damages were reasonably in dispute before and

after her lawsuit was filed. Progressive points out that it offered $9,000 before

Harvieux filed her lawsuit and that it offered $20,000 prior to trial. Progressive

claims that Harvieux unreasonably refused to discuss any settlement below the

$100,000 UM policy limits and that Progressive properly defended the UM claim

thereafter. Progressive also asserts that it valued Harvieux’s claim correctly as the

$16,000 jury verdict was nearly the same as Progressive’s offer and far below

Harvieux’s demand. Finally, Progressive claims that it properly filed the motion to

enforce the $9,000 settlement and that the motion was not relevant to the bad-faith

claim under Dakota, Minnesota & Eastern Railroad Corp. v. Acuity, 2009 S.D. 69,

¶ 14, 771 N.W.2d 623, 628.

[¶13.]       A claim of first-party bad faith is an intentional tort that “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. “In [bad faith] cases, the [insurer and the insured] are

adversaries, and therefore, an insurer is permitted to challenge claims that are


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fairly debatable. However, a frivolous or unfounded refusal to comply with a duty

under an insurance contract constitutes bad faith.” Id. In order to be successful on

a claim of bad faith, a plaintiff must prove: “(1) an absence of a reasonable basis for

denial of policy benefits, and (2) the insurer’s knowledge of the lack of a reasonable

basis for denial.” Mordhorst v. Dakota Truck Underwriters & Risk Admin. Servs.,

2016 S.D. 70, ¶ 9, 886 N.W.2d 322, 324 (quoting Hein, 2007 S.D. 40, ¶ 18,

731 N.W.2d at 237).

[¶14.]       The undisputed facts show that, shortly after the accident, Progressive

determined there was no dispute concerning liability or UM coverage. Progressive

began paying Harvieux’s medical bills under the MPC shortly after the accident but

was unwilling to pay benefits under the UM coverage without a final release from

Harvieux. The initial medical records available to Progressive show that Harvieux

was diagnosed with neck strain from the accident. Harvieux began receiving

physical therapy and later received injections to treat her pain. By July of 2008,

Harvieux had exhausted her $5,000 MPC.

[¶15.]       In September of 2008, Progressive offered to pay all of Harvieux’s

outstanding medical bills, plus $3,000 for pain and suffering, in exchange for a final

release. Harvieux indicated she was unwilling to settle until she was back to her

pre-accident condition. Harvieux continued to receive physical therapy and

complain of neck pain. In May 2009, Progressive increased its offer to settle the

UM claim by paying all medical expenses to date plus $5,000 for pain and suffering.

Harvieux rejected the offer. In October 2009, Harvieux requested the UM policy

limits of $100,000. Progressive then sent all of the medical records to an orthopedic


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surgeon for a medical review. Following this review, the doctor opined that

Harvieux suffered a “mild cervical strain” from the accident and that the amount

and duration of medical care based upon this diagnosis was unusual and prolonged.

The doctor also determined that Harvieux should have reached maximum medical

improvement within approximately one year of the accident and that there was no

evidence in the medical records that Harvieux sustained a permanent injury as a

result of the accident. Based upon this review, Progressive denied Harvieux’s

demand for the $100,000.

[¶16.]       Later in 2010, Harvieux retained an attorney. In early 2011, the

attorney renewed Harvieux’s demand for $100,000, advising Progressive that

Harvieux may be required to leave her position with the National Guard because of

her injuries from the accident. Harvieux had already incurred over $10,000 in

physical therapy bills by this time. In May of 2011, Progressive increased its

settlement offer to $9,000 plus the $5,000 already paid. This was the offer that

Progressive’s adjustor claimed was accepted by Harvieux’s counsel and that was the

basis for Progressive’s later motion to enforce the settlement.

[¶17.]       In December of 2011, Harvieux had an MRI of her neck, which showed

that she had a minimal disc bulge that was not causing any nerve impingement. No

opinion was rendered whether this bulged disc was caused by the accident.

Harvieux claimed that she was discharged from the National Guard due to the

injuries sustained in the 2007 accident and that she lost $250,000 in wages. The

extent of Harvieux’s injuries were disputed up to and throughout trial.




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[¶18.]       Based upon the record, the severity of Harvieux’s injuries arising from

the accident were fairly debatable. The respective valuations of the case by

Progressive and Harvieux were extremely divergent. However, the facts taken most

favorable to Harvieux fail to show that Progressive did not have a reasonable basis

for its valuation of Harvieux’s injuries. Further, the record also fails to create a jury

question that Progressive knew there was not a reasonable basis for its valuation.

[¶19.]       Harvieux also claims bad faith by Progressive in failing to pay her

medical bills under the UM coverage after the MPC limits were exhausted.

