03/31/2026
DA 25-0076 Case Number: DA 25-0076
IN THE SUPREME COURT OF THE STATE OF MONTANA
2026 MT 63
AMBER ROSE D’HOOGE,
Plaintiff and Appellant,
v.
CINCINNATI INSURANCE COMPANY,
Defendant and Appellee.
APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DV-23-870 Honorable Robert L. Deschamps, III, Presiding Judge
COUNSEL OF RECORD:
For Appellant:
Lincoln Palmer, Rex Palmer, Attorneys Inc., P.C., Missoula, Montana
For Appellee:
Calvin J. Stacey, Morgan M. Sorena, Stacey & Funyak, Billings, Montana
Submitted on Briefs: December 3, 2025
Decided: March 31, 2026
Filed:
__________________________________________ Clerk Justice James Jeremiah Shea delivered the Opinion of the Court.
¶1 Amber Rose D’Hooge appeals the Fourth Judicial District Court’s Order denying
her motion for partial summary judgment on breach of promissory estoppel and breach of
contract and the Order granting Cincinnati Insurance Company’s (Cincinnati) motion for
summary judgment on all her claims. We restate and address the following issues:
Issue 1: Whether a third-party claimant can assert causes of action against an insurer other than statutory or common law bad faith under the version of § 33-18-242, MCA, that was effective prior to the 2023 amendments.
Issue 2: Whether the District Court erred by concluding that D’Hooge could not prove the elements of promissory estoppel, breach of contract, spoliation, and equitable estoppel.
Issue 3: Whether the District Court erred by concluding that D’Hooge failed to raise claims for unjust enrichment, negligent and intentional interference with economic advantage, and constructive fraud.
¶2 We affirm in part, reverse in part, and remand for further proceedings consistent
with this Opinion.
FACTUAL AND PROCEDURAL BACKGROUND
¶3 On December 7, 2020, D’Hooge went to The Tire Guys Inc. (Tire Rama)
automobile repair shop to have a tire repaired. D’Hooge slipped and fell while walking
across Tire Rama’s parking lot, suffering a broken leg. D’Hooge subsequently filed an
insurance claim with Tire Rama’s insurance provider, Cincinnati.
¶4 On December 22, 2020, D’Hooge spoke with Cheryl Lee, a Cincinnati claims
specialist, regarding the incident. D’Hooge informed Lee that the attorney she hired for an
unrelated matter advised her that Montana law required Cincinnati to pay her lost wages
2 and medical bills.1 Lee responded by asking D’Hooge to provide documents relating to
the incident, medical bills, and lost wages. D’Hooge forwarded the requested documents
to Lee and asked Lee to let her know if Cincinnati needed any additional information to
document Tire Rama’s liability. On December 28, 2020, Lee replied and instructed
D’Hooge that she did not need to gather additional information to support her claim. Lee’s
email stated that “[w]e are accepting liability for your claim.” Cincinnati began paying
D’Hooge for certain medical bills and lost wages. D’Hooge did not attempt to gather
evidence or retain an attorney as she had planned to do if Cincinnati contested whether Tire
Rama was liable.
