[00:00:01] Speaker 04: Mr. Dale, I think we have to congratulate you on getting here in the light of airplanes, weather, and everything else. [00:00:07] Speaker 03: Well, it's always nice to be here. [00:00:09] Speaker 03: It's a little dicey there. [00:00:11] Speaker 03: We had a little mechanical problem on our airplane that slowed us down for an hour and a half. [00:00:18] Speaker 03: So my name is Lon Dale. [00:00:21] Speaker 03: I appear here on behalf of Stefan Johnson, the appellant in this cause of action. [00:00:27] Speaker 03: I'd like to reserve a couple minutes for a rebuttal. [00:00:33] Speaker 03: I may refer to mid-century as farmers because traditionally, a farmer's group has a number of insurers. [00:00:42] Speaker 03: And we always say farmers as opposed to the specific insurance company involved. [00:00:49] Speaker 03: And of course, mid-century is the named insurer in this instance. [00:00:57] Speaker 03: I should not be standing here. [00:01:00] Speaker 03: because this case should have been remanded back to the state court on our motion to remand after it had been removed to the federal court. [00:01:09] Speaker 03: And it should have been remanded because the jurisdictional limit has not been satisfied. [00:01:16] Speaker 03: And we'll get into the specifics of that, but it's very clear that [00:01:20] Speaker 03: What is that issue here is one aspect of our client's policy, which has to do with underinsured motorist coverage. [00:01:31] Speaker 03: And it's undisputed that the amount of that is $35,000. [00:01:37] Speaker 03: Under Montana law, in fact, a case established by this court, the Reardon case, we can obtain attorney's fees if we're successful in showing that coverage has been denied by an insurer. [00:01:52] Speaker 03: So we would be entitled to our attorney's fees if we were successful. [00:01:56] Speaker 03: We have a contingency fee, and that's all of record here. [00:02:01] Speaker 03: 40% in the event that there is to be an appeal. [00:02:05] Speaker 03: So you add those together, what we have in dispute here is $49,000 short of the jurisdictional limit. [00:02:15] Speaker 03: I think it's important to review very briefly the factual circumstances that resulted in the claim for UIM coverage. [00:02:27] Speaker 02: Counsel, before you do that, it feels like the UIM coverage, you've described your client's claims here very, very succinctly, but those are not the only claims that you alleged in the complaint. [00:02:39] Speaker 03: That's correct your honor and I'm going to get to that Well, I shouldn't say we often Montana has common fund claims and so oftentimes we plead common fund in a situation where we think that the [00:02:57] Speaker 03: factual circumstances and the law could potentially trigger a common fund establishment where others similarly situated could benefit from the result of the court's ruling. [00:03:11] Speaker 02: How is this different from a class action? [00:03:14] Speaker 03: Excuse me, Judge? [00:03:16] Speaker 02: Yeah, how is that different from a class action? [00:03:19] Speaker 02: How does that how is a common fund action different from a class action? [00:03:24] Speaker 03: Oh, oh certainly well a common fund is kind of a unique thing to Montana law and It differs in that it doesn't require a certification [00:03:40] Speaker 03: In other words, you don't have to have a certified class because the class would then be, for example, let's just look at what could have been or what might have been and what they have absolutely failed to show you. [00:03:56] Speaker 03: And that is, how many cases have they conducted themselves in a similar fashion to this case and denied coverage? [00:04:06] Speaker 03: Now, let's assume that- Excuse me. [00:04:08] Speaker 04: The question then turns. [00:04:10] Speaker 04: They've alleged if you insert common fund into the jurisdictional equation, you get above $75,000 because of their 10% figure. [00:04:24] Speaker 04: So would you address? [00:04:26] Speaker 04: why you think their common fund allegation of jurisdiction is not sufficient to meet the rules. [00:04:33] Speaker 03: Yes, I'll do that, Judge McKeown. [00:04:36] Speaker 03: That's the question we have. [00:04:38] Speaker 03: Let me answer your question. [00:04:41] Speaker 03: But first, let me give you a brief background, and then I'll get into answering your question. [00:04:45] Speaker 04: Why don't you answer the question first? [00:04:47] Speaker 04: Because that's really what we've read