Progressive paid $5,000 of Harvieux’s medical bills under the MPC coverage, but by

the time of trial she claimed more than $10,000 in medical expenses arising from

the accident. Harvieux claims that because liability was undisputed it was bad

faith for Progressive to refuse to pay her medical expenses above the $5,000 MPC

limit. Although liability was never in dispute, the extent of Harvieux’s injuries and

related medical expenses were in dispute throughout the case. The facts show that

Progressive relied upon the medical diagnosis of a “mild neck strain” and an

orthopedic surgeon’s 2010 opinion that Harvieux’s claims for medical treatment

were “unusual and prolonged.” Harvieux failed to present evidence to show this

reliance was unreasonable. “[A]n insurer is permitted to challenge claims that are

fairly debatable.” Hein, 2007 S.D. 40, ¶ 10, 731 N.W.2d at 235.

[¶20.]       Harvieux’s claims of companywide bad faith by Progressive through its

employee-bonus plan and other internal claims policies also fail. Harvieux

presented evidence from unrelated cases suggesting the internal policies of

Progressive were contrary to the terms of Progressive’s insurance contracts with its


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#28159

insureds and that such internal policies were unreasonable. However, Harvieux

presented no evidence that her claims were not fairly debatable or that

Progressive’s internal policies caused it to unreasonably investigate or evaluate her

UM claim.

[¶21.]       The circuit court also did not err in granting summary judgment on

Harvieux’s amended bad faith claim pertaining to Progressive’s motion to enforce

the $9,000 settlement, nor did the court err in denying Harvieux’s request to take

the depositions of Progressive’s defense counsel and in-house counsel. The circuit

court determined that Progressive’s decision to file the motion to enforce the

settlement was not unreasonable or frivolous. The court also relied on Dakota,

Minnesota & Eastern Railroad Corp. v. Acuity, determining that the post-filing

conduct by Progressive of filing the motion to enforce settlement was not admissible

to support the bad-faith claim.

[¶22.]       We have held that litigation conduct by the insurer is generally not

relevant to a claim of first-party bad faith. “[W]e believe it would be a rare case

where the insurer’s decisions and conduct in the underlying litigation would be

admissible in a first party bad faith claim.” Dakota, Minn. & E. R.R. Corp.,

2009 S.D. 69, ¶ 42, 771 N.W.2d at 635. In determining whether to receive such

evidence, “[t]he appropriate inquiry for the circuit court . . . is whether the insurer’s

post-filing conduct sheds light on the reasonableness of the insurer’s decision or

conduct in denying insurance benefits.” Id. On this record, the circuit court

properly determined that the motion to enforce the settlement did not shed light on

or otherwise impact Progressive’s investigation or valuation of the case. The circuit


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court properly denied the motions to compel the depositions, and it properly granted

summary judgment on the bad-faith claim.

[¶23.]       Finally, Harvieux claims the circuit court should have continued the

summary judgment hearing under SDCL 15-6-56(f) to afford her additional time to

conduct discovery on her claim for bad faith. The circuit court determined that

Harvieux had opportunities to conduct discovery going back to 2011. The discovery

Harvieux sought related mostly to Progressive’s policies for handling claims, but

Harvieux failed to show how this information would refute the evidence that the

extent of her injuries were fairly debatable. The circuit court has discretion under

SDCL 15-6-56(f) to determine whether a party has demonstrated that additional

discovery is necessary to defeat the motion for summary judgment. Gores, 2016

S.D. 9, ¶ 14, 875 N.W.2d at 39. The circuit court did not abuse its discretion in

denying the request for additional discovery under SDCL 15-6-56(f).

             2.     Whether the circuit court erred in granting Progressive’s
                    motion for summary judgment as to Harvieux’s claim of
                    barratry.

[¶24.]       Harvieux argues Progressive’s motion to enforce the verbal settlement

of $9,000 was frivolous and malicious so as to justify a cause of action for barratry.

She claims Progressive’s motion to enforce the oral settlement agreement caused

her more expense and unnecessarily delayed the litigation. Progressive argues the

circuit court properly granted summary judgment because Harvieux was unable to

produce any evidence of barratry.

[¶25.]       SDCL 20-9-6.1 provides:

             Barratry is the assertion of a frivolous or malicious claim or
             defense or the filing of any document with malice or in bad faith

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             by a party in a civil action. Barratry constitutes a cause of
             action which may be asserted by filing a pleading in the same
             civil action in which the claim of barratry arises or in a
             subsequent action. A claim of barratry shall be determined in
             the same manner as any other substantive cause of action
             asserted in that civil action.

[¶26.]       This Court has previously defined a frivolous action as one that

             exists when the proponent can present no rational argument
             based on the evidence or law in support of the claim. To fall to
             the level of frivolousness there must be such a deficiency in fact
             or law that no reasonable person could expect a favorable
             judicial ruling. Frivolousness connotes an improper motive or a
             legal position so wholly without merit as to be ridiculous.

