[00:00:01] Speaker 02:
Good morning, Your Honors.

[00:00:03] Speaker 02:
My name is Tim Daley.

[00:00:04] Speaker 02:
I'm from Missoula, Montana.

[00:00:06] Speaker 02:
I'm here on behalf of the appellants, Jim and Margie Brodowie.

[00:00:10] Speaker 02:
They are from Helena, Montana.

[00:00:13] Speaker 02:
As I'm sure you're aware by now, this is a insurance bad faith case where the underlying accident left Jim paralyzed from his chest down.

[00:00:26] Speaker 02:
It's obviously a catastrophic event for them, and I apologize they can't be here today for obvious reasons.

[00:00:36] Speaker 02:
This is a burden that they could not meet, but I'm sure they're watching from home eagerly.

[00:00:41] Speaker 02:
If I was going to summarize our appeal,

[00:00:46] Speaker 02:
in one sentence.

[00:00:48] Speaker 02:
I would do it in a sentence that I'm sure each and every one of you have written many times throughout your career, which is courts should strongly favor trial on the merits.

[00:01:02] Speaker 02:
We're here today because Jim and Margie have been deprived of their day in court and their opportunity to have this case decided on the merits.

[00:01:18] Speaker 02:
Before we get into the substance of our errors that were committed in the district court, it's important to look at what the actual issue is here.

[00:01:33] Speaker 02:
In Montana, we don't necessarily follow the common law approach to bad faith.

[00:01:40] Speaker 02:
We have the legislature has put into the Unfair Trade Practices Act

[00:01:46] Speaker 02:
The certain claims handling practices that would be considered prohibited and actionable for first party claimants and third party claimants.

[00:01:58] Speaker 02:
The case law in Montana is crystal clear.

[00:02:01] Speaker 02:
When you have an accident and liability is reasonably clear,

[00:02:07] Speaker 02:
The seminal case Ridley stands for the proposition that an insurance company has to advance pay any undisputed medical expenses and can't condition those or wait until the end of the claim.

[00:02:20] Speaker 02:
Those are required at the outset.

[00:02:24] Speaker 03:
That doesn't appear to be in dispute.

[00:02:26] Speaker 03:
No, it's not.

[00:02:26] Speaker 03:
So maybe you should get, time's wasting, get to what is in dispute.

[00:02:32] Speaker 02:
Well, understand, Your Honor.

[00:02:34] Speaker 02:
what is in dispute here is that rather than meeting those obligations and the shalannick obligations when the policy limits clearly exceed or when the damages exceed policy limits in a reasonably clear situation rather than fulfill their obligations that are clear and not in dispute they

[00:02:58] Speaker 02:
progressive attempted to get the Braddowys to settle this case.

[00:03:02] Speaker 03:
Let me ask you to focus on the piece that I kept waiting in your briefs to get to, and I never did, which is that it appears that the federal district court, through multiple judicial officers, have concluded that the Ridley doctrine, which seems clear from the Montana Supreme Court,

[00:03:24] Speaker 03:
isn't self-executing in the sense that a request is required from the covered person to trigger that obligation.

[00:03:36] Speaker 03:
And the court has articulated what could be described as a policy reason for why that should be the understanding of the Ridley Doctrine.

[00:03:50] Speaker 03:
And I've never seen in either the lengthy opening brief or the lengthy reply brief an explanation for why the district court's logic isn't sound.

[00:04:01] Speaker 02:
Well, there's two parts to that.

[00:04:03] Speaker 03:
Why isn't the logic of the district court, whereas the covered person, and indeed the court appears to think the covered person in this case, is better off by not

[00:04:16] Speaker 03:
imposing on the insurance company an obligation to pay out automatically without being able to take into account how the covered person's injuries may be taken care of by health insurance.

[00:04:32] Speaker 03:
So what's wrong with that reasoning?

[00:04:35] Speaker 02:
First and foremost, Your Honor, Progressive is represented by very good counsel.

