*1 еrs, riders, hikers, horseback bird watch- eating for a decision it as quasi-ju- made ers, floaters, fishing buffs, river picnick- body. dicial ers and other citizens who enjoy the area for the presently outdoor values it offers JOHNSON, Justice, dissenting. general public the equal basis. am unable to concur II A development condominium opinion. majority portion opin- This magnitude certainly will detract from the ion concerns whether the ordinance in ef- area and further threaten wildlife that application fect when the initial was filed depend present on their environment to or the amended ordinance effect when reproduce. survive and application approval of the final Our does Association not advocate non- plans apply proposal Hаys should to the development, long as as its occurrence is In my opinion, for a PUD. the amended in areas more suitable sustain applicable. ordinance is
impacts, possible. whenever On River, South Fork of the Snake this isn’t
the case. purchasers
To save condominium
users a 25 minute to 30 drive can certain-
ly development go justify the
ahead this area. kindly urge We would the Bonneville SULLIVAN, William Cleon County disapprove Planners to Sullivan, and Julie Hays Development proceed, Ranch Plaintiffs-Respondents, preserve present order to environ- ment of the to honor area and the wishes v. recreating public desires of the COMPANY, ALLSTATE INSURANCE require- very important the sensitive and Corporation, an Illinois ments the wildlife be sustained Defendant-Appellant. canyon River of which Snake No. 17029. flows. pe- Lastly, should there be the inevitable Supreme Idaho. Court of
tition(s) rehearing quite often which Feb. 1990. opinions,14 on the heels of our issued follow involved, i.e., parties the adverse South Rehearing On June Denial 1990. Hays, greatly Fork Coalition v. would oblige if this one member of the we explanation to be furnished with some
were question. Why in
concerning ap- Fork I did the Board make no
South it, proper
pearance (seemingly because fact, conceivably trier of could stake), yet in anything at
Hays appearance, leaving to has made no counsel to Board and its defend Hays decision of was the
Board Presumably Hays’ able
beneficiary? very de- could have defended the Board Hays’ to do so has left
cision. failure position advo- in the unenviable
Board rehearing, ap- petitions Stiffler, S.Ct. No. simultaneous In State v. both readily granted. respondent pellant and favored us with almost
$2,000.00
entitlement to unin-
and claimed
policy.
under the
sured motorist benefits
for medical
paid
policy
limits
Allstate
bills,
responsibility under Sulli-
but denied
coverage,
motorist
assert-
van's uninsured
proximate cause
ing that Julie was the
injuries.
her own
defining
policy,
The Allstate insurance
rights
responsibilities, con-
parties’
mandatory
clause
a
arbitration
tained
provided that submission to arbitra-
mandatory
parties
whenever
tion was
amicably
a
Sullivan
could not
settle
claim.
Troxell,
Boise,
Hawley,
Hawley,
Ennis &
1984,
for
until
did
file
arbitration
defendant-appellant.
for
Kenneth C. How-
months
lapse
eighteen
time
of more than
ell, argued.
the accident. While the
after
Rice, P.A., Lewiston,
plain-
&
for
Aherin
and notwithstand-
proceeding
pending,
Aherin,
tiffs-respondents. Darrel
ar-
W.
ing
requiring manda-
policy provisions
gued.
arbitration,
civil
tory
filed their
Sullivans
appealed in
action which was
1989
64 FILED MAY
OPINION NO.
investigation,
tort
asserting negligent
1989, IS HEREBY WITHDRAWN
contract,
outrage,
willful breaсh of
AND THIS OPINION SUBSTITUTED
refusing
to settle the claim.
bad faith
THEREFOR
summary
judgment,
Allstate moved for
alternative,
stay pending
for
ON REHEARING
outcome of arbitration.
district
BOYLE, Justice.
granted
mo-
(Judge Magnuson)
Allstate’s
for
and dismissed
tion
denying
This is an
from an order
prejudice.
with
Sulli-
Sullivans’
Company’s
defendant Allstate Insurance
objected
prejudice
van
the dismissal with
summary judgment. Appellant,
motion for
and the case was
before the court
Insurance,
Allstate
asserted below and
hearing on motion for
for
reconsideration.
here
our
v.
decision
All
hearing,
At the
the arbitration award
Co.,
111
state Ins.
