FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILLIAM RIORDAN, 

No. 08-35874 Plaintiff-Appellee,

D.C. No.

v.  9:07-cv-00038-

STATE FARM MUTUAL AUTOMOBILE DWM

INSURANCE COMPANY,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the District of Montana

Donald W. Molloy, District Judge, Presiding

Argued and Submitted

July 7, 2009—Portland, Oregon

Filed December 10, 2009

Before: Harry Pregerson, Pamela Ann Rymer and

A. Wallace Tashima, Circuit Judges.

Opinion by Judge Pregerson;

Partial Concurrence and Partial Dissent by Judge Rymer

16359
COUNSEL

Travis Dye, Kalkstein & Johnson, P.C., Missoula, Montana,

for the defendant-appellant.

Justin Starin, Tornabene & McKenna, PLLC, Missoula, Montana, for the plaintiff-appellee.

OPINION

PREGERSON, Circuit Judge:

Under the American Rule, civil litigants are generally

required to pay their own attorney fees. The state of Montana,

however, recognizes an exception to the American Rule in the

16362 RIORDAN v. STATE FARM MUTUAL
context of insurance disputes. We consider whether the claimant here, who was forced into litigation in order to recover the

full benefit of his insurance contract, may recover attorney

fees incurred as a result of that litigation. We have jurisdiction

under 28 U.S.C. § 1291, and we affirm the district court’s

award of attorney fees.

I. BACKGROUND

A. Riordan’s Accident and Recovery of Benefits Prior

to Litigation.

On October 21, 2004, William Riordan was injured in a car

accident. It is undisputed that the other driver was at fault. At

the time of the accident, Riordan and his wife were insured

under three State Farm automobile insurance policies. Each

policy provided uninsured motorist (“UIM”) coverage with

limits of $50,000 per person and $100,000 per accident.

In January 2005 Riordan retained an attorney, Mary Kay

Starin, to help him obtain benefits from State Farm. Between

the end of January and August 2006, State Farm paid Riordan

UIM benefits totaling $30,586.59.

B. Commencement of Litigation to Recover Benefits.

Represented by new counsel, Justin Starin, Riordan filed

suit against State Farm in federal district court on March 28,

2007, seeking “$150,000.00, less that which State Farm has

already paid” and “for other and further relief as the Court

shall deem just and proper.” Riordan asserted that State Farm

was required to provide $150,000.00 of UIM coverage, the

“stacked” total of UIM coverage under the three policies.

After being served with Riordan’s Complaint but before filing

an Answer, State Farm paid Riordan an additional $45,413.43

in UIM benefits. This brought the total UIM benefits paid by

State Farm to $76,000, leaving $74,000 in UIM benefits

remaining under the insurance policies’ limits.

RIORDAN v. STATE FARM MUTUAL 16363
State Farm filed its Answer to the Complaint on June 14,

2007. In its Answer, State Farm flatly “denie[d] liability for

payment of uninsured motorist benefits requested by [Riordan] on the grounds that [Riordan] has been reasonably compensated for his alleged injuries.” State Farm denied that the

nature, cause and extent of Riordan’s damages were caused

by the car accident. Further, while it did not dispute the existence of UIM coverage, State Farm asserted that Riordan was

“not entitled to recover further under his underinsured motorist coverage . . . because his damages do not exceed amounts

already received by him.” The district court set a trial date for

February 25, 2008. 

Shortly before trial, on February 14, 2008, State Farm

agreed to pay Riordan the approximately $74,000 in UIM

benefits remaining under Riordan’s insurance policies. The

district court ordered the parties to brief the issue whether

Riordan was entitled to attorney fees. Riordan then filed his

motion for attorney fees on February 29, 2008.

