*1 416 H. TROUT,
JAMES Appellant, Plaintiff and v. BENNETT,
ANDREA as an individual and as Ex State Auditor and Officio of Insurance; Commissioner THE STATE OF MONTANA; LIFE CO.; THE JOHN ALDEN INSURANCE CO., PHOENIX MUTUAL INSURANCE THE Respondents. Defendants and No. 90-497. Briefs March 1991. Submitted on April Decided 1992. St.Rep. 303. 49 Mont. 416. 252 830 P.2d *2 Motl, Sherwood Reynolds, Reynolds, James P. Appellant: For Wright, Helena. Murfitt; Mulroney, Luxan & For Michael J. Respondents: Keller, Drake, & Reynolds, Sternhagen Gillespie, Richard E. Frankino, Kellner, Alke, Johnson; Hughes, Sullivan & Stephen M. Helena. the Court. Opinion WEBER delivered the
JUSTICE (Trout), judgment in action appeals the adverse James H. Trout Ben- agent against Andrea as a licensed non-resident life insurance nett, of Insurance. District individually and as Commissioner The" District, Clark-County, Lewis and bifur- Court for the First Judicial In the District Court parts. portion the action into two the first cated statutes, him for certain and fined $250 held that Trout violated appoint- carrier before he had an placing business with insurance ment, advertising agency. him himself as an and also fined $250 summary judgment entered portion, In the second the District Court Bennett, The Dis- individually and as Commissioner. for defendant not a ’’person” that Andrea Bennett was trict Court concluded that Andrea Bennett was 42 U.S.C. and also concluded appeals. part immune. Trout We affirm quasi-judicially in part. reverse the Court are: issues before *3 (1985)? 33-17-201(4), MCA
1. Did Trout violate § 33-18-203, 2. Did Trout violate MCA? § Commissioner, immune Bennett, individually and as 3. Is Andrea from 1983 claims? § Andrea immunity render quasi-judicial
4. Does the doctrine of Bennett, Commissioner, immune from suit under individually and as remaining claims? state law as to the motion to failing in to rule on Trout’s 5. Did the District Court err complaint? file a second amended agent in the licensed as an insurance
Trout is a California resident in 1983. A in Montana He started his business State of California. by to him the agent’s license was issued life insurance non-resident listed The license (Department). of Insurance Department Montana disability life and Trout to sell a California address and authorized The license further insurer. in Montana as a non-resident insurance accept premiums nor he not ’’solicit business provided that could n underthe name of with, agency, conjunction or in employing [his] any organization.” other under the name of First, sparked investigation Depart- Two events the of Trout. the a Trout phone inquiry ment received as to whether was licensed to in do business Montana as ’’Trout Insurance” and received a letter Second,
complaining Department about Trout’s activities. the containing received a letter from Trout himself the letterhead ’’Trout Insurance”, listing Billings his business address. Department investigator proceeded
The on assumption Trout, a agent, permitted licensed non-resident was not to maintain Billings Montana, a office and sell insurance in and that stationery telephone and book ads indicated he holding himself public out to the as a resident insurer. Trout filed the assumed Agency” business name of ’’Trout Secretary Insurance with the of State, 30-13-203, MCA. The Department investigator in- formed Trout he could not operate an office or do business as Trout Insurance because he was not licensed as such. completion investigation,
After a filing by of complaint Department, giving hearing, of hearing notice of and hearing before a examiner at which both Trout and the Department represented were in person counsel, hearing and proposed examiner made fact, findings of 28,1986. conclusions oflaw and May order dated Commissioner reviewed the same and turn made extensive find- ings fact, of of July conclusions law and order dated 1986. The Commissioner concluded that Trout had violated the statutes respects number of and order revoked non-resident license for twelve months and also pay ordered that he an administrative fine $2,500 office of the Commissioner. present
Trout then commenced the alleged action which he Andrea individually Bennett and as Commissioner had violated rights various of his constitutional and damages caused to him. He sought 16, 1986, a reversal of the July Commissioner’s order of regard fine, statutory to the requested violations and and also reversal suspension. By of his license complaint same Trout damages claimed various theories -under U.S.C.
