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Mlekush v. Farmers Insurance Exchange

Supreme Court of Montana

October 24, 2017

TANYA L. MLEKUSH, Plaintiff and Appellant,
v.
FARMERS INSURANCE EXCHANGE, Respondent and Appellee.

          Argued and Submitted: July 26, 2017

         Appeal From District Court of the First Judicial District, In and For the County of Lewis And Clark, Cause No. ADV-2013-57 Honorable Mike Menahan, Presiding Judge.

          For Appellant: Rick J. Pyfer, Patrick T. Fox (argued), Doubek, Pyfer & Fox, PC, Helena, Montana.

          For Appellee: Paul R. Haffeman (argued), Davis, Hatley, Haffeman & Tighe, P.C., Great Falls, Montana.

          For Amicus Montana Trial Lawyers Association: Justin P. Stalpes, Beck, Amsden & Stalpes, PLLC, Bozeman, Montana.

          For Amicus Montana Defense Trial Lawyers: Nicholas J. Pagnotta (argued), Peter B. Ivins, Williams Law Firm, P.C., Missoula, Montana.

          OPINION

          MICHAEL E WHEAT JUSTICE.

         ¶1 This appeal arises from a November 3, 2016 District Court order denying a motion for attorney fees.

         ¶2 We restate the sole issue on appeal as follows:

Whether an injured first-party insured who is compelled to sue for UIM benefits and recovers more at trial than the last insurance company offer is entitled to recover his or her attorney fees.

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶3 On January 15, 2011, Tanya L. Mlekush (Mlekush) was injured in a two-vehicle collision. At the time, Farmers Insurance Exchange (Farmers) insured Mlekush under a policy that provided underinsured motorist (UIM) coverage. After the accident, Mlekush retained counsel.

         ¶4 On January 22, 2011, Farmers sent Mlekush a letter regarding the collision and her options for repair of her vehicle. In August 2012, the other driver admitted liability and tendered the liability insurance policy limits of $50, 000. On October 2, 2012, Mlekush's counsel sent Farmers a letter requesting a UIM claim be opened and to have the assigned adjuster contact counsel. Farmers and Mlekush exchanged information regarding Mlekush's claim and medical expenses over the next few months.

         ¶5 In January 2013, Farmers had not yet made a determination regarding Mlekush's claim. Farmers sent Mlekush a letter informing her that it needed more information regarding her claimed injuries because "at this time it is not clear if the ...


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