STATUTE OF LIMITATIONS
- Personal Property2 YearsMont. Stat. § 27-2-207
- Personal Property/Due to Tort3 YearsMont. Stat. § 27-2-204 and Ritland v. Rowe, 861 P.2d 175 (Mont. 1993)
- Personal Injury/Death3 YearsMont. Stat. § 27-2-204(1),(2)
- Breach of Contract/Written8 YearsMont. Stat. § 27-2-202
- Breach of Contract/Oral5 YearsMont. Stat. § 27-2-202
- Breach of Contract/Sale of Goods4 YearsMont. Stat. § 30-2-725
- Statute of Repose/ProductsN/AN/A
- Statute of Repose/Real Property10 YearsMont. Stat. § 27-2-208*
- Breach of Warranty/Express4 YearMont. Stat. § 30-2-725
- Breach of Warranty/Implied3 YearsYears Bennett v. Dow Chem. Co., 713 P.2d 992 (Mont. 1986)
- Workers’ Compensation3 YearsMont. Code Ann. § 39-71-412
- Strict Product Liability3 YearsMont. Stat. § 27-2-202
- Strict Product Liability/Negligence/Personaly Injury3 YearsMont. Stat. § 27-2-202
- Strict Product Liability/Negligence/Property Damage2 Years2 Years. Mont. Stat. § 27-2-207
Statute of Limitations Exceptions
*10 Years from completion of improvement of real property. This has been interpreted to apply to damage caused by a defective product that is related to the improvement. Mont. Stat. § 27-2-208.
Contributory Negligence/Comparative Fault
Modified Comparative Fault: 51% Bar. Damaged party cannot recover if it is 51% or more at fault. If 50% or less at fault, it can recover, although its recovery is reduced by its degree of fault. Plaintiff’s negligence, if less than total defendant’s portion of fault, will reduce his recovery. Mont. Stat. § 27-1-702.
Med Pay/PIP Subrogation
Med Pay: Yes.
In Montana, § 33-23-201 permits “reasonable subrogation clauses” in auto policies. Under Montana public policy, an insured must be made whole before an insurer can pursue subrogation provided under an auto policy’s subrogation clause, and nothing in § 33-23-201 permitting “reasonable subrogation clauses” alters that equitable doctrine. However, equitable subrogation is still considered against public policy. Allstate Ins. Co. v. Reitler, 628 P.2d 667 (Mont. 1981).
Even a right of contractual subrogation is conditioned upon the insured being made whole for all elements of damages, including payment of attorneys’ fees, regardless of any Plan language to the contrary. See Mont. Stat. § 516.120(2) (2007). Montana remains one of the toughest states to subrogate in because it has a very strict made whole policy. The burden is on the insurer to prove that the insured has been made whole. Swanson v. Hartford Ins. Co. of Midwest, 46 P.3d 584 (Mont. 2002).
The three (3) year personal injury statute of limitations runs from the date of the insured’s accident. Mont. Stat. § 27-2-204.
PIP: Yes. Same as Med Pay.
Automobile and Property: Insurer has duty to determine if insured is made whole before it subrogates, including recovery of insured’s deductible. Montana is a true “insured whole” state when it comes to deductibles. Deductibles must be fully demanded and reimbursed before the insurer can subrogate.
Deductible must be demanded and reimbursed before insurer can subrogate.
Related Case Law: Ferguson v. Safeco Ins. Co. of America, 180 P.3d 1164 (Mont. 2008).