also a rights by requirement denial constitutional reason of the taking sign down a ceasing selling Montana, insurance in as well as other constitutional tort theories. The District Court *4 bifurcating by entered an order the causes action covered the complaint. bifurcation, part
As the first of the the District Court considered appeal from the order of the Commissioner. The District Court 33-1-711(4),MCA, considered the matter under provides § 420 evidence, the District Court shall
upon receipt transcript and hearing, is that the District Court following hear the matter and transcript, exhibits and docu- contained in the consider the evidence may additional evidence as be offered together ments with such other by authority, under that the District Court party. Proceeding either findings and made new of fact and con- reconsidered the evidence reversed the determination of the clusions of law. District Court respects which are not involved in this Commissioner in a number 25, 1989, 31, 1990, August January appeal. By its orders dated 33-17-201(4), Trout had violated § the District Court concluded that (1985), by John Alden placing business with Life Insurance MCA Commissioner, issued Company appointment before he held offense; for the and also concluded that Trout and fined Trout $250 MCA, as In- 33-18-203, by advertising himself ’’Trout violated § The District Agency” surance and fined Trout for that violation. $250 to the regard the Commissioner specifically Court reversed Trout continue to sell in- of his license and allowed suspension fine. interruption, and also reversed $2500 surance without 30,1990, May step process, in the bifurcation As the second summary judgment made District Court ruled on motion Bennett, The District individually and as Commissioner. Andrea “person” was not a Court first concluded that Commissioner judgment 1983, granted summary in the under 42 U.S.C. concluded favor on claims. The District Court Commissioner’s 1983 (1989), 58, 109 Michigan v. State Police 491 U.S. Dept. that Will 2304, 45, controlling. Court 105 L.Ed.2d The District S.Ct. stated: Police, 58, 491 U.S. 109 S.Ct. Michigan Dept.
Will v.
State
his amended
decided after Trout filed
105 L.Ed.45
U.S.C.,
Section
disposes of this issue.
complaint,
monetary damages, provides
Trout seeks
provision under which
law,
of state
who
any “person” acting under color
violates
party.
rights
injured
is liable to the
Will
another’s constitutional
held that
Supreme Court decision which
Michigan
affirmed a
acting in
or her
official
official
neither a state nor
state
U.S.C.,
72,109
at
Section 1983. Id.
capacity
“person”
is
2312,
... Will holds that against a suit the official capacity in his her official is not official concluded that against is the official’soffice.”Will rather a suit but *5 subject are to suit “persons” neither the nor state officials states amended Although alleges under Section Trout in his com- 1983. unconstitutional, that statutes are constitution- plaint certain U.S.C., rely exclusively on 42 complaint al counts in the amended relief, declaratory or request injunctive Section 1983 for and do not Summary dismissing per- [Andrea Bennett] both judgment, relief. sonally and the Office of State Auditor and Ex Officio Commis- alleging on the constitutional sioner Insurance counts violations, proper. is therefore The District cited v. Board Medical Koppen Court Examiners 233 Mont. 759 P.2d and that the concluded Commis remaining was quasi-judicially
sioner immune from suit granted counts and summary judg Commissioner’s motion for result, ment on those counts. As a District Court dismissed the individually Commissioner and as State and Ex Officio Auditor Insurance, prejudice. Commissioner of with brings appeal Trout parts proceed- this from both of the bifurcated ing.