C. Riordan’s Motion for Attorney Fees.

A magistrate judge held two hearings related to the claim

for attorney fees. The first hearing on March 14, 2008 focused

on the issue of State Farm’s liability for fees. At State Farm’s

request, the magistrate judge held a second evidentiary hearing on July 15, 2008 on the issue of the value of the legal services received by Riordan. On July 16, 2008, the magistrate

judge issued findings of fact and recommended that Riordan

be awarded attorney fees totaling $30,759. The magistrate

judge considered Riordan’s recovery from State Farm in three

categories: (1) UIM benefits received before Riordan filed

suit; (2) UIM benefits received after Riordan filed suit but

before State Farm filed its Answer; and (3) UIM benefits

received on the eve of trial. The magistrate judge recommended that Riordan receive no attorney fees for the UIM

benefits received before Riordan filed suit. With respect to the

$45,413.43 in UIM benefits received by Riordan shortly after

16364 RIORDAN v. STATE FARM MUTUAL
suit was filed, the magistrate judge found that Riordan should

receive attorney fees “at an appropriate market rate for the

attorney time reasonably spent” and recommended an award

of $4,859. With respect to the $74,000 paid by State Farm on

the eve of trial, the magistrate judge recommended an award

of $25,900, an award based on the thirty-five-percent contingency fee Riordan entered into with his second attorney who

represented him in the litigation.

State Farm objected to the magistrate judge’s findings and

recommendations and also moved to certify to the Montana

Supreme Court the question whether State Farm was liable to

Riordan for attorney fees. The magistrate judge responded

with new findings and recommended denying the motion for

certification. The magistrate judge reasoned that the state law

issue was reasonably clear and provided the district court with

a principled basis for its award of attorney fees. The magistrate judge also recommended that the district court decline to

exercise its discretion to certify questions to the Montana

Supreme Court in light of the fact that State Farm was dilatory and waited to seek certification until after it received an

adverse determination on the claim for fees.

On September 29, 2008, the district judge adopted in full

the magistrate judge’s findings and recommendations and

declined to certify State Farm’s questions to the Montana

Supreme Court. State Farm timely appeals.

II. DISCUSSION

We must first consider State Farm’s motion to strike from

the Record on Appeal portions of depositions and a proposed

pre-trial order included in Riordan’s Supplemental Excerpts

of Record, and to strike the portions of Riordan’s Answering

Brief relying on those documents.

[1] Federal Rule of Appellate Procedure 10(a) states in pertinent part that “[O]riginal papers and exhibits filed in the disRIORDAN v. STATE FARM MUTUAL 16365
trict court” are part of the record on appeal. Fed. R. App. P.

10(a) (emphasis added). “A paper is filed by delivering it” to

the clerk or to a judge who agrees to accept it for filing.1 Fed.

R. Civ. P. 5(d)(2) (emphasis added). 

[2] The deposition excerpts Riordan relied on before this

court were appended as an exhibit to his Second Motion in

Limine. The Second Motion in Limine was filed with the district court with the exhibits attached. Accordingly, the deposition excerpts constituted “an exhibit filed in the district court”

for the purposes of Federal Rule of Appellate Procedure 10(a)

and are properly before us as part of the Record on Appeal.2

We deny State Farm’s motion to strike.

State Farm argues that the final pretrial order was never

“filed” but was merely “lodged” by the parties with the district court, and is therefore not properly part of the record on

appeal. The pre-trial order is stamped “LODGED” with the

name of the clerk of the court. The district court docket also

contains an entry showing that the pre-trial order was “submitted for review” on February 8, 2008.

[3] Here, the pre-trial order bears the clerk’s stamp, showing that the document was in the possession of the clerk. This

indicates that it was “delivered to the clerk” in compliance

with Rule 5(d)(2), governing the filing of documents. That the

proposed pre-trial order was delivered to the court is also

reflected in the district court docket entered by the clerk,

which shows that the proposed final pretrial order was “[submitted] for review by William Riordan, State Farm Mutual

Automobile Insurance Co.” Riordan also specifically pointed

1Electronic filing is also permitted by local rule. Fed. R. Civ. P. 5(d)(3).

2State Farm’s reliance on Barcamerica International USA Trust v.

Tyfield Importers, Inc., 289 F.3d 589 (9th Cir. 2002) is misplaced. There

was no dispute in that case that “portions of . . . depositions and exhibits

filed appended to the motion to summary judgment” were part of the

record on appeal. Id. at 594. 

