*1 Indonesia, or evidence exist in fails VWR Indeed, point test. from the view convenience,

its own its very VWR and

able counsel could just defend anywhere, including

about I Hawaii. would

reverse remand for proceed- further

ings in district court.

Gary BUTLER, Plaintiff-Appellant,

NORTH AMERICAN CAPACITY IN COMPANY;

SURANCE Intermoun Claims, Corporation,

tain an Idaho

Defendants-Appellees.

No. 14-35131

United of Appeals, States Court

Ninth Circuit.

Argued and Submitted December Seattle, Washington April

Filed Anderson, Attorney, A.

Lawrence Law- Anderson, Attorney Law, P.C., rence A. Falls, MT, Benjamin Graybill, Great R. PC, Attorney, Graybill Law Firm Great Falls, MT, Plaintiff-Appellant for Tourtlotte, Attorney, Matthew I. Tourt- Firm, PLLC, MT, lotte Billings, Law Defendant-Appellee North American Ca- pacity Company Insurance Keller, Jones, Matovich, Geoffrey Emily P.C., MT, Billings, Murphy, Keller & Defendant-Appellee Intermountain Claims McKEOWN, TALLMAN, Before: CHRISTEN, Judges. Circuit *2 524 * (the (1971) “Restate of Laws Conflict

MEMORANDUM Corp., ment”). See v. Gen. Motors summary- granted court The district (2000). 1002, 438, 995 P.2d 1007 Mont. Capacity In American judgment im are sections of the Restatement Three American”) (“North and Company surance 148(2), case: sections plicated (“Intermountain”), Intermountain Claims 145(2), 6(2). and Gary concluding are that that and under barred 148(2) con- that the conclude We Idaho has the applies because law tacts, involving claims apply to cases which relationship with evenly misrepresentation, fraud and ap occurrence.1 Butler (a) hand, contacts On the one balanced. and, this in the alter peals determination (d) in law. weigh favor Montana and native, requests the choice- certification con- properly concluded that Supreme of-law issue to Montana (a) But- law because favors tact Montana jurisdiction Court. We have in place took We reliance ler’s § 1291, a and we review decision U.S.C. (d) slightly fa- novo, that contact conclude also concerning of law Morten choice de Commc’ns,LLC, Butler is a sen v. Bresnan vors resident, give more (9th we 2013). For the Cir. reasons below, weight or domicil grant summary affirm the the residence we See deny request. judgment and plaintiff under this contact. Restate- hand, i. the other 148 cmt. On ment diversity, apply sitting we “When (b) law because contact favors Idaho choice-of-law rules state.” representations first received were four AT T & 673 F.3d Coneff (c) see id. Idaho,2 g,3 cmt. does contact as apply therefore were all made representations analysis the most see id. cmt. (e) (Second) Idaho, h. Contact does in the Restatement described * duplicative of received appropriate publica- earlier statements disposition is This not phone in precedent except over the Mon- provided as were received tion and is 36-3, Rule See h. Ninth Circuit tana. id. cmt. parties are familiar the facts 1. The correctly points out that 3.The dissent case, repeat except do not them here we represen- place plaintiff first receives disposition. necessary to our as important so a contact as is the "is not tations place plaintiff on acted reliance agrees, suggests, dissent that g. representations.” Id. cmt. defendant's representation important the most However, single contact determinative $50,000 dis- a fair offer. We 148(2)—including place of under section misrepre- agree. how asked When case, place In reliance. himself, Butler did mention the sented weighed important against con- must be other $50,000 testified offer. final including place where the defen- tacts "[t]he "stuck filis] earlier statements four ... made his dant false (1) craw,” including that Hoffman was a important selec- as contact [which] is (2) likely