JAMES LEE CONSTRUCTION, INC., a Montana Corp. v. Government Employees Insurance Company, a corporation

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JAMES LEE CONSTRUCTION, INC., a
Montana Corp.; JAMES B. LEE; TRACY D.
LEE, husband and wife,
Plaintiffs-Appellants,
v.
GOVERNMENT EMPLOYEES
INSURANCE COMPANY, a corporation;
GEICO GENERAL INSURANCE
COMPANY, a corporation; GEICO
INDEMNITY COMPANY, a corporation;
GEICO CASUALTY COMPANY,
Defendants-Appellees.
No. 22-35102
D.C. No. 9:20-cv-00068-DWM
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Argued and Submitted December 8, 2022
Seattle, Washington
Before: O’SCANNLAIN, McKEOWN, and MILLER, Circuit Judges.
Plaintiffs James Lee Construction, Inc., and James and Tracy Lee (“Lee
Plaintiffs”) sought to represent a putative class challenging the subrogation practices
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
FILED
JAN 17 2023
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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of Defendants Government Employees Insurance Company, GEICO General
Insurance Company, GEICO Indemnity Company, and GEICO Casualty Company
(“GEICO Defendants”). The district court dismissed the Lee Plaintiffs’ claims, and
the Lee Plaintiffs appealed that dismissal. As the facts are known to the parties, we
repeat them only as necessary to explain our decision. We affirm.
I
We start by clarifying what is at issue in this appeal. The Lee Plaintiffs
purport only to advance claims and arguments for declaratory relief—not for
damages. See, e.g., Oral Arg. at 2:59-3:13 (conceding that the Lee Plaintiffs are only
seeking declaratory relief); see also, e.g., Blue Br. 29 (disclaiming UTPA damages);
Blue Br. 41 (conceding unavailability of contract damages). Accordingly, whatever
the requirements of Montana’s “made whole” rule governing subrogation and the
relevance of those requirements to a claim for damages, see, e.g., Van Orden v.
United Servs. Auto Ass’n, 318 P.3d 1042 (Mont. 2014), the sole question presented
on appeal—and the only issue we need decide—is whether the district court erred in
dismissing the Lee Plaintiffs’ claims for declaratory relief. See, e.g., Currier v.
Potter, 379 F.3d 716, 723 n.4 (9th Cir. 2004); Carmickle v. Comm’r, Soc. Sec.
Admin., 533 F.3d 1155, 1161 n.2 (9th Cir. 2008); see also Greenwood v. F.A.A., 28
F.3d 971, 977 (9th Cir. 1994).

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II
The Montana Unfair Trade Practices Act—at least as we read the statute, see,
e.g., Bateman v. Nat’l Union Fire Ins. Co. of Pittsburgh, 423 F. App’x 763, 766 (9th
Cir. 2011) (following Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938))—does
not permit the Lee Plaintiffs’ claims for declaratory relief. See Mont. Ann. Code §
33-18-242(3) (“An insured who has suffered damages as a result of the handling of
an insurance claim may bring an action against the insurer for breach of the insurance
contract, for fraud, or pursuant to this section, but not under any other theory or cause
of action.”). First, the Lee Plaintiffs’ suit—which challenges the GEICO
Defendants’ subrogation practices—seeks relief for injuries resulting from “the
handling of an insurance claim.” Mont. Ann. Code § 33-18-242(3); see also, e.g.,
Johnson v. Mont. Eleventh Jud. Dist., No. 21-OP-0472, 2021 WL 5088743, at *2
(Mont. 2021). Second, the Lee Plaintiffs’ claims for declaratory relief—which seek,
inter alia, a declaration that the GEICO Defendants have failed to ensure that their
insureds are “made whole” prior to subrogation, see, e.g., Blue Br. 54; E.R. 42—
cannot proceed because, whatever other infirmities might plague the operative
claims, see, e.g., E.R. 10-15, such declaratory relief is not a permissible “theory or
cause of action” allowed under the Montana law applicable here. Mont. Ann. Code
§ 33-18-242(3); see, e.g., Bateman, 423 F. App’x at 766; Byorth v. USAA Cas. Ins.
Co., No. 17-CV-153-M-KLD, 2019 WL 6715970, at *2-5 (D. Mont. Dec. 10, 2019);

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Woodman v. Standard Ins. Co., No. 20-CV-153-M-KLD, 2021 WL 927373, at *2-3
(D. Mont. Mar. 11, 2021).
AFFIRMED.

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