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No. 00-173
IN THE SUPREME COURT OF THE STATE OF MONTANA
2000 MT 153
300 Mont. 123
2 P. 3d 834
SAFECO INSURANCE COMPANY OF ILLINOIS,
Petitioner,
v.
MONTANA EIGHTH JUDICIAL DISTRICT
COURT, CASCADE COUNTY,
HONORABLE THOMAS M. McKITTRICK, presiding,
Respondent.
ORIGINAL PROCEEDING: Supervisory Control
COUNSEL OF RECORD:
For Petitioner:
Robert J. Phillips, Phillips & Bohyer, Missoula, Montana
For Respondents:
Roland B. Durocher, Hartelius, Ferguson, Baker & Kazda, Great Falls, Montana (Pete Hill); Lot T.
Holden, Jardine, Stephenson, Blewett & Weaver, Great Falls, Montana (Judith L. Bennett)
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Submitted: March 23, 2000
Decided: June 8, 2000
Filed:
__________________________________________
Clerk
Justice James C. Nelson delivered the Opinion of the Court.
¶1 This is an original proceeding in this Court involving an application for a writ of
supervisory control. The Petitioner, Safeco Insurance Company of Illinois (Safeco), one of
the defendants in the underlying action, seeks review of the District Court's February 2,
2000 order, which granted summary judgment in favor of the Plaintiff, Pete Hill (Hill) on
his declaratory judgment claim against Safeco. Safeco contends that in doing so, the court
incorrectly interpreted current law governing an insurer's obligation to pay medical
expenses incurred by an injured third party claimant in advance of final settlement or
judgment.
¶2 We assume supervisory control, and affirm the District Court's order granting summary
judgment in favor of Hill.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 The parties agree that on April 6, 1998, a motor vehicle collision occurred between a
vehicle driven by Safeco's insured, Judith Bennett (Bennett) and a vehicle in which Hill
was a passenger. It is undisputed that Bennett admits that her negligence caused the
accident, and that Safeco was her liability insurer at the time. Hill suffered injuries as a
result of the accident, and initially incurred medical expenses of approximately $15,000, a
figure which he asserted in a statement of claim filed with the court in April of 1999.
¶4 Although Safeco apparently paid some of Hill's initial medical claims--according to
Hill's July 7, 1999 affidavit--it eventually disputed the causal relationship between the
accident caused by its insured and Hill's claimed injuries. It refused to pay any medical
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bills submitted for payment by Hill that were incurred beyond December 1, 1998.
¶5 Hill filed suit on March 10, 1999, against Bennett for negligence damages, as well as
against Safeco under three separate counts for its nonpayment of medical expenses. In
part, Hill sought a declaratory judgment that he was legally entitled to advance payment of
medical costs under Bennett's policy with Safeco prior to settlement or a final judgment,
because Bennett's liability was reasonably clear. He asserted that such a declaratory
judgment would be proper pursuant to Montana's Unfair Trade Practices Act (UTPA), as
well as this Court's 1997 decision construing the Act, Ridley v. Guaranty Nat'l Ins. Co.
Hill moved for summary judgment on this declaratory judgment claim on July 7, 1999.
¶6 Hill also brought an UTPA claim and a common law claim of bad faith against Safeco.
The two counts were dismissed, however, by an order issued by the court on May 12,
1999, pursuant to a stipulation by the parties. On September 14, 1999, the court also
granted Safeco's request to separate trials regarding Hill's negligence claim against
Bennett and his declaratory judgment claim against Safeco.
¶7 In support of his motion for summary judgment, Hill asserted that all of his medical
claims made to date were causally related to the accident. Hill relied primarily upon the
affidavit of his primary treating physician, Dr. Ronald Peterson. Dr. Peterson's affidavit
attested that "to a reasonable degree of medical certainty" he believed that Hill's claimed
injuries were sustained in, and were related to, the April 6, 1998 accident.