[00:04:41] Speaker 02:
They have reframed this issue.

[00:04:44] Speaker 02:
that we are seeking some broad rule that there's an automatic trigger just because there are medical bills.

[00:04:50] Speaker 04:
Okay, so do you agree there had to be a claim?

[00:04:53] Speaker 02:
Well, there was a claim made in this case.

[00:04:55] Speaker 04:
I know, I understand that's your position, but do you agree with, I had a similar question as Judge Clifton, but do you agree with the way the law has developed in the district court that there does need to be a claim in the first place?

[00:05:06] Speaker 04:
What we're debating here is whether the statement through the hospital representative was such a claim.

[00:05:11] Speaker 02:
It's not that it's a claim.

[00:05:12] Speaker 02:
I think we make clear it's an inquiry that they had an obligation to act in some way.

[00:05:18] Speaker 02:
So it did not trigger just blindly sending a payment to the hospital without talking to the Berdowis.

[00:05:25] Speaker 02:
What it triggered is some obligation to respond to that inquiry, which would include explaining to them their options.

[00:05:33] Speaker 02:
We could pay the hospital.

[00:05:35] Speaker 02:
We could pay you.

[00:05:37] Speaker 02:
But you have to tell us what you want.

[00:05:40] Speaker 02:
The issue here is that they just ignored that.

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And so when you look at all the cases that are relied on in the brief, there is some response by the insurance company.

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There's a rejection.

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There's communication to the third party claimants.

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There is not, as in this case, the issue is that they ignored an inquiry about Ridley.

[00:06:04] Speaker 01:
So let me understand where your clients end up.

[00:06:08] Speaker 01:
I mean, number one.

[00:06:10] Speaker 01:
incredibly tragic and sympathetic event.

[00:06:14] Speaker 01:
And sadly, as often happens in these cases, the individual doesn't have very high insurance.

[00:06:21] Speaker 01:
So both Mr. and Mrs. Ridley were able to each collect the maximum amount under the policy, correct?

[00:06:34] Speaker 02:
after they retained a lawyer.

[00:06:36] Speaker 01:
Yes, I understand that.

[00:06:38] Speaker 01:
So ultimately, they each got that.

[00:06:41] Speaker 01:
Could you explain what the status is with respect to the medical costs?

[00:06:47] Speaker 01:
Are they out anything medical cost-wise?

[00:06:52] Speaker 02:
Yes and no.

[00:06:53] Speaker 02:
I mean, as you know, what often happens in this case is there's been reductions and things that get paid through their RISA plan.

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And then, I mean,

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The impetus of our claim in this case is not seeking outstanding medical expenses.

[00:07:09] Speaker 01:
So they got the policy limits.

[00:07:12] Speaker 01:
We're assuming that the medical will sort itself out, correct?

[00:07:15] Speaker 02:
Right.

[00:07:16] Speaker 01:
So your claim then, under the Montana basically unfair competition law, is that the insurance company didn't respond.

[00:07:31] Speaker 01:
Is that the essence?

[00:07:33] Speaker 02:
if they would have acted in good faith and complied with the statutes and given the Bernalys the option, the Bernalys were deprived of the opportunity to receive that money when they needed it, when they were in Salt Lake City, when, and that's, you know, if we- Well, I'm really trying to understand the difference it would have made because each of them gets the policy, the low, unfortunately low policy limits and, you know, again, very sympathetic and tragic on that.

[00:07:59] Speaker 01:
So what you're saying is,

[00:08:03] Speaker 01:
Were they out money as a result of being in the hospital?

[00:08:07] Speaker 02:
Well, we have a damages expert that can show what you would expect, which is he's out of work, his routine expenses are happening, real time.

[00:08:19] Speaker 02:
Their income is depleted in that period before everything kind of sorts itself out.

[00:08:24] Speaker 02:
That's when they needed the money.

[00:08:25] Speaker 02:
The $25,000 with no strings attached would have gone a long way to their financial, emotional distress that was related to this accident.