all the briefs. [00:04:50] Speaker 04: We've read the cases. [00:04:51] Speaker 04: So if you'd answer the question, that would get us closer to figuring out the case. [00:04:56] Speaker 03: Well, I realize it, but I think there has to be some background. [00:04:59] Speaker 03: To have a common fund. [00:05:02] Speaker 03: here, we have to have two policies. [00:05:06] Speaker 03: And that's been completely overlooked by the district court because the district court decided this based upon an intra. [00:05:12] Speaker 03: That's one policy stacking situation as opposed to an inter two policy stacking situation. [00:05:21] Speaker 03: And if that doesn't answer your question, Judge McEwen, let me just give you a little bit of background. [00:05:26] Speaker 04: It doesn't answer my question because I understand that you've got [00:05:31] Speaker 04: a situation where the individuals, where you can aggregate them, need to have the two policies because that implicates this question of the stacking. [00:05:41] Speaker 04: But they've given you a hypothetical situation of the 10% or whatever in their common fund. [00:05:50] Speaker 04: Why isn't that sufficient to meet the use of a common fund? [00:05:57] Speaker 03: It's their burden of proof. [00:05:59] Speaker 04: OK, now we're getting to the bottom. [00:06:00] Speaker 03: It's their burden of proof to show that there is a common fund. [00:06:05] Speaker 03: And that's why I wanted to get into this background a little bit, because there has to be two policies. [00:06:12] Speaker 03: And my point is that I've been practicing law in Montana for 52 years. [00:06:17] Speaker 03: I've been around a lot of farmers' policies. [00:06:21] Speaker 03: But in that 52 years, [00:06:24] Speaker 03: I've seen one situation where the insured had two policies, and you're looking at it right here in this case. [00:06:33] Speaker 04: So you're saying this is a common fund of one? [00:06:37] Speaker 03: I'm a common fund of one. [00:06:40] Speaker 00: Or it may be. [00:06:41] Speaker 00: You don't know. [00:06:41] Speaker 00: You don't know. [00:06:42] Speaker 00: You don't know. [00:06:43] Speaker 02: And so there's no... But if you thought that you're a common fund of one, why did you make the allegation? [00:06:51] Speaker 03: Well, because Judge Bybee, we normally do that. [00:06:57] Speaker 03: Because in a situation like this, to cover the pleadings, we would say, well, that might be a common fund. [00:07:04] Speaker 03: And we would have to still prove the common fund. [00:07:06] Speaker 03: So we would make a general allegation of the common fund. [00:07:09] Speaker 03: I've had a number of common fund cases through my career. [00:07:13] Speaker 03: And you never know it's going to be a common fund until you get a discovery. [00:07:17] Speaker 03: That's an important thing here. [00:07:18] Speaker 03: We never got any discovery. [00:07:22] Speaker 03: You know, they removed us. [00:07:23] Speaker 03: They file a motion to dismiss. [00:07:25] Speaker 03: We don't get any discovery. [00:07:26] Speaker 03: We ask the court stay the ruling on that until you decide the jurisdictional limit. [00:07:32] Speaker 03: No, we get a decision. [00:07:34] Speaker 03: Jurisdictional limit is satisfied even though the judge absolutely discounted their argument. [00:07:39] Speaker 03: that you automatically get $50,000, and then the judge speculates, well, you've got a common fund. [00:07:46] Speaker 03: Well, wait a minute. [00:07:48] Speaker 03: They've got to prove that there's a common fund. [00:07:51] Speaker 03: Here's the question I want you to ask them that isn't in their briefing. [00:07:56] Speaker 03: And they can answer it with their sophisticated computers that they have. [00:08:01] Speaker 03: And that question is, how many Montana insurers [00:08:06] Speaker 03: does mid-century have that have two policies? [00:08:12] Speaker 03: And I'll venture to guess it may be zero. [00:08:17] Speaker 03: And the reason for that is when we filed our motion for summary disposition, we presented an affidavit, a declaration from a retired farmer's agent, Bruce Danielson. [00:08:32] Speaker 03: And that motion is before the court, too. [00:08:35] Speaker 03: They're in summary disposition. [00:08:37] Speaker 03: And what that motion involved, or what that declaration involved, is Mr. Daniels saying, well, under the protocol, under Farmer's Protocol, they limit the number of vehicles in a policy to five. [00:09:01] Speaker 03: After