¶8 Safeco, on the other hand, relied on the affidavit of its hired consultant, Dr. A. Craig
Eddy, who stated that after his review of Hill's medical records he could not "to a
reasonable degree of medical certainty, make a causal connection between the April 6,
1998 car accident and Mr. Hill's continuing medical complaints." According to Hill's
affidavit, he was never asked to submit to a medical examination by a doctor chosen or
approved by Safeco. Additionally, Safeco contended that summary judgment in favor of
Hill was inappropriate because any action--including a declaratory judgment--arising from
an UTPA claim is expressly precluded from adjudication prior to a settlement or a
judgment in the underlying action between the third-party claimant and the insured,
pursuant to § 33-18-242(6)(b), MCA.
¶9 The District Court, in issuing summary judgment in favor of Hill, noted that "nowhere
in his affidavit does Dr. Eddy contradict the affidavits of Plaintiff or Dr. Peterson."
Therefore, the court concluded that "the material facts as alleged by Plaintiff are not in
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dispute." The court further determined that "[b]ecause this action does not directly seek
bad faith damages for a violation of the Unfair Trade Practices Act, there is no statutory
bar under Mont. Code Ann. § 33-18-242(6)(b)."
¶10 The District Court ordered that Safeco "must advance the medical expenses Mr. Hill
has incurred as a result of his injuries sustained in the wreck with Judith Bennett." The
court specifically ordered that Safeco pay "the amount of Mr. Hill's medical expenses for
treatment rendered from the date of the accident through November 1, 1999." The court
further provided, however, that Safeco may nevertheless raise "reasonable defenses" as to
the "validity for any expenses for treatment after that date."
¶11 From this order, Safeco seeks this Court's review pursuant to its petition for
supervisory control.
STANDARD OF REVIEW
¶12 Generally, our standard of review of a district court's summary judgment order is de
novo. See Auto Credit, Inc. v. Long, 1998 MT 327, ¶ 8, 292 Mont. 238, ¶ 8, 971 P.2d
1237, ¶ 8. In this instance, however, the District Court determined there were no
significant factual issues and granted summary judgment to Hill based on its interpretation
of the law. The parties concede that no genuine issues of fact remain. Accordingly, we will
narrow our review to determine whether the moving party, Hill, was entitled to judgment
as a matter of law. See Nimmick v. State Farm Mut. Auto. Ins. Co. (1995), 270 Mont. 315,
319, 891 P.2d 1154, 1156. Our standard of review pertaining to a district court's
conclusions of law, in rendering a declaratory judgment, is to determine if the court's
interpretation of the law is correct. See Ash Grove Cement Co. v. Jefferson County (1997),
283 Mont. 486, 491, 943 P.2d 85, 89.
DISCUSSION
I. Propriety of Supervisory Control
¶13 District Court's February 2, 2000 order granting Hill summary judgment would be an
inadequate remedy. Safeco sets forth a scenario whereby a jury may eventually find its
insured, Bennett, not liable for some or all of Hill's medical expenses. In turn, Safeco may
have already paid Hill some of these expenses pursuant to the court's order granting
summary judgment. This "procedural paradox," as characterized by Safeco, is a direct
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result of the District Court's legal error in refusing to stay Hill's declaratory judgment until
either a settlement had been reached or a judgment had been entered, which is required
under § 33-18-242(6)(b), MCA.
¶14 Article VII, Section 2, of the Montana Constitution gives this Court "original
jurisdiction to issue, hear, and determine writs . . . ." The exercise of supervisory control
by this Court is also authorized by Rule 17(a), M.R.App.P. Supervisory control is
appropriate when a district court is proceeding under a mistake of law and in so doing is
causing a gross injustice for which an appeal is not an adequate remedy. See State v.
Montana Judicial Dist. Court (1997), 281 Mont. 285, 290-91, 933 P.2d 829, 832-33
(citations omitted). Our determination of whether supervisory control is appropriate is a
case-by-case decision. See Park v. Sixth Jud. Dist. Court, 1998 MT 164, ¶ 13, 289 Mont.
367, ¶ 13, 961 P.2d 1267, ¶ 13 (citations omitted). It remains an extraordinary remedy,
however, exercised only in extraordinary circumstances. See State v. Fourth Jud. Dist.
Court (1996), 277 Mont. 349, 352, 922 P.2d 474, 476 (citations omitted).