Made Whole Doctrine
Montana remains one of the toughest states to subrogate in as a result of its strict made whole policy. It’s the public policy in Montana that an insured must be totally reimbursed for all losses as well as costs, including attorney’s fees involved in recovering those losses, before the insurer can exercise any right of subrogation, regardless of contract language to the contrary. Ferguson v. Safeco Ins. Co. of Am., 180 P.3d 1164 (Mont. 2008); Swanson v. Hartford Ins. Co. of Midwest, 46 P.3d 584 (Mont. 2002); Skauge v. Mountain States Tel. & Tel. Co., 565 P.2d 628 (Mont. 1977); Mont. Code Ann. § 33-23-203(2) (1997) (held unconstitutional to the extent that it allowed auto insurer to charge premiums for non-existent UIM coverage); Hardy v. Progressive Specialty Ins. Co., 67 P.3d 892 (Mont. 2003); Oberson v. Federated Mut. Ins. Co., 126 P.3d 459 (Mont. 2005); Blue Cross & Blue Shield of Montana, Inc. v. Montana State Auditor, 218 P.3d 475 (Mont. 2009). In fact, courts have held that an insurer may not collect subrogation without first determining that its insurer has been made whole. Ferguson, supra. In Skauge, the Court held that: “When the sum recovered by the insured from the tortfeasor is less than the total loss and thus either the insured or the insurer must to some extent go unpaid, the loss should be borne by the insurer for that is a risk the insured has paid it to assume.” Skauge, 565 P.2d at 632; Mont. Code Ann. § 33-30-1102(4) (1987).
The Made Whole Doctrine, as established in Skauge requires that an insured be “made whole” before an insurer can assert its subrogation rights. This meant that, not only must the insured recover all of her losses but also all costs of recovery as well, such as attorney’s fees and costs of litigation. When the sum recovered by the insured from the tortfeasor is less than the total loss sustained by the insured, and thus either the insured or insurer must to some extent go unpaid, the loss should be borne by the insurer for that is a risk the insured has paid it to assume. Swanson, supra.
Montana courts have even ruled that an insurer is precluded from bringing a subrogation action when the insured has independently negotiated a settlement agreement with a tortfeasor for less than the insured’s total loss. Id. In Swanson, the court ruled that the subrogated insurer had no subrogation rights, even though the third-party liability insurance limits exceeded the amount of the settlement reached between the insured and third party. Unfortunately, this ruling allows an insured to negotiate a settlement with a tortfeasor without regard to the carrier’s subrogation rights. By agreeing to settle for an amount less than the total amount of damages sustained by the insured, the tortfeasor insulates itself from further subrogation liability. Id.
Montana is an anti-subrogation state with respect to Med Pay benefits made under an auto insurance policy. Youngblood v. American States Ins. Co., 866 P.2d 203 (Mont. 1993). The Montana Supreme Court has expanded the Made Whole Doctrine to place a duty on a subrogating insurer to affirmatively determine whether the insured has been made whole before it subrogates. Ferguson, supra; Poppleton v. United Services Automobile Ass’n, 2011 Mont. Dist. LEXIS 52 (18th Dist. 2011). In that case, Ferguson was in an auto accident, and her insurer, Safeco, paid for the total loss of the vehicle, less the deductible, but did not pay for several other losses Ferguson had sustained. Safeco never provided her with any notice that it would seek subrogation; never investigated, inquired or made a determination as to whether Ferguson was made whole for her losses; and never reimbursed Ferguson for her uncovered losses including her deductible, unpaid rental car expenses, and attorneys’ fees. Based on those egregious facts, the Supreme Court erroneously interpreted Swanson to establish a duty on the part of a subrogating carrier to determine if the insured was made whole before it subrogated. Ferguson sued Safeco and certified a class action lawsuit, claiming Safeco engaged in “a common scheme of deceptive conduct,” by taking subrogation recoveries without an investigation into and determination of whether the insureds have been made whole. That class action suit was pending as of the date of this publication. A health service corporation’s right of subrogation may not be enforced until the injured party has been made whole. Mont. Code Ann. § 33-30-1102 (1987). As seen, this includes only non-profit corporations and would not include a traditional health insurer.