¶5 D’Hooge and Cincinnati attempted to negotiate a settlement but reached an impasse
after two and a half years. After the parties could not settle, D’Hooge retained counsel and
filed a complaint against Tire Rama in August 2023. D’Hooge amended the complaint to
add Cincinnati as a defendant with the District Court’s approval. The amended complaint
alleged that Tire Rama negligently maintained its parking lot and that Cincinnati
contractually obligated itself to accept liability “for [D’Hooge’s] harms and losses
sustained” from the slip and fall. The amended complaint alleged that neither Tire Rama
nor Cincinnati would contest liability because of Cincinnati’s communications with
1 An insurer must advance pay a third-party claimant’s medical bills prior to final settlement when the insurer determines liability is reasonably clear and it is reasonably clear that a medical expense is causally related to the accident. Shepard v. Farmers Ins. Exch., 2020 MT 320, ¶ 16, 402 Mont. 359, 477 P.3d 1114 (citing Shilhanek v. D-2 Trucking, Inc., 2003 MT 122, ¶ 16, 315 Mont. 519, 70 P.3d 721; Ridley v. Guaranty Nat’l Ins. Co., 286 Mont. 325, 334, 951 P.2d 987, 991 (1997)). The insurer’s obligation includes advance payment of lost wages that are “‘reasonably certain and directly related to an insured’s negligence or wrongful act.’” Shepard, ¶ 16 (quoting DuBray v. Farmers Ins. Exch., 2001 MT 251, ¶ 15, 307 Mont. 134, 36 P.3d 897). 3 D’Hooge in December 2020. The amended complaint concluded by listing causes of
actions that D’Hooge’s factual allegations may support, including negligence, promissory
estoppel, equitable estoppel, and spoliation.
¶6 Tire Rama filed an answer disputing that it was liable for the injuries D’Hooge
sustained. Cincinnati contended in its answer that it had paid D’Hooge certain expenses
that it determined were “reasonable, necessary, and causally related” to the injuries
D’Hooge sustained from the slip and fall. Cincinnati stated that it reserved the right to
reevaluate Tire Rama’s liability and deny liability for future payments.
¶7 In October 2023, D’Hooge’s counsel attempted to gather evidence relevant to Tire
Rama’s negligence to no avail. D’Hooge’s counsel contacted the employee who was
working at a nearby food truck the day of the incident, but the employee could not
remember anything specific from the day of the incident. D’Hooge’s counsel could not
obtain security footage from a nearby business as the manager stated any footage from
December 2020 was irretrievable. During discovery, D’Hooge deposed Claims Specialist
Lee and Tire Rama identified a former employee who purportedly saw D’Hooge running
when she fell as a potential witness.
¶8 D’Hooge moved for partial summary judgment on breach of contract and
promissory estoppel in November 2023, requesting the District Court to conclude that
Cincinnati agreed to pay the damages she sustained from the slip and fall by accepting
liability for her insurance claim. The District Court granted D’Hooge’s motion from the
bench during oral argument, concluding Cincinnati was estopped from denying liability.
4 At the District Court’s request, D’Hooge and Cincinnati informed the District Court as to
how the case may proceed to trial. D’Hooge proposed holding a trial in which D’Hooge
and Cincinnati would litigate D’Hooge’s damages to determine the damages Cincinnati
obligated itself it pay. Cincinnati opposed proceeding to trial because it contended that
§ 33-18-242(4), MCA (2023), of the Uniform Trade Practices Act (UTPA) barred
D’Hooge from asserting any causes of action other than fraud or statutory bad faith against
it. Cincinnati argued in the alternative that D’Hooge could not establish the elements of
promissory estoppel.
¶9 Before the District Court issued a written order memorializing its ruling on
D’Hooge’s motion for partial summary judgment, Cincinnati moved for summary
judgment on all D’Hooge’s causes of action. Cincinnati asserted almost identical
arguments to those it argued in opposition to D’Hooge’s proposed order. In its reply brief
filed on November 7, 2024, Cincinnati argued that D’Hooge could not establish the
elements of breach of contract, spoliation, and equitable estoppel. D’Hooge contended that
Cincinnati failed to meet its burden on summary judgment by failing to address these
claims in its opening brief. Prior to issuing orders on the pending motions for summary
judgment, the District Court issued an order dismissing Tire Rama based on D’Hooge’s
settlement with Tire Rama.
