United States District Court, D. Montana, Billings Division
CHARLES M. BUTLER, III and CHOLE BUTLER Plaintiffs,
UNIFIED LIFE INSURANCE COMPANY; HEALTH PLANS INTERMEDIARIES HOLDINGS, LLC, doing business as Health Insurance Innovations, Inc.; ALLIED NATIONAL, INC.; NATIONAL BROKERS OF AMERICA, INC.; THE NATIONAL CONGRESS OF EMPLOYERS, INC.; and DOES 1-10 Defendants.
P. WATTERS UNITED STATES DISTRICT JUDGE
the Court are United States Magistrate Judge Timothy
Cavan's findings and recommendation filed July 18, 2018.
(Doc. 80). Judge Cavan recommends this Court grant in part
and deny in part Defendants Unified Life, Allied National,
Health Insurance Innovations, and National Congress of
Employers, Inc.'s (collectively "Moving
Defendants") motion to dismiss Count 7, Count 10, Counts
11-14, and the loss of consortium claim of Chole Butler.
Standard of review
Moving Defendants filed timely objections to the findings and
recommendation. (Docs. 82). The Moving Defendants are
entitled to de novo review of those portions of Judge
Cavan's findings and recommendation to which they
properly object. 28 U.S.C. § 636(b)(1); Fed.R.Civ.P.
motion to dismiss for failure to state a claim is governed by
Fed.R.Civ.P. 12(b)(6). To survive a motion to dismiss,
"a complaint must contain sufficient factual matter,
accepted as true, to 'state a claim to relief that is
plausible on its face.'" Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atlantic
Corporation v. Twombly, 550 U.S. 544, 570 (2007)).
"A claim has facial plausibility when the pleaded
factual content allows the court to draw the reasonable
inference that the defendant is liable for the misconduct
alleged." Iqbal, 556 U.S. at 678.
procedural and factual history contained in Judge Cavan's
findings and recommendation is not objected to and is adopted
Moving Defendants object to Judge Cavan's recommendation
that Count 7 and Chole Butler's loss of consortium claim
should not be dismissed.
alleges a breach of an insurance agent's absolute duty
against Defendant National Brokers of America, Inc (NBA).
Moving Defendants argue they are insurers, not insurance
agents, and cannot be held liable. Judge Cavan noted an
insurer may be held liable for the conduct of its agent under
Tynes v. Bankers Life Co., 730 P.2d 1115, 1122
(Mont. 1986) and Cartwright v. Equitable Life Assur.
Soc'y of the United States, 914 P.2d 976, 979 (Mont.
1996). Judge Cavan recommended that the Plaintiffs did not
fail to state a claim because the complaint sufficiently
alleges NBA was an agent of the Moving Defendants. The Court
agrees with Judge Cavan. The Moving Defendants' motion is
denied as to Count 7.
Chole Butler's loss of consortium claim
Moving Defendants argue Chole Butler's loss of consortium
claim should be dismissed for two reasons. First, they argue
the Montana Supreme Court has not explicitly approved a loss
of consortium claim resulting solely from a spouse's
mental injury. Second, they argue that even if Chole Butler
could make a claim for loss of consortium resulting from her
spouse's mental injury, such a claim may not be made in
connection with the handling of an insurance claim under
Montana's Unfair Trade Practices Act, which limits
actions against an insurer for its handling of an insurance
claim to breach of contract, fraud, and pursuant to the UTPA.
regard to the Moving Defendants' first argument, the
Court has reviewed Judge Cavan's analysis, the
parties' briefs, and relevant case law, and agrees with
Judge Cavan that a loss of consortium claim resulting solely
from a spouse's mental injury is cognizable under Montana
Supreme Court precedent. Judge ...