16366 RIORDAN v. STATE FARM MUTUAL
to the pre-trial order in his brief in support of his motion for

attorney fees, noting the pre-trial order’s docket number and

quoting it as saying that “Bill Riordan ‘will seek attorney’s

fees pursuant to the insurance exception to the American

Rule.’ ” The pre-trial order was properly called to the district

court’s attention and is part of the Record on Appeal.3

A. Whether the Claim for Attorney Fees was Properly

Raised. 

Turning to Riordan’s claim for attorney fees, State Farm

next argues that the claim was not properly raised. State Farm

asserts that Riordan was required to specifically request attorney fees in his complaint, and that it suffered prejudice

because Riordan “surprised” it on the eve of trial with the

claim for attorney fees, depriving State Farm of adequate

notice. The district court concluded that under Federal Rule

of Civil Procedure 54(d)(2), Riordan properly raised his claim

for attorney fees by motion after filing his complaint.

Whether Riordan followed the correct procedure to raise

the claim is a question of federal law, which we review de

novo. Carnes v. Zamani, 488 F.3d 1057, 1059 (9th Cir. 2007)

(citing In re Larry’s Apartment, L.L.C., 249 F.3d 832, 837-38

(9th Cir. 2001)) (“In a diversity case, the law of the state in

which the district court sits determines whether a party is entitled to attorney fees, and the procedure for requesting an

award of attorney fees is governed by federal law.”); P.N. v.

Seattle Sch. Dist. No.1, 474 F.3d 1165, 1168 (9th Cir. 2007)

(citing Carbonell v. INS, 429 F.3d 894, 897 (9th Cir. 2005)

and Barrios v. Cal. Interscholastic Fed’n, 277 F.3d 1128,

3

In any event, review of the pre-trial order in the Supplemental Excerpts

of Record does not affect our disposition. On appeal, Riordan uses the pretrial order to support his argument that State Farm had adequate notice of

his claim for attorney fees. As explained below, even without considering

the pre-trial order, we have no difficulty concluding that State Farm had

adequate notice of Riordan’s claim for attorney fees. 

RIORDAN v. STATE FARM MUTUAL 16367
1133 (9th Cir. 2003)) (“[E]lements of legal analysis and statutory interpretation underlying the district court’s attorneys’

fees decision are reviewed de novo[.]”) We also review de

novo a district court’s interpretation of the Federal Rules of

Civil Procedure. Schwarzschild v. Tse, 69 F.3d 293, 295 (9th

Cir. 1995).

State Farm relies on the notice and pleading requirements

of Rule 8(a) (requiring the pleader to make a demand for

judgment for the relief the pleader seeks) and Rule 9(g)

(requiring special damages to be specifically pleaded in the

complaint) to argue that Riordan was required to specifically

request attorney fees in his complaint. State Farm contends

that it suffered prejudice because Riordan “surprised” it on

the eve of trial with the claim for attorney fees, rendering

State Farm unable to conduct discovery on the fees claim,

challenge the claim through summary judgment, or conduct a

complete evaluation of Riordan’s claim. These arguments fail.

Riordan was not required to raise his claim in his complaint.

Under Federal Rule of Civil Procedure 54(d)(2), Riordan

properly raised his claim by motion.

[4] Rule 54(d)(2) provides that claims for attorney fees

must be made by motion, and then sets out exceptions to that

general rule. Subparagraph A of Rule 54(d)(2) provides that

“[a] claim for attorney’s fees and related nontaxable expenses

must be made by motion unless the substantive law requires

those fees to be proved at trial as an element of damages.”

Fed. R. Civ. P. 54(d)(2)(A). The text of Rule 54(d)(2) lays out

a general rule that a claim for attorney fees must be made by

motion, with the exception that when the substantive law

requires those fees to be proved at trial as an element of damages. The text of the rule supports the conclusion that Riordan

properly raised the attorney fees claim by motion.4

4The advisory committee notes accompanying Rule 54(d)(2) also support the district court’s ruling that Riordan properly raised his claim for

attorney fees by motion. Subdivision (d)(2) was added to Rule 54 in 1993

16368 RIORDAN v. STATE FARM MUTUAL
[5] In examining this Rule, our court has held that raising

claims for attorney fees by motion is proper. We specifically

rejected the argument that such a claim must be raised in the

pleadings:

[T]he Federal Rules of Civil Procedure . . . establish

the method by which a federal litigant must obtain

attorneys’ fees . . . . Each party [in this case] has

assumed that some form of initial pleading—either

a complaint or a counterclaim—is the appropriate

manner by which the [party seeking attorneys’ fees]

should seek its costs. Yet, such is not generally the

case in our federal system. Federal Rule of Civil Procedure 54(d)(2)(A) establishes that “[c]laims for

attorneys’ fees and related nontaxable expenses shall

be made by motion unless the substantive law governing the action provides for the recovery of such

fees as an element of damages to be proved at trial.”

(emphasis added). And the Rules make clear that

pleadings and motions are distinct. Compare Fed. R.

Civ. P. 7(a) (defining “Pleadings,” including counterclaims), with Fed. R. Civ. P. 7(b) (defining “Motions and Other Papers”). 

Port of Stockton v. W. Bulk Carrier KS, 371 F.3d 1119, 1120-

21 (9th Cir. 2004). Our discussion in Port of Stockton makes

clear that, (subject to the exceptions laid out by Rule

54(d)(2)), it is proper to raise a claim for attorney fees by

motion, and not in the pleadings.

Our examination of the text of Rule 54(d)(2) leads us to

conclude that Riordan properly raised the claim for attorney

because attorney fees were not expressly addressed by the Rules. Fed. R.

Civ. P. 54 Advisory Committee’s Note (1993). The purpose of the revision

was “to provide for a frequently recurring form of litigation not initially

contemplated by the rules—disputes over the amount of attorneys’ fees to

be awarded in the large number of actions in which prevailing parties may

be entitled to such awards . . . .” Id.

RIORDAN v. STATE FARM MUTUAL 16369
fees by motion. Port of Stockton also undermines State

Farm’s argument that Riordan should have included his claim

for attorney fees both in his complaint and again by motion.

As explained in Port of Stockton, pleadings and motions are

distinct, and there is no requirement that the fees claim be first

raised in the complaint, then again by motion. Port of Stockton, 371 F.3d at 1121.

[6] State Farm’s argument that it was prejudiced by lack of

notice is not persuasive. Rule 54(d)(2) allows parties to submit evidence and arguments regarding attorney fees, and provides that the motion may be referred to a magistrate judge

for disposition. Fed. R. Civ. P. 54(d)(2)(C), (D). State Farm

was afforded all these procedural protections. The attorney

fees claim was fully briefed by the parties and referred to a

magistrate judge for consideration. At State Farm’s request,

the magistrate judge held an evidentiary hearing at which

Riordan presented witnesses attesting to the value of the legal

services Riordan received, and State Farm cross-examined

those witnesses. State Farm filed objections to the magistrate

judge’s findings and recommendations, and both the magistrate judge and the district judge responded to those objections. State Farm cannot credibly claim it was prejudiced after

availing itself of the full protections available under Rule

54(d)(2). We hold that Riordan properly raised his attorney

fee claim by motion.

B. Entitlement to Fees.

We now consider whether the district court erred when it

determined that Riordan was entitled to attorney fees under

Montana’s insurance exception to the American Rule.

[7] “Montana follows the general American Rule that a

party in a civil action is not entitled to attorney fees absent a

specific contractual or statutory provision.” Mountain W.

Farm Bureau Mut. Ins. Co. v. Brewer, 69 P.3d 652, 655

(Mont. 2003) (citing Mountain W. Farm Bureau Mut. Ins. Co.

16370 RIORDAN v. STATE FARM MUTUAL
v. Hall, 38 P.3d 825, 828 (Mont. 2001)). Montana recognizes

an exception to the American Rule, however, where “the

insurer forces the insured to assume the burden of legal action

to obtain the full benefit of the insurance contract . . . .”

Brewer, 69 P.3d at 660.