Idaho
presented to the
the district
court and
I)
(Sullivan
(1986)
judicata
is res
all
his
dismiss the
court reaffirmed
intent to
arising
September
claims
out of the
the ac-
prejudice.
action with
Thereafter
1982
accident which Julie Sullivan was
dismissed written order whiсh
injured.
summary
Allstate’s motion
complaint,
clearly provides that
judgment
in this action was denied on
pled,
with
thus all actions
was dismissed
grounds
the question
of Allstate’s al
concluding
prejudice.
paragraph
leged
practice had not
bad faith settlement
ap-
of the trial court which was
previously litigated,
ripe
and was not
pealed
provides:
in Sullivan
proceedings.
in the earlier
consideration
De-
IT
HEREBY
IS
ORDERED
We reverse.
Summary Judgment
fendant’s Motion
Claimant,
Sullivan,
pedestri-
Julie
was a
granted
hereby
is
and Plaintiffs’ Com-
the time she was struck
a unin-
plaint
hereby
dismissed
motorcyclist
September
sured
attorneys’
fees
without costs
dice and
minor,
par-
As
was covered
her
Julie
added.)
party.
(Emphasis
to either
policy with All-
ent’s automobile insurance
111 Idaho
provided medical
uninsured
state which
accident,
(1986),
Court,
coverage. After the
P.2d
a unani-
motorist
Judge Magnuson’s
opinion,
filed a claim with Allstate for mous
affirmed
Sullivans
stating:
prejudice,
expenses
amount of dismissal with
medical
Under the
today’s
arbitrators,
circumstances of
cluding the award
legal
we need not
relationship
decide the
were then
before the district court.
which exists between an insured and an Magnuson denied the motion for reconsid-
injured
insurance carrier when the
makes
granting
eration of his order
dismissal with
a claim under an uninsured motorist
prejudice
granting
and affirmed his motion
i.e.,
clause of an
policy,
insurance
wheth-
summary judgment to Allstate.
relationship
er that
is adversarial or fidu-
*3
clearly
The record
establishes that before
ciary____ In the instant case we deem it
Judge Magnuson
opinion
issued his final
clear
liability
that Allstate’s denial of
granting summary judgment and dismiss-
upon
grounds
that Julie Sullivan’s
ing
plaintiffs’ complaint
with
negligence
own
proximate
was the
dice, the final award of the arbitrators was
damages,
of her
was not taken in bad
presented
argued
to him. The record
finding
faith. The uncontested
Judge Magnuson
is uncontroverted that
re-
thirty-five percent negli-
arbitrators of
viewed and considered the award of the
gence
part
on the
of Julie Sullivan
arbitrators
he entered his final order
before
speaks loudly
position
in defense of the
summary judgment,
only
on
then did
of Allstate.
he order dismissal
prejudice.
with
306,
Allstate. A was held before three damages, BAKES, C.J., arbitrators who found total and JOHNSON and thirty-five percent McDEVITT, JJ., to be com- found Julie concur. paratively negligent, and found Allstate BISTLINE, Justice, dissenting. pay policy should Julie its limit. The com- analysis On further review and detailed plaint September I was filed of this Court’s decision pending while case, record seen process complet-
before the arbitration holding that this Court’s there is found 1985 the award of the arbitra- ed. “In the instant case we one sentence: moved tors was rendered. The Sullivans of liabil- deem it clear that Allstate’s denial of the court’s order of for reconsideration matters, grounds that Julie Sullivan’s ity and all in- Judge deci- Cogswell, whose negligence proximate cause of own was the us, we in this now before review damages, taken in bad faith.” her was not I and this con- came to Co., examined Sullivan v. Ins. 111 Idaho Allstate clusion: (1986) 304/306, 723 P.2d only interpret the deci- can The reason for deemed hold Judge Magnuson to hold that the sion of
