dissenting:

There is no issue here as to the nature of the underlying claims; a garden variety automobile negligence claim coupled with a claim against the insurance company for bad faith in refusing to settle. The troublesome question, whether those claims are separate and independent, is one of federal law. Thus in Charles Dowd Box Company, Inc. v. Fireman’s Fund Insurance Company, 303 F.2d 57, 60 (1962), the First Circuit stated:

See also, Gardner and Florence Call Cowles Foundation v. Empire Inc., 754 F.2d 478, 481 , 482 n. 4 (2d Cir.1985); Moore v. United Services Auto. Assn., 819 F.2d 101, 104 (5th Cir.1987).

The majority states that the case of Klaudt v. Flink, 202 Mont. 247 , 658 P.2d 1065 (1983) is controlling. While that case may be of some relevance in describing the claims, Montana law does not apply to our decision whether the claims are separate and independent.

I agree, that the seminal case is American Fire & Casualty Co. v. Finn, 341 U.S. 6 , 71 S.Ct. 534 , 95 L.Ed. 702 (1951). Finn emphasizes:

Id. at 9 & 10, 71 S.Ct. at 537 & 538.

Finn concludes that:

Id. at 14, 71 S.Ct. at 540 . Here there is an interlocked series of transactions, the alleged bad faith failure to settle the claims arising out of the automobile collision.

It is true that the test for an independent claim includes consideration of whether the claim is contingent on other claims in the suit. Here, both claims arise out of the auto collision. Were it not for that accident neither claim would exist. If, as occurred, Lewis successfully defended the negligent suit, it would practically be impossible for Boggs to prevail in a bad faith claim against the insurance company for failing to settle that suit. On the other hand, if Lewis prevailed in the negligence action, I agree that there would be no bar to proceeding against the insurance company. The partial contingent nature of the claims, however, indicates that they are not independent claims. Under similar facts the Fifth Circuit reached this conclusion in Moore .

The question is a close one. It is for that reason that I think we should look to the policies behind the requirements for separate and independent claims and for avoiding conflicts between the circuits. Unless the claims are clearly separate and independent, I believe that Congress’ intent to limit removal from state courts should control our decision. We should also attempt to avoid an inter-circuit conflict with the Fifth Circuit decision in Moore v. United Services Auto. Assn., 819 F.2d 101 (1987). I, therefore, would hold that the claims are not separate and independent.