United States District Court, D. Montana, Butte Division
HUNTER HART, COY COHENOUR through his parents, MONTANA COHENOUR through his parents, DAVID COHENOUR, as parent and individually, and HEIDI HART, as parent and individually, Plaintiffs,
PACIFICSOURCE HEALTH PLANS, a health insurance service corporation, and JOHN DOES I-V, Defendants.
ORDER ADOPTING FINDINGS AND RECOMMENDATIONS
Morris United States District Court Judge
insurance bad-faith case comes before the Court on
cross-motions for partial summary judgment by Plaintiff David
Cohenour (“David”) and Defendant PacificSource
Health Plans (“PacificSource”).
States Magistrate Judge Lynch entered Findings and
Recommendations in this matter on June 18th, 2019. (Doc. 43).
Judge Lynch recommended that David's motion for partial
summary judgment should be denied. Id. Judge Lynch
further recommended that PacificSource's motion for
partial summary judgment be granted. Id. at 18.
Court reviews de novo Findings and Recommendations to which a
party timely objected. 28 U.S.C. § 636(b)(1). The Court
reviews for clear error the portions of the Findings and
Recommendations to which a party did not specifically object.
McDonnell Douglas Corp. v. Commodore Bus. Mach.,
Inc., 656 F.2d 1309, 1313 (9th Cir. 1981). Where a
party's objections constitute perfunctory responses
argued in an attempt to engage the district court in a
rehashing of the same arguments set forth in the original
response, however, the Court will review for clear error the
applicable portions of the findings and recommendations.
Rosling v. Kirkegard, 2014 WL 693315 *3 (D. Mont.
Feb. 21, 2014) (internal citations omitted).
timely filed objections to Magistrate Judge Lynch's
Findings and Recommendations. (Doc. 47). David objects
specifically to two recommendations. Id. at 3. David
first objects to Judge Lynch's finding that David does
not qualify as a first-party insured under the law.
Id. David next objects to Judge Lynch's
conclusion that David does not qualify as a third-party
and Heidi Hart are the biological parents of Hunter Hart, Coy
Cohenour, and Montana Cohenour (“sons”). (Doc. 31
at ¶ 1). The sons suffer from severe hemophilia and
require antihemophilic medication prescribed by their
treating physician. (Doc. 31 at ¶ 3). The antihemophilic
medication remains expensive and PacificSource considers the
medication to be a high cost injectable medication. (Doc. 31
at ¶ 6).
submitted an Individual and Family Policy Enrollment Form to
PacificSource in December 2015. (Doc. 35 at ¶ 1). The
PacificSource policy (“the Policy”) went into
effect on January 1, 2016, and provided health insurance
coverage for Heidi and the three sons. (Docs. 31 at ¶ 8;
35 at ¶ 2). David is not named as an insured on the
Policy. (Doc. 26-3 at 1). David and Heidi timely paid the
premiums throughout the term of the Policy from their joint
bank account. (Doc. 31 at ¶ 9).
paid for the antihemophilic medication as prescribed by the
boys' treating physician from approximately January
through June 2016. (Doc. 31 at ¶ 14). PacificSource sent
the prescription drug claims out for external review in June
2016. (Doc. 35 at ¶ 2). The external reviewer determined
that “the requested dosing [was] not clearly medically
necessary.” (Doc. 30-2 at 3). PacificSource effectively
stated that it would no longer pay for the full dose and
frequency of antihemophilic medication as prescribed by the
sons' treating physician, in a letter dated July 11,
2016. (Doc. 17-1).
appealed PacificSource's decision internally and filed a
complaint with the Montana Insurance Commissioner's
Office. (Docs. 31 at ¶ 17; 35 at ¶ 4). The
Commissioner's Office conducted two additional external
reviews between August and November 2016. (Doc. 31 at ¶
18). PacificSource approved the antihemophilic medication
dosages and frequencies as prescribed by the treating
physician after receiving the results of the second external
review. (Docs. 31 at ¶ 19; 35 at ¶ 6).
and Heidi commenced this action against PacificSource in the
Montana Eighteenth Judicial District Court in July 2018.
(Doc. 1-2). The Complaint alleges claims for breach of
contract and violations of Montana's Unfair Trade
Practices Act (“UTPA”), Mont. Code Ann. §
33-18-201 et seq. (Doc. 1-2 at 13-16). David seeks a
declaratory judgment that he stands as a first-party insured
or, alternatively, a third-party claimant/beneficiary under
the Policy. (Doc. 1-2 at 16-17).
removed the case to this Court pursuant to 28 U.S.C. §
1441, based on diversity of citizenship in August 2018. (Doc.
1). The parties have filed cross-motions for summary judgment
to adjudicate David's status under the Policy and to
determine whether he qualifies as a first-party insured or a
third-party claimant/beneficiary under the Policy, thereby
entitling him to maintain a bad faith claim against
First Party Insured
takes issue first with Judge Lynch's analysis of
Omaha Property and Casualty Co. Crosby, 756 F.Supp.
1380 (D. Mont. 1990). The district court in Omaha
determined that a mother could enforce an insurance contract
as a person with an insurable interest. Id. at 1383.
Judge Lynch reasoned that Omaha remained
inapplicable because the mother in Omaha stood as a
named insured on the insurance ...