No
No. 98-475
IN THE SUPREME COURT OF THE STATE OF MONTANA
1999 MT 312
297 Mont. 243
992 P.2d 237
WILLIAM BREWINGTON, Personal
Representative of the Estate of Jack
Brewington, Deceased,
Plaintiff and Appellant,
v.
EMPLOYERS FIRE INSURANCE COMPANY,
COMMERCIAL UNION INSURANCE
COMPANY, BUMGARTNER LIND
ADJUSTERS, INC., PETE McGRAW,
ABC COMPANY NO.1 THROUGH
ABC COMPANY NO. 4, and JOHN DOE
NO. 1 THROUGH JOHN DOE 4,
Defendants and Respondents.
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APPEAL FROM: District Court of the Tenth Judicial District,
In and for the County of Fergus,
The Honorable John R. Christensen, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Andrew J. Utick, Utick & Grosfield; Helena, Montana
For Respondents:
Dennis P. Clarke, Smith, Walsh, Clarke & Gregoire; Great Falls, Montana
Submitted on Briefs: June 3, 1999
Decided: December 13, 1999
Filed:
__________________________________________
Clerk
Justice Terry N. Trieweiler delivered the opinion of the Court.
1. ¶ The Plaintiff, William Brewington, personal representative of the Estate of Jack
Brewington, brought this action in the District Court for the Tenth Judicial District
in Fergus County to recover damages from the Defendants for bad faith adjustment
of his Workers' Compensation Claim and refusal to pay attorney fees awarded by
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the Workers' Compensation Court. The District Court held that the statute of
limitations barred Brewington's claim and granted the Defendants' motion to
dismiss. Brewington appeals the dismissal of his claim. We reverse the judgment of
the District Court.
2. ¶ The following issues are presented on appeal:
3. ¶ 1. Did the District Court err when it concluded that § 33-18-242, MCA preempted
a claim for the common law tort of bad faith by third-party claimants?
4. ¶ 2. Did the District Court err when it applied the one-year statute of limitations
found at § 33-18-242(7)(b), MCA to the Plaintiff's claim?
5. ¶ 3. When did the statute of limitations begin to run with respect to Brewington's
claim?
FACTUAL BACKGROUND
6. ¶ In December 1974, during the course of his employment at Birkenbuel, Inc., Jack
Brewington fell from scaffolding and injured his right hand and shoulder.
Birkenbuel's workers compensation insurer, Employers' Fire Insurance Co. (EFIC),
paid Brewington temporary total disability benefits until February 1983. After that
time, because Brewington refused rehabilitation, EFIC began paying Brewington
permanent partial disability benefits. Brewington disagreed with EFIC's decision to
change his status. In June 1983 he filed a petition with the Workers' Compensation
Court in which he asked that his total disability benefits be restored. The Workers'
Compensation Court concluded that Brewington was 80 percent permanently
partially disabled, based upon a 10 percent impairment rating, and awarded
Brewington 400 weeks of benefits. Brewington then appealed to this Court.
7. ¶ In Brewington v. Birkenbuel, Inc. (1986), 222 Mont. 505, 723 P.2d 938, we
concluded that Brewington's disability was permanent and total. We also concluded
that Brewington was entitled to a 20 percent statutory penalty because the EFIC's
actions were unreasonable. We stated: "[r]espondent reduced claimant's benefits in
retaliation for his refusal to work with a private rehabilitation firm. Such action is
unreasonable." Brewington, 222 Mont. at 511, 723 P.2d at 942. We then remanded
Brewington's case to the Workers' Compensation Court.
8. ¶ On February 17, 1998 Brewington filed a complaint in District Court. He alleged
that after we remanded his case, the Workers' Compensation Court ordered EFIC
and Commercial Union Insurance Company to pay his attorney fees. According to
Brewington's complaint, the order stated:
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Claimant's attorney is entitled to and insurer is ordered to pay, attorney fees in the
amount of 40 percent of claimant's future biweekly benefits as claimant receives
them.
