Submitted on Briefs: May 28, 2013
APPEAL FROM: District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. CDV 2010-91 Honorable Kathy Seeley, Presiding Judge
Leo S. Ward, Daniel J. Auerbach; Browning, Kalecyzc, Berry & Hoven; Helena, Montana
Erik B. Thueson, Scott Peterson; Thueson Law Office; Helena, Montana
Beth Baker, Justice
¶1 New West Health Services (New West) appeals an order of the First Judicial District Court, Lewis and Clark County, certifying a class complaint against New West. The sole issue on appeal is whether the District Court abused its discretion by adopting the class definition proposed by Rolan and denying New West's motion to modify the class definition.
¶2 We affirm.
PROCEDURAL AND FACTUAL BACKGROUND
¶3 Dana Rolan was injured in a vehicular collision on November 16, 2007 and sustained serious injury, resulting in medical expenses totaling approximately $120, 000. Rolan carried health insurance through New West. The tortfeasor who caused the accident carried liability insurance through Unitrin Services Group (Unitrin). Unitrin accepted legal responsibility and paid approximately $100, 000 of Rolan's medical bills.
¶4 The policy under which Rolan was insured stated that, in addition to the right of subrogation, New West had a right to be reimbursed for benefits it paid to an insured who also had recovered or settled with a third party. The policy also contained an exclusion for injuries covered by a medical payments provision of another liability carrier:
5.30.10 LIABILITY INSURANCE POLICY MEDICAL PAYMENTS
Healthcare services to treat any injury are not covered services if you receive payments for that injury under a medical payments provision of a liability insurance policy, whether insured by an insurance company or self-insured. Examples of liability insurance policies to which this section applies include, but are not limited to, automobile, homeowner and business liability policies.
¶5 On January 26, 2010, Rolan filed a complaint against New West alleging individual and class claims for breach of contract, violation of made-whole rights, and unfair claims settlement practices under §§ 33-18-201, MCA, et seq., authorizing punitive damages. Rolan alleged that New West failed to pay approximately $100, 000 of her medical expenses because Unitrin, the third party liability carrier, had "paid the majority of the bills." Rolan sought to certify a class under M. R. Civ. P. 23(b)(2) for declaratory and injunctive relief arising from the claims for breach of contract and violation of made-whole rights. She sought certification under Rule 23(b)(3) for damages arising from New West's alleged unfair claims settlement practices. Although Rolan asserted that a class definition was unnecessary at that time, she proposed the following class parameters:
(1)All class members were insured by New West for the period commencing eight years prior to filing of this suit through the date this Court will enter judgment on the merits.
(2) All members incurred medical costs due to the negligence or wrongdoing of a third party tortfeasor or tortfeasors.
(3) For all members, New West avoided paying benefits because the tortfeasor or tortfeasors paid medical ...