United States District Court, D. Montana, Helena Division
CHARLES C. LOVELL SENIOR UNITED STATES DISTRICT JUDGE
the Court is Defendant GEICO General Insurance Company's
(“GEICO”) motion to dismiss the complaint. (Doc.
2.) The motion is opposed by the Plaintiff Rocky Dietz
case arises from a 2009 traffic accident wherein Plaintiff
Rocky Dietz was struck by Defendant GEICO's insured,
Hillary Bouldin. Bouldin accepted liability for the accident,
but GEICO denied and delayed payment of Dietz's medical
expenses. Litigation ensued in 2011, and the case was removed
from state court to federal court, where it was tried to a
jury in 2013. A jury verdict favored Dietz and set the amount
of his damages at $15, 000. A clerk's judgment was filed
on April 18, 2013. (See Dietz v. Bouldin, CV
11-36-BU-RWA (D. Mont.); ECF No. 3-1.) Dietz appealed from
this judgment, which was affirmed by the Ninth Circuit Court
of Appeals. See Dietz v. Bouldin, CV No. 13-35377
(9th Cir. July 24, 2015). On Dietz's petition
for certiorari, the U.S. Supreme Court also affirmed.
(See Dietz v. Bouldin, ___ U.S. ___, 136 S.Ct. 1885,
195 L.Ed.2d 161 (June 9, 2016).) Following the Supreme
Court's decision, the instant bad faith insurance
litigation was commenced in state court on July 18, 2016, and
removed to this federal district court on August 8, 2016.
motion to dismiss a complaint, the court takes “[a]ll
factual allegations set forth in the complaint . . . as true
and construed in the light most favorable to [the
plaintiff].” Lee v. City of Los Angeles, 250
F.3d 668, 679 (9th Cir. 2001) (citation omitted).
A court need not accept as true “allegations that are
merely conclusory, unwarranted deductions of fact, or
unreasonable inferences.” In re Gilead Sciences.
Sec. Litig., 536 F.3d 1049, 1055 (9th Cir.
2008). Although a court's determination of a Rule
12(b)(6) motion is limited by the allegations of the
complaint, “a statute-of-limitations defense, if
apparent from the face of the complaint, may properly be
raised in a motion to dismiss.” Seven Arts Filmed
Entm't Ltd. v. Content Media Corp., 733 F.3d 1251,
1254 (9th Cir. 2013) (citation and internal
quotation marks omitted). A court must not reach beyond the
complaint to decide a motion to dismiss, but the court may
take judicial notice of judicial records referenced by the
complaint when the factual matters so incorporated are not in
dispute. See Intri-Plex Techs., Inc. v. Crest Crp.,
499 F.3d 1048, 1052 (9th Cir. 2007) (citations
presents two claims against GEICO: a statutory bad faith
insurance claims handling (Count 1) and a common law bad
faith insurance claims handling (Count 2). The statute of
limitations for the statutory bad faith claim is “1
year from the date of the settlement of or the entry of
judgment on the underlying claim.” Mont. Code Ann.
§ 33-18-242(7)(b). The statute of limitations for a
common law bad faith claim (not involving worker's
compensation insurance) is the three year limitation
applicable from the date of the accrual of a tort claim. Mont
Code Ann. § 27-2-204(1); see also Brewington v.
Employers Fire Ins. Co., 992 P.2d 237, 241 (Mont. 1990).
contends that the statute of limitations has run on both the
statutory and the common law bad faith claims, since
Dietz's judgment in the underlying litigation was filed
on April 18, 2013, and Dietz filed the instant complaint on
July 18, 2016, more than three years later. The Court is
unpersuaded by Dietz's arguments that only the final
judgment (in this case, issued by the U.S. Supreme Court on
June 9, 2016) on appeal triggers the running of the
limitations period. That argument is foreclosed by the
statutory language tying the judgment “to the
underlying claim, ” which judgment was indisputably
filed on April 13, 2013. See Fode v. Farmers Ins.
Exch., 719 P.2d 414 (Mont. 1986), superseded by
statute as stated in Lorang v. Fortis Ins. Co., 192 P.3d
186 (Mont. 2008). As to the common law statute of
limitations, that period is triggered by the accrual of the
claim itself, which “when all elements of the claim or
cause exist or have occurred, the right to maintain an action
on the claim or cause is complete, and a court or other
agency is authorized to accept jurisdiction of the
action.” See O'Connor v. Nat'l Union Fire
Ins. Co. of Pittsburgh, 87 P.3d 454, 456 (citing Mont.
Code Ann. § 27-2-102(1)(a)). For a common law bad faith
claim, a claimant need not wait for resolution of the
underlying claim before bringing a bad faith action, but can
proceed when “the last fact essential to the cause of
action” arises, whether or not damages are finalized.
E.W. & D.W. v. D.C.H., 754 P.2d 817, 819-20
(Mont. 1988), superseded by statute on other grounds,
Cosgriffe v. Cosgriffe, 864 P.2d 776 (Mont. 1993).
Unlike a statutory bad faith claim, neither a judgment nor a
settlement is required for filing a common law bad faith
action. Ayotte v. Am. Econ. Ins. Co., 2010 WL 768753
*7 (D. Mont. Mar. 5, 2010).
few dates accompany the allegations of the complaint, the
Court fairly infers that by April 18, 2013, the date of entry
of the $15, 000 judgment in Dietz's favor in the traffic
accident case, GEICO had completed its investigation of the
accident, GEICO had represented pertinent facts and policy
provisions, GEICO had denied and delayed payment of medical
expenses and failed to investigate the relatedness of
Dietz's medical expenses to the alleged cause in the
traffic accident, and GEICO had failed to effectuate a
settlement of Dietz's claim. “Mere ignorance of the
facts will not toll the statute of limitations.”
Pederson v. Rocky Mountain Bank, 272 P.3d 663, 667
(Mont. 2012) (citation omitted). Thus, Dietz's common law
bad faith claim had accrued and is now barred by the
three-year statute of limitations.
Court is further unpersuaded by Dietz's argument in its
brief that GEICO's bad faith continued throughout the
appellate period. There is no such allegation or factual
allegation in the complaint to support this argument. When an
insurer stands by its decision to deny coverage, each day
that goes by does not restart the limitations period. There
would be no limitations period at all if that were the case.
Instead, the Montana Supreme Court has explicitly advised
that the bad faith claim can be filed in order to toll the
statute of limitations. Fode v. Farmers Ins.
Exchange, 719 P.2d 414 (Mont. 1986) (superseded in
part by § 33-18-242(b) as to statutory bad faith
claims). Only as to common law bad faith claims, “[t]he
bad faith case may be filed to toll the statute of
limitations and to expedite ultimate disposition but no
discovery may be engaged.” Fode, 719 P.2d at
417 (emphasis added).
argues that GEICO's attempts to negotiate a settlement of
the underlying appeal constitute “recent evaluation of
the underlying claim” of the insurance claim such that
each settlement offer constitutes a new claims adjustment
that restarts the one and three year statutes of limitations.
This is unsupported by any legal authority and rests upon
unwarranted deductions of fact and unreasonable inferences.
It may well be true that an insurer may commit new acts of
bad faith during the pendency of the underlying litigation
and continuing through appeal. However, this is not that
apparent from the allegations of the Complaint that
Dietz's claims had accrued as to both Count 1 and Count 2
by April 18, 2013. Accordingly, his Complaint filed on July
18, 2016, is barred by the pertinent statutes of limitation.
IT IS HEREBY ORDERED that Defendant GEICO's Motion to
Dismiss the Complaint (ECF No. 2) is GRANTED. The Complaint