Harvieux v. Progressive N. Ins. Co., 915 N.W.2d 697

In 2007 Harvieux was rear-ended by an uninsured motorist; she sought treatment for neck strain and Progressive paid $5,000 under Medical Payments Coverage (MPC).
Harvieux sought UM benefits (policy limit $100,000); Progressive made repeated settlement offers culminating in $9,000 (plus the $5,000 already paid), which Progressive later moved to enforce as an oral settlement allegedly accepted by Harvieux’s first attorney.
Harvieux rejected settlement, sued Progressive for UM benefits, and later amended to add bad-faith and barratry claims after Progressive moved to enforce the alleged oral settlement.
The UM claim was tried first and resulted in a jury verdict (judgment ~$16,725) in Harvieux’s favor; Progressive then renewed summary-judgment motions on bad-faith and barratry claims.
The circuit court granted Progressive’s renewed summary judgment on bad faith and barratry, denied Harvieux’s requests for additional discovery/depositions, and denied Harvieux’s application for taxation of costs; Harvieux appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether summary judgment on bad-faith claim was improper	Harvieux: Progressive made low‑ball offers, engaged in systemic bad-faith practices, filed a frivolous enforcement motion; discovery was needed	Progressive: Claim damages were fairly debatable; offers were reasonable; enforcement motion was proper; no bad-faith evidence	Affirmed — insufficient evidence that Progressive lacked a reasonable basis or knew it lacked one; post-filing litigation conduct irrelevant; denial of additional discovery not an abuse
Whether summary judgment on barratry claim was improper	Harvieux: Enforcement motion was frivolous/malicious and caused delay/costs	Progressive: There was probable cause to pursue enforcement; oral settlements can bind clients; motion not frivolous	Affirmed — probable cause for enforcement existed; no malice or frivolousness shown; additional discovery not warranted
Whether denial of costs was erroneous	Harvieux: She prevailed on the UM claim and is entitled to costs	Progressive: Court has discretion; overall case outcome and near-match to offers justify denying costs	Affirmed — although Harvieux prevailed on the UM judgment, court permissibly exercised discretion (considering totality of record, settlement postures, and dismissal of bad-faith/barratry claims) to deny taxation of costs

Hein v. Acuity, 731 N.W.2d 231 (S.D. 2007) (defines first‑party bad faith standard and permits insurer to challenge fairly debatable claims)
Dakota, Minn. & E. R.R. Corp. v. Acuity, 771 N.W.2d 623 (S.D. 2009) (insurer’s post‑filing litigation conduct generally not admissible in first‑party bad‑faith claims unless it sheds light on reasonableness of denial)
Melstad v. Kovac, 723 N.W.2d 699 (S.D. 2006) (recognizes validity of oral settlement agreements binding a client in personal injury context)
Mordhorst v. Dakota Truck Underwriters & Risk Admin. Servs., 886 N.W.2d 322 (S.D. 2016) (restates elements plaintiff must prove for bad faith)
Johnson v. Miller, 818 N.W.2d 804 (S.D. 2012) (definition and standard for frivolous claims)
Hauff v. Citibank (S.D.), N.A., 668 N.W.2d 528 (S.D. 2003) (defines malicious action and improper motive in litigation)
DeHaven v. Hall, 753 N.W.2d 429 (S.D. 2008) (discusses court’s discretion to limit disbursements under statutory scheme)
Hewitt v. Felderman, 841 N.W.2d 258 (S.D. 2013) (defines "prevailing party" for purposes of awarding costs)