I (1985)? 33-17-201(4), Did Trout violate MCA § (1985) 33-17-201(4), Section provided: agent MCA place “No shall any business, other than coverage risks, any of his own with insurer appointment as to he does not then agent hold an license as or under this chapter ....” 33-17-201(4),
Trout was violating (1985), by fined $250 MCA § placing John Company business with Alden Life Insurance before he an held appointment to do so issued Commissioner. The District Court that found Trout Life requested John Alden Insurance Company to him appoint agent as a non-resident The Montana. District Court prior found Trout solicited insurance business receiving a appointment validated from company as was required Commissioner. record contains substantial support evidence to that finding. affirm holding
We the conclusion ofthe District Court in that Trout (1985). 33-17-201(4), did violate MCA
II 33-18-203, Did Trout violate MCA? 33-18-203, MCA,
Section provides: circulate, make, disseminate, or person publish, place No shall cause, made, public, directly indirectly, or to be before the or disseminated, circulated, placed public, or published, before newspaper, publication or or in the form of a magazine, other notice, letter, any circular, poster or or over radio or pamphlet, way, advertisement, an- television station or other nouncement, assertion, containing any repre- or statement sentation, respect or with to the business statement respect any person in the conduct of insurance untrue, business, deceptive, or mis- his insurance which is added). leading. (Emphasis *6 as an He “agency.” maintains that he never advertised contends
Trout “Trout Insurance” and Billings listings that his book as Jim phone agency. represent Insurance” did not an As the Commissioner “Trout out, Court, alleged pointed and the District Trout the as found Complaint: in his following Amended name, Agency,” registered
12. Trout an assumed “Trout Insurance 21, Secretary January 1985. There- the Montana of State on stationery with the name Trout In- after he ordered and used Billings of his for Agency and the address office surance relating to in Montana .... correspondence his insurance sales added). (Emphasis signed that Trout had District Court further concluded issued to him letter indicated that the license was
restriction individual, as an represented agent. as Trout himself but that had findings to the of support there is substantial evidence We conclude holding that Trout violated District Court. We affirm the 33-18-203, MCA. §
Ill Commissioner, Bennett, as immune individually Andrea and Is from 1983 claims? § provides: 42 1983
Title U.S.C. § ordinance, who, any statute, regula- Every under color of person custom, any Territory or the District of tion, usage, of State or subjected, any citizen Columbia, of subjects, or causes to be jurisdiction thereof to the person States or other within United secured rights, privileges, or immunities of deprivation laws, injured in an party shall liable Constitution
423 law, proceeding at in equity, proper action suit or other redress .... case,
Trout on points to the reliance the District Court the Will described, as argues applies only above Will those claims against capacity.” argues Andrea Bennett in her “official He further provides protection against “per Will no for claims her in her Will, sonal capacity.” Trout concedes that under Andrea is Bennett immune her capacity against official from the 1983 claims her. § argument emphasized Trout’s is further in his brief special regarding _ U.S. _, 358, case v. Melo 112 S.Ct. Hafer L.Ed.2d which was decided on November 1991. acting scope Andrea Bennett contends that she was within the her Will, official duties and employment. She maintains that under neither state acting nor a state official in his or official capacity her “person” is a under 1983. Andrea Bennett further contends that bearing has no disagree. the outcome of this case. We Hafer issue, dispositive Because is ofthis we will discuss it at some Hafer length. Hafer sought election as Pennsylvania. Auditor General of During campaign given she of persons a list names who allegedly jobs secured their in the through Auditor General’s office payments to employees. Shortly former after becoming Auditor General eighteen employees. Eight she dismissed of those employees sued Hafer Federal asserting District Court a claim U.S.C. respondents sought 1983. Other damages they also because alleged they had discharged been because of their affiliation political and support opponent. for Hafer’s Supreme The United States Court *7 granted question may certiorari “to address the whether state officers be personally damages held for upon liable under 1983based actions § capacities.” taken in their official Supreme The United States Court length discussed at comparison some between official capacity capacity suits and personal pointed personal suits. The court out that capacity seek to impose liability suits individual for actions under law, color of state and as a it personal result is sufficient to establish liability by showing under official under 1983 acted color § state deprivation right. pointed law caused of a federal The court out specifically how this is the above definition quoted covered from 1983. § discussing further,
In Supreme pointed the distinction Court out that in are capacities persons state officials sued their official not they for purposes identity of suit because assume the contrast, sued in their government employs By them. officers which individuals, government a to as so that personal capacity come court comfortably capacity fits personal role of a defendant official this the court statutory “person.” point term At within the above turned attempted argue to that the distinction pointed out that Hafer acting when the upon the state official was capacity which theory, pointing injured. accept to this plaintiff was court refused that Hafer requirement of action under state law means out that the her discharging respondents precisely for because may be liable a argued there was authority General. Hafer also as Auditor law, claiming that taken under color of state distinction as to acts support immune. in the Again the court found no such actions were language broad of 1983. to extend emphasized past that it has in the refused
The court
officials, including
immunity beyond very
a
limited class of
absolute
functions, and
President, legislators carrying
legislative
out their
functions,
functions
judicial
special
out their
“whose
judges carrying
from suit.”