¶15 Here, we conclude that Safeco's application presents a legal issue which is appropriate
for this Court to resolve through a writ of supervisory control. As explained by Safeco,
should the ordered payment of medical expenses be incorrect, or a "mistake of law," the
delay in awaiting the outcome of the corollary litigation that will determine damages could
create an unfair prejudice for Safeco. Likewise, any further, unnecessary delay in the
payment of Hill's medical costs--if the court's summary judgment was appropriate--would
certainly prejudice Hill. Safeco contends that an appeal brought at some point in the
future, as compared with a resolution of this matter now, would be inadequate. We agree.
¶16 We recognize, however, that due to the September 14, 1999 order for separate trials
which followed Hill's July 7, 1999 motion for summary judgment, the granting of
summary judgment on February 2, 2000, was not, technically speaking, "interlocutory."
See generally Cechovic v. Hardin & Assoc., Inc. (1995), 273 Mont. 104, 118, 902 P.2d
520, 528 (stating general rule that summary judgment orders are interlocutory and
therefore not appealable until final judgment is rendered) (citation omitted); Knight and
Co. v. Fort Belknap Indian Agency (1980), 188 Mont. 218, 220-21, 612 P.2d 1290, 1291-
92 (concluding that appeal must be dismissed without prejudice under Rule 1, M.R.App.
P., where order of summary judgment is interlocutory). Although the trial court did not
certify the summary judgment as final, under Rule 54(b), M.R.Civ.P., there was nothing
preventing Safeco, if it chose to do so, from directly appealing the order of the District
Court.
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¶17 Nevertheless, this Court has determined that where an appeal is not "an adequate
remedy because of the time necessarily involved," the relief of an aggrieved party should
properly be pursued through a writ of certiorari, habeas corpus, or supervisory control. See
Matter of K.H. (1985), 216 Mont. 267, 268, 701 P.2d 720, 721 (treating appeal as a writ of
certiorari). In light of the central issue--the timely payment of medical claims--Hill does
not resist our review of this matter. Specifically, he requests that this Court accept
jurisdiction "for the purpose of clarifying and enforcing the law so that he is not further
prejudiced by Safeco's ongoing delay tactics."
¶18 Accordingly, Safeco's application for a writ of supervisory control is granted.
II. Issue Presented
Can a plaintiff litigate a declaratory judgment claim against an insurer for advance payment of
medical expenses prior to the final settlement or judgment on the underlying claim against an
insured?
¶19 The issue raised by Safeco's application for supervisory control revisits the issues
addressed in this Court's decision, Ridley v. Guaranty Nat'l Ins. Co. (1997), 286 Mont.
325, 951 P.2d 987. In that case, this Court decided that when certain criteria are met, an
insurer must pay an injured third-party claimant's medical expenses prior to final
settlement. See Ridley, 286 Mont. at 334, 951 P.2d at 992. We concluded that Montana's
Unfair Trade Practices Act, specifically subsections (6) and (13) of § 33-18-201, MCA,
imposed an obligation on insurers to pay an injured third party's medical expenses--which
were provided for under its insured's policy--prior to final settlement when liability is
reasonably clear. See Ridley, 286 Mont. at 334, 951 P.2d at 992.
¶20 In this instance, the court followed Ridley and determined that Bennett's liability was
reasonably clear--she admitted to negligence in her Answer. The court concluded that no
material facts were in dispute concerning the causal relationship between the accident and
Hill's medical claims, because Safeco's lone piece of evidence, the affidavit of Dr. Eddy,
did not contradict material facts. Therefore, Safeco--given an ample opportunity to do so--
could not establish a reasonable basis for denial of the payment. Under the circumstances,
the court determined that Safeco must, as a matter of law, pay those medical bills no
longer in dispute in advance of settlement or judgment. In doing so, the court
acknowledged that this would "terminate the controversy or remove uncertainty," as
required by the statutes governing declaratory judgments.
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¶21 Before proceeding, we first find it necessary to address a portion of Safeco's
argument, which suggests that the question here is actually "whether an insurance
company can be forced to defend its decision on the advance pay issues before its
insured's liability for those expenses has been established" (emphasis added).