Brewington alleged that despite the court's order, EFIC and Commercial Union
refused to pay his attorney fees from June 4, 1987 to February 22, 1996. He alleged
that between February 1983, when the Defendants reduced his Workers'
Compensation benefits, and February 22, 1996, when EFIC and Commercial Union
began to make biweekly payments of attorney fees, the Defendants engaged in
continuous tortious conduct. Brewington alleged that the conduct complained of
breached the Defendants' duty of good faith and fair dealing.
9. ¶ Jack Brewington died on February 18, 1998. Subsequently, his lawyer amended
his complaint to substitute, as the Plaintiff, William Brewington, who is the personal
representative of Jack Brewington's estate.
10. ¶ On July 1, 1998, the Defendants moved to dismiss Brewington's amended
complaint pursuant to Rule 12(b)(6), M.R.Civ.P. The District Court held that the
statute of limitations, found at § 33-18-242, MCA, barred Brewington's claim, and
granted the Defendants' motion.
STANDARD OF REVIEW
11. ¶ The District Court dismissed Brewington's claim pursuant to Rule 12(b)(6), M.R.
Civ.P., based on its conclusion that the complaint failed to state a claim for which
relief could be granted. A complaint should not be dismissed for failure to state a
claim unless it appears beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief. See Trankel v. State of
Montana (1997), 282 Mont. 348, 350, 938 P.2d 614, 616 (citation omitted). In
Lockwood v. W.R. Grace & Co. (1995), 272 Mont. 202, 207, 900 P.2d 314, 317 we
stated:
A motion to dismiss under Rule 12(b)(6), M.R.Civ.P., has the effect of admitting all
well-pleaded allegations in the complaint. In considering the motion, the complaint
is construed in the light most favorable to the plaintiff, and all allegations of fact
contained therein are taken as true.
The determination that a complaint fails to state a claim upon which relief can be
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granted is a conclusion of law. Trankel, 282 Mont. at 351, 938 P.2d at 616. We
review a district court's conclusions of law to determine whether the court's
interpretation of the law is correct. Trankel, 282 Mont. at 351, 938 P.2d at 616.
ISSUE 1
12. ¶ Did the District Court err when it concluded that § 33-18-242, MCA preempted a
claim for the common law tort of bad faith by third-party claimants?
13. ¶ The legislature enacted the Unfair Trade Practices Act to prohibit unfair or
deceptive acts or practices. See § 33-18-101, MCA. Unfair claim settlement
practices are prohibited. See § 33-18-201, MCA. The statute at issue in this case, §
33-18-242, MCA, provides:
(1) An insured or a third_party claimant has an independent cause of action against
an insurer for actual damages caused by the insurer's violation of subsection (1), (4),
(5), (6), (9), or (13) of 33_18_201.
(2) In an action under this section, a plaintiff is not required to prove that the
violations were of such frequency as to indicate a general business practice.
(3) An insured who has suffered damages as a result of the handling of an insurance
claim may bring an action against the insurer for breach of the insurance contract,
for fraud, or pursuant to this section, but not under any other theory or cause of
action. An insured may not bring an action for bad faith in connection with the
handling of an insurance claim.
(4) In an action under this section, the court or jury may award such damages as
were proximately caused by the violation of subsection (1), (4), (5), (6), (9), or (13)
of 33_18_201. Exemplary damages may also be assessed in accordance with
27_1_221.
(5) An insurer may not be held liable under this section if the insurer had a
reasonable basis in law or in fact for contesting the claim or the amount of the claim,
whichever is in issue.
(6)(a) An insured may file an action under this section, together with any other
cause of action the insured has against the insurer. Actions may be bifurcated for
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trial where justice so requires.
(b) A third_party claimant may not file an action under this section until after the
underlying claim has been settled or a judgment entered in favor of the claimant on
the underlying claim.
(7) The period prescribed for commencement of an action under this section is:
(a) for an insured, within 2 years from the date of the violation of 33_18_201; and
(b) for a third_party claimant, within 1 year from the date of the settlement of or the
entry of judgment on the underlying claim.
