Kalkstein, Johnson & Dye, P.C. - (406) 721-9800 - 225 N Adams St, Missoula, MT 59802
(406) 721-9800 - 225 N Adams St, Missoula, MT 59802
Lawyering redefined

Consumer Protection Cover Story: Home Inspection Trade Magazine Highlights KJD Jury Verdict

May 19, 2017

Working RE Magazine: Home Inspector Edition reports on KJD's Missoula jury verdict against a Montana home inspection service.  

Discovery of Claims Handling Guidelines in Montana Bad Faith Litigation

February 24, 2017

Insurers frequently claim that their claims handling guidelines are not “reasonably calculated to lead to the discovery of admissible evidence.” This is contrary to law.

Where a plaintiff asserts bad faith claims against an insurer, requests to produce claims handling manuals and guidelines “unquestionably seek information relevant to her bad faith claims.” Trotsky v. Travelers Indemnity Co., 2013 WL 12116153, *3 (W.D. Wash. 2013); see also White Mountain Communities Hosp. Inc. v. Hartford Cas. Ins. Co., 2014 WL 6885828, *2 (D. Ariz. 2014)(recognizing that claims handling guidelines are relevant to breach of contract and bad faith claims against an insurer); Stokes v. Life Ins. Of N. America, 2008 WL 2704564, *1 (D. Idaho 2008) (noting that an insurer’s claims handling guidelines and procedures “clearly qualif[y] as discoverable” under Rule 26(b)(1)). The United States District Court for the District of Montana has likewise previously ruled that claims handling materials are relevant to bad faith claims under Montana law. See Moe v. System Transport, Inc., 270 F.R.D. 613, 631 (D. Mont. 2010). 

Whether and to what extent the insurer complied with its own guidelines and policies in the adjustment of the underlying claim speaks to the reasonableness of its investigation and is therefore appropriate fodder for discovery in bad faith litigation.

It's Vague, But I Can't Tell You Why: The "Vague and Ambiguous" Objection

January 22, 2017

The standard boilerplate objections we typically see in written discovery -- "vague and ambiguous," "oppressive," "undue burden," etc. -- are more easily raised than sustained. Today we briefly dissect the "vague and ambiguous" objection, which requires the objecting party to demonstrate why terms are vague or ambiguous. Bryant v. Armstrong, 285 F.R.D. 596, 606 (S.D. Cal. 2012). “The responding party should exercise common sense and attribute ordinary definitions to terms in discovery requests.” Id.; see also Thomas v. Cate, 715 F.Supp.2d 1012, 1030 (E.D. Cal. 2012)(recognizing that the burden to demonstrate vagueness or ambiguity requires a showing “that more tools beyond mere reason and common sense are necessary to attribute ordinary definitions to terms and phrases.”). 

That's right, folks, it's never enough to merely claim that something is "vague" or "ambiguous"; the Rules require that the objecting party explain why the request cannot be answered. And, the responding party has to try to understand the question in context.  Further, “if necessary to clarify its answers, the responding party may include any reasonable definition of the term or phrase at issue.” Beach v. City of Olafe, Kansas, 203 F.R.D. 489, 498 (D. Kan. 2001). It's never enough to object and refuse to respond. Rather, the objecting party must attempt to reasonably respond notwithstanding a "vague and ambiguous" objection. 

That Attorney's Fee Provision In Your Residential Lease? It's Probably Illegal.

December 21, 2016

Attorney’s fee provisions are often deployed within agreements to intimidate renters into not pursuing claims. The cost/benefit analysis goes something like this: “Is it worth suing to get $150 of my deposit if I’m also risking hundreds, if not thousands in attorney’s fees to the other side? No way, I can’t even afford to get an attorney for myself.”

Under the Residential Landlord and Tenant Act of 1977, the Lease may include any provision not specifically prohibited under the Act. MCA § 70-24-201(1). So, if a term isn’t illegal under the Act, it can be included in your Lease. For instance, the Act does doesn’t’ prohibit a Lease term forbidding pets (yes it’s a double negative, and yes you understood it). However, the Act specifically contemplates  attorney’s fees -- “In an action on a rental agreement or arising under this chapter, reasonable attorney’s fees, together with costs and necessary disbursements, may be awarded to the prevailing party notwithstanding an agreement to the contrary. MCA § 70-24-442(1). Translation: A judge…may award fees and costs…to the prevailing party. They key concept is “may.” Almost all leases contain “must” or “shall” language, but the law says “may,” so the law controls. The Act goes even further by specifically prohibiting Lease provisions attempting “to waive or forego rights or remedies under this chapter” or “to indemnify the other party for the liability or the costs or attorney’s fees connected therewith.” MCA § 70-24-202. Translation #2: No matter what the lease says about attorney fees, you cannot be bound to an absolute attorney’s fee obligation. It doesn’t matter that your lease says otherwise.  

The takeaway here – don’t let an attorney’s fees provision in your lease stop you from pursuing your legal right to recover for violations of the Landlord and Tenant Act. The attorney’s fees provision was included in the Act for good reason – to encourage attorneys to take landlord tenant cases even when the client cannot afford to pay fees out of pocket. In this respect, the Landlord and Tenant Act operates to level the playing field; not only does it eliminate or significantly reduce the client’s fee obligations, it creates risk to landlords who might otherwise “drag things out” in an attempt to exhaust a renter’s resources before they ever see the inside of a courtroom.  

So, take a sigh of relief, ignore that illegal contract provision (even curse it, go right ahead) and find yourself a lawyer who knows how this stuff works.