¶10 On November 8, 2024, the District Court issued an order on D’Hooge’s motion for
partial summary judgment that reversed course from its oral ruling and denied D’Hooge’s
motion. The District Court reasoned that § 33-18-242(4), MCA (2023), barred D’Hooge
5 as a third-party claimant from asserting causes of action other than fraud or a statutory bad
faith claim against Cincinnati based on how Cincinnati handled her insurance claim. On
November 13, 2024, D’Hooge moved for supplemental briefing on Cincinnati’s motion for
summary judgment and filed a motion to alter the District Court’s order denying her motion
for partial summary judgment. In each filing D’Hooge contended her causes of action were
governed by the version of § 33-18-242, MCA, that was effective prior to the Legislature
amending § 33-18-242, MCA, in 2023.2 The District Court granted D’Hooge’s motion for
supplemental briefing on November 19, 2024.
¶11 On December 30, 2024, the District Court granted Cincinnati’s motion for summary
judgment and declined to reconsider its order denying D’Hooge’s motion for partial
summary judgment. The District Court concluded that § 33-18-242, MCA (2019), applied
rather than the amended version. The District Court still concluded that Montana law
barred D’Hooge from asserting breach of contract, promissory estoppel, equitable estoppel,
and spoliation claims against Cincinnati because third-party claimants can only sue insurers
for statutory or common law bad faith based on an insurer allegedly mishandling a claim.
The District Court concluded that even if D’Hooge’s claims were not barred by Montana
law, that D’Hooge could not prove the elements of these claims.
2 The Legislature amended § 33-18-242, MCA, in 2023 to add a subsection that states “[a] third-party claimant who has suffered damages as a result of the handling of an insurance claim may bring an action against the insurer for fraud or pursuant to this section, but not under any other theory or cause of action.” 2023 Mont. Laws ch. 430, § 2 (emphasis added). 6 STANDARDS OF REVIEW
¶12 We review the district court’s order denying or granting a motion for summary
judgment de novo. Smith v. Farmers Union Mut. Ins. Co., 2011 MT 216, ¶ 14, 361 Mont.
516, 260 P.3d 163 (citation omitted). We apply the criteria in M. R. Civ. P. 56 to
“determine whether the moving party has established both the absence of a genuine issue
of material fact and entitlement to judgment as a matter of law.” Park Place Apartments,
L.L.C. v. Farmers Union Mut. Ins. Co., 2010 MT 270, ¶ 11, 358 Mont. 394, 247 P.3d 236
(citation omitted). We view the facts that would be admissible in evidence “in the light
most favorable to the non-moving party.” McClue v. Safeco Ins. Co. of Illinois, 2015 MT
222, ¶ 8, 380 Mont. 204, 354 P.3d 604 (citation omitted).
DISCUSSION
¶13 Issue 1: Whether a third-party claimant can assert causes of action against an insurer other than statutory or common law bad faith under the version of § 33-18-242, MCA, that was effective prior to the 2023 amendments.
¶14 The Uniform Trade Practices Act (UTPA) states “[a]n insured or a third-party
claimant has an independent cause of action against an insurer for actual damages caused
by the insurer’s violation of [certain subsections of § 33-18-201, MCA].” Section
33-18-242(1), MCA (statutory bad faith). A third-party claimant may assert a common
law bad faith claim against an insurer while an insured may only sue the insurer “for breach
of the insurance contract, for fraud, or pursuant to [§ 33-18-242, MCA], but not under any
other theory or cause of action.” Brewington v. Employers Fire Ins. Co., 1999 MT 312,
¶ 13, 297 Mont. 243, 992 P.2d 237 (quoting § 33-18-242(3), MCA). A third-party claimant
7 cannot sue an insurer for statutory bad faith until the third-party claimant settles the
underlying action against the insured or prevails in litigation. Section 33-18-242(6)(b),
MCA; Safeco Ins. Co. of Illinois v. Mont. Eighth Jud. Dist. Ct., 2000 MT 153, ¶ 28, 300
Mont. 123, 2 P.3d 834.