[00:08:33] Speaker 01:
And what was the string attached to the, at least, eventually, of course, they get the lawyer and they understand, well, maybe Margaret also has a claim.

[00:08:43] Speaker 01:
What was the string attached to their ability to get the $25,000?

[00:08:48] Speaker 02:
So that's the second part.

[00:08:50] Speaker 02:
These are two different kind of aspects to our claims.

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They're not interrelated, but they overlap in some regards.

[00:08:59] Speaker 02:
But the second prong is once, I mean, on October

[00:09:04] Speaker 02:
22nd, in the claims file notes, the adjuster was going to tender the policy limits.

[00:09:10] Speaker 02:
Where they went a foul is that they tendered them in the form of an offer for a full and final settlement of the claim.

[00:09:18] Speaker 02:
Where they further went a foul is that they sent them to the place of residence in Montana, knowing that they weren't there, and they didn't send a check, they just sent an offer that needed to be responded to.

[00:09:32] Speaker 02:
So by the time that was ever responded to, it was basically when the Berdowys came back, around the time that they came back months later, when they finally come home, there was email communication that kind of triggered that as well.

[00:09:46] Speaker 02:
But that was in December.

[00:09:49] Speaker 02:
But where the strings here is that they didn't just send the check, right?

[00:09:54] Speaker 02:
They could have sent a check to Jim, $25,000, no issue.

[00:10:00] Speaker 02:
But they added Margie, his wife, onto the payment.

[00:10:04] Speaker 02:
They added her into their system as a claimant.

[00:10:07] Speaker 02:
They added her onto this optional release.

[00:10:11] Speaker 02:
They put in a letter that this was the full and final settlement of their claims.

[00:10:15] Speaker 02:
This was the most that they could ever, this was in their letter, you can look at it.

[00:10:20] Speaker 02:
This is the most they could ever receive from Progressive.

[00:10:23] Speaker 02:
That was an inaccurate statement.

[00:10:25] Speaker 02:
It was leading them to believe that they had no more claims.

[00:10:30] Speaker 02:
one of two things was going to happen.

[00:10:32] Speaker 02:
They either fill out the paperwork, send it back.

[00:10:35] Speaker 02:
They've unwittingly released Margie's own claims.

[00:10:40] Speaker 02:
Or they didn't, which is what actually happened in this case.

[00:10:43] Speaker 02:
But if they don't talk to a lawyer, they're under the false belief that maybe they don't have any more claims.

[00:10:56] Speaker 02:
Obviously, they did talk to the lawyer and the rest is history, but that doesn't excuse the bad faith conduct.

[00:11:02] Speaker 02:
That goes more to damages.

[00:11:04] Speaker 04:
Any derivative claim that she had be part of the first 25,000?

[00:11:08] Speaker 02:
Well, that's the key when you look at the case law in Montana.

[00:11:13] Speaker 02:
If there's no physical manifestation of injury, that is true.

[00:11:18] Speaker 02:
But if she has emotional distress of her own that manifests in physical bodily injury, the case law in Montana says that triggers a bodily injury claim for Margie.

[00:11:30] Speaker 02:
Obviously, they paid the extra 25 without issue, so they acknowledge that under Montana law.

[00:11:37] Speaker 04:
Is it your position that they had to go to her and say, this is what's potentially available to you?

[00:11:42] Speaker 04:
There's 25,000 for Jim and Margie's derivative claim.

[00:11:47] Speaker 04:
Now, you may have another 25 available to you if you can show this.

[00:11:51] Speaker 04:
I mean, what do you think they had an obligation to do as opposed to wait for her to say, these are my claims and I'd like to be paid for them?

[00:11:58] Speaker 02:
Okay.

[00:11:59] Speaker 02:
So two things.

[00:12:00] Speaker 02:
I should have reserved two minutes at the beginning of my argument.

[00:12:04] Speaker 02:
Okay.