(8) As used in this section, an insurer includes a person, firm, or corporation
utilizing self_insurance to pay claims made against them.
(Emphasis added.) Subsection (1) specifically provides both an insured and a third-
party claimant an independent cause of action. Subsection (3) limits an insured, but
not a third-party claimant, to a cause of action for breach of the insurance contract,
for fraud, or pursuant to "this section," i.e., § 33-18-242, MCA. Subsection (3) also
prohibits an insured, but not a third-party claimant, from bringing an action for bad
faith. The term "third-party claimant" simply does not appear in subsection (3).
14. ¶ We construe a statute by its terms. Section 1-2-101, MCA. We do not insert what
has been omitted or omit what has been inserted. Section 1-2-101, MCA. We cannot
insert the term "third-party claimant" into § 33-18-242(3), MCA. Therefore, we
conclude that § 33-18-242, MCA does not prohibit a third-party claimant from
bringing an action for common law bad faith.
15. ¶ The Defendants contend that we have applied § 33-18-242(3), MCA to a third-
party claim based on the adjustment of a worker's compensation case in Grenz v.
Orion Group, Inc. (1990), 243 Mont. 486, 795 P.2d 444, and that Grenz prohibits a
third-party claimant from pursuing an action for common law bad faith. However,
we were not asked to decide in Grenz whether common law bad faith actions were
preempted by § 33-18-242(3), MCA. We were asked to decide whether a third-party
claim based on improper adjustment could be brought prior to the resolution by
settlement or judgment of the underlying claim. We held that it could not, whether
based on statute or common law bad faith. Grenz, 243 Mont. at 490-91, 795 P.2d at
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446-47. Therefore, Grenz is not applicable to the facts before us in this case.
16. ¶ Brewington contends his claim is based on the common law tort of bad faith, not
on § 33-18-242, MCA. He alleges that the Defendants engaged in "a continuing
course of tortious conduct which has breached the Defendants' duty of good faith
and fair dealing that the Defendants owed to [him]." He contends that Hayes v.
Aetna Fire Underwriters (1980), 187 Mont. 148, 609 P.2d 257 and Vigue v. Evans
Products Company (1980), 187 Mont. 1, 608 P.2d 488, establish a common law
cause of action for bad faith, which was not affected when the legislature passed §
33-18-242, MCA. We agree.
17. ¶ In Hayes and Vigue, we held that an injured worker covered by the Workers'
Compensation Act could assert a separate claim in the District Court for damages
when the insurer and its adjuster allegedly committed intentional torts and acted in
bad faith in adjusting and processing his claim. Hayes, 187 Mont. at 157, 609 P.2d
at 262; Vigue, 187 Mont. at 7, 608 P.2d at 491.
18. ¶ Previously in this opinion, we concluded that § 33-18-242, MCA, by its terms,
does not prohibit a third-party claimant from bringing an action for bad faith. When
the common law is not in conflict with a statute, the common law applies. Section 1-
1-108, MCA; see also O'Fallon v. Farmers Ins. Exch. (1993), 260 Mont. 233, 244,
859 P.2d 1008, 1015.
19. ¶ For these reasons, we hold that the District Court erred when it concluded that
§ 33-18-242, MCA prohibited the Plaintiff from pleading the common law tort of
bad faith.
ISSUE 2
20. ¶ Did the District Court err when it applied the one-year statute of limitations found
at § 33-18-242(7)(b), MCA to the Plaintiff's claim?
21. ¶ Brewington contends that because his claim is not based on § 33-18-242(3), MCA,
the one-year statute of limitation found at § 33-18-242(7), MCA does not apply to
his case. He argues that pursuant to § 27-2-204(1), MCA the applicable statute of
limitations is three years.
22. ¶ Section 33-18-242(7), MCA provides: "[t]he period prescribed for commencement
of an action under this section is: . . . (b) for a third_party claimant, within 1 year
from the date of the settlement of or the entry of judgment on the underlying claim."
By its terms this statute is limited to actions brought pursuant to § 33-18-242, MCA.