¶15 Whether the pre-2023 version of § 33-18-242, MCA, precludes a third-party
claimant from asserting causes of action other than common law or statutory bad faith
against an insurer is a matter of first impression. Neither the District Court nor Cincinnati
cite any cases that directly support their interpretation of § 33-18-242, MCA. Our caselaw
establishes only that the plain language of § 33-18-242, MCA, does not preclude a
third-party claimant from suing an insurer for common law bad faith based on the insurer
allegedly mishandling an insurance claim. Brewington, ¶ 14.
¶16 The plain language of § 33-18-242, MCA, that applies to D’Hooge’s causes of
action is identical to the language we interpreted in Brewington. Section 33-18-242(1),
MCA, allows third-party claimants and insureds to sue insurers for statutory bad faith while
§ 33-18-242(3), MCA, limits only the causes of action that an insured may assert against
its insurer. But no similar provision limits the causes of action that a third-party may assert
against an insurer if the insurer mishandles a claim. See Brewington, ¶ 14; § 33-18-242,
MCA. The plain language of § 33-18-242, MCA, does not preclude a third-party claimant
from asserting causes of action based on breach of contract, equity, or tort based on how
an insurer handled an insurance claim.
8 ¶17 Federal caselaw interpreting the pre-2023 version of § 33-18-242, MCA, proves
persuasive and supports this conclusion. See Faulconbridge v. State, 2006 MT 198, ¶ 51,
333 Mont. 186, 142 P.3d 777 (federal caselaw constitutes persuasive authority). The
federal district court in Montana has consistently interpreted § 33-18-242, MCA, to allow
third-party claimants to assert various causes of action against an insurer based on how the
insurer handled their claim. Dzintars v. Fireman’s Fund Ins. Co., No.
CV-24-45-BU-BMM, 2024 WL 4347887, at *2-3 (D. Mont. Sept. 30, 2024) (intentional
infliction of emotional distress and negligent infliction of emotional distress); Lawson v.
Fed. Rural Elec. Ins. Exch., No. CV-23-61-GF-JTJ, 2024 WL 4905159, at *2 (D. Mont.
Nov. 1, 2024) (same); see Coleman Constr., Inc. v. Diamond State Ins. Co., No.
CV-05-148-M-JCL, 2008 WL 2357365, at *10 (D. Mont. June 5, 2008) (negligent
spoliation of evidence). Cincinnati attempts to distinguish these cases by arguing that the
third-party claimant settled the underlying action against the insured before filing suit
against the insurer as required by § 33-18-242(6)(b), MCA. Whether or not that may have
been a compelling distinction prior to D’Hooge’s settlement with Tire Rama has now
become a non-issue since D’Hooge settled her claims against Tire Rama.
¶18 The District Court erred by concluding that D’Hooge could not assert causes of
action against Cincinnati other than statutory or common law bad faith based on how
Cincinnati handled her insurance claim under the pre-2023 version of § 33-18-242, MCA.
¶19 Issue 2: Whether the District Court erred by concluding that D’Hooge could not prove the elements of promissory estoppel, breach of contract, spoliation, and equitable estoppel as a matter of law.
9 ¶20 The District Court concluded that even if the UTPA did not bar D’Hooge’s claims,
that she could not prove the elements of promissory estoppel, breach of contract, and
spoliation. D’Hooge argues the District Court erred in multiple respects because Cincinnati
waived its ability to argue that she could not prove the elements of breach of contract and
promissory estoppel, Cincinnati did not carry its burden of proof on summary judgment
regarding breach of contract and spoliation, and its substantive analysis of these claims is
flawed.
¶21 D’Hooge asserts that Cincinnati waived its ability to argue that she cannot prove the
elements of promissory estoppel and breach of contract by failing to assert these arguments
in its brief opposing D’Hooge’s motion for partial summary judgment. Although the
District Court failed to address this argument, it implicitly rejected it when it granted
Cincinnati’s motion for summary judgment.