[00:12:04] Speaker 02:
So what they should have done in this case is either just pay Jim and don't bring Margie into it.

[00:12:13] Speaker 02:
But the moment, that's where this is kind of a misnomer in the sense that they're putting the onus that Margie never made her own claim, but they treated her as a claimant.

[00:12:23] Speaker 02:
And the moment that they treated her as a claimant, and the moment they told her in a letter, this is all you can ever receive,

[00:12:31] Speaker 02:
then we're not saying that they have to go solicit claims.

[00:12:36] Speaker 02:
But if you go back to the record in this case, the only communication that the bodily injury adjuster ever had with the Berdowis was in these letters.

[00:12:47] Speaker 02:
All Margie did was call the number on the day of the accident and say, I'm reporting this accident.

[00:12:54] Speaker 02:
Everything that happened past that point is progressive, assuming what the claims are.

[00:13:00] Speaker 02:
and then determining how they are going to direct the claim.

[00:13:05] Speaker 02:
At no point did they ever talk to Margie and say, well, do you have any claims or not?

[00:13:11] Speaker 02:
The moment that they start assuming that she may have derivative claims, that's the issue.

[00:13:17] Speaker 02:
Why can't you also assume that she may have her own claims?

[00:13:21] Speaker 02:
Clearly, they knew that because when we returned the money, the adjuster says, well, maybe she's going to assert her own claims now.

[00:13:28] Speaker 02:
It's all on the record.

[00:13:30] Speaker 04:
Do you want to save some time for rebuttal?

[00:13:31] Speaker 04:
Yes, Your Honor.

[00:13:32] Speaker 04:
Okay, we'll put two minutes on the clock when you come back.

[00:13:41] Speaker 00:
Good morning, Your Honors.

[00:13:44] Speaker 00:
I'm Susan Moriarty Mildkowin.

[00:13:46] Speaker 00:
With me is Alex Hoimaya on behalf of Progressive.

[00:13:50] Speaker 00:
My friend on the other side has presented a shotgun approach seeking to argue a variety of procedural issues and then asking this court to make what is new law inconsistent with Montana Supreme Court jurisprudence and, as Judge Clifton pointed out, contrary to public policy.

[00:14:09] Speaker 00:
The root of the appeal is twofold.

[00:14:11] Speaker 00:
One, that somehow Progressive violated the UTPA by failing to address claims that had not been made, namely the request for Ridley payments.

[00:14:21] Speaker 00:
And two, that Progressive violated the UTPA by requesting, which was undisputedly, an optional release.

[00:14:29] Speaker 00:
And that's incredibly important under the Montana case law.

[00:14:33] Speaker 00:
The court's ruling on this case is correct for three key reasons.

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First,

[00:14:38] Speaker 00:
Under Montana law, the UTPA requires a claimant make a claim before UTPA obligations are triggered.

[00:14:47] Speaker 00:
Brodawi's assertions of UTBA violations associated with Ridley are not triggered because they relate to claims that were not made.

[00:14:57] Speaker 00:
You asked about that claim and there was no answer.

[00:15:00] Speaker 00:
The Brodawis never reach out and ask for Ridley payments.

[00:15:04] Speaker 03:
Montana law does... Well, we say Montana law, or it's clear under Montana law, is the Montana Supreme Court spoken to that?

[00:15:12] Speaker 03:
Or what I've seen in the briefs are a series of decisions by the district court which are relevant to us but not binding in the way that the Montana Supreme Court is.

[00:15:22] Speaker 03:
So I want to be clear, what's the source of your statement that it's clear under Montana law that the obligation isn't triggered until there's been a request?

[00:15:30] Speaker 00:
We believe it's clear under the totality of the jurisprudence, Your Accurate, Your Honor, that the court has not been specifically addressed with this issue.

[00:15:40] Speaker 00:
Do you have to make a request for an advance payment?

[00:15:44] Speaker 00:
But it's rooted first and foremost in the statute.