re- party,” “neutral governing actions for tion of the fraud $250,000 injury, less for his ceive lot than place up pursuing a claim would tie Butler injuries case of conduct defendant's courts, foreign Butler misused c, net, tangible things,” persons or cmt. id. Hoffman later made due That plaintiff first received the where the promise a lot Butler would receive important is as as the representations, which change less than does not our first representations were representations were clusion most of the made, g. portion, id. cmt. and lesser apply Finally, this case because the 6(2), we consider section which dispute “tangible does not involve describes potentially ap- thing;”4 plicable Finally, the extent that analysis choice-of-law (f) applies, As we conclude that it Restatement. was the favors nei- Phil- *3 (b) because, lips, (c) only ther we conclude that state under the terms are applicable here. See agreement, 995 P.2d at 1009. Ac- to re- cording to principles, frain these filing we consider anywhere—not only suit both “the policies relevant Giving Montana.5 due consideration to state the relevant contact, policies [and] of other importance relative of each we interested states and relative 148(2) interests conclude that the section contacts § those 6(b)-(c). states.” Restatement evenly balanced. case, In this Montana and Idaho dif- have Next, we consider the tort con- policies—most ferent clearly demonstrated 145(2). tacts described section This sec- by the fact that Butler a claim has tion adds one additional contact to those law, but not under Idaho law. 148(2), discussed under section and that Moreover, each state an has interest is the center of relationship. applying own law Butler is 145(2)(d). Restatement conclude We that resident, a Montana and Montana has es- strong protection tablished a consumer American, and Intermountain cen- policy protect residents; order its own tered in originally bought Idaho. Butler Intermountain registered is Idaho, he was Idaho, based and Idaho an interest has Idaho, and he later to Idaho to returned protecting its companies insurance in. confront manager of the Idaho store. Ins., fostering Dep’t business. See Cox v. Although these events did 143, 177, (Ct. 121 Idaho App. 180 P.2d involve North American and- Intermoun- 1991). Finally, this the hypothetical time, tain at eventually brought “all of described parties together in this The suit. except contacts are in [Montana] American, store owner contacted North the location the manufacturer.” P.2d Intermountain, which contacted which as- at 1012. has independent ties signed Hoffman, insurance adjuster Scott Intermountain’s principle arranged who meeting Butler at his is in and Idaho is business Lewiston, office in oth- Idaho. Because the center of the relationship. 148(2) er section evenly contacts are bal- Since both Montana and Idaho have a anced, we conclude that the center of the legitimate direct applying interest relationship tips the scale favor we conclude that section case. are neutral. attempts "may dissent tangible intangible”) to characterize But (emphasis or tangible thing, added). ler’s release of as explains the Restatement u[s]ome- .,. times, plaintiffs [will] consist argues per- 5. The dissent that Butler rendered defendant, receiving from relinquishing formance in Montana because that is him, tangible thing, way of as signed release claims. We purchase or (emphasis sale.” Id. cmt. c add agree signing that Butler’s act of a contract ed). tangible Butler’s case does not involve a performance constitutes his under that con- thing. agree it involves a settlement tract, releasing intangible ment See claims. also id. (explaining relinquished cmt. f assets apply the argues structing courts to Restatement. dissenting colleague