We, therefore, conclude that it does not apply to the common law tort of bad faith.
23. ¶ "The statute of limitations for 'bad faith' or 'breach of the covenant of good faith
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and fair dealing' is the three-year statute applicable to torts, § 27-2-204(1), MCA."
State ex rel. Egeland v. City CN'L of Cut Bank (1990), 245 Mont. 484, 487, 803
P.2d 609, 611. Section 27-2-204(1), MCA provides: "[t]he period prescribed for the
commencement of an action upon a liability not founded upon an instrument in
writing is within 3 years."
24. ¶ In this case, because Brewington's claim was brought for bad faith, not pursuant to
§ 33-18-242, MCA, we conclude that the District Court erred in applying the one-
year statute of limitation set forth at § 33-18-242(7)(b), MCA. We further conclude
that the proper statute of limitation is three years, as provided in § 27-2-204, MCA.
ISSUE 3
25. ¶ When did the statute of limitations begin to run with respect to Brewington's
claim?
26. ¶ The general rule is that the statute of limitations begins to run from the time that
the cause of actions accrues. Section 27-2-102(2), MCA. Section 27_2_102, MCA
provides:
(1) For the purposes of statutes relating to the time within which an action must be
commenced:
(a) a claim or cause of action accrues when all elements of the claim or cause exist
or have occurred, the right to maintain an action on the claim or cause is complete,
and a court or other agency is authorized to accept jurisdiction of the action . . . .
27. ¶ In this case, Brewington alleges that Defendants' tortious conduct was continuous
from February 1983 when his total disability benefits were wrongfully reduced until
February 22, 1996 when his claim for the court awarded attorney fees was settled,
and that the statute of limitations did not commence to run until the date of the last
tortious act.
28. ¶ However, we conclude that Brewington has alleged two separate and independent
torts and that the statute commenced for each on a different date. We do not address
whether the conduct alleged was a continuous tort because the result would be the
same whether or not continuous tortious conduct occurred.
29. ¶ We conclude that the first independent act of bad faith alleged was the Defendants'
wrongful reduction of Brewington's benefits. All of the elements of that claim based
on that act existed, he had a right to bring that action, and the District Court was
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authorized to accept jurisdiction of that action on April 27, 1987 when the Workers
Compensation Court entered judgment in his favor which restored his total disability
benefits. That claim was, therefore, barred three years later on April 27, 1990.
30. ¶ We conclude that Brewington has alleged a second independent act or series of
acts which may or may not constitute bad faith, by his allegation that the attorney
fees awarded on June 4, 1987 were wrongfully withheld until February 22, 1996.
However, a bad faith action based on that conduct could not have been commenced
prior to February 22, 1996 based on our decision in Grenz, which in turn relied on
Hayes and Vigue. Therefore, no court had authority to accept a complaint based on
that claim and it did not accrue pursuant to § 27-2-102, MCA until February 22,
1996. That date, then, is the date on which the applicable three-year statute of
limitations commenced and since this complaint was filed on February 17, 1998, the
claim based on refusal to pay attorney fees was timely.
31. ¶ For these reasons we reverse the judgment of the District Court which dismissed
Brewington's claim pursuant to Rule 12(b)(6), M.R.Civ.P., and remand for further
proceedings consistent with and as limited by this opinion.
/S/ TERRY N. TRIEWEILER
We Concur:
/S/ W. WILLIAM LEAPHART
/S/ WILLIAM E. HUNT, SR.
/S/ JAMES C. NELSON
/S/ JIM REGNIER
Justice Karla M. Gray, concurring in part and dissenting in part.
32. ¶ I concur in the result reached by the Court on issue one, but not in all that is said
in that regard. I concur entirely in the Court's opinion on issue two. I respectfully
dissent from the Court's opinion on issue three.
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33. ¶ Before addressing my disagreements with portions of the Court's opinion, it is
appropriate to comment on EFIC's reliance on the District Court's determination that
§ 33-18-242, MCA, "was enacted for the purpose of governing all bad faith claims."
