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Newman v. Farmers Alliance Mutual Insurance Co.

United States District Court, D. Montana, Billings Division

August 10, 2017

ROBERT NEWMAN, individually, as Personal Representative on behalf of THE ESTATE OF JACKIE ANN NEWMAN, and on behalf of STEPHANIE NEWMAN and MANDY NEWMAN, Plaintiffs,
v.
FARMERS ALLIANCE MUTUAL INSURANCE COMPANY, Defendant.

          ORDER DENYING DEFENDANT'S MOTION TO DISQUALIFY ATTORNEY JOSEPH P. COOK AS TRIAL COUNSEL

          TIMOTHY J. CAVAN UNITED STATES MAGISTRATE JUDGE.

         Plaintiff Robert Newman, individually, as Personal Representative on behalf of the Estate of Jackie Ann Newman, and on behalf of Stephanie Newman and Mandy Newman (“Plaintiffs” or the “Newman family”) brings this action against Defendant Farmers Alliance Mutual Insurance Company (“Farmers Alliance”) for bad faith breach of contract and unfair trade practices arising out of Farmers Alliance's investigation and denial of the Newman family's claims following the death of Jackie Ann Newman. (Doc. 1-3.)

         Presently before the Court is Farmers Alliance's Motion to Disqualify Plaintiff's Attorney Joseph P. Cook as Trial Counsel. (Doc. 10.) The motion is fully briefed and ripe for the Court's review. (Docs. 11, 18, 19.)

         Having considered the parties' submissions, the Court DENIES Farmers Alliance's Motion to Disqualify.

         I. BACKGROUND

         On October 15, 2015, a fatal collision occurred between a pickup truck and trailer driven by James C. Crowley and an ATV operated by Jackie Ann Newman on U.S. Highway 12 in Musselshell County, Montana. (Doc. 1-3 at ¶ 4.) Mrs. Newman was killed in the accident. (Id. at ¶ 13.) The pickup truck was owned by the Newmans and insured under a Farmers Alliance policy. (Id. at ¶ 2.) Robert and Jackie Newman were named insureds under the policy. (Id.)

         On November 2, 2015, Mr. Newman made a claim for insurance benefits. (Id. at ¶ 20.) On December 16, 2015, Farmers Alliance denied Mr. Newman's first-party claim for medical payment benefits, and the Newman family's third-party claims against Mr. Crowley. (Id. at ¶ 28.)

         On February 1, 2016, Mr. Newman filed a Consumer Complaint with the Montana Commissioner of Securities and Insurance. (Id. at ¶ 30; Doc. 18-3.) In his complaint, Mr. Newman indicated he was not represented by an attorney. (Doc. 18-3 at 1.) Farmers Alliance responded to the Insurance Commissioner by letter on February 11, 2016, again denying coverage. (Doc. 18-4.) On February 18, 2016, the Insurance Commissioner's office relayed Farmers Alliance's response to Mr. Newman. (Doc. 18-5.)

         After Mr. Newman's liability claims had been formally denied twice by Farmers Alliance, he consulted with and retained attorney Joseph P. Cook on March 2, 2016. (Doc. 18-2.) Mr. Newman had not consulted with Mr. Cook prior to either the December 16, 2015 or the February 18, 2016 denials. (Id.)

         On March 7, 2016, Mr. Cook wrote a letter to Farmers Alliance notifying the insurer of his representation of Plaintiffs. (Doc. 11-1.) Mr. Cook wrote a subsequent policy limits demand letter to Christopher C. Voigt on May 10, 2016. (Doc. 11-2.) In the letters, Mr. Cook made several statements characterizing the events surrounding the accident as supporting liability against Mr. Crowley. (Id.)

         Farmers Alliance now moves the Court to disqualify Mr. Cook as trial counsel under Montana Rule of Professional Conduct 3.7. Farmers Alliance contends the statements Mr. Cook made in his letters are not supported by the evidence in the record, and therefore, he has inserted himself as a necessary witness in the case.

         Plaintiffs respond that this case solely concerns the actions and inactions of Farmers Alliance prior to denying the Newman family's claims in December 2015 and February 2016. Plaintiffs argue Mr. Cook did not become involved in the case until after the alleged bad faith conduct had occurred, and note that he was not a witness to any of the contested issues in the underlying case. Plaintiffs also assert Mr. Cook's descriptions of the events in his letters are advocacy based upon interpretation of the reported facts.

         II. ...


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