¶22 We agree with Safeco that Montana law does not allow a plaintiff to bring a direct
action against an insurer until the liability of the insured has been established, unless such
a right is "expressly sanctioned by the legislature and not merely inferentially deduced."
See, e.g., Ulrigg v. Jones (1995), 274 Mont. 215, 224-25, 907 P.2d 937, 943 (citations
omitted). How this principle is relevant in this matter, however, is unclear.
¶23 In her answer, Bennett admitted to committing negligence--i.e., breaching a duty--as
far as the accident was concerned, stopping short of admitting liability for any or all of
Hill's claimed injuries. That her negligence was in turn the cause of those injuries initially
claimed by Hill was determined by the District Court following the submission of
affidavits by both parties attesting to the causal relationship between the accident and
Hill's medical claims.
¶24 Thus, the District Court determined that the only matter reserved for trial would be
damages, which may or may not include damages in excess of the medical expenses at
issue here. Nevertheless, Bennett is liable for injuries resulting from the accident, a portion
of which are no longer in dispute, and the remainder of which remain to be proven by Hill.
¶25 Whether Safeco, as a matter of law, must pay for that undisputed portion, and only
that portion, in advance of settlement or judgment is the issue before this Court. Safeco's
repeated assertions that Bennett's "liability" is somehow still at issue is therefore without
merit and will be disregarded.
¶26 Aside from the foregoing diversion, Safeco has carefully narrowed its summary
judgment arguments here to the focal issue of whether the language of § 33-18-242(6)(b),
MCA, under Montana's Unfair Trade Practices Act, requires that Hill's declaratory
judgment must be stayed until after the settlement or final adjudication of his claim against
Safeco's insured. The application of this statute, Safeco correctly points out, was not at
issue or discussed in Ridley.
¶27 Section 33-18-242(6)(b), MCA, provides that a "third-party claimant may not file an
action under this section until after the underlying claim has been settled or a judgment
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entered in favor of the claimant on the underlying claim." See Poteat v. St. Paul Mercury
Ins. Co. (1996), 277 Mont. 117, 120, 918 P.2d 677, 679 (stating that a district court does
not have subject matter jurisdiction over such an UTPA claim until final settlement or
judgment is achieved). Thus, according to Safeco, the District Court failed as a matter of
law to abide by the mandate of § 33-18-242(6)(b), MCA, by determining that Hill could
properly enforce a right provided by the UTPA, in an action seeking advance payments on
his medical claims prior to the settlement or adjudication of his negligence claim against
Bennett.
¶28 As we recently explained in Fisher v. State Farm Gen. Ins. Co., however, section 33-
18-242(1), MCA, expressly provides that an UTPA claim against an insurer is an
independent cause of action See Fisher, 1999 MT 308, ¶ 16, 297 Mont. 201, ¶ 16, 991
P.2d 452, ¶ 16. We agree with Safeco that a third-party claimant who wishes to bring such
an independent action under UTPA is required, by statute, to wait until "after the
underlying claim has been settled or a judgment [is] entered in favor of the claimant on the
underlying claim." See generally Peris v. Safeco Ins. Co. (1996), 276 Mont. 486, 491-92,
916 P.2d 780, 784 (discussing legislative intent of subsection (6)(b)). The language of the
statute itself provides the underlying reasoning. Only those third-party claimants who are
able to achieve a settlement or prevail at trial may, in turn, bring an UTPA action--
meaning meritless UTPA claims are theoretically extinguished before a claim is ever filed.
This provision serves to both protect insurers from frivolous claims and facilitate judicial
economy.