Our 15(3)(b); App. Phillips, R. P. by refusing to Mont. court erred consider See district at 1007. fact that this case expectations” of the P.2d The mere “justified (6)(2)(d). opposed disagree. involves as We section, insufficient to explains protection familiar overcome certifying expectations presumption against ques- “is of lesser im- tion after a is- in the field of torts” tort federal portance unintentional, Paul, Thompson v. typically and be- injuries are sued decision. See [applicable policies “a number cause cases], request for deny of tor- such the deterrence therefore certifi-

tort *4 compen- provision and the cation. tious conduct ... are likely for the victim sation parties The their own shall bear costs point to in different directions situations appeal. of an important elements occur- AFFIRMED. among are divided two rence § 145 cmt. b. This Restatement states.” CHRISTEN, Judge, dissenting: Circuit what has

precisely occurred ease: Gary Butler Montana resident lost his representations were made eye loading of 2006 while November corporate protection policy and Idaho’s truck in A flatbed made representa- points to Idaho but bungee from a cord detached hook Montana, relied upon tions were and recoiled; struck Butler and one end and protection policy consumer Montana’s right eye. his permanently blinded About points to law. later, six months Butler received a call give parties To the extent that the did adjuster, from an Intermountain Claims legal consequences Hoffman, “strictly he was who Scott said negotiations, they ability had the their part/’ invited Butler meet neutral provision to include choice-of-law their him at office. Hoffman’s Idaho settlement contract. See Restatement just met one Hoffman and Butler time in specify g. cmt. But when the do telephone had several gov- particular law of a will following versations months. The generally relationship, “tort cases ern $50,000 conveyed a adjuster eventually set- justified expectations.” not involve Phil- reason, tlement offer to Butler Montana and For this lips, 995 P.2d very Butler that it “a fair told offer.” American Intermountain had no North Hoffman According said that if expectation justified that Idaho law would lawsuit, pursue Butler wanted to justified expecta- Butler apply, and had up in courts” foreign be “tied because the apply. that Montana Rath- tion in Canada. net was manufactured Butler er, expectation ultimately accepted the offer from his case is of the state with the Montana, home later executed the significant relationship agreement settlement applies. occurrence payment there. district court agree with the and conclude that state is Idaho. later, sued Some time alleged He

We also conclude that the American Intermountain. choice-of-law misrep- for certification that the defendants made material issue is suitable be- the settlement controlling during negoti- there is a in- resentations cause decision at his deposition ations. testified to discussion of injury-related claims initially Hoffman themselves. that he trusted but later that Hoffman misrep- came believe had Section 148 (1) (2) eye injury;

resented: value of specifically applies party; was a neutral pecuniary harm from reliance foreign could be into drawn courts misrepresentations, and its six factors action; if filed weigh in favor of applying Montana law to by using that Butler caused accident Butler’s claims. net improperly. First, 148(2)(a) requires consid- eration reliance. Butler was Montana’s Choice of Rule Law relied on Montana when he Hoffman’s in diversity Federal courts sitting apply representations by accepting state’s choice-of-law rules to offer, and he in Montana when he controlling determine the substantive state agreement. executed the settlement Legacy Sys., Fields v. Health law. application of Mon- favors tana law. (Second) follows the Restatement of Con- *5 148(2)(b) requires Section consideration (Restatement), flict of Laws place plaintiff of the where received the General Motors 298 Mont. representations. Hoffman defendant’s (2000). claims, For P.2d tort arranged called Butler in Montana and to to the principles looks Restatement’s tort only meet him in the face-to-face 145, together out in set with meéting explained, the two men had. As Id, specific may apply. rules that alleges misrep- that Hoffman made of the tort factors identi- Several meeting, during resentations and he overlap section 145 with section fied misrepresenta- testified that of the specifically misrepresen- which addresses repeated tions the were when two tele- claims, signpost in tation but one claim phonically discussed the over the rights is not to “The be missed: of months. Though course the next several respect of to liabilities the with an Butler from participated those calls by tort are issue the local determined participat- home Montana Hoffman which, respect ivith to that in them from the district court ed issue, has significant relationship the most 148(2)(b) points to- decided that section the to the occurrence and application of ward 6.” This provi- stated 148(2)(b) g comment directs that should be is critical sion it makes clear that place to to understood refer analysis the choice-of-law case must representations communicated were first focus the state the most with plaintiff. problems There are two negotiations to the First, reasoning. to ac- fails American, and Intermoun- count for tele- Hoffman’s November 2007 regarding the tain settlement relay phone call to Butler to potential personal product injury lia- offer assurance that it settlement and his bility claims. One the mistakes that very “a Like all of was fair offer.” crept into analysis the district court’s was place conversations that took after the sin- shift from negotia- office, gle meeting consideration Hoffman’s Idaho injury-re- tion and of Butler’s settlement when he first re- was Montana “occurrence,” lated claims as the offer and Hoffman’s ceived settlement Second, hand, On the other Intermountain is dis- cense. alleged it. endorsement place only part corporation. principle first Its tinct called out the an court also look in Idaho g, business is offices comment which directs the is in Montana. North American a New place were where by public- Hampshire corporation plaintiff. The owned communicated to the first 148(2)(d) entity. ly comment traded Swiss Section off the last portion court left place weigh of either goes on to in favor state. g, “this does which caution that represen- plaintiff [where first 148(2)(e) place looks Section is so important a tations] subject is the tangible thing where in reli- acted place plaintiff ^vhere misrepresentation claim is located representations.” ance on defendant’s considers the 148(2)(f) and section acted definitely Because plaintiff performance was to render home in at his on Hoffman's statements alleges he a contract was that he Montana, 148(2)(b) in favor weighs actually by rep induced enter defendant’s false Montana, not To there resentations. extent decide separate thing” subject A reason it “tangible was error that is the 148(2)(b) weighs claim, favor of that section it is the representa- Idaho law is agreement, which written settlement of the set- tion—Hoffman’s endorsement to Butler and executed sent conveyed tlement offer as fair—was performance The required him there. he when to Butler was in Montana. release of all accomplished injury, when which was 148(2)(c) requires consideration signed agreement made the defendant the al representations, made