five, you get a second policy. [00:09:04] Speaker 03: That's exactly what happened to the Johnsons. [00:09:07] Speaker 03: They had five vehicles, and they had six vehicles, five on one policy, one on the second policy, and that's the policy that's in question here, the second policy. [00:09:20] Speaker 03: Well, the question then becomes, to have this common fund, how many insureds [00:09:28] Speaker 03: of mid-century have six vehicles. [00:09:34] Speaker 03: Because we're only going to have this stacking issue that we have here if we have two policies. [00:09:42] Speaker 03: They know the answer to that. [00:09:43] Speaker 03: I mean, we were expecting that they would give us some statistical information on that. [00:09:48] Speaker 03: Nothing. [00:09:50] Speaker 04: I mean, the bottom line just, you've kind of complicated that issue, it seems to me. [00:09:54] Speaker 04: Your position, as I hear it, is they didn't come forward with the evidence, and they have the burden on jurisdiction. [00:10:03] Speaker 04: Is that right? [00:10:04] Speaker 03: They have the burden of showing that the jurisdictional limit exists. [00:10:10] Speaker 03: That's our position, Judge McEwen. [00:10:12] Speaker 03: And they haven't satisfied that burden here. [00:10:18] Speaker 03: And it gets more complicated than that. [00:10:21] Speaker 03: OK, so let's say. [00:10:22] Speaker 04: Well, let me ask you. [00:10:24] Speaker 04: If we were to agree with you that they have not satisfied the burden, [00:10:33] Speaker 04: Remedy B, to remand to the district court for further discovery, or simply to remand with instructions to send it back to the state court? [00:10:44] Speaker 03: I'm going to turn up my hearing a little bit, Judge McGinn. [00:10:48] Speaker 03: I would say remand to district court with instructions to remand to state district court. [00:10:57] Speaker 03: I don't think they should get a second bite of the apple here. [00:11:00] Speaker 03: I mean, they've had the proof. [00:11:01] Speaker 03: They've had the opportunity to tell you whether or not they have how many insureds they have with more than one policy. [00:11:11] Speaker 03: And then it gets more complicated, because then to have that common fund, now you have to have that individual have a UIM claim. [00:11:21] Speaker 03: And this is back to the point that I, the background. [00:11:25] Speaker 03: I mean, what we have here is [00:11:27] Speaker 03: Our client's seriously injured in a rollover. [00:11:29] Speaker 03: He makes a claim against the driver. [00:11:33] Speaker 03: It's the policy limits for that incident, which is $50,000. [00:11:38] Speaker 03: He then makes the claim against farmers mid-century under his UIM coverage. [00:11:47] Speaker 03: And like I said, our client says, I have two policies. [00:11:51] Speaker 03: I thought he was mistaken, because I've never seen two policies. [00:11:55] Speaker 03: But sure enough, he has two policies. [00:11:58] Speaker 03: That second policy, and this is critical, and this is a point that the magistrate absolutely avoided in her decision. [00:12:08] Speaker 03: And the point is that there was a specific premium on that policy. [00:12:15] Speaker 03: I mean, look at the cases we've cited. [00:12:17] Speaker 03: Any attorney dealing with stacking in Montana will tell you there's three important cases that you have to know about. [00:12:26] Speaker 03: The Bennett case, the Hardy case, and the Gibson case. [00:12:29] Speaker 03: We've cited them. [00:12:31] Speaker 03: The magistrate didn't even cite those cases in her decision. [00:12:37] Speaker 03: They're not in there. [00:12:40] Speaker 03: But if you look at the parish decision, which she did cite, and keep in mind that the parish decision and the low decision are inter-policy stacking situations. [00:12:52] Speaker 03: The claimants there were trying to argue statistically that there was coverage, even though there wasn't a specific premium paid for vehicles under those inter-policy stacking cases. [00:13:06] Speaker 03: They're not applicable to our facts. [00:13:10] Speaker 03: We have two policies. [00:13:12] Speaker 03: But most importantly, we have a specific premium paid for the coverage in dispute. [00:13:19] Speaker 03: And if you look at Perry's decision, paragraphs [00:13:28] Speaker 03: 17 and 21 of that decision, they actually reference in the parish decision the controlling cases. [00:13:39] Speaker 03: Bennett, Hardy, Gibson, [00:13:44] Speaker 03: and imperish the kind of unique