requires complete protection
or constitutional status
conclusion,
Supreme
In
support
at
of that
Hafer,
S.Ct.
364.
to
officials are not entitled
absolute
Court stated: “State executive
Rhodes,
at
supra.” Id.
immunity
their
actions. Scheuer v.
official
Will, there should not be
Hafer
that under
364.
further contended
in federal court
recovery
Eleventh Amendment bars suits
because the
paid
must
seeking
impose
liability
a
private parties
issue, the
treasury.
discussing
In
this
from
funds in the state
public
stated:
Supreme Court
714]
52 L.Ed.
Young,
[28
“[S]ince Exparte (1908),” Eleventh Amendment has settled that the we said “It been he by claim that confronted a shield for a state official provides no the color of state right federal under deprived had another a parte Young apply Ex does not where law.”... While the doctrine treasury, damages awards damages public from seeks plaintiff permissible “are a federal courts against individual defendants they notwithstanding fact that remedy in some circumstances not is, Amendment does That the Eleventh public hold office.” ... personal impose “individual against suits erect barrier liability” 1983. on state officials Hafer, 112 at 364. S.Ct. held: unanimously discussion, the Court
After such an extensive *8 officials, capacities hold that state sued in their individual We “persons” meaning are within the of 1983. The Eleventh Amend- § suits, absolutely
ment does not bar such
nor are state officers
personal liability
solely
immune from
under 1983
virtue ofthe
§
their
“official”nature of
acts.
Hafer holding Hafer, In connection we out that the point Bennett, in the complaint present amended case named Andrea H. as an and as State and Ex individual Auditor Officio Commissioner title, alleged following of Insurance in the and also in the com- plaint: brought against “This action is this Defendant in her official and personal capacities.” Hafer, conclude that
We under which had not been decided at the Court, summary judgment by time of the the District the District interpretation holding Court’s of Will as that neither states nor state subject officials are “persons” to suit under must be reversed. We hold that under the United Supreme States Court decision Hafer, Bennett, Andrea State Auditor and In- Commissioner of surance ofMontana capacity was sued Trout in her individual “person” as a result can be classified as a within meaning of § officer, and that as such a state Andrea Bennett not is absolute- ly personal liability solely by immune from under 1983 virtue ofthe “official”nature ofher acts. Wereverse the District Court on this issue proceedings and remand for further consistent opinion. with this
IV immunity Does the doctrine of quasi-judicial render Andrea Bennett, individually Commissioner, and as immune from suit under state remaining law as to the claims? immunity
Trout concedes that quasi-judicial doctrine of protects filing charges against the Commissioner from her actions in him, holding hearing, of the administrative and the ultimate him code finding provisions. decision to have violated various How- ever, argues he that a distinction must made between these functions, quasi-judicial and the actions in behalf of the Commis- charges. In prior filing particular, sioner to the of the administrative through agent, her Dan urges he that the actions of Commissioner him McGowan, ordering sign Billings from his office to remove his requiring that he cease the sale of insurance in Montana license, clearly rights constitutional his non-resident violated his protection, speech. to travel and free process, equal due freedom might investigation made in order to agree While Trout *9 nature, in filing charges quasi-judicial a of provide basis the regard must made with to the actions he contends a distinction argues this essentially forced him out of He issue which business. summary judgment of the questions preclude involves fact issue. Comp.] In v. Court the 13th [ex State rel. Div. Work. District [of of (1990), 225, 805 1272, P.2d this Court addressed Dist.]