Economic Loss Doctrine
Intermediate Rule. When the use of a product for the purpose for which it was intended has the foreseeable potential of damaging the user’s property, the Doctrine of Strict Liability applies, even if the damages are to the product only. Streich v. Hilton-Davis, 692 P.2d 440 (Mont. 1992). Economic damages only are recoverable under both negligence and misrepresentation causes of action. Jim’s Excavating Service, Inc. v. HKM Associates, 878 P.2d 248 (Mont. 1994); Ellinger v. Northwestern Agency, Inc., 938 P.2d 1347 (Mont. 1997).
Montana adheres to the rule that no right of subrogation can arise in favor of an insurer against its own insured since, by definition, subrogation exists only with respect to rights of insurer against third persons to whom insurer owes no duty. Home Ins. Co. v. Pinski Bros., Inc., 500 P.2d 945 (Mont. 1972). However, there have been no cases addressing whether a tenant is considered an implied co-insured.
Tort of Spoliation: Montana courts have adopted the torts of both intentional and negligent spoliation against third parties. Negligent spoliation of evidence consists of the following elements: (1) existence of a potential civil action; (2) legal or contractual duty to preserve evidence relevant to that action; (3) destruction of that evidence; (4) significant impairment of the ability to prove the potential civil action; (5) causal connection between the destruction of the evidence and the inability to prove the lawsuit; (6) significant possibility of success of the potential civil action if the evidence were available; and (7) damages. Gentry v. Douglas Hereford Ranch, Inc., 1998 Mont. 182, 290 Mont. 126, 962 P.2d 1205 (Mont. 1998); Oliver v. Stimson Lumber Co., 297 Mont. 336, 345-354, 993 P.2d 11, 18-23 (Mont. 1999). Intentional spoliation consists of the following elements: (1) the existence of a potential lawsuit; (2) the defendant’s knowledge of the potential lawsuit; (3) the intentional destruction of evidence designed to disrupt or defeat the potential lawsuit; (4) disruption of the potential lawsuit; (5) a causal relationship between the act of spoliation and the inability to prove the lawsuit; and (6) damages. Id.
Under Montana law, the tort of spoliation of evidence (whether intentional or negligent) requires “the existence of a potential lawsuit.” Oliver v. Stimson Lumber Co., 297 Mont. 336, 993 P.2d 11, 21 (Mont. 1999). Spoliation of evidence can only occur in connection with some other lawsuit; it is intrinsically bound up in the same transaction as the underlying lawsuit. Smith v. Salish Kootenai College, 378 F.3d 1048, 1058 (9th Cir. Mont. 2004).
Willful Misconduct. Liability imposed on parents when child willfully or maliciously damages property (does not apply to damages done to businesses). Mont. Stat. § 40-6-237.
Minor’s Driving. A minor’s application for a drivers’ license must be signed by parent or adult willing to assume liability for result of minor’s negligence, unless a policy of insurance is in place to provide coverage for said minor. Mont. Stat. § 61-5-108.
The limit of liability is $2,500.00. Child must be under 18-years-old.
Modified Joint and Several Liability. Joint and several liability, unless a particular defendant is 50% or less at fault, then several. Mont. Stat. § 27-1-703; Newville v. Dept. of Family Services, 883 P.2d 793 (Mont. 1994).
Joint tortfeasors have a right to contribution. Contribution may be sought in the underlying action or as a separate action. Mont. Stat. § 27-1-703; Consolidated Freightways v. Osier, 605 P.2d 1076 (Mont. 1979). There is a three (3) year statute of limitations from the date of settlement or payment of judgment. Mont. Stat. § 30-3-122(7). A person who has settled a claim with a defendant without a lawsuit having been filed may not bring an action for contribution against a joint tortfeasor under § 27–1–703. A settling defendant may not bring a subsequent, separate, contribution action against a person that was not a party in the underlying action. Montana does not recognize a common law right of indemnity where the negligence of the party seeking indemnification was remote, passive, or secondary, compared to the active negligence of the party from whom indemnity is sought. Metro Aviation, Inc. v. United States, 305 P.3d 832 (2013).