¶29 Safeco's brief provides little assistance in our search for sound legal authority,
however, that the District Court incorrectly concluded that subsection (6)(b) does not
apply to Hill's declaratory judgment action, and that the court therefore erred as a matter of
law by not staying the proceedings. Rather, Safeco's position is premised on the
imaginative reasoning that Hill's declaratory judgment action is nothing more, really, than
an UTPA claim under a different name. For example, on page 10 of its brief, Safeco
argues that Hill's declaratory judgment claim against Safeco "arises" under § 33-18-242
(1), MCA, and this Court's holding in Ridley. We will not dispute this. Hill requested that
the court apply the governing law as expressed in Ridley and under UTPA in determining
the parties' legal status and rights respecting Bennett's insurance policy with Safeco, and
Hill's status as an innocently injured third-party claimant. By page 14, however, Hill's
declaratory judgment claim is interestingly transformed into an actual "UTPA claim
against Safeco." By page 15, Hill's claim ripens into a bona fide "bad faith case." Then,
Safeco reaches its conclusion by claiming that Hill could not bring "his claim against
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Safeco until he settles or adjudicates his underlying claim against Safeco's insured," as
required of all UTPA claims under § 33-18-242(6)(b), MCA, (emphasis added).
¶30 Noticeably absent from this slight-of-hand chronology is the fact that as a result of
Safeco's own motion before the District Court, Hill's UTPA and common law bad faith
claims were dismissed pursuant to the parties' stipulation. Accordingly, the District Court
did not award damages for bad faith, or an unfair trade practice. Rather, the court simply
instructed Safeco to pay those medical expenses provided for under Bennett's policy that
were no longer in dispute--those that Hill had incurred up to November 1, 1999. Beyond
that date, the court clearly afforded Safeco the right to "raise reasonable defenses, which
can be substantiated with a clearly stated, good faith argument. . . ." Further, the court
correctly omitted any determination regarding Hill's claim to lost wages, which clearly
falls outside the scope of our decision in Ridley. In every respect, the court narrowly
tailored its declaratory judgment to those medical expenses that, under Ridley, a third-
party claimant is unequivocally entitled to prior to settlement or entry of judgment.
¶31 The purpose of the Declaratory Judgment Act, after all, is to "settle and to afford relief
from uncertainty and insecurity with respect to rights, status, and other legal relations."
Section 27-8-102, MCA. While the focus of the Act is on construing rights under written
instruments, see § 27-8-202, MCA, a court is not restricted in "any proceeding where
declaratory relief is sought in which a judgment or decree will terminate the controversy
or remove an uncertainty." Section 27-8-205, MCA. Thus, a court has the liberal
discretion to "declare rights, status, and other legal relations whether or not further relief is
or could be claimed." Section 27-8-201, MCA.
¶32 In accordance with the foregoing statutory language, the declaratory judgment sought
by Hill, in theory, actually removed the necessity of his pursuing a Ridley-based UTPA
claim. Indeed, Hill did in fact pursue such a claim, insisting that it would be an unfair
trade practice for Safeco to withhold advance payment of Hill's medical claims in light of
this Court's decision in Ridley. In turn, this claim no doubt would have led to a lengthy
dispute over the underlying facts of the parties' respective conduct.
¶33 Where an insurer's duties turn on a question of law, however, especially where those
duties have been previously and conclusively determined by either the Legislature or this
Court, such a protracted affair would be imprudent from both parties' standpoints, in that
the cost of litigation could certainly be reined in by a declaratory judgment that produces
the same result. In fact, such a tactical decision is routinely made by insurers. See, e.g., St.
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Paul Fire & Marine Ins. Co. v. Cumiskey (1983), 204 Mont. 350, 358, 665 P.2d 223, 227
(discussing insurers' use of declaratory judgment to obtain a determination of the validity,
continuance, or coverage of an insurance policy; a determination of the extent of liability;
or a determination of the insurer's duties under the policy). In this sense, Safeco should be
grateful that what amounts to a question of law could be resolved in such an efficient
manner--especially in light of the potential for awarding the successful third-party
claimant far more than the actual medical costs under Montana's UTPA.
¶34 We therefore affirm the District Court's conclusion that because Hill's declaratory
judgment claim did not directly seek bad faith damages for a violation of the UTPA, there
was no statutory bar under § 33-18-242(6)(b), MCA. In doing so, we again emphasize that
the District Court did not determine that Safeco violated UTPA, or acted in bad faith, or
that the ordered payment of advance medical expenses constitutes a money judgment for
"damages" in the ordinary sense. To the contrary, the District Court merely removed all
uncertainty and controversy over the issue of when the inevitable policy proceeds are due.
¶35 The judgment of the District Court is affirmed.