Jud.
246 Mont.
Compen
the issue whether the State and the Division of Workers’
of
immunity for
protected by quasi-judicial
sation are
their admitted
an
negligence
renewing
privilege
employer
in
the
of
to self-insure
Law.
Court held that the
Compensation
under the Workers’
This
of
central to the determination
performed
nature
the functions
were
issue,
immunity to apply
the
and stated: “For
the function of the
than
or mini
quasi-judicial
Division must be
rather
administrative
sterial.”
Court,
225,]
[246
v.
Mont.
State District Furthermore, following the the definitions: provided Court midway
Quasi-judicial are those which lie between the functions such judicial ones. The lines them from separating and ministerial indistinct; but, terms, law, necessarily general the ... are when duty by officer the implication, words or commits facts, acting them, way in a looking upon not which it into directs, judicial, in its the specifically but after a discretion nature quasi-judicial. function is termed line, has defined as an act
In the a ministerial act also been same manner, law legal in obedience to the or performed prescribed in a to, authority, regard without exercise legal the mandate of, upon propriety of the acts judgment of the individual being done. Koppen Court v. distinguishing at In State v. District from
Id. 1275. 173, 233 Mont. P.2d we Board Medical Examiners found in quasi-judicial definition of function looked at 2-15-102(10), MCA: adjudicatory exer- “Quasi-judicial means an function function” judgment and discre- involving exercise of agency, cised .... making determinations in controversies tion The Court stated: distinguishable case before us is Koppen. Koppen, from In allegedly Board failed to respond complaints, adversarial in
nature, that it regarding physician’s received a practice fitness to medicine and to take remedial action. We noted that the action or inaction in Koppen Board was its decision not to revoke or physician’s limit the license or initiate such action when faced complaints concerning professional conduct. There was no allegation that the Board failed to even consider the complaints.
Here, we first note that there is no controversy from the outset as in Koppen. The facts merely involve the filing application of an rather than an adversarial setting involving dispute a or con- troversy. We immunity conclude that does not attach because the expressly Division is not designated quasi-judicial board, see § 2-15-124, MCA, generally see Chapter 15, MCA, Title nor was it (Citations performing Omitted). quasi-judicial (Em- function ... *10 phasis original.)
Id. at 1275.