Suspension of Drivers' Licenses
Administrative Suspension: Montana’s Motor Vehicle Insurance Responsibility and Verification Act do not address administrative suspensions of drivers’ licenses.
Judgment: Upon receiving the certified copy of the judgment, the Department will suspend the driver’s license of the judgment debtor. Mont. Code. Ann. §61-6-122(1). Suspension will continue until the judgment is stayed, satisfied in full, or an installment agreement is entered into. The suspension lasts six (6) years. Mont. Code. Ann. § 61-6-123.
Contact Information: State of Montana, Department of Justice, Driver Services, P.O. Box 201430, Helena, MT 59620-1430, (406) 444-3933, http://dojmt.gov/driving.
Prohibits Intermediate Indemnity. Prohibits Additional Insureds. Applies to Construction Contracts or Agreements. Mont. Rev. Code § 28-2-2111.
Contract can require that an insurance policy specific to the project be purchased by a party to the contract.
Diminution of Value
First Party: Where the policy limits the insurance company’s liability to the actual cost of replacement of the property damaged or destroyed, “replacement” means the restoration of the property to its condition prior to the injury. Such restoration may or may not be accomplished by repair or replacement of broken or damaged parts. There is not a complete restoration of the property unless there has been no diminution in value after repair of the car. Courts have differed in their construction of similar limitation clauses and will probably continue to do so, so long as policies are couched in language tending toward uncertainty and confusion. Eby v. Foremost Ins. Co., 374 P.2d 857 (Mont. 1962).
Third Party: No court decisions regarding recovery directly allow recovery of diminution in value of a damaged vehicle in a third-party claim. In Hop v. Safeco Ins. Co. of Illinois, 261 P.3d 981 (Mont. 2011), the Supreme Court intimated that the availability of third-party recovery of inherent diminution in value damages is still an open question in Montana, finding in that particular case, that the diminution in value claim was not ripe for adjudication because the Supreme Court had not yet addressed the question of whether insurers in Montana have an obligation to pay residual diminished value claims.
All-Party Consent: It is unlawful to record an in person or electronic communication without the consent of all parties except under certain circumstances namely elected or appointed public officials or public employees when the recording occurs in the performance of an official duty; individuals speaking at public meetings; and individuals given warning of or consenting to the recording. Mont. Code Ann. § 45-8-213.
Montana statute expressly states that victims can recover restitution from liable criminal defendants. The statute also defines a “victim” who has sustained a loss, “including a person suffering an economic loss,” which includes an insurer. Mont. Code Ann. § 46‐18‐241. The Montana Supreme Court has said that this restitution statute contains no provision requiring an offset in the defendant’s favor, or indicating that a victim should receive less from the defendant where subrogation is involved. State v. Fenner, 325 P.3d 691 (Mont. 2014). Montana’s restitution statutes reflect intent to “require an offender to make full restitution to any victim who has sustained pecuniary loss.” It said that the issue of subrogation has no bearing on the amount of restitution that an insured/victim must pay. While the restitution statutes include an insurer as a victim to the extent that it has paid reimbursement for the loss, there is no provision requiring deduction of any such reimbursement from the amount the offender must be ordered to pay. Mont. Code Ann. § 46–18–243(2)(a)(iv).
Health and Disability Insurance
Statute of Limitations: 3 Years. Mont. Code Ann. § 27-2-204(1),(2).
Subrogation of Medical and Disability Benefits are allowed. Mont. Code Ann. § 33-30-1101; Mont. Code. § 33-22-1601. However, § 33-22-1602(3) states that if the disability insurer does not participate in the action it waives 50% of its subrogation lien. Made Whole and Common Fund apply. Ferguson v. Safeco Ins. Co. of Am., 180 P.3d 1164 (Mont. 2008) (Made whole includes attorneys’ fees); Mountain West Farm Bur. Mut. Ins. Co. v. Hall, 38 P.3d 825 (Mont. 2001).
