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McVey v. USAA Casualty Insurance Co.

Supreme Court of Montana

November 14, 2013

LINDA McVEY a/k/a LINDA PIERCE, Petitioner and Appellant,

Submitted on Briefs: October 2, 2013

APPEAL FROM: District Court of the Sixth Judicial District, In and For the County of Park, Cause No. DV 10-164 Honorable Brenda Gilbert, Presiding Judge

For Appellant: Walter "Lefty" Madden, Attorney at Law; Livingston, Montana Mark J. Hartwig, Attorney at Law; Livingston, Montana.

For Appellee: David McLean, Christy S. McCann, Browning, Kaleczyc, Berry & Hoven, P.C.; Missoula, Montana.


Brian Morris Justice

¶1 Appellant Linda McVey, a/k/a Linda Pierce (McVey), appeals the decision of the Sixth Judicial District Court, Park County, that entered summary judgment in favor of Appellee USAA Casualty Insurance Company (USAA). We reverse and remand.

¶2 We address the following issues on appeal:

¶3 Whether McVey was qualified to bring a claim pursuant to §§ 33-18-201(4) and -242, MCA.

¶4 Whether the District Court properly granted summary judgment in favor of USAA regarding McVey's claim for damages arising from emotional distress.


¶5 McVey was involved in a car accident with Kent Blough (Blough) on July 26, 2007. She was crossing a two-lane bridge over the Yellowstone River south of Livingston, Montana. Blough approached in the opposite direction while pulling a swather behind his pickup. The swather was wider than the lane of travel. McVey collided with the swather's left side in her lane of travel.

¶6 Montana Highway Patrol Trooper Jason Hoppert (Hoppert) filed a crash investigator's report. Hoppert determined that the vehicles had collided in McVey's lane of travel. M cVey suffered severe injuries as a result of the accident, including seven broken ribs, a fractured right wrist, and a fractured left heel. McVey endured surgeries to repair her wrist and heel and underwent extensive post-surgical rehabilitation. Blough reported the accident to McVey's insurer, USAA, the day after the accident.

¶7 USAA assigned claims adjuster Danny Theda (Theda) to handle the claim. Theda took a statement from Blough. Blough claimed that he had stopped before crossing the bridge due to his concerns regarding the width of the swather. Theda spoke with McVey on August 1, 2007, but she could not remember the details of the accident. Theda never interviewed Hoppert about his crash investigation. Theda interviewed no firefighters and ambulance service personnel who responded to the scene of the accident.

¶8 USAA received Hoppert's crash investigation report on September 5, 2007. Despite this information, Theda still concluded that McVey was the majority at fault for the accident. USAA paid Blough's property damages. At the time, McVey's USAA policy had coverage that included: property damage, medical payments, and UM/UIM coverage. USAA made auto collision and medical payments to McVey under the policy. USAA refused to honor McVey's $300, 000 UM/UIM coverage once Theda determined that McVey was the majority at fault.

¶9 McVey filed suit against Blough in 2009. USAA unsuccessfully tried to intervene in the lawsuit, apparently to prevent McVey from prevailing. Blough's insurer paid McVey the limit of Blough's insurance policy. Despite repeated requests, USAA refused to pay McVey any sums available under her UM/UIM coverage of $300, 000.

¶10 USAA's own expert eventually reviewed accident reconstruction reports prepared by an expert for McVey and an expert for Blough. USAA's expert determined that Blough, whom USAA had already paid under McVey's policy, had been the majority at fault. USAA immediately tendered to McVey its $300, 000 UM/UIM policy limit.

¶11 McVey filed a complaint against USAA stating six claims. She asserted that USAA had breached the insurance contract and had violated sections of the Montana Unfair Trade Practices Act (UTPA), specifically §§ 33-18-201 and -242, MCA. McVey also asserted fraud and common law bad faith claims and sought punitive damages. The District Court dismissed McVey's breach of contract claim on McVey's request. The District Court later dismissed McVey's claims for fraud and common law bad faith.

¶12 McVey retained claims for violation of the UTPA and for punitive damages. McVey filed a motion for summary judgment on the basis that USAA's investigation had not been reasonable as a matter of law, pursuant to § ...

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