ing is found the sentence which follows prema- Complaint No. 23040was above, in Case quoted one “The uncontested turely that a cause of action filed and finding of 35 percent arbitrators of the arbi- arisen because not then on negligence Julie Sullivan proceedings. tration position loudly in defense of speaks However, and Allstate.” Id. unfortunate Judge Cogswell eminently correct supposed our ly, these issues which Magnuson did his evaluation. issues, on from the issue passed different alleged were of Allstate’s feel that appeal.1 ap issue raised on raised him; hence liability properly before peal was whether the court was *4 .district is also of the dismissal. It considerable rulings in two which were the basis correct did moment his memorandum decision comрlaint. of the Those two dismissal say would with that dismissal be of I rulings surfaced in this Court’s Sullivan of judgment dice. Rather the final formal opinion, and one them was the basis for presented by of All- dismissal drawn and was summary judg counsel, court’s order of the district there for the first time state’s plaintiffs’ prejudice.” ment of dismissal of the com appeared the words “with plaint. Judge Magnuson may may or adding presumptiveness in noted counsel’s Mentioning reviewing I am again that Because the two which were added. words in the exact record nothing other than that adjudicated he had upon language of district court’s order brought, prematurely was action predicated, dismissal was this: was with or whether the action was dismissal 1. A cause of action based an thought prejudice undoubtedly without was pay insurer’s to an uninsured mo- rеfusal consequence. to be no claim cannot exist until the liabili- torist’s A similar to would be circumstance this ty of the uninsured motorist admitted case filing malpractice a medical adjudicated the insurer re- or then complying provisions absent with the pay fuses the claim. 6, Code, which Chapter Title Idaho 10 of requires screening panel to a submission required 3. The insured should be hospital its the medical or review of go unin- through
first an in a tort challenged care be which would claim, required by as sured motorist action, be infor- proceedings shall “which policy, prior bringing an automobile nonbinding, mal and but com- nonetheless against for a faith action the insurer bad precedent to liti- pulsory as a condition claim. 1976, in ch. gation.” 6-1001 enacted I.C. § Mag- 278, Judge added.) p. (Emphasis Our Sullivan undoubtedly aware of this stat- though as we nuson was erroneously written was utory and it is affirming requirement, reasonable district court determina- in merits, i.e., salutary purposes believe that he had its made on the tion that plain- mind he ruled that Judge found Allstate when Magnuson had plaintiffs’ premature the various claims alleged in the tiffs were liability of the free by their which were laid out complaint. day very inadvertently prematurely Shepard indulging filed. On the last
1. Justice
retrospect,
tangentially
it is
of the
in obiter dictum.
In review
in front
peruse
that he
see and
the arbitra-
produc-
obvious
did
district
the arbitration award
hereinafter,
which, as illustrated
888,
tion award
played
Infra,
hour.
792 P.2d
at the eleventh
ed
court’s determina-
no
in the district
at 913.
dismissed because it
tion that the case should be
(and
complaint,
duly acknowledged)
Sullivan I
filed before there
van
an
(and
agent
duly
had been
determination of Allstate’s
for Allstate
acknowl-
alleged liability,
by adjudication
edged), respectively
either
16 and
beginning
1984. R.
at 65. Mr. Eis-
arbitration. This Court noted in James v.
Buck,
(1986),
mann’s affidavit with attachment was filed
Idaho
support
conjunction
and in
purpose
legislature
that the
of the
enact-
judgment,
Code,
summary
Allstate motion for
ing Chapter 10 of Title
Idaho
was:
proceedings
stay
for a
encourage nonlitigation
To
of claims
hospitals by
physicians
pro-
record,2
neverthe-
Out
but
viding
prelitigation screening
of such
Mr. Eismann’s
less contained therein is
by hearing panel
provided
as
claims
page
supporting
R. 173-83. At
brief.
this act.