The Montana Supreme Court provided a lengthy discussion

of Montana’s insurance exception in Brewer. Id. at 652. In

that case, the parents of a child injured in a car accident successfully established through litigation that the at-fault driver’s insurance company was obligated to cover them. Id. at

654. They then moved for attorney fees. Id.

On appeal, the Montana Supreme Court examined Montana

and other states’ insurance exceptions to the American Rule.

Id. After a detailed examination of the law in other jurisdictions and other persuasive legal authority, the court held:

We decline to further propagate the arbitrary legal

fiction that a substantive distinction exists between

a breach of the duty to defend and the breach of the

duty to indemnify. It seems inherently inconsistent

that courts universally afford attorney fees incurred

to establish a contested duty to defend and yet,

simultaneously, reject such an award incurred in

coverage disputes brought to preserve or eviscerate

the obligatory defense . . . . 

Accordingly, we hold that an insured is entitled to

recover attorney fees, pursuant to the insurance

exception to the American Rule, when the insurer

forces the insured to assume the burden of legal

action to obtain the full benefit of the insurance contract, regardless of whether the insurer’s duty to

defend is at issue.

RIORDAN v. STATE FARM MUTUAL 16371
Id. at 660.5

The first paragraph of Brewer quoted above focuses on the

distinction between an insurance company’s duty to defend

and its duty to indemnify. State Farm argues that because

Riordan’s claim involves neither the duty to defend nor the

duty to indemnify, Riordan’s claim does not fall under Montana’s insurance exception to the American Rule. 

[8] On the other hand, the second paragraph of Brewer

quoted above plainly holds that insureds who are forced to sue

their insurers to obtain their bargained-for insurance benefits

are entitled to attorney fees. Reading that clear language, the

district court concluded that this case falls squarely within the

holding of Brewer because Riordan was forced to litigate in

order to receive the full benefit of his insurance policies. 

The Montana Supreme Court has further discussed its holding in Brewer in subsequent cases and has emphasized the

importance of the contractual relationship between insureds

and insurers in applying its insurance exception to the American Rule. In Sampson v. National Farmers Union Property &

Casualty Co., the Montana Supreme Court described its holding in Brewer this way:

[W]e have held that an insured is entitled to recover

attorney fees under the “insurance exception” to the

American Rule when the insurer forces the insured

to commence legal action to obtain the full benefits

of the insurance contract between them; however, we

have declined to extend this exception to third party

actions, where there is no privity of contract—no

“previously bargained for benefit”—that the third

party was forced into litigation to vindicate. See

Brewer, [69 P.3d at 661].

5The plaintiffs in Brewer were nevertheless denied attorney fees,

because they were third-party claimants who were not in privity with the

insurance companies they sued. Id. at 661. 

16372 RIORDAN v. STATE FARM MUTUAL
Sampson, 144 P.3d 797, 801 (Mont. 2006). In Sampson, the

Montana Supreme Court observed that the key similarity

between Brewer and Sampson was that the plaintiffs in both

cases were third-party claimants and therefore not covered by

the insurance exception. This reading of Brewer further supports the view that the Montana insurance exception encompasses the claim of Riordan, who is a first-party claimant. See

also Jacobsen v. Allstate Ins. Co., 215 P.3d 649, 656 (Mont.

2009) (“Our decision in Brewer was based upon the lack of

fiduciary duty running from an insurer to a third-party claimant . . . . The rationale underlying the insurance exception to

the American Rule is the existence of a fiduciary duty, and no

such duty exists here.”)

[9] We conclude that the Montana Supreme Court’s decision in Brewer and the Montana Supreme Court’s subsequent

interpretation of Brewer‘s language supports the district

court’s award of attorney fees. By its own terms, Brewer

states that “an insured is entitled to recover attorney fees, pursuant to the insurance exception to the American Rule, when

the insurer forces the insured to assume the burden of legal

action to obtain the full benefit of the insurance contract . . . .”

Brewer, 69 P.3d at 660. Riordan’s first-party claim against his

insurance company falls within Montana’s exception.

[10] State Farm unequivocally denied further liability to

Riordan, and only settled with Riordan on the eve of trial.

Riordan was forced to litigate to obtain the full benefit of his

contract with State Farm. He is entitled to attorney fees under

the insurance exception recognized in Brewer.

