D.C. No. CV-89-210-GF-PGH. D.C. No. CV-89-210-GF-PGH Appeals from the United States District Court for the District of Montana. Paul G. Hatfield, District Judge, Presiding. Original Opinion Reported at,
Before: Jerome Farris, William A. Norris, and Alex Kozinski, Circuit Judges. Opinion by Judge Farris.
Order AND AMENDED OPINION
In these consolidated appeals, State Farm Mutual Automobile Insurance Company appeals the district court's judgment entered on a jury verdict for Julie Holmgren in her action for unfair claim settlement practices under Mont. Code Ann. § 33-18-201. State Farm also appeals the district court's award of attorney expenses under Fed. R. Civ. P. 37(c). We affirm in all respects except the size of the Rule 37(c) award.
Julie Holmgren was injured on July 16, 1986, in Helena, Montana, when State Farm's insured, Sharon Cannon, ran a stop sign and collided with the car in which Holmgren was riding. Cannon was intoxicated at the time. She left the scene of the Holmgren accident and collided with three other cars in the vicinity. Cannon pled guilty to several charges, including driving while under the influence of alcohol.
Immediately after the accident, Holmgren was treated at a local emergency room for headache and neck and back pain. She thereafter saw Dr. Bishop, who prescribed physical therapy and recommended that she cease working until January 1987. Holmgren followed his recommendation. Her employer discharged her from her part-time job some time before October 22, 1986. Holmgren received further treatment through 1988.
Within a week of the accident, Holmgren hired an attorney, who promptly contacted State Farm. A State Farm representative, Ron Ashbraner, conducted an initial investigation and concluded that Cannon's liability was clear. At his direction, State Farm reimbursed the Holmgren family for the damage to their automobile, for car rental expenses, and made advance payments for Holmgren's medical expenses and lost wages totaling just over $5,000.
Holmgren's husband had been disabled in 1984 and was unemployed. The Holmgrens lost their home through foreclosure in December 1987. The family's fiscal pressures were regularly communicated to State Farm by Holmgren's counsel.
In December 1987, State Farm's offer to settle for $12,500 was rejected. Unsuccessful settlement attempts led to the July 1988 filing of suit in state court. Cannon's attorney, who had been retained by State Farm, filed an answer admitting injury but denying liability. The suit was settled for $40,000 in October 1989, on the second day of trial. The settlement expressly reserved Holmgren's rights against State Farm for bad faith in the process of adjusting and settling the claim.
Holmgren filed this suit in state court, under Mont. Code Ann. §§ 33-18-201(2), (4), (6) and (13), on November 9, 1989. Invoking diversity jurisdiction, State Farm removed the suit to federal district court. The district court entered judgment of $149,115.40 on a jury verdict for Holmgren, after crediting State Farm for advance payments and the amount paid to settle the Cannon suit. Motion for judgment notwithstanding the verdict was denied on January 24, 1991. State Farm filed timely notice of appeal from the judgment and the order denying the motion for judgment notwithstanding the verdict.
Holmgren's motion for attorneys' fees under Fed. R. Civ. P. 37(c) for State Farm's denial during discovery of certain requests for admission was granted. Following supplemental briefing, the district court awarded attorneys' fees of $11,639.35. State Farm timely appealed.
(1) Opinion Work Product - State Farm contends that the district court erred in compelling it to produce and admitting as evidence plaintiff's exhibits 92 and 93. These items are handwritten memoranda drafted during the litigation of the Cannon suit by a State Farm adjuster. They contain a range of values for Holmgren's claims, including aggravation, medical expenses, lost earnings, pain and suffering, loss of course of life and loss of home, fixing the range of potential liability as from $78,000 to $145,000. State Farm argues that these items are opinion work product and protected under Fed. R. Civ. P. 26(b)(3).
Holmgren contends that State Farm failed to object to the admission of the exhibits. We reject the argument. Counsel objected by affidavit to the production of both items as "opinion work product."
The work product doctrine was first articulated by the Supreme Court in Hickman v. Taylor, 329 U.S. 495 (1947). Fed. R. Civ. P. Rule 26(b)(3), which ...