facts. [00:13:47] Speaker 03: They acknowledged the fact that the med pay was stacked in that circumstance because there were specific premiums paid for it. [00:13:56] Speaker 03: I mean, the Bennett case was a case from this circuit that was certified to the Montana Supreme Court. [00:14:04] Speaker 03: There were two policies of a state farm individual. [00:14:08] Speaker 03: In fact, I know the claimants in that case because the claimant [00:14:13] Speaker 03: Lyman Bennett was an attorney in Bozeman, and his wife was injured as a pedestrian. [00:14:19] Speaker 03: And so it came to this court. [00:14:21] Speaker 03: This court certified the question to the Montana Supreme Court, and the Montana Supreme Court said they're stacking. [00:14:29] Speaker 03: Because the individual, the men that's paid separate premiums for two policies, State Farm was arguing, no, you only get one coverage because you only get the coverage for the vehicle you were occupying. [00:14:42] Speaker 03: So the magistrate's decision is strange to me. [00:14:48] Speaker 03: because she avoided the controlling case law. [00:14:52] Speaker 03: And I guess I am in trouble here time-wise. [00:14:55] Speaker 00: We'll ask Ms. [00:14:56] Speaker 00: Dodds to put two minutes on the clock for rebuttal when you come back. [00:15:00] Speaker 00: And why don't we now hear from your opposing counsel? [00:15:04] Speaker 03: Excuse me. [00:15:05] Speaker 00: We'll put two minutes on the clock for rebuttal when you come back up, and we'll hear from your opposing counsel. [00:15:10] Speaker 03: Ask him the question. [00:15:11] Speaker 03: I mean, I think we're a common fund to want. [00:15:15] Speaker 03: Thank you, Mr. Dodd. [00:15:16] Speaker 03: So thank you very much. [00:15:24] Speaker 01: Good morning and may it please the court, Alex Samaya and Nick Pagnotta on behalf of Mid-Century Insurance Company. [00:15:31] Speaker 01: I'll dive right into the jurisdictional question and the place to start with the Common Fund allegations are plaintiff's complaint. [00:15:37] Speaker 01: Now my colleague is arguing that the Common Fund is one because we need two policies with different limits. [00:15:44] Speaker 01: Those weren't the allegations in the complaint. [00:15:47] Speaker 01: The complaint alleged that Montana endorsement MT-028 was void against Montana public policy, the record [00:15:54] Speaker 01: At the time, the district court addressed the remand issues, showed that there were nearly 37,000 policyholders with that same endorsement. [00:16:03] Speaker 01: So accepting the plaintiffs' allegations as true, that would have voided the foundational building block of UIM coverage. [00:16:11] Speaker 00: Right. [00:16:12] Speaker 00: I mean, if you think that's what's actually at stake in the lawsuit. [00:16:14] Speaker 00: But I guess I question whether that's a fair reading of the complaint, which talks about similarly situated plaintiffs being part of a common fund. [00:16:23] Speaker 01: And well, I would point the court then to paragraphs 41, 42, and 51. [00:16:29] Speaker 01: And 42 states that endorsement MT-028 is voidable as a loser recovery against public policy. [00:16:37] Speaker 01: It's a broad allegation. [00:16:39] Speaker 01: And then in paragraph 51, it says a common fund would be created as to all similarly situated Montana insurers within eight years and denied stacking. [00:16:48] Speaker 01: So we have 37,000 policyholders. [00:16:51] Speaker 01: If that's the case. [00:16:52] Speaker 04: No. [00:16:54] Speaker 04: who had the UIM and were denied stacking. [00:16:57] Speaker 04: So it's within the insurance company's files to know which of the 37,000 had a claim in which stacking was an issue. [00:17:10] Speaker 04: But did you put any evidence in on that point? [00:17:13] Speaker 01: Apart from the policyholders, there was nothing in the district court. [00:17:16] Speaker 01: That's why in our answer brief we also discuss the either viewpoint rule which is the burden to our client if the plaintiff succeeds. [00:17:24] Speaker 00: But that doesn't really just kind of reframes the problem it seems to me this the issue still is what is the what is the evidence that we have to say that there is going to be a common fund of anybody beyond the plaintiff here. [00:17:37] Speaker 01: The mere fact that he's alleging to avoid a policy with an endorsement across the board with 37,000 policyholders. [00:17:46] Speaker 02: So who came up with the 37,000 figure? [00:17:48] Speaker 