Johnson v. Miller, 2012 S.D. 61, ¶ 12, 818 N.W.2d 804, 808 (quoting Citibank (S.D.),

N.A. v. Hauff, 2003 S.D. 99, ¶ 31, 668 N.W.2d 528, 537). “A malicious action is one

brought for an improper, unjustifiable motive.” Hauff, 2003 S.D. 99, ¶ 32,

668 N.W.2d at 537.

             An action is malicious if it is begun in malice, and without
             probable cause to believe it can succeed, and which finally ends
             in failure. Malice exists when the proceedings are instituted
             primarily for an improper purpose. An improper purpose occurs
             in situations where:
                     the plaintiff in the original action was actuated by any
                     unjustifiable motive, as where he did not believe his claim
                     would be held valid, or where his primary motive was
                     hostility or ill will, or where his sole purpose was to
                     deprive the defendant of a beneficial use of his property or
                     to force a settlement having no relation to the merits of
                     the claim.

Id. (quoting Stratmeyer v. Engberg, 2002 S.D. 91, ¶ 20, 649 N.W.2d 921, 926).

[¶27.]       Here, Progressive’s motion to enforce the oral settlement agreement

was neither frivolous nor malicious, as this Court has previously held that an

attorney may orally bind a client to a settlement. See Melstad v. Kovac, 2006 S.D.

92, ¶ 10, 723 N.W.2d 699, 703 (recognizing the validity of an oral settlement
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agreement between the attorney for the plaintiff and the insurer in the context of a

personal injury claim). Progressive presented sworn testimony in support of its

claim that Harvieux’s original attorney orally agreed to accept the $9,000 on

Harvieux’s behalf. Both Harvieux’s first attorney and Harvieux denied that she had

agreed to the settlement, and the circuit court denied the motion to enforce

settlement. But these facts are insufficient to create a jury question on the barratry

claim.

[¶28.]       The law regarding oral settlement agreements and the facts of this

case show that there was probable cause to support Progressive’s motion to enforce

the purported $9,000 oral settlement agreement. Therefore, Progressive’s motion

was neither frivolous nor malicious, and Harvieux’s claim of barratry fails as a

matter of law. The circuit court did not err in granting Progressive’s motion for

partial summary judgment on Harvieux’s barratry claim.

[¶29.]       Harvieux also argues that additional discovery was needed to prove

her claim of barratry and that the circuit court erred in denying her request to

depose defense counsel and in-house counsel for Progressive. Harvieux made no

showing in her affidavit under SDCL 15-6-56(f) how the testimony of either of

Progressive’s attorneys would support her claim for barratry. There is nothing in

the record to show that either attorney was initially involved in handling the claim

or involved in the discussions regarding potential settlement of the case in 2011.

Further, because there was a factual and legal basis for the motion to enforce the

alleged settlement, any claim that the motion was filed frivolously or maliciously

would fail. Therefore, the circuit court did not abuse its discretion in determining


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that the additional discovery would not defeat the motion for summary judgment.

Because the circuit court was within its discretion to deny the depositions of the

attorneys under SDCL 15-6-56(f), it is unnecessary to address whether the

discovery of defense counsel and in-house counsel was privileged. The circuit court

properly granted summary judgment for Progressive on Harvieux’s claim of

barratry.

             3.     Whether the circuit court erred in denying Harvieux’s
                    application for taxation of costs.

[¶30.]       Following the entry of the judgment on the UM claim, Harvieux filed

an application and affidavit for taxation of costs in the amount of $6,997.38. At the

hearing on the application, the circuit court contrasted Progressive’s $20,000 offer,

made just before trial, with Harvieux’s $100,000 pretrial demand. The circuit court

noted that Progressive’s offer exceeded the jury’s verdict on the UM claim.

However, as noted by Harvieux’s counsel, the $20,000 offer was not made as an

offer to confess judgment on the UM claim, but rather as an offer to settle all of

Harvieux’s claims. The circuit court orally denied Harvieux’s costs application,

stating that it was exercising its discretion on the facts that “this was not under all

of the circumstances, a plaintiff’s verdict.”

[¶31.]       In its oral ruling on the application, the circuit court further stated:

             It is my intention to deny the taxation of costs based on my
             ruling on the other matters regarding summary judgment. The
             manner in which the judgment came in, and combined with the
             totality of the record and most recent submissions, I feel that
             based on my decision on the other matters, that the taxation of
             costs would not be appropriate under [this]of facts and the jury
             verdict.