In pertinent part 2-15-102(10), MCA, provides:
(10) “Quasi-judicial function” means an adjudicatory function exercised an agency, involving the judgment exercise of and discretion in making determinations in controversies. The term includes but is not limited to the functions of interpreting, apply- ing, enforcing and existing rules and laws granting or denying privileges, rights, benefits; or issuing, suspending, or revoking licenses, permits, certificates; and determining rights and inter- ests of parties; adverse evaluating passing facts; and awarding compensation; fixing prices; ordering action or abatement of ac- tion; adopting procedural rules; holding hearings; other act necessary to performance quasi-judicial of a function. On question of whether or not investigation an by the Commissioner’s office should quasi-judicial be classed as nature, the case of Gerber v. Commissioner Ins. 242 Mont. of P.2d controlling: is discretionary
As a function, the Insurance Commissioner’s con- duct investigation of an based on a complaint against consumer’s an insurer protected by is quasi-judicial immunity. result,
As a investigation of clearly protected Trout is quasi-judicial immunity. investiga- not involve the issue which concerns us does narrow agent of the Commissioner itself. The issue is whether the
tion of sign stop the sale properly required Trout to remove his An- of Montana Code Our review of the 1985 sections insurance. not disclose particular to these actions does applied notated which authority the Commissioner or any statutory granting to provision insurance require agent to an or any agent of the Commissioner Trout, or alleged by in the manner producer sign to take down a far as the down his office so requiring agent producer or to close concerned, alleged by Trout. The record again is as is sale ofinsurance incomplete that we confusing and so aspect before us on this is both alleged were specific actions which are not able to determine the Commis- Dan McGowan in behalf of part have occurred on the of sioner. of material fact remaining conclude there is a issue
We therefore alleged con- summary judgment regard precludes closing of sign the Trout and the required taking duct of the down of it to reverse the District appropriate Insurance. We conclude is Trout specific this narrow issue. Court on damages by reason of
In addition Trout claims that he suffered companies suspension of his the notification of various insurance 33-1-711(2),MCA, stay derogation provision ofthe automatic which in 1985 read:
(2) therein, the court shall appeal Upon filing of the notice filing such shall juris and shall determine whether have full diction from, except that stay appealed the order or action operate as a appeal the notice of shall following filing in the instances judgment appealed pending from automatically stay the order the appeal: of the district court on (a) the license of an or revocation appeal suspension from added.) solicitor, agent; (Emphasis line surplus
agent, *11 steps precise inadequate for us to determine Again the record is of material fact there is an issue Again appears taken. it which were as well. aspect narrow summary judgment on this precluded regard with summary judgment is reversed hold that We therefore alleged removal immunity as to quasi-judicial claim of to the improper business, alleged closing of the insurance sign, stay automatic light in of the companies notification of insurance (1985). on these 33-1-711(2), We remand MCA provided for in §
429 specific proceedings by issues for further the District Court consistent opinion. this
V failing Did the District Court err in to rule on Trout’s motion complaint? to file a second amended 15(a), M.R.Civ.P., provides responsive pleading
Rule that after a served, may only by has a party pleading been amend his leave of party, court or written consent ofthe adverse and that “leave shall freely given justice requires.” when so Trout filed his motion to complaint summary judgment against amend his after was entered However, him. provide any we note that he failed to basis for such Instead, amendment. request his motion consisted of a one sentence any explanation why to amend without he wished to do so. We conclude that there part was no abuse of discretion on the denying District Court in Trout’s motion to amend and hold that such a denial proper. I, II,
We affirm the District Court on Issues and V.We reverse the regarding claims, District Court on Issue III and on the specified IV, narrow issues under Issue and remand for further proceedings opinion. consistent with this
CHIEF HARRISON, JUSTICE TURNAGE JUSTICES GRAY and McDONOUGH concur. TRIEWEILER, specially
JUSTICE concurring part and dissenting in part:
I concur in part part opinion majority. and dissent in from the ofthe My reasons are headings assigned discussed under the to the various appellant. issues raised
CIVIL RIGHTS ACTION I majority’s concur with the reversal of the District Court on this issue, necessary but do not feel that it was to make that decision dependent Supreme on the Court decision v. Melo Hafer U.S. _, 112 S.Ct. 116 L.Ed.2d 301.
