Daniels v. Gallatin County ( 2021 )

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03/09/2021
IN THE SUPREME COURT OF THE STATE OF MONTANA Case Number: DA 21-0069
DA 21-0069
DON DANIELS,as Conservator of the Estate of
SARAH DANIELS,
FILED
MAR 0 9 2021
Plaintiff and Appellee, Bowen Greenwoo0
Clerk of Supreme Cour:
State of Montana
v.
GALLATIN COUNTY, RICK BLACKWOOD
ORDER
and JOHN DOES I-V,
Defendants
ATLANTIC SPECIALTY INSURANCE
COMPANY,
Defendant and Appellant.
Appellee Don Daniels, as Conservator of the Estate of Sarah Daniels, has moved to
dismiss this appeal. Appellant Atlantic Specialty Insurance Company (ASIC) opposes
Daniels's motion. ASIC has also moved to stay this appeal, which Daniels opposes.
This action involves a negligence action against Gallatin County. ASIC provided
insurance coverage to the County at that time. On Septernber 22, 2020, the
Eighteenth Judicial District Court entered a Memorandum and Order re Cross Motions for
Partial Summary Judgment on Count I of the Amended Complaint in which it granted
partial summaryjudgment in Daniels's favor and denied ASIC's cross-motion for summary
judgment, ruling that ASIC could not rely on the statutory cap of $750,000 found in
§ 2-9-108(1), MCA, because the exception provided for in § 2-9-108(3), MCA applied.
On September 29, 2020, the District Court entered an Order Re: Count III that dismissed
without prejudice Count III of Daniels's Amended Complaint, which had raised an
as-applied constitutional challenge to § 2-9-108, MCA.
On October 22, 2020, ASIC filed a Notice of Appeal with this Court, under our
Cause No. DA 20-0516. ASIC stated within the Notice that it was appealing from these
Orders, although it acknowledged that it had filed a Motion to Alter or Amend under
M.R. Civ.P. 59(e)in the District Court that the court had not yet ruled upon,and that these
Orders were not certified as fmal under M.R. Civ. P. 54(b).
Daniels moved to dismiss that appeal, arguing the appeal could not be taken because
the Orders are interlocutory and not certified as final for purposes ofappeal as provided by
M.R. Civ. P. 54(b). In response, ASIC argued that, rather than dismissing this appeal,this
Court should stay the appeal until the issues are ripe. We were unpersuaded by ASIC's
argument and dismissed the appeal, holding that the District Court's Orders were
interlocutory and as such, without Rule 54(b) certification from the District Court, they
were not properly before this Court on appeal.
On February 16, 2021, ASIC again filed a Notice of Appeal regarding the same
District Court orders. Again, the orders have not been certified for appeal pursuant to
M.R. Civ. P. 54(b). However, ASIC asserted that because its Motion to Alter or Amend
under M. R. Civ. P. 59(e) had been deemed denied, it believed that this had triggered the
time for appeal under M. R. App. P. 4(5)(a)(iv)(E). While ASIC acknowledges that the
District Court's orders are not fmal orders and that they are not certified as final under
M.R. Civ. P. 54(b), ASIC again argues that the Court should stay this appeal and deem it
filed when the District Court enters its finaljudgment in this case.
In our dismissal of DA 20-0516, we found ASIC's reliance on M. R. App. P. 4(5)
to be misplaced. We explained,
M. R. App. P. 4(5)(a)(ii) provides, "A notice of appeal filed after the
announcement of a decision or order, but before either entry of the written
judgment or order from which the appeal is taken or service of the notice of
entry ofjudgment, shall be treated as filed on the day of such entry." Here,
the written order from which the appeal is taken has been entered. M. R.
App. P. 4(5)(a)(iv)(E) applies to situations in which a party filed a moticn
for relief under M. R. Civ. P. 60(b), and such has not occurred here.
Our reasoning remains valid here. ASIC has not moved for relief under
M. R. Civ. P. 60(b) and therefore M. R. App. P. 4(5)(a)(iv)(E) does not apply.
ASIC further argues that although its appeal may be premature, this Court should
not dismiss it but should instead stay it until the District Court matter concludes. ASIC
argues that the Court has such authority under M. R. App. P. 4(5)(a)(ii). It points to
Hilten v. Bragg, DA 09-0340, Order (July 13, 2009), and contends that the present case
presents an identical procedural situation. However, Hilten is readily distinguishable. In
that case, Appellants filed their notice of appeal after the trial court granted summary
judgment to appellees but prior to the entry offinal judgment and this Court determined to
treat the appeal as filed on the day of entry of final judgment rather than dismissing it. In
this case, ASIC is attempting to appeal interlocutory orders without M. R. Civ. P. 54(b)
certification. As such, these Orders are not properly before this Court on appeal.
IT IS THEREFORE ORDERED that this appeal is DISMISSED WITHOUT
PREJUDICE.
IT IS FURTHER ORDERED that Appellant's Motion for Stay is DENIED as
MOOT.
IT IS FURTHER ORDERED that this matter is REMANDED to the District Court.
The Clerk is directed to provide copies of this Order to all counsel of record.
Dated this likt•day of March, 2021.
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Justices
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