11GiNAL

IN THE SUPREME COURT OF THE STATE OF MONTANA

DA 20-0067

DIANE WENGER,

Plaintiff and 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

Appellant Diane Wenger petitions this Court for rehearing of our February 16, 2021

Opinion affirming the District Court's judgment on a jury 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 of arguments 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

04/12/2021

Case Number: DA 20-0067
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 of the 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 the jury, inclusion of the 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 of the 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 of this Order to all counsel of record.

Dated this 1 2- day of April, 2021.

Chief Justice

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