Brewington v. Employers Fire Ins. Co., 98-475.

• Citation: 992 P.2d 237,1999 MT 312
• Decision Date: 13 December 1999
• Docket Number: No. 98-475.,98-475.
• Parties: William BREWINGTON, Personal Representative of the Estate of Jack Brewington, Deceased, Plaintiff and Appellant, v. EMPLOYERS FIRE INSURANCE COMPANY, Commercial Union Insurance Company, Bumgartner Lind Adjusters, Inc., Pete McGraw, ABC Company No. 1 through ABC Company No. 4, and John Doe No. 1 through John Doe 4, Defendants and Respondents.
• Court: United States State Supreme Court of Montana

992 P.2d 237

1999 MT 312

William BREWINGTON, Personal Representative of the Estate of Jack Brewington, Deceased, Plaintiff and Appellant, v. EMPLOYERS FIRE INSURANCE COMPANY, Commercial Union Insurance Company, Bumgartner Lind Adjusters, Inc., Pete McGraw, ABC Company No. 1 through ABC Company No. 4, and John Doe No. , Defendants and Respondents.

No. 98-475.

Supreme Court of Montana.

Submitted on Briefs June 3, 1999.

Decided December 13, 1999.

Rehearing Denied January 13, 2000.

Andrew J. Utick, Utick & Grosfield; Helena, Montana, For Appellant.

Dennis P. Clarke, Smith, Walsh, Clarke & Gregoire; Great Falls, Montana, For Respondents.

Justice TERRY N. TRIEWEILER delivered the Opinion of the Court.

¶ 1 The Plaintiff, William Brewington, personal representative of the Estate of Jack Brewington, brought this action in the District Court for the Tenth Judicial District in Fergus County to recover damages from the Defendants for bad faith adjustment of his Workers' Compensation Claim and refusal to pay attorney fees awarded by the Workers' Compensation Court. The District Court held that the statute of limitations barred Brewington's claim and granted the Defendants' motion to dismiss. Brewington appeals the dismissal of his claim. We reverse the judgment of the District Court.

¶ 2 The following issues are presented on appeal:

¶ 3 1. Did the District Court err when it concluded that § 33-18-242, MCA preempted a claim for the common law tort of bad faith by third-party claimants?

¶ 4 2. Did the District Court err when it applied the one-year statute of limitations found at § 33-18-242(7)(b), MCA to the Plaintiff's claim?

¶ 5 3. When did the statute of limitations begin to run with respect to Brewington's claim?

FACTUAL BACKGROUND

¶ 6 In December 1974, during the course of his employment at Birkenbuel, Inc., Jack Brewington fell from scaffolding and injured his right hand and shoulder. Birkenbuel's workers compensation insurer, Employers' Fire Insurance Co. (EFIC), paid Brewington temporary total disability benefits until February 1983. After that time, because Brewington refused rehabilitation, EFIC began paying Brewington permanent partial disability benefits. Brewington disagreed with EFIC's decision to change his status. In June 1983 he filed a petition with the Workers' Compensation Court in which he asked that his total disability benefits be restored. The Workers' Compensation Court concluded that Brewington was 80 percent permanently partially disabled, based upon a 10 percent impairment rating, and awarded Brewington 400 weeks of benefits. Brewington then appealed to this Court.

¶ 7 In Brewington v. Birkenbuel, Inc. (1986), 222 Mont. 505, 723 P.2d 938, we concluded that Brewington's disability was permanent and total. We also concluded that Brewington was entitled to a 20 percent statutory penalty because the EFIC's actions were unreasonable. We stated: "[r]espondent reduced claimant's benefits in retaliation for his refusal to work with a private rehabilitation firm. Such action is unreasonable." Brewington, 222 Mont. at 511, 723 P.2d at 942. We then remanded Brewington's case to the Workers' Compensation Court. ¶ 8 On February 17, 1998 Brewington filed a complaint in District Court. He alleged that after we remanded his case, the Workers' Compensation Court ordered EFIC and Commercial Union Insurance Company to pay his attorney fees. According to Brewington's complaint, the order stated:

Claimant's attorney is entitled to and insurer is ordered to pay, attorney fees in the amount of 40 percent of claimant's future biweekly benefits as claimant receives them.

Brewington alleged that despite the court's order, EFIC and Commercial Union refused to pay his attorney fees from June 4, 1987 to February 22, 1996. He alleged that between February 1983, when the Defendants reduced his Workers' Compensation benefits, and February 22, 1996, when EFIC and Commercial Union began to make biweekly payments of attorney fees, the Defendants engaged in continuous tortious conduct. Brewington alleged that the conduct complained of breached the Defendants' duty of good faith and fair dealing.

¶ 9 Jack Brewington died on February 18, 1998. Subsequently, his lawyer amended his complaint to substitute, as the Plaintiff, William Brewington, who is the personal representative of Jack Brewington's estate.