Funeral Procession Traffic Laws
Montana law is not specific with regard to right-of-way for the escort vehicle at intersections, but states that the driver of the funeral escort vehicle may direct the other vehicles in the procession to proceed through an intersection or make any other movements despite any traffic control device. Once the lead escort vehicle has entered an intersection lawfully, all other vehicles may proceed without regard to the traffic signal. This implies that the lead funeral escort vehicle can disregard a red traffic signal. Montana requires pedestrians and other vehicles, except emergency vehicles and when a police officer directs otherwise, to yield the right-of-way to funeral processions. Mont. Code Ann. § 61-8-380.
Statute of Limitations: 3 Years. Mont. Code Ann. § 39-71-412.
Can Carrier Sue Third Party Directly: Yes, after 1 year. The plaintiff must give notice.
Recovery from UM/UIM Benefits: Yes.
Subrogation Against Medical Malpractice: Undecided.
Subrogation Against Legal Malpractice: Undecided.
Recovery Allocation/Equitable Limitations: First money lien, subject to the Made Whole Doctrine.
Employer Contribution/Negligence: No.
Attorney’s Fees/Costs: Pro-rata, unless the carrier waives 50%.
Future Credit: Future Credit Statute repealed in 2005.
Auto No-Fault: No.
Dog Bite Laws
Dog owner will be held strictly liable for damages caused by their dog, if the incident occurred in an incorporated town or city. Mont. Code Ann. § 27-1-715.
Employee Leasing Laws
An employee leasing company and its client company are both considered employers and immune from third-party actions under the exclusive remedy provision of the Workers’ Compensation Act. Mont. St. § 39-8-207.
Condominium Waiver of Subrogation Laws
Premiums for insurance on the building are common expenses and the association must allow unit owners to obtain their own insurance. However, nothing in the statute mentions waiver of subrogation. Mont. Code Ann. § 70-23-612.
Automobile Total Loss Thresholds
Total Loss Formula (See HERE for definition).
Insurer determines if the vehicle is a total loss. It is “salvage vehicle” if insurer decides it is uneconomical to repair, considering parts and labor. Mont. Code Ann. § 61-3-211.
Sudden Medical Emergencies While Driving
Sudden Emergency Doctrine. The Sudden Emergency Instruction will be given if (1) the emergency actually or apparently existed, (2) the perilous situation was not created by the person confronted, (3) alternative courses of action were open to such person or there was an opportunity to take action to avert the threatened casualty, and (4) the action taken might have been taken by a person of reasonable prudence in the same or similar situation. Eslinger v. Ringsby Truck Lines, Inc., 636 P.2d 254, 259 (Mont. 1981).
Since the passage of Montana’s comparative negligence statute in 1975, the defense of contributory negligence is available to a driver who has violated a traffic statute, and it is for the jury to determine the comparative degree of negligence. Reed v. Little, 680 P.2d 937, 939 (Mont. 1984).
State Sovereign Immunity And Tort Liability
Tort Claims Act: Montana Tort Claims Act. Mont. Stat. §§ 2-9-101 through 2-9-114 (1973).
Notice Deadlines: Complaint must first be presented in writing to Department of Administration. The Department must grant or deny the claim within 120 days. Upon receipt of the claim, the statute of limitations is 120 days. Mont. Stat. § 2-9-301.
Claims/Actions Allowed: State is subject to liability for its torts and those of its employees acting within the scope of employment or duties whether arising out of a governmental or proprietary function. Mont. Stat. § 2-9-102.
Comments/Exceptions: The State shall not be liable for certain legislative, judicial, and gubernatorial actions. Mont. Stat. §§ 2-9-111 through 2-9-113. See Mont. Stat. § 2-9-108 for other exceptions.
Damage Caps: The State is not liable for tort claims in excess of $750,000 for each claim and $1.5 million for each occurrence. Mont. Stat. § 2-9-108. The State and other governmental entities are immune from exemplary and punitive damages. Mont. Stat. § 2-9-105.
