Dale Fossen v. Caring for Montanans, Inc.

MEMORANDUM

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. MontCode 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., 292 Mont. 357 , 973 P.2d 804, 809 (1998), the Fossens’ claim here turns entirely on CFM’s alleged statutory violation — specifically, CFM’s…