[00:15:48] Speaker 00:
In the statute itself, it provides that there must be a claim.

[00:15:52] Speaker 00:
And so Section 201-6, which is one of the sections they assert was violated, applies to the settlement of claims.

[00:16:02] Speaker 00:
And Section 13 applies to where an insurer fails to promptly settle claims.

[00:16:08] Speaker 00:
And Section 4 deals with the refusal to settle claims.

[00:16:12] Speaker 00:
So under the statute, which is the root of all of those obligations, there has to be a claim first.

[00:16:17] Speaker 00:
It's been consistently applied in Montana.

[00:16:21] Speaker 00:
In case law, we cite to Ricks v. Tesla, Grenz v. Fire and Casualty, Thomas v. Nationwide Insurance, and then in- Because the time is going by, I want to focus a little on a variation on this theme.

[00:16:37] Speaker 03:
When asked, your colleague emphasized he wasn't trying to establish a general obligation

[00:16:47] Speaker 03:
and focused his attention on what he described as a failure by progressive to pursue or inquire or communicate to put before the covered person the options that were there.

[00:17:03] Speaker 03:
And so let's accept for a moment that Montana law requires a Ridley request, I guess is what we're calling it, in order to trigger the payment obligation.

[00:17:15] Speaker 03:
I want to focus your attention on this variation, which says that the allegation appears to be that Progressive violated its obligation to pursue the inquiry itself once it had gotten the call from the hospital.

[00:17:30] Speaker 00:
And, Your Honor, I believe the undisputed facts establish that that's exactly what Progressive did, and quite frankly, Progressive

[00:17:38] Speaker 00:
did exactly what the Brodowys are suggesting.

[00:17:44] Speaker 00:
It's important in terms of that Ridley request that they, as Mr. Daley did here today, acknowledge that it would have been to their detriment and it's not the obligation to actually

[00:17:56] Speaker 00:
start paying the bills when a medical provider says, hey, can we bill you directly?

[00:18:02] Speaker 03:
The hospital wants to get paid, so they'll take the money, but that's a little different question.

[00:18:07] Speaker 03:
Right.

[00:18:07] Speaker 00:
And so on the contrary, what Mr. Daley and the Brodowis are arguing is that somehow that triggered a duty to solicit a Ridley claim.

[00:18:16] Speaker 00:
And that's erroneous for two reasons.

[00:18:18] Speaker 00:
One is all of that Montana law that's in our brief regarding the idea there's no duty to solicit a claim.

[00:18:26] Speaker 00:
But it's also not correct to represent that somehow that request was simply ignored.

[00:18:33] Speaker 00:
So if you look in the record, at ER 209, we get the call from the Utah hospital saying, Mrs. Klayman is wondering if we can bill that you directly.

[00:18:45] Speaker 00:
And so in the claim notes on that same page, you see that the adjuster makes a plan for investigation.

[00:18:52] Speaker 00:
and reaches out and contacts Mrs. Brodowie.

[00:18:56] Speaker 00:
On ER 209 through 210, there's a record she called Mrs. Brodowie, tells her to call with any questions or concerns.

[00:19:06] Speaker 00:
We don't receive a call back from Mrs. Brodowie until 10-1-19, at which time she indicates she's really hard to reach, understandably.

[00:19:14] Speaker 00:
She is focused on what's going on at that hospital, and there's good reason not to continue to literally harass her.

[00:19:21] Speaker 00:
But what we do is we conduct the investigation and on 10 15 we reach our insured and do the insurance and do the liability investigation that's at er 210 through 11 and on 10 22 we get the police report you see that at er 211 that same day

[00:19:41] Speaker 00:
We make a liability determination and offer to tender the policy limits.

[00:19:47] Speaker 00:
And interestingly, that's exactly what the plaintiffs suggest we should do.

[00:19:53] Speaker 00:
They.

[00:19:53] Speaker 04:
The plaintiffs have difficulty with the idea that it was presented as a $25,000 limit.