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In the written order denying Harvieux’s costs application, the circuit court stated

that Harvieux “was not the prevailing party” in the action. Harvieux argues the

circuit court erred because she was the prevailing party on the UM claim by virtue

of the jury verdict and entry of judgment in the amount of $16,724.99. Progressive

argues that regardless of whether Harvieux was the prevailing party on the UM

claim, a circuit court has discretion to award or deny costs and disbursements to a

prevailing party and that the court properly did so in this case.

[¶32.]       SDCL 15-6-54(d), SDCL 15-17-37, and SDCL 15-17-52 pertain to the

taxation of costs and disbursements in civil actions in South Dakota. SDCL 15-6-

54(d)(1) provides that “[e]xcept as otherwise provided by statute, costs and

disbursements, other than attorneys’ fees, shall be allowed as of course to the

prevailing party unless the court otherwise directs.” (Emphasis added.) This Court

has stated that the prevailing party is “the party in whose favor the decision or

verdict is or should be rendered and judgment entered.” Hewitt v. Felderman,

2013 S.D. 91, ¶ 28, 841 N.W.2d 258, 266 (quoting Picardi v. Zimmiond, 2005 S.D.

24, ¶ 16, 693 N.W.2d 656, 661). SDCL 15-17-37 provides:

             The prevailing party in a civil action or special proceeding may
             recover expenditures necessarily incurred in gathering and
             procuring evidence or bringing the matter to trial. Such
             expenditures include costs of telephonic hearings, costs of
             telephoto or fax charges, fees of witnesses, interpreters,
             translators, officers, printers, service of process, filing, expenses
             from telephone calls, copying, costs of original and copies of
             transcripts and reporter’s attendance fees, court appointed
             experts, and other similar expenses and charges. These
             expenditures are termed “disbursements” and are taxed
             pursuant to § 15-6-54(d).




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SDCL 15-17-52 provides that a circuit court “may limit the taxation of

disbursements in the interests of justice.”

[¶33.]       As to the grant of costs and disbursements to a prevailing party, this

Court has stated:

             A [circuit] court is not required to grant recovery for
             disbursements simply because a party has achieved the status of
             a prevailing party. While SDCL 15-17-37 grants no discretion,
             SDCL 15-17-52 allows a court to “limit the taxation of
             disbursements in the interests of justice.” This statute grants
             discretion to deny recovery of disbursements even though SDCL
             15-17-37 does not.

DeHaven v. Hall, 2008 S.D. 57, ¶ 52, 753 N.W.2d 429, 445. (quoting Full House, Inc.

v. Stell, 2002 S.D. 14, ¶ 25, 640 N.W.2d 61, 67). Further, SDCL 15-17-53 grants a

circuit court the ability to “reduce or disallow a taxation of disbursements that

would be oppressive or work a hardship.”

[¶34.]       Harvieux was the prevailing party on the UM claim based on the

$16,724.99 judgment entered, as she was “the party in whose favor the decision or

verdict is or should be rendered and judgment entered.” Hewitt, 2013 S.D. 91, ¶ 28,

841 N.W.2d at 266 (quoting Picardi, 2005 S.D. 24, ¶ 16, 693 N.W.2d at 661). To the

extent the circuit court concluded Harvieux was not the prevailing party on the UM

claim, this was incorrect, but the circuit court properly considered the “totality of

the record” in its decision to deny Harvieux’s costs application. The judgment on

the UM claim was entered on November 1, 2016, but Harvieux’s application for

costs was not considered until the circuit court had granted summary judgment in




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favor of Progressive on the claims for bad faith and barratry. The claims for bad

faith and barratry were bifurcated from the UM claim for trial under SDCL 15-6-

42(b), but all of the claims were filed in this action. The hearing transcript shows

that the circuit court determined that “the taxation of costs” on the UM claim

“would not be appropriate under [this set] of facts and the jury verdict.” The circuit

court properly considered that the verdict was significantly less than Harvieux’s

demand and close to Progressive’s offers to settle. The court also considered that

Harvieux was unsuccessful on the bad-faith and barratry claims. These latter

claims were a significant part of the discovery and pretrial motions in this case.

“The trial court has broad discretion under SDCL 15-17-52 to limit disbursements

to a prevailing party ‘in the interest of justice.’” Hewitt, 2013 S.D. 91, ¶ 30,

841 N.W.2d at 266. Given this record, we cannot say that the circuit court abused

its discretion in denying the application for costs.

                                       Conclusion

[¶35.]         We affirm the circuit court’s order granting Progressive’s renewed

motion for summary judgment on Harvieux’s claims of bad faith and barratry. We

also affirm the circuit court’s determination denying Harvieux’s application for

taxation of costs.

[¶36.]         GILBERTSON, Chief Justice, and ZINTER and KERN, Justices, and

SEVERSON, Retired Justice, concur.




        Progressive did not file an application for costs as the prevailing party on
         Harvieux’s claims for bad faith and barratry.

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