convincingly argued
the brief
Magnuson that:
the condition of the note bar, reading of the In the case at a nothing adjudicative would be dismissal conclu- contract and case law leads to the prematurely had but that the action presented the cause of action sion that brought. contempla- plaintiff is within provision. Since tion of the arbitration goes astray in its The far Court’s out of the this cause of action arose I was conclusion because “Sullivan contract, language of the the inclusive II prejudice” the dismissed with require that all issues be contract would containing allegations” “identical (Citations omit- presented to arbitration. parties” is “identical made as between ted.) judicata. barred the doctrine res wrong arrives at such destina- The Court R. 181-82. reading comprehen- by very poor and a granting summary judgment, The order which, although it is sion of the record court’s di- by Mr. Eismann at the drawn of chron- parts of it are out voluminous rection, naturally reflected that which quite order, ological is not difficult. the court urged and with which he had i.e., pre- agreed, agreement to arbitrate September injured on
Julie Sullivan was the issues which Julie Sep- cluded a trial of 24, 1982, was filed on and the action against All- complaint raised 1984, shortly 29, was after Sullivan’s tember dis- arbitration, 142-43. The action was state. R. appears she demanded costs or prejudice but without Mr. Eis- missed with R. 63. of Mr. Eismann. affidavit 29, party April on fees to either attorneys’ the arbitration attached mann’s affidavit Notwithstanding that dis- 143. 1985. R. signed by Julie Sulli- agreement which was 26, 1985, being brief, filed after June both though filed dated December 2. The June appeal the record until taken. filed as was not Similarly, plaintiffs brief was also on next matter missal, and turns to the been filed of record had on dedicated counsel docket. filed and served an affidavit
Julie Sullivan report- R. 153-54 order, opposition of his own in to the informa- transcript is somewhat more er's May restyled as motion for on a justify any tive, sufficiently to con- but not of the memorandum deci- reconsideration Judge Magnuson other than that clusion dismissal, ensuing sub- prema- convinced that the action thorough well forti- mitted a memorandum did turely way filed. In no whatever with citation. fied intimate, that the say, or even Magnuson reconsideration was The motion to him the presentation much belated d’Alene, 23, 1985, at Coeur heard on him to reassume caused arbitration award Idaho, p.m. p.m. to 2:55 lasting from 2:20 he had jurisdiction an action which over tell what court minutes best took premature- it had been dismissed because place: he not in- put, ly Otherwise filed. any would judge do more than clined to TO MOTION RECONSIDER it out of do late time—examine at the dismissal which curiosity IT that the stand BE KNOWN —but had, proceedings long ago pointed to-wit: As out been entered. herein, judica- the dismissal was res earlier 2:20 P.M. Court session. Call visibly plainly and nothing, ta of but was argue present to 23040. Counsel are Mr. Eis- predicated upon the motion which County motion in this Bonner case. of Allstate. To mann had made behalf to the Motion Reconsider refers intimate, does, that majority as the Court’s Order of 4/16/85. an presentation of belated #A. Mr. Mr. Manko offers Exhibit an which had been award reinstated he received Mr. Eismann states that great prematurely filed does dismissed as 11:30 A.M. this date. Manko’s brief at experienced trial and able disservice to # A objection has to Exhibit He no tran- record and judge who had EXHIB- therefor the COURTADMITS hand, and ruled otherwise. script at hearing. # A purposes IT he Mr. McClenan advises that received court convened 2:30 Only after the *6 copy at 10:30 a certified of Order p.m. to hear the motion for reconsideration date. A.M. this made that the arbitra- was the court aware argues pursuant Mr. 2:32 P.M. Manko had been made. This tion award in present to the arbitration decision now favor by the counsel being advised one of Questions day Plaintiff. rather of in just received that that it no of Court held action bad morning asked to mail. The action maintained faith or no сause of it, it, at it be look at did look and allowed in all. Carter case as set out at Cites exhibit, quickly put all as an marked brief. appears It that aside: “THE COURT: that provides copies of deci- Mr. Eismann today, so we no had notice it before one holding under no cause sions going argue the operate on who is will faith re: 41-1320. bad The most Motion for