Wenger v. State Farm Mutual ( 2021 )

1 GiNAL 04/12/2021
IN THE SUPREME COURT OF THE STATE OF MONTANA
Case Number: DA 20-0067
DA 20-0067
DIANE WENGER,
RUED
APR 1 2 2021
Plaintiff and Appellant, Bowen Greenwood
Clerk of Supreme Court
State nf Montana
v.
ORDER
STATE FARM MUTUAL AUTOMOBILE
INSURANCE COMPANY,
Defendant and Appellee.
Appellant Diane Wenger petitions this Court for rehearing of our February 16,2021
Opinion affirming the District Court'sjudgment on ajury verdict in favor of Appellee State
Farm Mutual Automobile Insurance Company ("State Farm"). 2021 MT 37. State Farm has
responded in opposition.
Under M. R. App. P. 20, this Court will consider a petition for rehearing only if the
opinion "overlooked some fact material to the decision," if the opinion missed a question
provided by a party or counsel that would have decided the case, or if our decision "conflicts
with a statute or controlling decision not addressee by the Court. M. R. App. P. 20.
Wenger argues first that this Court missed her argument that the District Court failed to
ensure the jury was provided the statutory standard of care during the presentation of
evidence, and second that this Court overlooked a material fact in the record when we stated
that Wenger did not highlight certain irrelevant, prejudicial, and inadmissible medical
information to the District Court. Upon consideration of Wenger's arguments and State
Farm's response, we conclude that rehearing is not warranted.
Addressing Wenger's first assertion, we addressed at length her arguments about the
District Court's handling ofarguments and instructions to the jury on the statutory standard
of care. Opinion, ¶¶ 14-16. Wenger concedes this analysis was correct as far as it goes but
argues that it fails to address "the jury's likely misconceptions regarding the applicable
standards" that may have been present at the beginning of the trial and that "there is no
downside to informing a jury of the statutory standards of care with preliminary jury
instructions." As addressed in our Opinion, however,the District Court properly instructed
the jury on the applicable statutes, and Wenger does not contend otherwise. She maintains
that the court should have given the jury preliminary instructions on the statutory standards
of care, but Wenger never offered such preliminary instructions to the District Court.
As her second ground for rehearing, Wenger argues that Footnote #5 in the Opinion
overlooks"some fact material to the decision," specifically that Wenger did indeed highlight
the medical evidence at issue to the District Court. She argues that she identified to the
District Court"most ofthe medical conditions to which she objectee and directed this Court
to the relevant portion of the record in her brief on appeal. Wenger does not dispute,
however, that she highlighted in her appendix before this Court specific references in the
records that she did not highlight before the District Court, nor does she claim that she raised
any issue in the District Court regarding an infringement of her privacy interests as she
emphasized on appeal.
The Court did not overlook this information in its review of the record. We were
clear in the Opinion that"information in the[medical] records plainly unrelated to the crash
was irrelevant and should have been redacted or excluded." Opinion ¶ 28. Our Opinion
rested on the rationale that, although it was error to send irrelevant confidential medical
information to thejury, inclusion ofthe inadmissible material in the records did not prejudice
Wenger's right to a fair trial when examined on the record as a whole, especially when no
one made any mention of the inadmissible material during trial. Opinion, ¶ 29. To this
point, Wenger identified as "innocuous" in her appeal brief all ofthe conditions on the list
quoted in her rehearing petition. We conclude that the Court's Opinion does not overlook a
material fact.
IT IS THEREFORE ORDERED that the petition for rehearing is DENIED.
The Clerk is directed to provide copies ofthis Order to all counsel of record.
Dated this 1 2- day of April, 2021.
Chief Justice
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