01: That was in the record. [00:17:50] Speaker 01: It was produced when we submitted the surf. [00:17:52] Speaker 02: It was produced by mid-century? [00:17:54] Speaker 01: It was from the, I believe, from the insurance commissioner, where it was part of that process where our client had submitted the UIM rates. [00:18:01] Speaker 02: I think he's pretty reasonably said, look, this is an unusual situation. [00:18:05] Speaker 02: Yeah, the writer's out there. [00:18:07] Speaker 02: It's just standard language. [00:18:09] Speaker 02: I can understand why farmers in mid-century would want that language in every policy. [00:18:14] Speaker 02: But it doesn't seem like it would be a terribly large burden for you to come forward and say, [00:18:20] Speaker 02: We're not going to give all of this away at this point. [00:18:24] Speaker 02: We may be subject to discovery at another time. [00:18:27] Speaker 02: But here's a declaration that says we had at least five, we had 10 that have dual policies with this writer on there that are potentially members of this common fund and therefore. [00:18:42] Speaker 02: But you didn't come forward with anything. [00:18:44] Speaker 01: No, but again, I would go back to the mere fact of that many policyholders. [00:18:48] Speaker 01: And we talk about Rule 8 and common sense standards that apply that the district court used. [00:18:53] Speaker 04: And I think one example could be- Well, the district court didn't really use any common sense standards. [00:18:58] Speaker 04: The district court was imputing this attorney fee, like eight possible plaintiffs with a 10% cut on the attorney's fees. [00:19:07] Speaker 04: Where did that come from? [00:19:09] Speaker 01: I believe the district court looked to prior precedent and the Mexican. [00:19:13] Speaker 04: No, it was made up, right? [00:19:14] Speaker 04: There's no evidence in the record to that. [00:19:17] Speaker 04: I think this is what's troubling in this case is that the evidence is in the hands of the insurance company, which has the jurisdiction burden [00:19:27] Speaker 04: But the insurance company didn't come forward with anything. [00:19:29] Speaker 04: So then the district court kind of conjured up some possibilities, which seemed to me to be purely speculative. [00:19:36] Speaker 04: So that's where I kind of stopped cold on jurisdiction, just so you know. [00:19:42] Speaker 04: I can't understand the foundation for a common fund jurisdiction here. [00:19:49] Speaker 01: And again, I think it's just the broad sweeping nature of the allegations that were made in the complaints. [00:19:54] Speaker 01: And one of the decisions we point to is the level of decision from the 10th Circuit. [00:19:57] Speaker 01: that's that's the similar nature here because of the plaintiff prevails as we assume and we disagree on the merits but assuming he prevails uh... that affects mid-centuries business throughout the state of montana. [00:20:08] Speaker 00: I just don't think even the district court thought of this in the broad terms you're talking about that's why the if that was true the district court could have said this puts at issue a standard policy language that tens of thousands of montanans have and so it's therefore obvious that we're going to easily hit seventy five thousand but [00:20:24] Speaker 00: That's not what the district court did. [00:20:25] Speaker 00: The district court went a different route trying to come up with a theory as to how we could get eight people times 35,000 10% off that. [00:20:35] Speaker 00: And that gets you the difference up to 75. [00:20:37] Speaker 00: So I don't even think the district court agreed with the way you're casting this. [00:20:40] Speaker 01: No, and that's a different argument. [00:20:42] Speaker 01: We cite at the very end, it's the same claim, the claim that there's 1332 jurisdiction with an alternate argument. [00:20:50] Speaker 01: And we cite the court to, for example, the Citizens United case. [00:20:54] Speaker 01: There is a decision from this court in 2004, and then the City of Escobedo decision and the LeBron decision that talk about if a claim is preserved, an appellant can use an alternative argument on appeal. [00:21:05] Speaker 01: In the Citizens United case, for example, the claim was that the statute issued [00:21:11] Speaker 01: There is a first amendment. [00:21:12] Speaker 00: I get that but it seems to me then your whole argument turns on a characterization of the complaint because and your characterization