TANYA L. MLEKUSH, Plaintiff and Appellant,
FARMERS INSURANCE EXCHANGE, Respondent and Appellee.
and Submitted: July 26, 2017
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.
Appellant: Rick J. Pyfer, Patrick T. Fox (argued), Doubek,
Pyfer & Fox, PC, Helena, Montana.
Appellee: Paul R. Haffeman (argued), Davis, Hatley, Haffeman
& Tighe, P.C., Great Falls, Montana.
Amicus Montana Trial Lawyers Association: Justin P. Stalpes,
Beck, Amsden & Stalpes, PLLC, Bozeman, Montana.
Amicus Montana Defense Trial Lawyers: Nicholas J. Pagnotta
(argued), Peter B. Ivins, Williams Law Firm, P.C., Missoula,
MICHAEL E WHEAT JUSTICE.
This appeal arises from a November 3, 2016 District Court
order denying a motion for attorney fees.
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.
AND PROCEDURAL BACKGROUND
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.
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.
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 ...