In complaint, plaintiff individually sued Andrea H. Bennett personal capacity, her and alleged that she violated his constitutional rights in the manner in personally applied provisions which she alleged the Montana Insurance specifically Code to him. He applied way Bennett the Montana Insurance Code in such a as to the Privileges violate and Immunities Clause of the U.S. Constitu- *12 430
tion, IV, 2, Equal Article Section and the Protection Clause of the alleged Fourteenth Amendment to the Constitution. He also that the Commissioner acted under personally deprive color of state law to him due in property process of his without of law violation of the Fourteenth Amendment to the United States Constitution. plaintiff’s allegations were not controverted. Bennett moved summary judgment purely for her based on assertion that she was Summary judgment granted by immune from suit. was the District purely Court on its conclusion that Bennett based could not be sued Rights under the Civil Act Supreme because of U.S. Court’s Michigan Dept. (1989), 58, in decision Will v. State Police 491 U.S. of 2304, 105 However, grant immunity 109 S.Ct. L.Ed.2d 45. Willdid not 1983, public officials from suits under 42 U.S.C. when the suit is upon allegations based personal public misconduct official. Will, plaintiff alleged In that he had promotion been denied a Michigan within the of State Police Department improper for an joined reason. He a Director State Police as defendant in his capacity alleging official that the per without director himself had sonally engaged any culpable in conduct. The Willdecision stands proposition that state officials cannot sued in their official capacity simply respondeat superior based because such a suit is individual, reality against not in the official as an but rather against his office. against a upon
Where 1983 action state official is based misconduct, personal personally official’s he is still liable to suit. The liability explained Kentucky in in difference v. Graham 159, 3099, 114, following in 473 U.S. 105 S.Ct. 87 L.Ed.2d language:
Proper application principle damages against of this actions public requires officials careful adherence to the distinction be- personal- official-capacity tween suits. Because this distinc- apparently lawyers tion continues to confuse and confound lower courts, attempt clearly through we to define it more concrete examples practical per- and doctrinal differences between actions. official-capacity sonal-and
Personal-capacity impose personal liability upon suits seek to under color of state government official for actions he takes law. 232, 237-238, 40 90, See, Rhodes, e.g., Scheuer v. 416 U.S. L.Ed.2d (1974). 1683, suits, Ops.2d Official-capacity 94 S.Ct. 71 Ohio 474 contrast, “generally represent only way pleading another an
431
against
entity
agent.”
action
of which an officer is an
Monell v.
City
Services,
658,
New York
Dept.
690,
55,
Social
436 U.S.
n.
(1978).
[2035,
L.Ed.2d
long
n.55]
Graham,
165, 166,
3104-05,
Therefore, where it can be shown that a public official acting under color personally of state law deprivation caused a of the claimant’s rights, federal personally that individual is still liable under 42 U.S.C. 1983. The District Court erred when it held personal that the against suit by Bennett was barred Supreme U.S. Court’s decision Will, regardless of the outcome in Hafer. reasons, For these I concur in the decision to reverse the District summary Court’s judgment in favor of the defendant Bennett which dismissed plaintiff’s pursuant claims filed to U.S.C. 1983.
QUASI-JUDICIAL IMMUNITY The issue of whether Bennett’s acts which are complained of were ministerial, opposed administrative and as quasi-judicial, to is an one, interesting by probably itself was preclude sufficient to summary However, judgment. it seems to me that there is a more important issue involved with dismissal of potentially upon judicially quasi-judicial meritorious claims based created im- munity. II, 18, Article Constitution, Section of Montana provides as follows: state, counties, cities, towns, and all other local governmental immunity injury
entities shall have no from suit for a person to or property, may except specifically provided as law a vote% legislature. of each house of the
myTo
knowledge,
Legislature
the Montana
has never voted impose
vote,
quasi-judicial immunity by
by any
or
other
Therefore,
vote.
%
judicially
immunity
express
contravenes an
provision
create such
ofthe Montana Constitution which this Court is
uphold.