/S/ JAMES C. NELSON
We Concur:
/S/ J. A. TURNAGE
/S/ WILLIAM E. HUNT, SR.
/S/ JIM REGNIER
/S/ TERRY N. TRIEWEILER
/S/ W. WILLIAM LEAPHART
Justice Karla M. Gray, dissenting.
¶36 While I do not disagree with the Court's analysis of the substantive legal issue
presented in this application for a writ of supervisory control, I would not reach that issue
because this case does not meet the test pursuant to which we exercise supervisory control.
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In my view, we must maintain that test--and apply it consistently--lest we become so
overwhelmed by original proceedings such as this that we are unable to address cases on
appeal in any relatively expeditious way. Accordingly, I respectfully dissent from the
Court's exercise of supervisory control in this case.
¶37 The Court states that supervisory control is appropriate when a district court is
proceeding under a mistake of law and in so doing is causing a gross injustice for which
an appeal is not an adequate remedy. It goes on to observe that, even under that test,
supervisory control is an extraordinary remedy exercised only in extraordinary
circumstances. I could not agree more. Having properly stated the applicable principles,
however, the Court fails to apply them.
¶38 In the first instance, it is clear from the Court's analysis of the substantive legal issue
that the District Court was not "proceeding under a mistake of law." Since the test for
supervisory control is stated in the conjunctive by use of the word "and"--that is, both
prongs of the test must be met--this should end our inquiry about whether to accept this
case and exercise our supervisory control jurisdiction.
¶39 Even ignoring the conjunctive nature of the test, however, no gross injustice is being
caused by the District Court's order on summary judgment. As the Court states, Safeco's
argument in this regard is that--if the District Court is incorrect as a matter of law--delay
in awaiting the outcome of the corollary litigation could create unfair prejudice against
Safeco. This is a far cry from the requirement of the second prong of the test, which is
"causing gross injustice for which an appeal is not an adequate remedy."
¶40 Nor is the Court correct in suggesting that there would be further delays in the
payment of Hill's medical costs--in the event the District Court was correct as a matter of
law--which "would certainly prejudice Hill." In granting Hill's motion for summary
judgment, the trial court ordered that Safeco "shall pay . . . Hill's medical expenses for
treatment rendered from the date of the accident through November 1, 1999." Under that
order, it is clear that Safeco must pay those expenses at this time, not at some time in the
future. Thus, there can be no further delays in those payments and no prejudice to Hill.
¶41 Finally, I do not follow the Court's logic or analysis in ¶¶ 16 and 17. There, the Court
states that the order granting summary judgment was not, technically speaking,
interlocutory and Safeco could have taken a direct appeal from that order. It cites to no
authority for this proposition and I am aware of none. Moreover, if the order was
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appealable, it should have been appealed rather than raised via this original proceeding.
¶42 It is clear that both parties to the underlying case want this Court to resolve the
substantive legal issue at this time. That fact, however, has no bearing on whether our test
for exercising supervisory control is met. It also is clear that the Court is interested in
addressing the substantive legal issue at this time. That, too, should have no bearing on
whether our test for exercising supervisory control is met. Here, there is no error of law
which is causing a gross injustice for which an appeal is not an adequate remedy. Nor is
this a case involving extraordinary circumstances calling for the extraordinary remedy of
supervisory control.
¶43 By its action here, it is my view that the Court has unnecessarily blurred the lines
between appeals and applications for supervisory control and has obliterated any test for
exercising supervisory control. In essence, it has decided that, while continuing to state the
requirements to be met before supervisory control will be exercised, it will accept any
application for supervisory control involving an issue it wants to address immediately.
Parties litigant in ordinary appeals will feel the impacts of the Court's decision today, as
we invite unlimited applications for supervisory control which consume more and more of
our time. Trial courts will feel the impacts doubly: 1) as more and more of their cases,
long scheduled and moving toward trial, are disrupted by applications for supervisory
control; and 2) by having rulings which may have become moot by further proceedings
raised and resolved in this Court on supervisory control.
¶44 I cannot join in this course of action. I dissent from the Court's decision to exercise
supervisory control in this case.
/S/ KARLA M. GRAY
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