¶ 10 On July 1, 1998, the Defendants moved to dismiss Brewington's amended complaint pursuant to Rule 12(b)(6), M.R.Civ.P. The District Court held that the statute of limitations, found at § 33-18-242, MCA, barred Brewington's claim, and granted the Defendants' motion.

STANDARD OF REVIEW

¶ 11 The District Court dismissed Brewington's claim pursuant to Rule 12(b)(6), M.R.Civ.P., based on its conclusion that the complaint failed to state a claim for which relief could be granted. A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. See Trankel v. State of Montana (1997), 282 Mont. 348, 350, 938 P.2d 614, 616

(citation omitted). In Lockwood v. W.R. Grace & Co. (1995), 272 Mont. 202, 207, 900 P.2d 314, 317 we stated:

A motion to dismiss under Rule 12(b)(6), M.R.Civ.P., has the effect of admitting all well-pleaded allegations in the complaint. In considering the motion, the complaint is construed in the light most favorable to the plaintiff, and all allegations of fact contained therein are taken as true.

The determination that a complaint fails to state a claim upon which relief can be granted is a conclusion of law. Trankel, 282 Mont. at 351, 938 P.2d at 616. We review a district court's conclusions of law to determine whether the court's interpretation of the law is correct. Trankel, 282 Mont. at 351, 938 P.2d at 616.

ISSUE 1

¶ 12 Did the District Court err when it concluded that § 33-18-242, MCA preempted a claim for the common law tort of bad faith by third-party claimants?

¶ 13 The legislature enacted the Unfair Trade Practices Act to prohibit unfair or deceptive acts or practices. See § 33-18-101, MCA. Unfair claim settlement practices are prohibited. See § 33-18-201, MCA. The statute at issue in this case, § 33-18-242, MCA, provides:

(1) An insured or a third-party claimant has an independent cause of action against an insurer for actual damages caused by the insurer's violation of subsection (1), (4), (5), (6), (9), or (13) of XX-XX-XXX.

(2) In an action under this section, a plaintiff is not required to prove that the violations were of such frequency as to indicate a general business practice.

(3) An insured who has suffered damages as a result of the handling of an insurance claim may bring an action against the insurer for breach of the insurance contract, for fraud, or pursuant to this section, but not under any other theory or cause of action. An insured may not bring an action for bad faith in connection with the handling of an insurance claim.

(4) In an action under this section, the court or jury may award such damages as were proximately caused by the violation of subsection (1), (4), (5), (6), (9), or (13) of XX-XX-XXX. Exemplary damages may also be assessed in accordance with 27-1-221.

(5) An insurer may not be held liable under this section if the insurer had a reasonable basis in law or in fact for contesting the claim or the amount of the claim, whichever is in issue.

(6)(a) An insured may file an action under this section, together with any other cause of action the insured has against the insurer. Actions may be bifurcated for trial where justice so requires.

(b) A third-party claimant may not file an action under this section until after the underlying claim has been settled or a judgment entered in favor of the claimant on the underlying claim.

(7) The period prescribed for commencement of an action under this section is:

(a) for an insured, within 2 years from the date of the violation of XX-XX-XXX; and

(b) for a third-party claimant, within 1 year from the date of the settlement of or the entry of judgment on the underlying claim.

(8) As used in this section, an insurer includes a person, firm, or corporation utilizing self-insurance to pay claims made against them.

(Emphasis added.) Subsection (1) specifically provides both an insured and a third-party claimant an independent cause of action. Subsection (3) limits an insured, but not a third-party claimant, to a cause of action for breach of the insurance contract, for fraud, or pursuant to "this section," i.e., § 33-18-242, MCA. Subsection (3) also prohibits an insured, but not a third-party claimant, from bringing an action for bad faith. The term "third-party claimant" simply does not appear in subsection (3).

¶ 14 We construe a statute by its terms. Section 1-2-101, MCA. We do not insert what has been omitted or omit what has been inserted. Section 1-2-101, MCA. We cannot insert the term "third-party claimant" into § 33-18-242(3), MCA. Therefore, we conclude that § 33-18-242, MCA does not prohibit a third-party claimant from bringing an action for common law bad faith.

¶ 15 The Defendants contend that we have applied § 33-18-242(3), MCA to a third-party claim based on the adjustment of a worker's compensation case in Grenz v. Orion Group, Inc. (1990), 243 Mont. 486, 795 P.2d 444, and that Grenz prohibits a third-party claimant from pursuing an action for common law bad faith. However, we were not asked to decide in Grenz whether common law bad faith actions were preempted by § 33-18-242(3), MCA. We were asked to decide whether a third-party claim based on improper adjustment could be brought prior to the resolution by settlement or judgment of the underlying claim. We held that it could not, whether based on statute or common law bad faith. Grenz, 243 Mont. at 490-91, 795 P.2d at 446-47. Therefore, Grenz is not applicable to the facts before us in this case.

¶ 16 Brewington...