of the complaint is it's putting at issue this this policy language across all Policies and your friend on the other side is saying that is not what this complaint is doing It is putting it at issue with respect to people who are like my client who have two policies Which he claims is rare and does seem to be so with with this endorsement it addresses stacking for inter policy and intra policy [00:21:41] Speaker 01: the allegation is that the endorsement's out the door. [00:21:43] Speaker 01: The endorsement also defines UIM coverage. [00:21:46] Speaker 01: So if it's void, our client under Montana law, this is 3315-1106, has to mail a notice to every single insured that it is now restricting policy. [00:21:57] Speaker 01: If we assume $1 for postage, printing the paper, I think it would be more than that. [00:22:01] Speaker 00: But void as to whom, right? [00:22:02] Speaker 00: There just doesn't seem to be a meeting of the minds between the parties on what's actually at stake in the litigation. [00:22:07] Speaker 00: And we have the plaintiff saying, we are not putting at stake all the things that you're saying. [00:22:15] Speaker 01: Now on appeal, they've said that. [00:22:16] Speaker 01: But the complaint is broader. [00:22:18] Speaker 01: It is trying to avoid this endorsement across the board. [00:22:20] Speaker 04: Well, you didn't raise what I guess we're characterizing as viewpoint basis in the trial court, correct? [00:22:27] Speaker 01: No. [00:22:27] Speaker 01: And that's where I went back to the trio of US Supreme Court cases. [00:22:30] Speaker 01: We've made the claim. [00:22:31] Speaker 01: It's an alternative argument in support of the same claim. [00:22:34] Speaker 04: I understand. [00:22:35] Speaker 04: You didn't raise that below, so we didn't have any calculations on that. [00:22:39] Speaker 04: We have kind of an appeals brief that makes these calculations. [00:22:43] Speaker 04: And they say, no, as I read it, we're not seeking to invalidate the endorsement in its entirety, only claims where there's the two policies and you have the UAM on both. [00:22:54] Speaker 01: But again, we have to go back to the complaint at the time of removal. [00:22:58] Speaker 01: And the complaint is more broad than that. [00:23:00] Speaker 01: At the time, it was removed to federal court. [00:23:02] Speaker 04: And that's your best argument is that because they use the word common fund in the complaint, and you don't think it was restricted, that you've met your burden. [00:23:11] Speaker 01: Again, yes. [00:23:12] Speaker 01: It's going back to the relay principles that go into removal because [00:23:18] Speaker 01: The plaintiff could have very well applaud this as a simple breach of contract declaratory judgment action. [00:23:23] Speaker 01: And then it would have been in state court. [00:23:25] Speaker 01: The common fund was brought for a reason. [00:23:26] Speaker 01: So we have to assume reason with common sense that there's something there. [00:23:30] Speaker 01: And that was part of the general [00:23:32] Speaker 01: duck action theory that the endorsement is out the door. [00:23:35] Speaker 01: So then our client has to reformulate UIM coverage in the state of Montana because if there's a ruling that this endorsement violates Montana law, they have to go back to the drawing board. [00:23:46] Speaker 01: They have to mail that to 37,000 policyholders. [00:23:49] Speaker 04: And if the ruling was that it's invalid as to [00:23:55] Speaker 04: individuals who had the multiple policies and the UIM on those multiple policies, that would be a different universe, right? [00:24:03] Speaker 04: If that had been what the plaintiff... You know, what I'm having trouble with is I appreciate that Mr. Johnson's counsel, in an abundance of caution under Montana law, would want to allege common fund generally, but then you would still have to show [00:24:25] Speaker 04: What is the basis for jurisdiction under the common fund? [00:24:29] Speaker 04: And you just say, well, it's 37,000 people or policies. [00:24:35] Speaker 01: That is the number of policyholders, nearly 37,000. [00:24:39] Speaker 01: So yes, that would affect every policyholder. [00:24:41] Speaker 04: Do you know how many policyholders there are that would fall into the category of Mr. Johnson? [00:24:48] Speaker 01: Well, it depends on if we're asking [00:24:52] Speaker 01: more than one vehicle or more than one policy? [00:24:54] Speaker 01: I don't have a specific number