The court's determination may be correct; that is, the Legislature may well have
intended to govern all "bad faith" claims by enacting § 33-18-242, MCA. If that was
the Legislature's intent, however, it failed to accomplish that purpose with the plain
language it used, as the Court's analysis points out.
34. ¶ It is beyond dispute that, in ascertaining the Legislature's intent, we are bound by
plain and unambiguous language used in a statute and may not consider legislative
history or any other means of statutory construction. See, e.g., MacMillan v. State
Compensation Ins. (1997), 285 Mont. 202, 208, 947 P.2d 75, 78 (citation omitted).
The Legislature clearly created the independent action under § 33-18-242(1), MCA,
for both insureds and third-party claimants. It then clearly provided that "[a]n
insured may not bring an action for bad faith in connection with the handling of an
insurance claim[,]" but did not enact a corresponding prohibition for third-party
claimants such as Brewington. See § 33-18-242(3), MCA. At the same time, the
Legislature demonstrated its awareness of how to create separate and distinct
requirements for insureds and third-party claimants when it created different
provisions for the two categories of claimants vis-a-vis when the statutory action
could be brought and what statute of limitations would govern. See § 33-18-242(6)
and (7), MCA. The fact is that--whatever its purpose in enacting the statutory cause
of action--the Legislature used plain and unambiguous language in § 33-18-242,
MCA, and did not prohibit common law bad faith actions against insurers by third-
party claimants. We may not insert into a statute what the Legislature has omitted.
Section 1-2-101, MCA.
35. ¶ Moving to the Court's opinion on issue one, I agree with the result reached, which
is that § 33-18-242, MCA, does not bar Brewington's third-party common law bad
faith claim against EFIC. My disagreement is with the Court's brief discussion of
Grenz. I agree we held in Grenz that, under § 33-18-242, MCA, a third-party claim
could not be brought prior to resolution of the underlying claim by settlement or
judgment. I disagree that we held the same to be true regarding a common law bad
faith claim. Grenz is not particularly clear in this regard due, perhaps, to the fact that
the claimant therein was proceeding pro se. See Grenz, 243 Mont. at 487, 795 P.2d
at 444. A close reading of our opinion, however, discloses that the claim had been
brought--and dismissed--pursuant to § 33-18-242, MCA. In discussing the standards
applicable to Rule 12(b)(6) dismissals, for example, we noted the district court's
correct observation that dismissal may be appropriate "in the light of a specific
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statute relating to the claim[.]" Grenz, 243 Mont. at 490, 795 P.2d at 446. More
pointedly, we set forth the language of § 33-18-242(6)(b), MCA, that a third-party
claimant could not file an action under that section until the underlying claim was
settled or a judgment entered in claimant's favor, and "conclude[d] that the District
Court properly dismissed Mr. Grenz'[s] complaint based upon the foregoing statute."
See Grenz, 243 Mont. at 491, 795 P.2d at 447. Thereafter, we made a passing
reference to Vigue and Hayes, but it is my view that our decision was based on the
statute and did not include a holding that a third-party bad faith claim against an
insurer for improper adjusting could not be filed until after the underlying claim had
been settled or resolved by a judgment in the claimant's favor.
36. ¶ I recognize that--on a stand-alone basis--this is a relatively minor disagreement
with the Court's opinion on issue one. However, it leads directly to my disagreement
with the Court's opinion on issue three and the reasons for my dissent from that
portion of the opinion.
37. ¶ With regard to issue three, then, I agree that § 27-2-102(2), MCA, sets forth the
proper standard for determining when the three-year statute of limitations began to
run on Brewington's claims. The Court's application of that statute to Brewington's
two claims is brief and somewhat conclusory, however, and, with regard to the
wrongful reduction of benefits claim, without citation to authority. Its conclusion
that Brewington's claim existed--that is, that § 27-2-102(2), MCA, was satisfied--in
1987 when the Workers' Compensation Court entered judgment in his favor
restoring his total disability benefits apparently is based on Grenz, which--according
to the Court's observation regarding the attorney fees claim--"in turn relied on Hayes
and Vigue." That is where my problem lies with the Court's analysis of when
Brewington's claims accrued.