[00:19:59] Speaker 04:
I think their position is, you know, that was misleading to us.

[00:20:02] Speaker 04:
We thought the limit was 25.

[00:20:03] Speaker 04:
It turns out there was another 25 later.

[00:20:06] Speaker 04:
And on top of that, you asked us to release any further claims.

[00:20:11] Speaker 00:
Well, I think there's a couple points to that.

[00:20:16] Speaker 00:
First and foremost, the representation regarding the limits is abundantly accurate.

[00:20:24] Speaker 00:
If you look at that

[00:20:26] Speaker 00:
January that 1022 letter which is at er 233 We expressly indicate that it's a per person 25,000 per person limit to Jim We then offer it and call it a full and final settlement The reason it has to be called a full and final settlement is rooted in the high country paving case in this case law the Montana Supreme Court and

[00:20:50] Speaker 00:
has repeatedly grappled with what does it mean to have a settlement.

[00:20:55] Speaker 00:
And they've talked about different types of settlement that exist.

[00:20:59] Speaker 00:
And following all of this case law, Ridley to Waters to Debray to Shalhannock, all of those cases grapple with this term settlement.

[00:21:08] Speaker 00:
And in high country, they

[00:21:10] Speaker 00:
expressly find that the payment of policy limits is a full and final settlement.

[00:21:16] Speaker 00:
Legally, that's exactly how it needs to be described.

[00:21:20] Speaker 00:
If you look at paragraph 23, they say settling with an injured party for policy limits is not a payment made in advance of settlement.

[00:21:29] Speaker 00:
It is a settlement.

[00:21:30] Speaker 00:
And then on paragraph 25, they say, insurers have a duty to make two related, but separate types of settlements.

[00:21:38] Speaker 00:
One, the Ridley, which would be sort of a piecemeal settlement.

[00:21:42] Speaker 00:
And then a full and final settlement of all claims without a release.

[00:21:47] Speaker 00:
And that is precisely what is offered to them on 1022.

[00:21:53] Speaker 00:
And in addition to accurately describing the policy limits in that letter, we provide the deck page.

[00:21:58] Speaker 04:
So there's no representation otherwise.

[00:22:09] Speaker 00:
your honor that is as you can tell naturally simply a hypothetical question and the answer is quite frankly I don't know I think it would depend very heavily on what was presented in the sense that it that question wasn't presented to progressive and as a result progressive wasn't in a position to weigh the information on whether or not

[00:22:31] Speaker 00:
there was a viable N.I.E.D.

[00:22:33] Speaker 00:
claim that should have pre-existed.

[00:22:35] Speaker 00:
But the inclusion of her name on the check is also absolutely appropriate and necessary under Montana law.

[00:22:44] Speaker 00:
The case law that governs that is Bain v. Gleason, which is 726 P.2.1153, where the Montana Supreme Court clearly provided that a cause of action for a loss of consortium by a spouse

[00:22:59] Speaker 00:
and the cause of action for bodily injuries is subject to the one-person limitation.

[00:23:05] Speaker 00:
There's no contest there.

[00:23:07] Speaker 00:
So the issue being... Why did Progressive ultimately pay out the $50,000?

[00:23:12] Speaker 00:
Well, Your Honor, when that happens, the situation has been changed.

[00:23:16] Speaker 00:
I would maintain, Your Honor, to this day liability is not reasonably clear for that stand-alone negligent infliction of emotional distress claim.

[00:23:25] Speaker 00:
But when Mr. Daley comes to Progressive and makes that demand, he offers a release.

[00:23:32] Speaker 00:
which gives them the opportunity to protect their insured.

[00:23:36] Speaker 00:
And so with that offer of a release, Progressive within seven days does that because it's $25,000 and it protects their release from... This isn't a case you want to have keep going, only here we are and it's still going.

[00:23:48] Speaker 03:
Yes, yes.