C. The District Court’s Decision to Award Attorney

Fees to Riordan

State Farm next argues that the district court should not

have awarded attorney fees on the facts of this case. We

review the district court’s decision to award attorney fees for

abuse of discretion. Tutor-Saliba Corp. v. City of Hailey, 452

RIORDAN v. STATE FARM MUTUAL 16373
F.3d 1055, 1059 (9th Cir. 2006). “A district court abuses its

discretion if its ruling on a fee motion ‘is based on an inaccurate view of the law or a clearly erroneous finding of fact.’ ”

Richard S. v. Dep’t of Dev’l Servs. of Cal., 317 F.3d 1080,

1086-87 (9th Cir. 2003) (quoting Barjon v. Dalton, 132 F.3d

496, 500 (9th Cir. 1997)). As explained above, the district

court’s view of the law was not inaccurate. The remaining

question is whether the fee award was based on a clearly erroneous finding of fact.

[11] Under Montana law, a district court may award the full

amount agreed upon under a contingency fee agreement so

long as the amount of attorney fees is reasonable. Stimac v.

State, 812 P.2d 1246, 1249 (Mont. 1991). The district court

awarded Riordan a total of $30,759 in attorney fees. This fee

award was not based on a clearly erroneous finding of fact.

State Farm argues that, assuming Riordan was entitled to

fees, he should not have been awarded more than $1,233.40.

Riordan’s agreement with his first attorney, Mary Kay Starin,

who represented him before litigation commenced, required

Riordan to pay Ms. Starin one-third of any recovery. State

Farm calculates this as one-third of $74,000, or $24,666.64.

Riordan’s agreement with his second attorney, Justin Starin,

who represented him during the litigation, required Riordan to

pay Mr. Starin thirty-five percent of any recovery. State Farm

calculates this amount as thirty-five percent of $74,000, or

$25,900. State Farm contends that Riordan should receive the

difference between what he would have paid his first attorney

had she recovered the full amount of the benefits owed, and

the amount he owes his second attorney he retained for litigation. State Farm calculates the difference as $1,233.40.

[12] We agree with the district court that State Farm’s argument lacks merit. Although State Farm provides its own proposal of what Riordan’s attorney fees should be, State Farm

does not explain why the district court’s calculation of the fee

award was clearly erroneous. The district court based its fee

16374 RIORDAN v. STATE FARM MUTUAL
award on Riordan’s contingency fee agreement and took into

consideration proper factors articulated in Stimac, including

the experience and skill of the attorneys, the time and labor

required to perform the legal services, the ability of Riordan

to pay for the services, and the risk to Riordan of no recovery.

See Stimac, 812 P.2d at 1249. It was not clear error for the

district court to follow Montana law and calculate the award

according to a reasonable hourly rate and the contingency fee

agreement.

State Farm posits that even if Brewer applies, the district

court erred by ignoring its argument that attorney fees are not

warranted on the facts of this case. In State Farm’s view, there

were “significant questions” regarding whether Riordan’s

more recent medical treatment stemmed from injuries from

the car accident, and awarding fees would be unjust where it

was merely investigating Riordan’s new claims. Contrary to

State Farm’s contentions, the district court did not largely

ignore this argument. The district judge and the magistrate

judge both considered State Farm’s argument and rejected it

as lacking merit. Before the trial court, State Farm had flatly

denied that it was responsible for any further payments to

Riordan. We cannot say that the district court abused its discretion in awarding fees here. 

D. State Farm’s Motion to Certify Questions to the

Montana Supreme Court.

Lastly, State Farm argues that the district court should have

granted its motion to certify questions to the Montana

Supreme Court. See Montana Rule of Appellate Procedure

15(3) (permitting the Montana Supreme Court to answer a

question of law certified by a court of the United States). We

review for abuse of discretion the district court’s decision

whether to certify a question to a state supreme court. See

Eckard Brandes, Inc. v. Riley, 338 F.3d 1082, 1087 (9th Cir.

2003) (“The decision to certify a question to a state supreme

court rests in the ‘sound discretion’ of the district court.”

