Fry v. State Farm Mutual Automobile Insurance , 478 F. App'x 450 ( 2012 )

FILED
NOT FOR PUBLICATION JUL 17 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
HEIDI A. FRY, individually and on behalf No. 11-35691
of all others similarly situated, AKA Heidi
A. Johnson-Fry, D.C. No. 2:11-cv-00004-RKS
Plaintiff - Appellant,
MEMORANDUM *
v.
STATE FARM MUTUAL
AUTOMOBILE INSURANCE
COMPANY,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Montana
Keith Strong, Magistrate Judge, Presiding
Submitted July 13, 2012 **
Seattle, Washington
Before: SCHROEDER, KLEINFELD, and M. SMITH, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Plaintiff-Appellant Heidi A. Fry appeals the district court’s dismissal with
prejudice of her putative class action lawsuit against Defendant-Appellant State
Farm. Fry seeks a declaratory judgment for the residual diminished value (RDV)
of her vehicle, which was damaged by a driver who was insured by State Farm. As
the facts and procedural history are familiar to the parties, we do not recite them
here except as necessary to explain our disposition. We have jurisdiction under 28
U.S.C. § 1291, and we affirm.
In Montana, third parties may not directly sue a tortfeasor's insurer “until
after the underlying claim has been settled” or the third party obtains a judgment
against the tortfeasor on the underlying claim. Mont. Code Ann. 33-18-242(6)(b).
Fry contends that her claim falls within the exception to that statute that was
created by Ridley v. Guaranty National Insurance Co., 951 P.2d 987 (Mont. 1997),
which allows a third party to bring a declaratory judgment action against the
insurer if the insurer refuses to pay medical expenses or lost wages. This argument
is unavailing because the Montana Supreme Court recently ruled that Ridley does
not apply to RDV claims. Hop v. Safeco Ins. Co., 261 P.3d 981, 984 (Mont. 2011)
(“RDV does not qualify as the type of damage that must be paid in advance as ‘not
reasonably in dispute.’”). Accordingly, we affirm the district court’s dismissal
with prejudice of Fry’s complaint.
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AFFIRMED.
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