[00:23:50] Speaker 00:
But importantly, it protects their insured because

[00:23:54] Speaker 00:
Obviously, we understand there are catastrophic injuries and limited insurance coverage here.

[00:23:59] Speaker 00:
And so that release is the reason they pay the 50.

[00:24:04] Speaker 00:
It's not because it was reasonably clear for the negligent infliction of emotional distress.

[00:24:10] Speaker 00:
That doesn't mean she didn't have a viable claim.

[00:24:12] Speaker 00:
We never even demand the type of evidence that would need to be clear for that in terms of, I believe there's a letter from Mr. Daley that says she's having trouble sleeping and progressive, as they do throughout this case, gives the Brodowys the benefit of the doubt and says, okay, let's do this and let's get a release.

[00:24:31] Speaker 00:
Similarly, on 1022, they complain about the idea that there's not a response to the,

[00:24:39] Speaker 00:
to the Ridley demand, but they actually go further.

[00:24:43] Speaker 00:
What they offer is the waters option, which is to say, okay, we see liabilities reasonably clear, we will surrender our entire policy limits.

[00:24:54] Speaker 00:
And they do so undeniably without a release.

[00:24:58] Speaker 00:
If you reach into the Montana case law,

[00:25:02] Speaker 00:
Regarding the provision of a release there is not anything that says it's contrary to Montana law to ask for a release each and every one of those cases Use the word contingent and it's undeniable here.

[00:25:17] Speaker 00:
There was no requirement in the language of

[00:25:21] Speaker 00:
the letter itself at 236, it said, please be advised that the settlement is not contingent on you signing the release, and the payment can be processed without the release being executed.

[00:25:33] Speaker 00:
Mrs. Brodowie repeatedly testified she understood she could process the payment without the release, and she wasn't required to sign the release.

[00:25:45] Speaker 00:
This is consistent with all of those cases.

[00:25:47] Speaker 00:
Ridley, it's about an insurer conditioning payment.

[00:25:51] Speaker 00:
Debray, it's about conditioning payment.

[00:25:53] Speaker 00:
Etter, it's about conditioning payment.

[00:25:56] Speaker 00:
And in high country, it's about conditioning payment.

[00:25:58] Speaker 00:
That's important because that is, again, rooted in the statute itself.

[00:26:03] Speaker 00:
33-18-20113 prohibits leveraging.

[00:26:08] Speaker 00:
And all of these advance payments are premised on that leveraging issue.

[00:26:13] Speaker 00:
And here, there's no viable allegation that there's being leveraging.

[00:26:19] Speaker 00:
The one other case if you don't have other issues you want to discuss that I think is important to note is sell, which is what the plaintiffs rely on heavily in saying that you don't need to actually make a really request.

[00:26:36] Speaker 00:
But sell is very, very different for two reasons.

[00:26:40] Speaker 00:
First of all,

[00:26:41] Speaker 00:
In that case, the insurer repeatedly refused to make advance payments, and the court relies heavily on the idea that this refusal is, in fact, what's a violation, and that would be under 33-18-2014.

[00:26:56] Speaker 00:
which provides it's a violation to refuse to pay claims without conducting a reasonable investigation.

[00:27:01] Speaker 00:
Here you have no refusal.

[00:27:03] Speaker 00:
On the contrary, as soon as we complete our investigation, the very day that we get the police report, we offer to tender the policy limits.

[00:27:13] Speaker 00:
And secondly, in cell, importantly, the insurer said that they would not make advance payments

[00:27:21] Speaker 00:
before a settlement was reached and a release was signed.

[00:27:26] Speaker 00:
That's in the footnote of cell footnote number two on page five.

[00:27:30] Speaker 00:
It is not the same case here where what we do is conduct the reasonable and necessary liability investigation

[00:27:41] Speaker 00:
find that all in the Brodawi's favor and the very same day offer to tender the policy limits.

[00:27:52] Speaker 00:
And I think it's important to look at MO because again, while it's not controlling, in that case a district court judge in Montana

[00:28:01] Speaker 00:
with considerable experience in insurance law, bad faith law in Montana, carefully walked through the history and the state of Montana law.