sworn to
Our
Constitution,
responsibility is to enforce the
not to undermine it. For
reason, I
would reverse this Court’s decisions in Koppen v.Board
(1988),
214, 759
Medical Examiners
233 Mont.
P.2d
and Gerber
(1990),
v. Commissioner
Insurance
242 Mont.
SECTION MCA 33-18-203, Section prohibits MCA individual from untrue, making deceptive, misleading regarding advertisements absolutely the insurance There business. was no evidence in this case plaintiff misrepresented anything anyone. ever or mislead plaintiff The District Court determined that violated above by advertising section Agency,” himself as “Trout Insurance when he only However, in fact individually. licensed all of the evidence contrary. was to the letterhead,
Copies telephone listing, yellow his book and his pages advertisement were introduced into evidence at the ad- hearing. ministrative Nowhere on of these documents does the *14 “agenc/’ appear. word
Plaintiff’s letterhead refers to “Trout Insurance.” telephone His listings Billings telephone in the refer books to “Trout Insurance” and “Trout, yellow Jim Insurance.” His advertisement in the pages lists him as “Trout Insurance.” There was no evidence offered plaintiff Insurance Commissioner that being ever held himself out as agency. associated with an
Ignoring ignoring the record and the fact that plaintiff was never charged by the Insurance Commissioner advertising as “Trout Agency,” plaintiff’s Insurance this Court concludes that an error in complaint amended constitutes support “substantial evidence” to findings of the District Court. evidence,
Allegations complaints majoritys are not and the opinion support cites no evidence in of the District Court’s conclusion MCA(1985). 33-18-203, plaintiff person that violated The fact that a could be convicted of statute as broad as this statute without notice charges, absolutely of the basis for the and with no evidence offered support charges, frightening development. is a I would reverse section, that plaintiff that violated the District Court’s conclusion that conclusion. majority opinion which affirms dissent from the (1985) 33-17-201(4), MCA SECTION violating prevents accused of plaintiff statute that was second insurer with whom he does not agents placing from business with an appoint- the nature of the appointment. specify hold an It does not case, appointment In did hold an required. plaintiff ment that is this in California at the time Company with John Alden Life Insurance charges against ofthe policy that he wrote the which formed basis him. pur- to conclude that plaintiff
It would have been reasonable for with California it was reciprocity agreement suant to Montana’s 33-17-403, permissible policy question. for him to write the Section (1985) provides: MCA
An for a nonresident license must be licensed in the state applicant agent ofhis residence to act as for the kinds ofinsurance for which applies licensing he in the state of Montana. The nonresident agent represent only those insurers which he shall be licensed to represent is in the state of his residence and which are licensed to supervisory licensed in the state ofMontana. The insurance official applicant’s certify applicant state of residence must that the is licensed and to the extent of the license. law,
If constituted a violation of the plaintiff’s conduct this case prior it me fundamental of fairness and case principles seems to require law that he is at least entitled to advance notice as to what Papachristou City v. Jacksonville law commands forbids. case, (1972), 110. In this 405 U.S. 92 S.Ct. 31 L.Ed.2d totally plaintiff found to have violated are deficient statutes in that respect. 33-17-201(4), provides exception MCA also for an
Section majority opinion. in the The statute makes which was not mentioned in ... 33-17-1104 as requirements applicable “except provided its as Plaintiff was in fact licensed as disability agents.” to life or insurance disability agent.” a “life and/or insurance 33-17-1104, (1985), provides MCA that: Section may place time to time disability agent A insurance from life or disability life insurer rejected risks in other excess or *15 state, knowledge in this with the authorized to transact insurance agent is so insurers as to which the approval of the insurer or licensed, may receive commission thereon without being required to have a license as to such other insurer.
There is a factual issue regarding whether the policy plaintiff actually prior wrote for John Alden appointment in Montana was an rejected excess or risk. That issue was never addressed However, District Court. if we group assume that the for whom the policy was issued categories, plaintiff fits into either of those did not violate the insurance placed Computer code when he Land ac- count with John Alden. reasons,
For I these do not believe there is substantial evidence to support the District finding plaintiff Court’s violated 33-17- (1985). 201(4), MCA I majority opinion dissent from the which con- was, cludes that there and would reverse the District Court on this issue.
JUSTICE HUNT concurs in the foregoing concurrence and dissent of JUSTICE TRIEWEILER.