¶22 A party’s failure to oppose the moving party’s motion for summary judgment does
not relieve the district court from engaging the M. R. Civ. P. 56 analysis. Junkermier,
Clark, Campanella, Stevens, P.C. v. Alborn, Uithoven, Riekenberg, P.C., 2016 MT 218,
¶ 22, 384 Mont. 464, 380 P.3d 747 (citation omitted). The district court must still review
the record and determine “there [is] no genuine issue of material fact and that the movant
is entitled to judgment as a matter of law.” Chapman v. Maxwell, 2014 MT 35, ¶ 11, 374
Mont. 12, 322 P.3d 1029 (citing M. R. Civ. P. 56(c)(3); Cole v. Flathead Cnty., 236 Mont.
412, 417, 771 P.2d 97, 100 (1989)). A district court may look beyond the parties’ briefs to
determine if summary judgment is appropriate. See Junkermier, ¶ 22 (holding that Rule
10 56 “required [the district court] to look beyond the parties’ briefs in
concluding . . . summary judgment” was appropriate).
¶23 The record indicates that Cincinnati contested whether D’Hooge could prove the
elements of breach of contract or promissory estoppel in its opposition to D’Hooge’s
motion for summary judgment and within its own motion for summary judgment.
Cincinnati argued in its brief opposing D’Hooge’s proposed partial summary judgment
order and in its reply brief in support of its motion for summary judgment that D’Hooge
could not prove the elements of promissory estoppel and breach of contract. Cincinnati’s
failure to initially argue that D’Hooge could not establish the elements of each claim did
not absolve the District Court of its duty to apply Rule 56 to each party’s motion for
summary judgment and determine whether summary judgment was appropriate.
Chapman, ¶ 11. The District Court did not err by considering the arguments Cincinnati
asserted in its subsequent briefs when applying Rule 56 to each party’s respective motion
for summary judgment. Junkermier, ¶ 22.
¶24 The District Court concluded Cincinnati was entitled to summary judgment on
D’Hooge’s breach of contract and spoliation claims even if the UTPA did not bar these
causes of action because the undisputed evidence established that D’Hooge could not prove
the elements of either cause of action. D’Hooge contends the District Court improperly
granted Cincinnati’s motion for summary judgment on these claims because the District
Court failed to provide D’Hooge an opportunity to respond to the arguments that Cincinnati
raised for the first time in its reply brief.
11 ¶25 M. R. App. P. 12(3) states that the appellant’s “reply brief must be confined to new
matter raised in the [appellee’s] brief.” This appellate rule of procedure equally applies to
briefs filed in the district court. WLW Realty Partners, LLC v. Cont’l Partners VIII, LLC,
2015 MT 312, ¶ 20, 381 Mont. 333, 360 P.3d 1112. Fairness governs whether the district
court should consider an argument or evidence raised for the first time in a party’s reply
brief. WLW Realty Partners LLC, ¶ 20 (citing Worledge v. Riverstone Residential Group,
LLC, 2015 MT 142, ¶ 17, 379 Mont. 265, 350 P.3d 39). The responding party should have
a meaningful opportunity to respond to the new evidence or argument. See Worledge, ¶ 17
(citations omitted).
¶26 The record demonstrates that D’Hooge had a meaningful opportunity to respond to
the new arguments Cincinnati raised in its reply brief. D’Hooge argued in her response
brief that the facts she presented in her motion for partial summary judgment undisputably
established that Cincinnati breached the purported contract. The District Court also granted
D’Hooge’s motion for supplemental briefing on the applicable version of § 33-18-242,
MCA, but D’Hooge opted not to request an opportunity to present more evidence to create
a dispute of material fact related to the breach of contract and spoliation claims. D’Hooge
has not contended that she could have presented more evidence to create a dispute of
material fact if given a further opportunity to respond. See Worledge, ¶¶ 18-20 (affirming
the district court’s denial of motion to strike evidence for class certification because the
district court gave the parties an opportunity to respond and the parties failed to
demonstrate what additional evidence would have affected the district court’s ruling). The
12 District Court did not err by considering the arguments that Cincinnati asserted in its reply
brief regarding breach of contract and spoliation.