Recovery of Sales Tax After Vehicle Total Loss
First-Party Claims: No state sales tax. No applicable statute, case law, or regulation governing recovery of sales tax. Mont. Code Ann. § 27-1-306 states that the insured can only recover the cash value of the vehicle immediately prior to the accident.
Third-Party Claims: No applicable statute, case law, or regulation governing recovery of sales tax.
Damage to Property Without Market Value
Service Value: “We note that replacement cost should only be used when no market value can be established.” State v. Dunkerson, 76 P.3d 1085 (Mont. 2003).
Intrinsic Value: Where the absence of the market value of property destroyed is shown, considerable range of investigation should be permitted in fixing the actual value of same as a basis for determining damages. Eablonski v. Close, 225 P. 129 (Mont. 1924).
Sentimental Value: Can recover the difference in market value at the place before and after injury. But, if repair is possible, and this cost is less than the diminution in value under the general test, this cost plus the value of the loss of use may be employed as the measure. In either case, the recovery ordinarily may not exceed the value of the property just before it was damaged. Spackman v. Ralph M. Parsons Co., 414 P.2d 918 (Mont. 1966).
Municipal/County/Local Governmental Immunity and Tort Liability
Montana Tort Claims Act: Mont. Stat. §§ 2-9-101 through 2-9-114 (1973). “Political subdivision” includes counties, cities, municipalities, school districts, etc. Mont. Stat. § 2-9-101.
Notice Deadlines: Claim must first be presented in writing to the clerk or secretary. The Department must grant or deny the claim within 120 days. Upon receipt of the claim, the statute of limitations is tolled for 120 days. Mont. Stat. § 2-9-301.
Claims/Actions Allowed: Political subdivision is subject to liability for its torts and those of its employees acting within the scope of employment or duties whether arising out of a governmental or proprietary function. Mont. Stat. § 2-9-102. No immunity for operating motor vehicle, aircraft, or other transportation. Mont. Stat. § 2-9-111.
Comments/Exceptions: Political subdivision shall not be liable for certain legislative, judicial, and gubernatorial actions. Mont. Stat. §§ 2-9-111 through 2-9-113. See Mont. Stat. § 2-9-108 for other exceptions.
Damage Caps: $750,000 Per Claim. $1.5 Million Per Occurrence. Mont. Stat. § 2-9-108. The State and other governmental entities are immune from exemplary and punitive damages. Mont. Stat. § 2-9-105. Insurer may agree by written endorsement to provide coverage to the governmental agency in amounts in excess of the statutory amount. Mont. Stat. § 2-9-108.
Laws Regarding using Cell Phones/Headphones/Texting While Driving
Cell Phone/Texting: No Applicable Laws
Other Prohibitions: No Applicable Laws
Comments: Several cities and counties have passed cell phone, hand-held, and texting bans.
Baker, Montana bans all use of hand-held cell phones while driving, unless it is hands-free.
Billings, Montana bans all hand-held cell phone use, but hands-free is allowed.
Helena, Montana bans all use of hand-held cell phones, but hands-free is allowed.
Missoula, Montana prohibits text messaging while driving.
Whitefish, Montana prohibits texting and the use of hand-held cell phones.
Hamilton, Montana prohibits the use of hand-held cell phones and texting while driving.
Great Falls, Montana prohibits texting and the use of hand-held cell phones while driving.
Columbia Falls, Montana prohibits texting and hand-held cell phones while operating a motor vehicle.
Butter-Silver Bow and Anaconda-Deer Lodge Counties prohibit texting and use of hand-held cell phones while driving.
Workers’ Compensation Claims by Undocumented Employees
Statute: The statute encompasses all workers, and expressly includes “aliens” both “legal” and “illegal” and gives their legal status. Mont. Code Ann. § 39-71-118(1)(a).
Case Law: Undecided
Admissibility of Expert Testimony
Admissibility Standards: Daubert
Case/Statutory Law: State v. Moore, 885 P.2d 457 (Mont. 1994).