asked. [00:24:56] Speaker 04: But the insurance company has that information where you could say this would be the more than one vehicle universe, and this would be the more than one policy universe, correct? [00:25:07] Speaker 01: I would have to check my client. [00:25:08] Speaker 01: I suspect we could gather. [00:25:09] Speaker 04: I assume they could come up with that. [00:25:11] Speaker 04: I mean, it just seems to me that the company hasn't come forward with any hard jurisdictional facts. [00:25:21] Speaker 04: And your only defense to that is to say, well, we read the Common Fund broadly. [00:25:26] Speaker 01: Because it's pled broadly, Your Honor. [00:25:28] Speaker 01: Again, in the complaint, it was broad. [00:25:30] Speaker 01: It wants to avoid a [00:25:33] Speaker 01: as a standard form endorsement for everybody. [00:25:35] Speaker 01: So that endorsement has to be redone. [00:25:37] Speaker 01: The cost for our client is well in excess of $75,000, even if we just assume what the plaintiff will collect and $1 in postage and paper to send a new form to each insured, which a client would have to do under Montana law. [00:25:51] Speaker 00: Are these just seems very different than the arguments that were put in front of the district court. [00:25:55] Speaker 00: When I went back and looked at the opposition to the motion to remand, it seemed there the argument was, [00:26:00] Speaker 00: The plaintiff's counsel will be able to get $50,000 in attorney's fees just off of this claim, and we can aggregate the amounts in the actual common fund. [00:26:10] Speaker 00: And the district court, or the magistrate, excuse me, did not like the former arguments, and the second one doesn't seem correct as a matter of law. [00:26:17] Speaker 00: So what we're talking about now are just arguments that were nowhere put before the district court. [00:26:23] Speaker 01: And that's where I went to the city of Escobedo, LeBron, and Citizens United decision. [00:26:29] Speaker 01: We have the alternative argument in our brief as to the common fund and common and undivided, but before that we have the either viewpoint. [00:26:36] Speaker 00: But it's premise on understanding the complaint that was never put to the magistrate so far as I can tell. [00:26:41] Speaker 01: As to the either viewpoint rule, well, the claim was that there was diversity jurisdiction. [00:26:46] Speaker 01: The alternative argument is different on appeal, but which I believe the Supreme Court precedent says is appropriate. [00:26:51] Speaker 01: You can make an alternative argument in support of the same claim as you go on appeal under those three decisions. [00:26:58] Speaker 01: And this court has cited that line in the 2004 decision we cite. [00:27:03] Speaker 01: There's an alternative basis that we've advanced on appeal in support of the same claim the 1332 1332 jurisdiction exists to provide a basis to affirm the district court and find jurisdiction, because under the either viewpoint rule. [00:27:18] Speaker 01: Assuming the plaintiff is successful, the cost to our client will be in excess of $75,000 because it's standard form endorsement that defines UIM coverage, provides anti-stacking languages out the door. [00:27:31] Speaker 01: Under Montana law, they have to go back to the drawing board, potentially. [00:27:35] Speaker 01: Again, would disagree with the merits of that, but that was the allegation, that it violates Montana public policy. [00:27:42] Speaker 01: So we have two jurisdictional bases. [00:27:46] Speaker 01: to support finding 1332 jurisdiction. [00:27:52] Speaker 01: With respect to the discussion of premiums as to Hardy and Bennett and Gibson, all of those cases involve multiple policies, or excuse me, multiple premiums. [00:28:03] Speaker 01: The anti-stacking statute also discusses situations where there are multiple policies in Montana. [00:28:11] Speaker 01: So the same analysis from Parrish applies. [00:28:14] Speaker 01: the coverage is not able to stack because there was only one premium charge and that's just going back to a statutory construction phase with the anti-stacking statute. [00:28:29] Speaker 01: So just to go back on diversity jurisdiction, I think there are two ways to affirm the district court with respect to the either viewpoint rule, which is an alternative argument in support of the same claim, or if we go to the common and undivided [00:28:46] Speaker 01: it's using reasonable common sense. [00:28:49] Speaker 00: But both of those, just to be