¶27 A contract must include all its essential elements to be enforceable. Hurly v. Lake
Cabin Dev., LLC, 2012 MT 77, ¶ 17, 364 Mont. 425, 276 P.3d 854 (citation omitted). The
essential elements of a contract are (1) identifiable parties capable of contracting;
(2) mutual assent between the contracting parties regarding the essential terms; (3) a lawful
object; and (4) consideration. Jarussi v. Sandra L. Farber Trust, 2019 MT 181, ¶ 17, 396
Mont. 488, 445 P.3d 1226 (citation omitted).
¶28 Cincinnati contends the District Court correctly concluded Lee’s email to D’Hooge
stating that “[w]e are accepting liability for your claim” could not form an enforceable
contract because the email did not contain essential terms, such as that Cincinnati accepted
liability for all D’Hooge’s damages and that the parties would litigate the amount of
damages owed. D’Hooge contends the essential terms are that Cincinnati agreed to pay
the damages she sustained from the slip and fall in exchange for her not collecting any
evidence.
¶29 “Essential terms [of a contract] encompass ‘critical issues’ as opposed to ‘mere
details.’” Hurly, ¶ 17 (quoting Zier v. Lewis, 2009 MT 266, ¶ 23, 352 Mont. 76, 218 P.3d
465). “Subsidiary matters, collateral matters, or matters that go to the performance of the
contract, do not constitute material terms.” Olsen v. Johnston, 2013 MT 25, ¶ 21, 368
Mont. 347, 301 P.3d 791 (collecting cases).
13 ¶30 D’Hooge relies on Nationwide Ins. Co. v. Heck, 873 N.E.2d 190 (Ind. Ct. App.
1980) to support her contention that a third-party claimant can sue an insurer for breach of
contract. But the purported contract D’Hooge seeks to enforce lacks any terms similar to
the document at issue in Heck. In Heck, the third-party claimant’s attorney memorialized
an oral agreement by sending an email to the insurer’s claims adjuster. Heck, 873 N.E.2d
at 192-93. The attorney’s email clearly stated the terms the attorney and the claims adjuster
agreed upon, such as that the insurer admitted liability on behalf of the insured, stated the
specific claims that the insurer accepted liability for, stated that the only remaining issue
was the amount of damages, and designated the type of damages the third-party claimant
could recover. Heck, 873 N.E.2d at 192-93.
¶31 The email that D’Hooge contends created an enforceable contract is readily
distinguishable from the email in Heck. Although the email D’Hooge received states that
“[Cincinnati] [is] accepting liability for your claim,” it was in response to D’Hooge’s
assertion that Montana law required Cincinnati to advance pay her medical bills and lost
wages, which Cincinnati did after sending the email advising D’Hooge that it was
accepting liability for the claim. It is not clear whether Cincinnati was accepting liability
beyond that obligation, what other damages Cincinnati might pay, or how those damages
may be determined. The email could not create an enforceable contract as Cincinnati and
D’Hooge could not have mutually assented to a contract that lacks essential terms.
14 ¶32 The District Court correctly denied D’Hooge’s motion for partial summary
judgment and granted Cincinnati’s motion for summary judgment because the undisputed
material facts establish that D’Hooge could not prove that an enforceable contract existed.
¶33 “[A] party asserting promissory estoppel must prove four elements: [1] a clear and
unambiguous promise, [2] reliance by the promisee, [3] reasonableness and foreseeability
of the reliance, and [4] resulting injury to the promisee.” S&P Brake Supply, Inc. v.
STEMCO LP, 2016 MT 324, ¶ 44, 385 Mont. 488, 385 P.3d 567 (citation omitted).