Reconsideration." deci- P.M. The Court reviews those award was 2:45 made of the arbitration use plaintiffs’ sions. counsel: responds. Mr. Eismann further prevailed plaintiffs The fact have arbitration, my judicial and it removes will not take The Court having 193. It is not a a liti- problem notice of House bill today. made in a determination at time of the gated liability factor situation original- Complaint this matter was when DENIES THE P.M. The COURT 2:55 argued. ly FOR MOTION RECONSIDERATION provi- agreement the debate to arbitrators. to submit 3. to be confused with the arbitration Not contract, or with the of the insurance So, reason, for that I am somewhat he did not use the words “with confused as to the Court’s order. drawing dice.” In dismissal, the order of facially appears that Tr., chief counsel for Vol. 5. The trial court at that late Allstate inserted those two words. stage could Noth- hardly expected wipe be ing in the record shows that counsel slate clean ad- holding and make a that this vised development late that counsel had taken the invalidated its order that liberty inserting action had been those two words. If prematurely filed be- true, compliance cause of the lack of that be extremely with was either precedent Moreover, condition bringing presumptuous suit. or careless. where the dismissal was based on failure to By courteous, nature kind and he heard arbitration, completed effect satisfaction, counsel out to their prejudice” “with would be to bar a sub- which the court stated it had reviewed its sequent action attempting get into the decision, memorandum plain- reviewed the good faith passing through issue without tiffs’ supporting brief the motion for recon- arbitration. sideration, “and reflecting, go- I am ing to by my original Tr., stand decision.” The audaciously Court has withdrawn I,Vol. 13. He added that he found Mr. Huntley’s opinion. Justice Three votes can decisions, Eismann’s into court thing, do such a and there are four votes. day interesting, but that in all candor majority my Those view are all determination to stand his decision willing accept gospel too two state- had been made he before had been made ments totally unacceptable, which are both aware of them: I meant to do “[w]hat page 2 of the majority slip opinion. Tr., the decision is to dismiss the action.” First, there is the statement that: “The
I,Vol.
granted
district court
Allstate’s motion for
summary judgment and dismissed Sulli-
ON DENIAL OF RESPONDENTS’
prejudice.”
glar-
vans’
PETITION FOR REHEARING
ing
fault
that statement is in leaving the
BISTLINE, Justice, On Denial of
impression
reader with the clear
that All-
Respondents’
Rehearing.1
Petition For
prejudice.”
state “moved to dismiss with
Putting
Nothing
aside what I
in February
wrote
could be further from the truth.
year,
us,
of this
I have started
anew with
record is before
and I have read
Shepard’s opinion
Second,
Justice
in Sullivan
the Allstate motion.
there is the
through
and tracked
the case down to and
statement that at the reconsideration hear-
including Judge Magnuson’s
ing
dismissal or-
“the district court reaffirmed his intent
der,
beyond
into our
prejudice.”
to dismiss the action with
If
1989, following
the first
Boyle
anyone
at which Justice
can show me some-
membership
comprised
thing
veracity
to sustain the
of that state-
*7
Bakes,
Johnson, ment,
Shepard, Huntley,
Justices
abjectly
I shall consider
and humbly
Towles,
Judge
sitting
and
Pro Tem.
withdrawing
participation
On
from further
rereading
Huntley’s opinion,
particular
Judge
Justice
it is
Magnuson’s
case.
soundly present-
seen that his views were
comprehensive
well-thought
and
out memo-
ed,
Judge
any
with Justice Johnson and
Towles
randum decision did not contain
“in-
accordingly concurring.
language,
Both Justices
tent”
nor did he at the reconsid-
dissented,
Shepard and
seizing
anything
Bakes
onto eration
state
whatever
prejudice”
they-do
reaffirming
the words “with
which
relative
an intent to dismiss
any regard
highly singular
reviewing
prejudice. Additionally,
without
for the
with
decision,
writing
Judge
respon-
fact that in
his own
extremely
Allstate’s
well-written
Magnuson carefully
grounds
page
stated
HIS
dent’s brief
dis-
dismissing,
which
“Ultimately,
had to do with
closes this statement:
the
being brought prematurely,
granted
the action
and
court
Allstate’s motion for summa-
my
repetition may bridge
1. In a final effort to dissuade
on
brothers
concluded that sheer
the
ways,
gap.
the Court from the error of their
it is
communication
III,
prejudice,
dismissal with
judgment, R.
mention of a
ry
Vol.
and entered
III,
objected
by plaintiff.
that it was
Vol.