clear, are premised on your understanding that the complaint is putting at issue this policy language across 37,000, because we would have to agree with you on that in order to get to these points. [00:29:02] Speaker 01: Well, I'm just reading the complaints. [00:29:04] Speaker 01: It says that the endorsement is void. [00:29:06] Speaker 01: That endorsement is in almost 37,000 policies. [00:29:10] Speaker 01: That was with the Montana Commissioner of Insurance. [00:29:14] Speaker 01: So the way that's read is that the plaintiff is asking the court to declare this is invalid. [00:29:20] Speaker 01: Insurance company go back to the drawing board, come up with a new form. [00:29:25] Speaker 01: And the cost to our client is in excess of $75,000. [00:29:29] Speaker 01: That's why I go to that level decision from the 10th Circuit. [00:29:32] Speaker 01: Also applies to either viewpoint rule, which is consistent with this court's precedent. [00:29:36] Speaker 01: There was no specific number in that opinion discussed as to the number of insureds in that particular situation. [00:29:44] Speaker 01: The 10th Circuit found that this would affect state farms business throughout the state. [00:29:49] Speaker 01: And that the cost of making them change their business practice in the state [00:29:54] Speaker 01: led the court to determine it's in excess of $75,000. [00:29:56] Speaker 01: So they're almost out of time, but happy to answer any other questions. [00:30:07] Speaker 00: It doesn't appear there are any. [00:30:08] Speaker 00: Thank you very much for your argument this morning. [00:30:10] Speaker 00: Thank you. [00:30:11] Speaker 00: Mr. Dale, we'll put two minutes on the clock for your rebuttal. [00:30:19] Speaker 03: Well, this endorsement that they're talking about, which they used to deny our coverage saying, well, you only get coverage for the larger policy, which they paid, the $50,000 under policy one. [00:30:38] Speaker 03: You only get that because our endorsement says that's all you get. [00:30:42] Speaker 03: Well, the question then becomes, back to my initial argument, how many two-policy insurers do you have? [00:30:51] Speaker 04: I guess their argument, looking at the complaint, is that they're saying that you said in the event you're successful in establishing that the mid-century endorsement MT-028 is against public policy, then there would be common fund as to those similarly situated. [00:31:14] Speaker 03: Judge McEwen, there has to be two policies and there has to be a UIM claim before it's triggered. [00:31:23] Speaker 03: So, I mean, fine, they have all these endorsements like we said in the brief. [00:31:27] Speaker 03: So what? [00:31:29] Speaker 03: It's not triggered until the facts come into play that would allow it to be triggered, which would require two policies. [00:31:37] Speaker 03: They haven't told you how many two policies they have. [00:31:40] Speaker 02: So are you not alleging that MTO 2.8 is voided against public policy and in every policy in which it appears? [00:31:49] Speaker 03: Our position is that that endorsement, it couldn't be voided unless there's two policies. [00:32:02] Speaker 03: So it's only voided in the situation in which there are two policies. [00:32:06] Speaker 03: Our position is that it doesn't apply here, and the reason it doesn't apply is basic [00:32:14] Speaker 03: Montana stacking law. [00:32:18] Speaker 03: Back to what we talked about initially. [00:32:21] Speaker 03: It's the Bennett decision, the Hardy decision, the Gibson decision. [00:32:25] Speaker 03: And what do they say? [00:32:26] Speaker 03: If you talk to any Montana attorney that does personal injury, the question they're going to ask in a stacking case, did the insurance company charge a separate premium for the coverage? [00:32:42] Speaker 03: It's that simple. [00:32:43] Speaker 03: If they charge this separate premium for the coverage, they have to pay it. [00:32:50] Speaker 03: And then they charge the separate premium for this coverage in this case. [00:32:54] Speaker 00: We've let you go a little over your time, but I want to see if my colleagues have any further questions for you. [00:32:59] Speaker 00: Mr. Dale, I want to thank you for your argument. [00:33:00] Speaker 00: I want to thank your opposing counsel for his argument. [00:33:03] Speaker 00: This matter is submitted. [00:33:04] Speaker 00: Thank you. [00:33:04] Speaker 03: We appreciate your time. [00:33:05] Speaker 03: Thank you. [00:33:06] Speaker 00: Thank you.