# 11GiNAL

IN THE SUPREME COURT OF THE STATE OF MONTANA DA 20-0067

DIANE WENGER,

Plaintiffand Appellant,

v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY,

Defendant and Appellee. 

# RUED APR 1 2 2021

Bowen Greenwood Clerk of Supreme Court State nf Montana ORDER

AppellantDiane Wenger petitions this Court for rehearing ofour February 16,2021 Opinion affirming the District Court'sjudgment on ajury verdict in favor ofAppellee State Farm MutualAutomobile Insurance Company ("StateFarm"). 2021 MT 37. StateFarm has responded in opposition. Under M.R.App.P. 20,this Court will consider a petition for rehearing only ifthe opinion "overlooked some fact material to the decision," ifthe opinion missed a question provided by aparty or counselthatwould have decided the case,or ifour 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 thatthis 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 ofcare. 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 04/12/2021

Case Number: DA 20-0067downside 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 thejury preliminary instructions on the statutory standards ofcare,but Wenger never offered such preliminary instructions to the District Court. As her second ground for rehearing,Wenger argues thatFootnote #5 in the Opinion overlooks "some fact material to the decision,"specifically that Wengerdid 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 thatshe did nothighlight before the District Court,nor does she claim thatsheraised 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 ofthe 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 recordsdid notprejudice 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 briefall 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 ofrecord. Dated this 1 2

- day ofApril, 2021.

ChiefJustice 2

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