142.”
accordingly,
an order
R.
competent
read the or
Obviously,
counsel
Making majority’s lack of
conversan-
namely
Judge Magnuson,
at a
der as did
remarkable,
cy
the more
the record all
with
taking for
trial
glance,
granted
and
days
apparently
it
a full eleven
later
indeed
drawn an order
would
have
on
placed
the desk
Allstate’s counsel
Judge Magnuson’s
according to
which was
which coun-
Judge Magnuson the order
of
direction,
eyes of
and in the
both behold
accord-
but which was not
sel had drafted
judge
ers—the
brief writer —“with
direction,
puts me
ing to
court’s
prejudice” went unnoticed.
This is
poles apart
justices.
from the other
but serious business.
nitpicking,
not mere
judge,
whose trial court de-
district
some, and
that we win
Any attorney knows
termination four members of this Court
game.
in the name of the
lose some—all
we
reversed,
precipitately
may
be cha-
suffered, it
with
when a loss is
comes
But
(and I)
grined
learn
how he
from them
poor grace
be confronted with such
Queen’s English. Speaking
misread
of
glaring-
of
is so
misportrayal
the record as
summary judgment,
motion for
Allstate’s
ly
judge, whose
visible here. The district
the Court’s
would have its readers
being carelessly over-
correct decision is
believe that there was
intervention
turned,
overly
learn-
pleased
cannot be
on
of defense counsel’s inadvertent or diaboli-
facts
circumstances as set
ing that the
of
cal hand involved
the manner
be,
judicial
in the record can
divine
forth
district
termination
“[t]he
right,
so that an
will read
distorted
(Judge Magnuson) granted
Allstate’s
smoothly
very
indeed.
motion for
and dis-
opinion in
The Court’s first
this case
preju-
missed Sullivan’s
with
2,May
pointed
out
issued on
1989. As
out,
dice.”
taken pains
point
As have
Huntley
opinion,
in that
the case
Justice
beginning
ago (February
some time
prior
us one
time. See
had been beforе
1990),
way
happened.”
it
“that ain’t
Ins., 111
v. Allstate
Idaho
court, Judge Cogswell,
The district
had be-
(1986).
opin
Court’s
fore him the clerk’s record and the same
Sulli
ion reflects the
facts: Julie
transcripts as
five
are available
being
unin
injuries on
struck
an
van’s
us,
undoubtedly
it
finds
remarkable
by three arbi
sured motorist were found
that,
says
happened,
as the Court
it
“Sulli-
$292,851.13;
neg
ters to total
her share
objected
van
to the dismissal with
ligence
percent;
set at 35
and the
dice____”
Judge Cogs-
I feel certain that
negli
uninsured motorist’s share
join
noting
would
me in
that there
well
percent.
gence
Allstate’s
then would be
unitary
dismissing
prej-
no such
act
with
coverage
maxi
uninsured motorist
was a
udice,
objected
and that “Sullivan
sim-
...”
$20,000,
exposure
paid
mum
ply
happen.
did not
arbiters, it
receiving
also
the award
Magnuson’s
memorandum deci-
$2,000
paid
payments
under the medical
days
was dated
1985. Three
coverage
policy (purchased by
of the same
Sullivan’s counsel filed mo-
pro
parents). While the arbitration
Julie’s
thereafter
tion,
objection,
on,
parents
going
the Sullivan
cess
(in
Allstate,
that motion was to reconsider
that one
Julie
an action
commendably
respect
majority
reads
handling
alleging negligence in
and in
accurately)
claim,
its memorandum de-
plus
the record
vestigation
bad
Sullivans’
*8
cision,
entry
delay
to
the Order
responsibilities,
“and
as
its
with result
faith
to
Summary Judgment,
for the reasons
on
visited
Sul
ant emotional distress
requested
this mat-
district
that the
Allstate moved the
livans.
defendant
pending
summary judgment
which
stayed
Judge Magnuson,
ter be
an arbitration
for
dismissal,
entry
yet
completed,
alternatively
the matter
or
of a
has not
process was
(emphasis
stay
138
the arbitration
premature.”
herein is
R.
until
added).
made
That one and
motion
no concluded.
ruling
Judge Magnuson
report-
as
stated.
