Dale Fossen v. Caring for Montanans, Inc. , 617 F. App'x 737 ( 2015 )

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JUN 30 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
DALE FOSSEN; et al., No. 14-35077
Plaintiffs - Appellants, D.C. No. 6:09-cv-00061-CCL
v.
MEMORANDUM*
CARING FOR MONTANANS, INC.,
FKA Blue Cross and Blue Shield of
Montana, Inc.,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Montana
Charles C. Lovell, Senior District Judge, Presiding
Argued and Submitted June 4, 2015
Seattle, Washington
Before: O’SCANNLAIN, EBEL**, and McKEOWN, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable David M. Ebel, Circuit Judge for the U.S. Court of
Appeals for the Tenth Circuit, sitting by designation.
The Fossens appeal from the district court’s grant of summary judgment in
favor of Caring for Montanans, Inc. (“CFM”) rejecting the Fossens’ purported
private right of action.
I
In 1987, the Montana legislature amended the Montana Unfair Trade
Practices Act (“UTPA”) expressly to designate six statutory provisions—all
contained in § 33–18–201—the violation of which would permit an insured or a
third party to pursue a direct claim against an insurer. Mont. Code Ann.
§ 33–18–242(1). Other than § 33–18–242(1), the UTPA does not expressly
recognize any other private right of action based on an alleged violation of any
other UTPA provision. Rather, the UTPA delegates broad enforcement powers to
the Insurance Commissioner to enforce compliance with the UTPA, including,
inter alia, the power to resort to judicial proceedings. See §§ 33–18–1001 to
–1006.
While the Montana Supreme Court has determined that the 1987 amendment
did not abrogate preexisting common law causes of action, see, e.g., Thomas v.
Northwestern Nat’l Ins. Co., 973 P.2d 804, 809 (Mont. 1998), the Fossens’ claim
here turns entirely on CFM’s alleged statutory violation—specifically, CFM’s
alleged violation of § 33–18–206(2) of the UTPA, which prohibits “unfair
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discrimination between individuals of the same class and of essentially the same
hazard in the amount of premium . . . charged.” Since the 1987 amendment,
however, the Montana Supreme Court has never recognized a private right of
action for the violation of a UTPA provision other than those provisions identified
in § 33–18–242(1). In fact, in Williams v. Union Fidelity Life Insurance Co., 123
P.3d 213 (Mont. 2005), the Montana Supreme Court permitted the insured to
pursue a breach of contract claim against her insurer only because the insured was
not asserting that her claim arose due to the insurer’s alleged UTPA violations;
rather, the insured referenced the UTPA simply to provide support for her
independent breach of contract claim. Id. at 220; see also Brewington v.
Employers Fire Ins. Co., 992 P.2d 237, 240–41 (Mont. 1999) (permitting an
insured to pursue a bad faith claim against an insurer because the claim was based
on the common law tort of bad faith, rather than an alleged violation of the UTPA).
Moreover, the Fossens point to nothing in either of the insurance policies
that incorporates the UTPA. Thus, unlike in State ex rel. Farm Credit Bank of
Spokane v. District Court, 881 P.2d 594 (Mont. 1994)—where the parties were
permitted to pursue a breach of contract claim based on a statutory violation
because the parties expressly incorporated the statute into the contract—here, the
parties did not intend to create contractually a cause of action based on a statutory
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violation. Id. at 602–03. The district court therefore correctly granted summary
judgment in favor of CFM on the Fossens’ claim that by allegedly violating
§ 33–18–206(2), CFM breached its insurance contracts with the Fossens.
II
Because the district court presided over the case for four years, see, e.g.,
Mackey v. Pioneer National Bank, 867 F.2d 520, 523 (9th Cir. 1989) (concluding
that “retention of jurisdiction well served the purposes of judicial economy and
efficiency” when the case had been in federal court for just over four months), and
the case involved issues of federal preemption, see United Mine Workers of
America v. Gibbs, 383 U.S. 715, 727 (1966), the district court did not abuse its
discretion in retaining jurisdiction over the Fossens’ pendent state law claims. See
Long v. City & Cty. of Honolulu, 511 F.3d 901, 907 (9th Cir. 2007).
III
Because the Montana Supreme Court’s previous interpretations of the UTPA
sufficiently establish that an insured party cannot assert a private right of action or
breach of contract claim based solely on an alleged violation of a UTPA provision
other than the six provisions specified in § 33–18–242(1), the district court did not
abuse its discretion in declining to certify such issue to the Montana Supreme
Court. See Riordan v. State Farm Mut. Auto. Ins. Co., 589 F.3d 999, 1009 (9th
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Cir. 2009). For the same reason, we decline to certify as well. See Mont. R. App.
P. 15(3)(b).
IV
The district court’s order granting CFM’s motion for summary judgment is
AFFIRMED.
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