[00:28:11] Speaker 00:
They discussed the statute, they talked through the Montana law establishing that insurers are not required to solicit claims, and the history of the advance payment law.

[00:28:22] Speaker 00:
And then they didn't change the law, they simply

[00:28:26] Speaker 00:
described the pre-existing legal landscape and found that here, Progressive was both right on the merits and secondarily had a reasonable basis for its findings, for its behavior.

[00:28:42] Speaker 00:
The district court ruling accurately reflects 30 years of jurisprudence regarding advance payments in Montana.

[00:28:49] Speaker 00:
Brodawis asked this court to create new law to adopt new standards, and the standards they suggest are not previously recognized by the Montana Supreme Court.

[00:28:59] Speaker 00:
The standards they suggest are divorced from the language of the statute, the standards they suggest

[00:29:06] Speaker 00:
eradicate the insurers' last vestiges of a duty to protect their insurers by requesting a release, not conditioning one.

[00:29:14] Speaker 00:
And the standards they suggest would undermine a claimant's recovery by putting pressure on these insurers to start paying those medical providers directly instead of giving them the chance to get recovery under both policies.

[00:29:30] Speaker 00:
So unless you have any further questions, we would ask this court to affirm the district court.

[00:29:35] Speaker 04:
Thank you.

[00:29:37] Speaker 00:
Thank you.

[00:29:47] Speaker 02:
We are not asking for any new law.

[00:29:49] Speaker 02:
We are asking this court to look at the four statutes at issue, which are all, as they are framed, issues of fact.

[00:29:57] Speaker 02:
The district court has not analyzed those four statutes as they relate to this case.

[00:30:04] Speaker 02:
Instead,

[00:30:05] Speaker 02:
the case has been reformed into something that it's not.

[00:30:08] Speaker 02:
These broad rules, we just asked this court to carefully analyze the four statutes at issue and determine if a jury could reach a conclusion that this violated these statutes.

[00:30:20] Speaker 02:
Judge Bress, you summed it up in your question to Ms.

[00:30:24] Speaker 02:
Milko, which is, had Margie signed this, Woodhit have barred her claims.

[00:30:29] Speaker 02:
You didn't get a straight answer.

[00:30:31] Speaker 02:
You can, all the three of you can look at that

[00:30:34] Speaker 02:
contract.

[00:30:35] Speaker 02:
It says exactly what it says is she's releasing all claims against the insured and she'd be releasing all claims against progressive.

[00:30:43] Speaker 02:
The issue here is really for this court is to be careful because now you understand how the reasonable basis defense works in bad faith.

[00:30:51] Speaker 02:
So whether you if you affirm this and even if you don't analyze this and give it your own You know analysis as to why there was no utpa violation even an unpublished or unprecedented or non-citable opinion Gives the same effect to the montana bar which is that

[00:31:14] Speaker 02:
Judge DeSoto's order will stand, which will allow insurance companies in catastrophic cases to send to the loved ones, whether it be a spouse or a parent of a child, not only an offer, but to accompany it with a release to add the spouse or the parent and imply.

[00:31:34] Speaker 02:
And then you can expressly state in a letter to them, this is all we'll ever pay you, which is an inaccurate statement of law, as is proven in this case.

[00:31:44] Speaker 02:
That is a very dangerous precedent in Montana, and it will hurt claimants, which this is, as Judge McEwen noted, this is not an uncommon problem where you have catastrophic injuries and very minimal insurance coverage.

[00:32:02] Speaker 02:
So thank you for your careful consideration of this matter.

[00:32:05] Speaker 04:
Thank you.

[00:32:06] Speaker 04:
We thank both counsel for the briefing and argument.

[00:32:08] Speaker 04:
This case is submitted.

[00:32:09] Speaker 04:
That concludes our calendar, and we will stand in recess until tomorrow morning.