DANA ROLAN, own her own behalf and on behalf of the class she represents, Plaintiffs and Appellants,
NEW WEST HEALTH SERVICES, Defendant and Appellee.
Submitted on Briefs: August 2, 2017
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
Appellants: Erik B. Thueson, Thueson Law Office, Helena,
Appellee: Robert C. Lukes, Emma L. Mediak, Garlington, Lohn
& Robinson PLLP, Missoula, Montana
Michael E Wheat, Justice
Dana Rolan and the class she represents appeal from the order
of the First Judicial District Court, Lewis and Clark County,
granting New West Health Service's (New West) motion for
summary judgment. Finding the issue stated below dispositive
we decline to address the additional issues raised by the
parties. We reverse and remand for further proceedings.
We restate the issue on appeal as follows:
the District Court abused its discretion by granting New West
leave to amend its answer to assert ERISA preemption.
AND PROCEDURAL BACKGROUND
Dana Rolan (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.
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. Rolan
sought compensatory and punitive damages. During a
deposition, New West's representative affirmatively
stated that Rolan's plan was "not a properly
constituted ERISA plan." Relying on such representation,
Rolan proceeded with her claims and class claims based solely
on state law.
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.
Rolan's class certification was based on the systematic
practices by New West to avoid paying medical bills for an
insured when a liability carrier was available to pay medical
bills as part of tort damages. On April 25, 2012, the
District Court granted class certification. Maintaining that
Rolan's claims were based solely on state law claims, New
West proceeded to appeal to this Court Rolan's class
certification. We upheld the class certification in Rolan
v. New West Health Servs., 2013 MT 220, 371 Mont. 228,
307 P.3d 291.
On October 24, 2013, New West moved to amend its answer
alleging the policy was an Employee Retirement Income
Security Act (ERISA) policy and that all state law claims
were preempted by federal law. Rolan opposed New West's
motion to amend. The District Court allowed New West to amend
its answer to include the affirmative defense of ERISA
preemption. The District Court reasoned, "[i]f federal
law does in fact preempt state law resolution of this case,
the ends of justice would not be served by denying the motion
to amend." The District Court granted Rolan attorney
fees for time spent addressing New West's abandoned
defenses. Following the District Court's order allowing
New West to amend, New West moved for summary judgment.
On May 6, 2015, the District Court granted New West's
motion for summary judgment holding that Rolan's policy
was subject to ERISA and thus her original state law claims
were preempted. However, the District Court allowed Rolan to
amend her complaint to include ERISA claims. On June 1, 2015,
Rolan amended her complaint ...