leged in Other misrepresentations Idaho. Restatement Section recognized physical courts the have the district court considered When of im diminished location actor in general factors for tort claims of portance when some 145(2)(d) 145, it concluded that section fa- was telephonically, are made the case of application vored Idaho law because here, Mfg., see Mulch Inc. Advanced relationship the parties “the was between Solutions, LLC, F.Supp.2d Polymer gen- in centered Idaho.” section 145’s But (S.D. 2013); 841, 855 Ohio Benchmark trump considerations not the more eral do Elecs., v. J.M. Huber Inc. specific provisions 148(2)(c) 2003), still out claims set in Restatement section points and, did, they even if in the court erred 148(2)(d) bag. It con- application is a mixed section 145 it did domicil, residence, nationality, between the siders consider incorporation, busi- the court’s suit. parties, back to to the relationship ness Butler moved order switched its focus eye six years have been before lost who would years products there nine if nearly liability and lived named Butler filed had traveling claims—Butler, the injury filed or personal time he suit. was net He manufacturer, per comprising or entities twice month as once living injured, the net’s wholesale and retail time he was but he was distribution plain; working Montana, in his mail in makes this chain. court’s order Montana, “A li- rele- had a driver’s stated: amount concerning underly- policies conduct than the the other vant states. Id. at 1015. ing injury occurred Idaho: Idaho; (2) net offered for sale in But- was accidents, claims, Some tort like auto Idaho; purchased ler net split-second result errors judg- using the course was ment and implicate do not concerns nothing in Idaho.” These facts have to do regarding parties’ expec- reasonable against recognized with Butler’s claims North Ameri- tations. Phillips But justified Properly expectations applied, can Intermountain. a fac- indeed tor be in cases like But- considered does not favor Idaho law ler’s, where parties “presumably negotiations Montana law because Butler’s give legal thought advance with Hoffman were centered either sequences of their conduct.” Id. state; met they two once question can no There subsequent the claim in talked about tele- . gave and Hoffman phone calls conducted across Idaho-Mon- actions; they to their discussed lines, tana state memorialized eye the consequences of Butler’s signed by in a release deal for months. Montana. expectation that Montana law Section 6 apply was He is a Mon- reasonable. court also considered tana resident who filed claims Montana general conflict set out in sec- professionals court alleging ex- Restatement, doing tion but in handling, perienced claims licensed to gave weight parties’ expec- so it states, engaged do business both because, reasoned, “tort cases tations negotiation misconduct during the and set- generally expecta- involve arising tlement from the loss eye. to Phillips, meeting, tions.” The district court of his all the Except cited one complains misconduct Butler direct- support but that case does not court’s at him ed The district products liability conclusion. by setting erred consideration of aside tragic highway from a colli- expectations simply reasonable sion. Three Montana died residents in tort. Butler’s claim sounded injuries another sustained while *7 driving through in General Kansas Mo- The district court erred when decided tors Carolina. pickup sold North Id. at most rela- tionship If Sorting through possibilities prospective Butler’s claims. action that analysis, its choice-of-law the Montana Butler could have filed—but did not—are recognized that automobile manufac- actually conflated with “presumably give turers sued, entirety and if the Restate- legal consequences of their con- considered, commentary ment and its duct,” “any expectation held Montana has the relation- dispute Motors con- General had that ship at occurrence the center of cerning pickup governed by be complaint. justi- North Carolina’s [law] reasons, For respectfully these dissent. I ultimately fied.” Id. 1013-14. The court law, largely applied implicated

accident Montana’s interest

protecting deterring residents and wrongful in

duct deemed Montana