Imputing Contributory Negligence of Driver to Vehicle Owner
Imputed Contributory Negligence Law: Contributory negligence of driver cannot be imputed to owner in owner’s suit against tortfeasor for damages to vehicle, unless driver is agent of owner. Smith v. Babcock, 482 P.2d 1014 (1971).
Where husband-passenger and wife-driver were not engaged in joint venture, latters contributory negligence will not be imputed to former. Sumner v. Amacher, 437 P.2d 630 (Mont. 1968).
Vicarious Liability/Family Purpose Doctrine: No Vicarious Liability Statute.
Montana does not recognize the Family Purpose Doctrine. A family relationship alone cannot create liability in one family member for another family member’s negligence related to operation of a family vehicle. Clawson v. Schroeder, 63 Mont. 488, 208 P. 924 (1922); Styren Farms, Inc. v. Roos, 2011 MT 299, 363 Mont. 41, 265 P.3d 1230 (2011).
Sponsor Liability for Minor’s Driving: Mont. Code Ann. § 61-5-108(2): A minor’s application for a drivers’ license must be signed by parent or adult willing to assume liability for result of minor’s negligence, unless a policy of insurance is in place to provide coverage for said minor.
Product Liability Law
Statute of Limitations/Repose: 3 years for personal injury and wrongful death. Mont. Stat. § 27-2-202. Discovery Rule applies.
Liability Standards: Negligence, Strict Liability, Warranty.
Fault Allocations: Modified Comparative. Mont. Stat. § 27-1-702.
Non-Economic Caps/Limits On Actual Damages: No.
Punitive Y/N and Limits: Yes (Limits).
Heeding Presumption?: No.
Innocent Seller Statute: No. (Upstream Indemnity). Mont. Stat. § 27-1-719.
Joint and Several Liability: Yes, if > 51%. Mont. Stat. § 27-1-703.
Available Defenses: Assumption of Risk; Misuse; Alteration; Learned Intermediary; Inherently Unsafe Products; State of the Art; Government Contractor Defense; Presumption; Alcohol/Drugs; Sophisticated User.
Restatement 2nd or 3rd?: Neither.
Owner Liability For Stolen Vehicles
Key In The Ignition Statutes: Mont. Code Ann. § 61-8-357.
Common Law Rule: N/A
An insurer has no right of subrogation against its own insured. Home Ins. Co. v. Pinski Brothers, Inc., 500 P.2d 945 (Mont. 1972). This is true both as to the named insured and as to any party to whom coverage is extended under the policy terms; an additional insured is entitled to the same protection as the named insured. Truck Ins. Exchange v. Transport Indem. Co., 591 P.2d 188 (Mont. 1979). A homeowner’s insurer cannot seek subrogation against a family member who is a guest of insured since it is, in effect, seeking to recover from the insured himself. Continental Ins. Co. v. Bottomly, 817 P.2d 1162 (Mont. 1991). In Pinski Brothers, Inc., a building was heavily damaged after an explosion occurred during renovations. The building’s insurer was precluded from subrogating against the renovation’s architect because the same insurer covered the architect under a separate liability policy. In Bottomly, Gene Bottomly negligently burned down a cabin that was used by the extended Bottomly family as a vacation home. The only named individual on the cabin’s homeowner’s policy was Gene’s brother, Rich Bottomly, who received compensation from Continental Insurance (“Continental”) after the cabin was burned down. Continental’s subsequent subrogation action against Gene was blocked by the Court on the basis that allowing subrogation against Rich’s guest at the cabin would be akin to allowing subrogation against Rich himself.
Use of Non-Original Equipment Manufacturer (OEM) Aftermarket Crash Parts in Repair of Damaged Vehicles
Authority: Mont. Admin. R. 23.19.202.
Summary: If non-OEM parts are used during the repair, the invoice must clearly state that fact, unless the non-OEM part was a remanufactured part that comes with a new part warranty.