C. L. Freier, and All Others Similarly Situated v. New York Life Insurance Co., a Foreign Corporation

Appellant appeals from the judgment of the district court dismissing her complaint under FRCivP 12(b)(6) for failure to state a claim upon which relief might be granted.

FACTS

In April of 1976, appellant had an industrial accident while employed by Montana-Dakota Utilities Co. in Billings, Montana. Montana-Dakota Utilities Co. was insured under Plan III of the Montana Workers’ Compensation Act.

Appellant was involved in a second accident in September of 1977 while employed by Christian, Spring, Sielbach, etc., also in Billings. This second employer was insured by United States Fidelity & Guaranty Company under Plan II of the Montana Workers’ Compensation Act. The two accidents have rendered appellant totally disabled.

Since October 5, 1977, appellant has received disability compensation of $113.00 per week from United States Fidelity & Guaranty Company, less a Social Security benefits offset of approximately $40.00. In addition, appellant has received Social Security benefits of about $350.00 per month since September 16, 1977.

In December of 1977, appellant began receiving monthly benefits from New York Life Insurance Co. pursuant to a group term policy issued to Christian,…