Dale Fossen v. Caring for Montanans, Inc., 617 F. App'x 737

Plaintiffs (the Fossens) sued insurer Caring for Montanans, Inc. (CFM), asserting CFM violated Mont. Code Ann. § 33-18-206(2) (a UTPA provision prohibiting unfair premium discrimination) and thus created a private right of action/breach of contract.
Montana law was amended in 1987 to explicitly authorize private claims only for six specified UTPA violations in § 33-18-242(1); other UTPA enforcement is vested in the Insurance Commissioner.
The Fossens did not identify any clause in their insurance policies that incorporated the UTPA or otherwise created contractual remedies based on § 33-18-206(2).
The district court granted summary judgment for CFM, rejecting the Fossens’ attempt to sue privately under § 33-18-206(2); the court retained pendent state claims during four years of proceedings.
The Ninth Circuit affirmed, concluding Montana precedent declines to recognize a private cause of action for UTPA provisions other than those listed in § 33-18-242(1), and no contractual incorporation existed to create such a claim.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether an insured can bring a private right of action against an insurer based solely on an alleged violation of Mont. Code Ann. § 33-18-206(2)	Fossens: § 33-18-206(2) violation gives rise to a private cause of action / breach of contract remedy	CFM: Montana law limits private UTPA claims to the six provisions in § 33-18-242(1); other enforcement is for the Insurance Commissioner	Held for CFM: No private right of action based solely on § 33-18-206(2)
Whether an alleged statutory UTPA violation can independently support a contractual breach claim absent incorporation of the statute into the policy	Fossens: statutory violation equates to contract breach	CFM: no policy term incorporates UTPA; absent express incorporation, no contractual cause based on statute	Held for CFM: no breach of contract from statutory violation without contractual incorporation
Whether the district court abused its discretion by retaining jurisdiction over pendent state-law claims	Fossens: implied challenge to retention	CFM: retention proper given lengthy federal proceedings and federal-preemption issues	Held for CFM: retention was not an abuse of discretion
Whether the Ninth Circuit should certify the unsettled question of state law to the Montana Supreme Court	Fossens: sought certification (implicit)	CFM: certification unnecessary because Montana precedent suffices	Held for CFM: certification declined; existing Montana decisions control

Thomas v. Northwestern Nat’l Ins. Co., 973 P.2d 804 (Mont. 1998) (state precedent that 1987 amendment did not abrogate preexisting common-law causes)
State ex rel. Farm Credit Bank of Spokane v. District Court, 881 P.2d 594 (Mont. 1994) (statute can create contract remedies if parties incorporate statute into contract)
Brewington v. Employers Fire Ins. Co., 992 P.2d 237 (Mont. 1999) (permitting bad-faith claim based on common-law tort rather than UTPA violation)
Williams v. Union Fidelity Life Ins. Co., 123 P.3d 213 (Mont. 2005) (insurer liability allowed where claim is common-law breach of contract supported by, but not premised on, UTPA)
Riordan v. State Farm Mut. Auto. Ins. Co., 589 F.3d 999 (9th Cir. 2009) (standards for certifying state-law questions to state supreme court)
Long v. City & Cty. of Honolulu, 511 F.3d 901 (9th Cir. 2007) (district court’s discretion to retain jurisdiction over pendent claims)
Mackey v. Pioneer National Bank, 867 F.2d 520 (9th Cir. 1989) (retention of jurisdiction can serve judicial economy)
United Mine Workers v. Gibbs, 383 U.S. 715 (U.S. 1966) (pendent jurisdiction doctrine)