¶34 The District Court concluded that the undisputed material facts established that
Cincinnati’s email did not constitute an unambiguous promise. The District Court also
concluded that D’Hooge could not establish she detrimentally relied on Cincinnati’s
statement because there was no evidence for D’Hooge to gather that would have supported
a cause of action against Tire Rama.
¶35 Cincinnati argues the District Court correctly concluded that the undisputed material
facts prove Cincinnati did not clearly promise to accept liability for D’Hooge’s entire claim
and that D’Hooge did not sustain an injury. D’Hooge contends the undisputed material
facts establish she can prove all the elements of promissory estoppel. Specifically,
D’Hooge contends that Cincinnati unambiguously promised to pay D’Hooge’s general and
special damages based on Claims Specialist Lee’s deposition testimony. Alternatively,
D’Hooge contends that a dispute of material fact exists because a reasonable jury could
find that Cincinnati unambiguously promised to pay D’Hooge’s general and special
damages.
15 ¶36 D’Hooge’s argument that Cincinnati clearly promised to pay all the damages she
sustained from her slip and fall faces similar issues as the breach of contract claim. The
email Cincinnati sent to D’Hooge stated “[w]e are accepting liability for your claim.” The
email does not elaborate on what “claim” that Cincinnati accepted liability for and never
discusses what damages that Cincinnati promised to pay. It could mean that Cincinnati
agreed to pay all the damages D’Hooge sustained from the slip and fall as D’Hooge
contends or it could mean that Cincinnati determined Tire Rama’s liability was reasonably
clear and accepted liability for the damages it was required to pay pursuant to Ridley and
DuBray.
¶37 Summary judgment on promissory estoppel is inappropriate if the terms of the
promise can be ascertained through further fact finding. See Tope v. Taylor, 224 Mont.
131, 136-37, 728 P.2d 789, 793-94 (1986) (reversing summary judgment because
defendant’s promise to distribute the estate as desired by decedent was ascertainable if the
plaintiff could prove the will was not changed or destroyed). D’Hooge contends that Lee’s
deposition testimony establishes that Cincinnati intended to agree to pay D’Hooge’s
general and special damages. Lee testified that D’Hooge could understand the email to
mean that Cincinnati accepted liability for her general and special damages in response to
questioning that asked Lee to explain how D’Hooge might perceive the email. The
testimony regarding D’Hooge’s understanding does not clarify the extent of liability that
Cincinnati intended to accept as D’Hooge’s perception of the email is immaterial to
16 establish Cincinnati’s intent. The District Court did not err by concluding that D’Hooge
could not prove the email constitutes a clear and unambiguous promise.
¶38 Cincinnati’s email may have misled D’Hooge, but it does not provide sufficient
clarity to prove promissory estoppel. D’Hooge may still seek a remedy for Cincinnati’s
actions through other causes of action, such as spoliation and equitable estoppel. We do
not address whether D’Hooge suffered an injury as she must prove all elements to establish
promissory estoppel. The District Court did not err by granting Cincinnati’s motion for
summary judgment on promissory estoppel and denying D’Hooge’s motion for partial
summary judgment.
¶39 A party asserting a negligent spoliation of evidence claim must prove (1) a potential
civil action exists, (2) the defendant had a legal or contractual duty to preserve evidence
relevant to the civil action, (3) destruction of the evidence, (4) destruction of the evidence
significantly impaired the plaintiff’s ability to prove the civil action, (5) causal connection
between the destruction of the evidence and the plaintiff’s inability to prove the civil action,
(6) the plaintiff had a significant possibility of succeeding if the evidence were available,
and (7) damages. Oliver v. Stimson Lumber Co., 1999 MT 328, ¶ 41, 297 Mont. 336, 993
P.2d 11 (citations omitted).
