11/10/2020
IN THE SUPREME COURT OF THE STATE OF MONTANA
Case Number: DA 20-0516
DA 20-0516
DON DANIELS,as Conservator of the Estate of
FILED
SARAH DANIELS, NOV 10 2020
Bowen Greenwoo0
Plaintiff and Appellee, Clerk of Supreme Court
Stato of lkilontana
v.
ORDER
GALLATIN COUNTY,ATLANTIC SPECIALTY
INSURANCE COMPANY,RICK BLACKWOOD
and JOHN DOES I-V,
Defendants and Appellants.
Appellee Don Daniels, as Conservator ofthe Estate of Sarah Daniels, has moved to
dismiss this appeal. Appellant Atlantic Specialty Insurance Company (ASIC) opposes
Daniels's motion.
This action involves a negligence action against Gallatin County. ASIC provided
insurance coverage to the County at the time ofthe incident that is the subject ofthe action.
On September 22, 2020,the Eighteenth Judicial District Court entered a Memorandum and
Order Re: Cross Motions for Partial Summary Judgment on Count I of the Amended
Complaint, in which it granted partial summary judgment in Daniels's favor and denied
ASIC's cross-motion for summary judgment, ruling that ASIC could not rely on the
$750,000 damage cap found at § 2-9-108(1), MCA, because of the exception set forth at
§ 2-9-108(3), MCA. On September 29, 2020, the District Court entered an Order Re:
Count HI that dismissed without prejudice Count III of Daniels's Amended Complaint,
which had raised an as-applied constitutional challenge to § 2-9-108, MCA.
On October 22, 2020, ASIC filed a Notice of Appeal, in which ASIC noted that
although it was appealing these Orders, it acknowledged that it had filed a Motion to Alter
or Amend under M. R. Civ. P. 59(e) in the District Court that the court had not yet ruled
upon, and that these Orders were not certified as final under M. R. Civ. P. 54(b). I
Daniels moves to dismiss ASIC's appeal. He argues that the appeal cannot be taken
because the Orders are interlocutory and are not certified as final for purposes of appeal as
provided by M. R. Civ. P. 54(b). ASIC responds that, rather than dismissing this appeal,
we should stay the appeal until the issues are ripe. We disagree.
The District Court's Orders are interlocutory; as such, without Rule 54(b)
certification from the District Court, they are not properly before this Court on appeal.
"[T]his Court will dismiss cases, even fully briefed cases, improperly brought on appeal
under M.R. Civ. P. 54(b)." Rogers v. Lewis & Clark Cty., 2020 MT 230,1110,401 Mont.
228, 472 P.3d 171 (citations omitted).
IT IS THEREFORE ORDERED that this appeal is DISMISSED WITHOUT
PREJUDICE.
IT IS FURTHER ORDERED that this matter is REMANDED to the District Court.
The Clerk is directed to provide copies of this Order to all counsel of record.
Dated this b —day of November, 2020.
I We are aware that ASIC has moved the District Court for Rule 54(b) certification and that
motion is pending.
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