Bjornestad v. Progressive Northern Insurance, 664 F.3d 1195

Bjornestad was rear-ended; tortfeasor's policy had $25,000 limits and Bjornestad had $100,000 UIM from Progressive.
Bjornestad settled with the at-fault driver for the full $25,000 available under the tortfeasor's policy.
Bjornestad sought the remaining UIM limits from Progressive, asserting a $75,000 UIM claim after offset.
Progressive offered $25,000 to settle, prompting a breach of contract and bad faith suit; IME opined minimal injury.
Trial: jury awarded $75,000 on the contract claim and rejected the bad faith claim; district court awarded fees under SD law.
Progressive appealed, arguing the bad faith verdict precluded fee recovery; the court held fees may be awarded despite the defense verdict.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does a bad faith defense verdict bar fee recovery under § 58-12-3?	Bjornestad argues Tripp allows fees despite verdict on bad faith.	Progressive contends a defense verdict precludes fees.	No; fee award permitted notwithstanding defense verdict.
Did the district court clearly err in finding vexatious or unreasonable conduct?	Progressive's low offer, misrepresentations, IME timing, and release demand show vexatiousness.	Progressive contends conduct was reasonable given case facts.	No clear error; findings supported by the record, including credibility determinations.

Tripp v. W. Nat'l Mut. Ins. Co., 664 F.3d 1200 (8th Cir. 2011) (jury bad-faith verdict does not bar §58-12-3 fees; separate analysis advised)
Brooks v. Milbank Ins. Co., 605 N.W.2d 173 (S.D. 2000) (bad-faith verdict not a prerequisite to fee award under §58-12-3)
Hanig v. City of Winner, 527 F.3d 674 (8th Cir. 2008) (standard of review for state-law fee issues)
Cook v. City of Bella Villa, 582 F.3d 840 (8th Cir. 2009) (credibility and fact-finding deference in fee determinations)
United States v. Sanders, 341 F.3d 809 (8th Cir. 2003) (clear error standard for factual findings)