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Timlick v. Liberty Mutual Insurance Co.

United States District Court, D. Montana, Missoula Division

October 7, 2019

JAY L. TIMLICK, Plaintiff,
v.
LIBERTY MUTUAL INSURANCE COMPANY and SAFECO INSURANCE COMPANY OF ILLINOIS, Defendants.

          ORDER

          KATHLEEN L. DESOTO UNITED STATES MAGISTRATE JUDGE.

         Defendants Liberty Mutual Insurance Company and Safeco Insurance Company of Illinois have filed a motion to disqualify Plaintiff Jay Timlick's counsel, Gary Crowe, pursuant to Rule 3.7 of the Montana Rules of Professional Conduct 3.7 and Rule 83.5 of the Local Rules of Procedure for the District of Montana. For the reasons discussed below, the motion is granted.

         I. Background

         This bad faith insurance action arises from a motor vehicle accident that took place on March 10, 2016, when a vehicle driven by Timlick was rear-ended by another vehicle. (Doc. 3, at 2). Timlick settled with the tortfeasor's liability insurance carrier for the $100, 000 policy limits, and then made a claim for underinsured motorist (“UIM”) benefits with his own insurer, Safeco. (Doc. 3, at 2). After settling his UIM claim with Safeco, Timlick commenced this action against Liberty and Safeco alleging claims for breach of contract and violations of Montana's Unfair Trade Practices Act (“UTPA”), Mont. Code Ann. § 33-18-201 et seq. (Doc. 3, at 3-7).

         Timlick's current counsel of record, Gary Crowe, also represented him in making the underlying UIM claim against Safeco. Because of Crowe's representation in the underlying matter, Defendants move for his disqualification pursuant to Montana Rule of Professional Conduct 3.7 and Local Rule 83.5 on the ground that he is likely to be a necessary witness in this bad faith action.

         II. Discussion

         Matters of attorney disqualification are governed by state law and applicable disciplinary rules. Nelson v. Hartford Ins. Co. of the Midwest, 2012 WL 761965, *2 (D. Mont. March 8, 2012). In addition, the Local Rules of Procedure for the District of Montana apply in all cases brought in this Court. Nelson, 2012 WL 761065, *2.

         Local 83.5 provides that “[i]f an attorney representing any party is examined as a witness in a case and gives testimony on the merits, the attorney may not argue the merits of the case, either to the Court or jury, except by permission of the Court, and as limited by the Court.” D. Mont. L.R. 83.5 (Feb. 1, 2019). This rule does not apply to pretrial advocacy, and the Court has typically applied it narrowly to prohibit an attorney who testifies at trial from making the closing argument. Nelson, 2012 WL 761965, *3. But “Rule 83.5 may have a broader application where there is a risk that the jury will construe the attorney's participation as argument.” Nelson, 2012 WL 761965, *3. If, for example, an attorney “has personal knowledge of the subject, ” the attorney's “questions to a witness at a deposition or at trial may be construed as argument by a jury.” Nelson, 2012 761965, *3.

         Montana Rule of Professional Conduct 3.7 directly addresses when a lawyer may serve as trial counsel and witness in the same proceeding. Rule 3.7(a) provides:

(a) A lawyer shall not act as an advocate at a trial in which the lawyer is likely to be a necessary witness unless:
(1) the testimony relates to an uncontested issue;
(2) the testimony relates to the nature and value of legal services rendered in the case; or
(3) disqualification of the lawyer would work substantial hardship on the client.

Mont. R. Prof. Conduct 3.7. “Courts within this district have recognized that an attorney in a bad faith case may be subject to disqualification if the attorney also represented the plaintiff in the underlying suit, and is likely to be a necessary witness in the subsequent action.” Katica v. Allstate Fire and Casualty Ins. Co., 2018 WL 3475479, *1 (D. Mont. July 19, 2018) ...


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