Idaho at
ed
Shepard
Justice
was:
Counsel for the Sullivans did not on their
initially granted
appeal
any way challenge
in
The district
contest or
that
court
summary judgment,
observation;
motion for
con-
they
inept.
were not
that
cluding
policy
that where an insurance
Having
challenged
finding
that
of the
requires arbitration in the event of dis-
proceedings,
arbitrators
district
agreement
involving an uninsured mo-
counsel knew that it could not
raised for
be
claim,
required
torist
an insured is
appellate
the first time at the
level. Case
pursue
prior
bringing
arbitration
proposition.
law is abundant
that
against
the insurer. We do not Moreovеr,
damages
stagger
the total
were
disagree.
and,
ing,
had Allstate sold uninsured mo
Sullivan,
There is no contention P.2d The Mendelson clause was plaintiffs arbitration almost identi- of facts that аre cites a set Idaho, strongly arbitration is It this Court. waived. those before cal - also that the It should be noted as favored. in the same fashion presents claims the first to invoke lit- plaintiffs Oregon court had The those herein. policy, the insurance determining clause of the insurer difficulty arbitration tle signed agreement required in a culminated as go through must to arbitrate. policy. by the pleadings The Court has reviewed original R., (emphasis in 134-35 and finds on file herein and affidavits any genuine issue there does not exist the de- Therefore, concludes this Court fact. material entitled to fendant is R., I, 131. cause of action dismissing plaintiffs’ defendant, a matter of as against case is whether
The real issue in this law. bring can an the insured pay for refusal to against the insurer R., of Dismis- Order lia- motorist claim
uninsured Eismann, provided: sal, by Mr. as drawn before motorist is de- bility the uninsured matter December On parties by agreement termined hearing on Motion regularly for came on Appellate The Idaho by arbitration. Defendant Judgment by Summary dealt this issue Courts have not plain- Company. Allstate Insurance holding in the beyond their Carter [v. Man- by David A. represented tiffs were case, 92 Id. Ins. Cascade [438 Co.] Kaiser; defendant A. ko and Bruce (1968)]. P.2d 566 Eismann, represented Samuel of action concludes a cause This Court Teresa A. Sher- H. Frank Johnson pay an refusal to an insurer’s based on argument of heard the man. The Court exist un- claim cannot motorist uninsured noted, and previously the date counsel on motorist liability of the uninsured til the herein, file the Motion on has considered the insur- adjudicated and is admitted consisting thereto including attachments pay the claim. refuses to er then Eismann, the Arbi- of Mr. of the affidavit into between Agreement entered
tration respective their parties and concludes the insured This Court Arbi- the American the rules of through go required to be should first Association, Demand and the motorist tration an uninsured arbitration of 1984; September dated Arbitration claim, by the automobile required and con- having reviewed also the Court an action bringing policy, prior files herein on the records sidered a bad the insurer faith *10 having file in the certainly above-entitled case and would indicate that those should altered____” issued and filed herein its Memorandum any way be in Tr. Decision, good appearing time, cause Judge Magnuson, at that Vol. 13.. therefor; him, copy asked counsel if he had a he, Judgе, obliged
IT IS HEREBY ORDERED that De- did not. Counsel Summary Judgment fendant’s Motion for judge judge copy, with a and the read it. hereby granted is and Plaintiffs’ Com- place brought then took plaint hereby prejudice dismissed with hearing to a close: attorneys’ and without costs or fees to record, THE For the I am not COURT: party. either taking judicial notice of the House of this_ DONE IN OPEN COURT Representatives Bill or whatever it of_, day play role in was. Its existence will not
my determination of this case. Okay, opportu- the Court had an [has] Judge District nity to review its Memorandum Deci- by: Presented opportunity and an before this hear- /s/ Samuel Eismann ing plaintiffs’ support to review brief Eismann Samuel Motion For Reconsideration. And of this Attorney for Defendant by upon reflecting, going I am to stand my original decision. R., I, 142-43. I interesting This is an field. wasn’t previously