38. ¶ As noted above, it is my view that Grenz was resolved pursuant to the language set
forth in § 33-18-242(6)(b), MCA, and not on any basis relating to the common law
bad faith action. Without regard to the actual basis for our holding there, however,
the Hayes- and Vigue-related language in Grenz is simply incorrect and, as a result,
cannot serve as the basis for the Court's conclusions on issue three in the present
case. We said in Grenz that "[a]s stated in Vigue and Hayes an independent action
may lie after the underlying claim has been settled or a judgment entered in [the
claimant's] favor." Grenz, 243 Mont. at 491, 795 P.2d at 447. We did not cite to any
portion of Vigue or Hayes, however, and the fact is that neither Vigue nor Hayes
contains such a statement. The sole issue in those cases was whether a third-party
claimant could bring a separate action against an insurer in district court for the
commission of intentional torts during the adjusting of a workers' compensation
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claim. See Hayes, 187 Mont. at 151, 609 P.2d at 259; Vigue, 187 Mont. at 3, 608
P.2d at 489. We did not address--either expressly or implicitly--the issue of when
such an action accrues under § 27-2-102(2), MCA, or otherwise. Therefore, it does
not appear to me that precedent exists with regard to when Brewington's third-party
common law bad faith claims accrued.
39. ¶ Absent such precedent, we must apply § 27-2-102(2), MCA, according to its
terms. In this regard, I agree with the Court that the elements of Brewington's claim
based on wrongful reduction of benefits accrued on April 27, 1987, when the
Workers' Compensation Court entered judgment in his favor which restored total
disability benefits. As a matter of both common sense and § 27-2-102(2), MCA, no
claim for wrongful reduction of benefits could have accrued prior to a judgment in
Brewington's favor on the benefits issue in the Workers' Compensation Court
because no wrongful act had been established.
40. ¶ Applying the same analysis to Brewington's bad faith claim relating to attorney
fees mandates a conclusion opposite to that reached by the Court. Taking the
allegations of Brewington's complaint in this case as true, the Workers'
Compensation Court on June 4, 1987, ordered the insurer to pay attorney fees in the
amount of 40% of Brewington's future biweekly benefits as those benefits were
received. The order was not appealed. EFIC apparently paid the biweekly benefits,
but did not comply with the court's order on attorney fees from the time of the order
until February 22, 1996, despite demands that it do so. Under these facts, it is my
opinion that Brewington's bad faith claim for wrongful refusal to pay the attorney
fees accrued at the time the first biweekly benefits were received without the
corresponding payment of the ordered attorney fees; that is, the claim accrued when
the insurer first refused to comply with the Workers' Compensation Court's order on
attorney fees. At that point, the insurer's obligation to pay the fees had been
established and the insurer's failure to meet that obligation became wrongful. The
damage to Brewington also occurred at that time. Therefore, in terms of § 27-2-102
(2), MCA, the elements of Brewington's common law bad faith claim based on
wrongful refusal to pay the ordered attorney fees existed at that time, his right to
maintain an action was complete, and a court was authorized to accept jurisdiction
of the action.
41. ¶ The final step in the analysis, of course, is to apply the three-year tort statute of
limitations contained in § 27-2-204, MCA, to Brewington's claim. That claim
having accrued almost immediately after June 4, 1987, the three years during which
Brewington could timely file his bad faith claim based on the wrongful refusal to
pay the ordered attorney fees elapsed in the summer of 1990. Brewington filed his
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action in February of 1998, and, as a result, that claim was not timely under § 27-2-
204, MCA.
42. ¶ I would conclude that both of Brewington's third-party common law bad faith
claims were barred by the applicable statute of limitations and, on that basis, I
would affirm the District Court's dismissal of his complaint. I dissent from the
Court's refusal to do so.
/S/ KARLA M. GRAY
Chief Justice J. A. Turnage:
¶43 I join in Justice Gray’s dissent as to Issue 3 only.
/S/ J. A. TURNAGE
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