RIORDAN v. STATE FARM MUTUAL 16375
(quoting Louie v. United States, 776 F.2d 819, 824 (9th Cir.

1985)); Micomonaco v. Washington, 45 F.3d 316, 322 (9th

Cir. 1995) (same).

[13] Even where state law is unclear, resort to the certification process is not obligatory. See Lehman Bros. v. Schein,

416 U.S. 386, 390 (1974). Furthermore, “[m]ere difficulty in

ascertaining local law is no excuse for remitting the parties to

a state tribunal for the state tribunal for the start of another

lawsuit.” Id. The district court did not abuse its discretion

when it declined to certify to the Montana Supreme Court the

question whether “Montana’s insurance exception to the

American Rule governing attorney’s fees extend[s] to firstparty claims where the dispute is over the value of the claim

rather than the existence of a duty to defend or indemnify.”

As explained above, the language of Brewer and the Montana

Supreme Court’s subsequent holdings illustrate that Montana’s insurance exception to the American Rule encompasses

Riordan’s claim.6

[14] On appeal, State Farm renews its motion to certify and

asks us in an exercise of our discretion to certify the same

questions to the Montana Supreme Court. As explained above

we do not find it necessary to further prolong these proceedings where the state law is clear. We deny State Farm’s

motion to certify attorney fee questions to the Montana

Supreme Court.

III. CONCLUSION

State Farm’s Motion to Strike Documents from Appellee’s

6The dissent relies on Burkett v. State Farm Mutual Automobile Insurance Co., No. DDV-05-076, Mont. 8th Jud. Dist. Ct., Cascade County

(May 23, 2007) for the proposition that Montana courts disagree on the

reach of Brewer. We note that in Burkett, State Farm, the appellant here,

received an adverse ruling, but did not appeal that ruling to the Montana

Supreme Court. 

16376 RIORDAN v. STATE FARM MUTUAL
Supplemental Excerpts of Record and Corresponding Argument in Response Brief is DENIED. State Farm’s Motion to

Certify Questions to the Montana Supreme Court is also

DENIED. The district court’s award of attorney fees is

AFFIRMED.

RYMER, Circuit Judge, concurring in part and dissenting in

part:

I agree that Riordan did not need to plead attorney’s fees

in order to seek them, but disagree that we should decide

whether Montana’s insurance exception to the American Rule

extends to disputes over value of an UIM claim. I would certify this question. 

Neither in Mountain W. Farm Bureau Mut. Ins. Co. v.

Brewer, 69 P.3d 652 (Mont. 2003), nor elsewhere has the

Montana Supreme Court addressed whether the insurance

exception extends beyond the duty to indemnify, to cover

claims and disputes over UIM benefits of the sort presented

here. Montana courts disagree about whether Brewer extends

to this context. See Burkett v. State Farm Mut. Auto. Ins. Co.,

No. DDV-05-076, Mont. 8th Jud. Dist. Ct., Cascade County

(May 23, 2007) (awarding attorney’s fees under Brewer

where the plaintiff sought UIM benefits under a contract

because “this is a first-party insurance action that [the plaintiff] was required to prosecute in order to obtain the benefit

of her contract.”); Rand v. State Farm Mut. Auto. Ins. Co.,

No. DV-03-312, Mont. 18th Jud. Dist. Ct., Gallatin County

(Mar. 4, 2005) (denying award of attorney’s fees under

Brewer where plaintiff had brought an action for UIM benefits under his contract because Brewer concerned the duty to

indemnify, which did not involve UIM benefits). UIM coverage does not fit either recognized exception, where the duty

to defend, or the duty to indemnify, is at issue.

RIORDAN v. STATE FARM MUTUAL 16377
It makes sense to give the Montana Supreme Court the first

shot at the question. Montana trial courts see Brewer differently, the issue of attorney’s fees in insurance disputes is

obviously important, and insurance is quintessentially a matter of state law. To do otherwise also raises the spectre of

forum shopping. Accordingly, I would certify the question

whether Montana’s insurance exception to the American Rule

extends to first-party claims for underinsured motorist coverage where the dispute is over value of the claim. 

16378 RIORDAN v. STATE FARM MUTUAL