As has been noted some time that Mr. Eis- aware of these decisions Bistline, February ago, J.’s today.2 They mann into court 1990, the arbitration award itself did not got interesting to read. But I’ve proceed- are surface in the courtroom or court candor, say my in all determination was ings until the court with counsel convened So, p.m. deny plaintiffs’ I aware of them. at 2:15 to hear made before was of the dismissal they play motion for reconsideration do not a role in the decision. Magnu- by Judge virtue of I occurred I Order that And have reviewed the memorandum decision and the order son’s prepared, and that’s what meant signed prepared by counsel and Allstate’s dismiss the to do the decision is to Judge Magnuson. action. by Judge Mag- award was not considered prepare such an order? you Would agreement to nuson. He did consider the you. Thank arbitrate, however. Is all causes of MR. MANKO: minutes of the In addition to the action? is now found that we Dismiss the action. THE COURT: reporter’s transcript of that short have a to a (Thereupon proceedings came transcript illuminat- hearing. The is more close.) which were ing than the minutes 13-14. Neither Tr. Vol. hearing was transcript. As the the clerk’s give any transcript minutes nor the and Allstate’s drawing to a conclusion Judge Magnuson was suggestion that presentation by his terminated he order to which aware that the drawn very carefully commenting: “I reviewed signature his differed had affixed Your Honor handed from giv- reasoned; his memorandum decision directive of very I think it’s well down ... eleven-page in his for Allstate en to counsel up [today] that would nothing that comеs Court, by the decision: points raised address the ruling U.S. Dis- case made in an unnamed question, which counsel for All- cases in
2. The Judge Ryan, Judge of a Haman’s to the consisted Harold state furnished trict District, Tiki, Inc., al., County, decision of Ada First Fourth Judicial Kon et decision in Nichols v. Savings Federal Court, in United First County. Newhouse Kootenai District Co., and a Transamerica Ins. Loan Ass’n. v. & . Therefore, Although the first sentence of Justice this Court concludes the de- ap- Boyle’s opinion acknowledges fendant is entitled to summary dismissing plaintiffs’ peal denying is from an order *11 against defendant, judgment, again mentions in later the as a matter of which he never, never, never pages, law. the pertinent concern for the rules shows attorney for the defendant is here- namely summary judgment proceedings, to by preparе requested to a suitable Order liberally are construed that the facts to be Summary granting Judgment the de- is party at whom the motion favor fendant, provided herein. nonmoving given party is directed and party This directs each shall be Court inferences of all favorable benefit responsible attorneys’ their fees for own might reasonably be from the which drawn this has herein. The Court finds matter hap- has and circumstances. What facts defended, by or not been either majority pened jumped is has here party, frivolously unreasonably or rule, gun, wholly and unmindful of without foundation. unmentioned, goes has redecided which BE IT SO ORDERED. judgment, motion for summary defendant's Wallace, Idaho, day this Dated 16th grants it. Not one word in the clerk’s April, 1985. record, reporter’s transcript can standing seriously be contended as R., рroposition that the award was arbitration obediently put Allstate in his Counsel for by Judge Magnuson as a indeed considered dismissal, provision drafted order a him, he the record when before fees, provision attorneys’ a for no costs or 1985. wrote his own decision secretary, perhaps, but must have inad- As well illustrated his remarks: vertently sandwiched in the two words reflecting, going I stand “[u]pon am being such prejudice,” “with almost a mat- my original decision ... and that’s what ter of rote more than most where often do decision dismiss meant to is to although with prejudice, dismissals are period, and un- the action.” Period means are specifically prejudice, some without der rules it ill-behooves course, simply some are Of it dismissals. Court construe four members of this well-recognized that a dismissal which is rеsisting mo- language party alleged not based on the merits of the which, all judgment summary controversy operate does not aas dismissal things, was for a dismissal. prejudice. In this case the court sim- dismiss, ply that the concluded decision made in the memorandum deci-
which was prior appear- to the arbitration award courtroom, ing in his would nevertheless stand. Idaho, Plaintiff-Respondent, STATE of conclusion, day, Justice Hunt- v. ley’s is better reasoned than what SMITH, Edward Neil offered, portions has the Court Defendant-Appellant. my been the nucleus views Particularly his. we No. 17550. concur with are both Judge Cogswell aware that first Supreme Idaho. Judge Magnu- conclude that the decision of Complaint in son was “to hold that March 1990. prema- No. 23040 Case [Sullivan /] Rehearing Denied June turely in that a of action had filed not then arisen because of proceeded
proceedings [which had not been waived].”