¶40 The District Court concluded that Cincinnati did not have a legal or contractual duty
to preserve evidence and questioned whether evidence existed that could have been
destroyed at the time Cincinnati instructed D’Hooge to stop collecting evidence. D’Hooge
17 and Cincinnati dispute whether the District Court correctly concluded that Cincinnati did
not have a duty to preserve evidence and that evidence had not been destroyed.
¶41 D’Hooge argues that Coleman Constr., Inc. v. Diamond State Ins. Co., No.
CV-05-148-M-JCL, 2008 WL 2357365 (D. Mont. June 5, 2008), establishes that an insurer
has a duty to preserve evidence when necessary to avoid hampering a third-party claimant’s
cause of action against its insured. D’Hooge contends Cincinnati’s duty to preserve
evidence arose in this case because Cincinnati instructed D’Hooge to stop gathering
evidence to prove Tire Rama’s liability. Cincinnati contends that it complied with its sole
duty to investigate D’Hooge’s insurance claim and decide whether Tire Rama’s liability
was reasonably clear.
¶42 “Foreseeability depends upon whether the injured party was within the scope of risk
created by the alleged negligence; whether the defendant could have foreseen that the
conduct could have resulted in injury to the plaintiff.” Lokey v. Breuner, 2010 MT 216,
¶ 12, 358 Mont. 8, 243 P.3d 384 (citation omitted). We inquire as to what a reasonably
prudent person would “have foreseen as likely to happen.” Jackson v. State, 1998 MT 46,
¶ 54, 287 Mont. 473, 956 P.2d 35 (citation omitted).
¶43 D’Hooge’s inability to prove Tire Rama’s negligence was within the scope of risk
created by Cincinnati’s conduct and Cincinnati reasonably could have foreseen that its
conduct would injure a third-party claimant, such as D’Hooge. Liability insurers are
familiar with handling third-party claims, are regularly involved with litigation, and
obviously appreciate the importance of promptly gathering evidence to successfully pursue
18 or defend against a claim. See Coleman, 2008 WL 2357365 at *6 (citing Thompson v.
Owensby, 704 N.E.2d 134, 137 (Ind. Ct. App. 1998)).
¶44 As Tire Rama’s insurer there is no dispute that Cincinnati knew that Tire Rama was
still exposed to liability when it instructed D’Hooge to stop gathering evidence as
Cincinnati purportedly only accepted liability for D’Hooge’s damages that it had
determined Tire Rama’s liability was reasonably clear. A reasonably prudent person could
foresee that Cincinnati instructing D’Hooge to stop gathering evidence would induce such
action and hamper her ability to prove Tire Rama’s negligence and recover all the damage
she sustained from her slip and fall.
¶45 Insurers that accept liability for certain medical bills and lost wages based on their
duties under Ridley and DuBray do not obligate themselves to make the third-party
claimant whole as the insurer can reevaluate liability and cease making payments.
See Depositors Ins. Co. v. Sandidge, 2022 MT 33, ¶¶ 20-21, 407 Mont. 385, 504 P.3d 477.
But allowing insurers to accept a claim without an express reservation while
simultaneously instructing a third-party claimant to stop collecting evidence without
imposing a duty on the insurer to preserve evidence can hamstring a third-party claimant’s
ability to prove the insured’s negligence and recover for the damages sustained. The
District Court holding as a matter of law that Cincinnati did not have a legal or contractual
duty to preserve evidence was incorrect.
¶46 A plaintiff must prove the destruction of evidence to succeed on a spoliation claim.
Oliver, ¶ 41. Cincinnati contends no evidence was destroyed because there was no
19 evidence for D’Hooge to gather as of December 28, 2020, when Cincinnati told D’Hooge
to stop gathering evidence as it had been three weeks since the accident occurred.
Cincinnati speculates that no one witnessed D’Hooge fall and no nearby businesses or
streetlights had cameras that recorded the incident. Cincinnati’s argument illustrates the
issue: D’Hooge did not timely contact potential witnesses or pursue other sources of
information because Cincinnati told her to stop gathering evidence. By the time D’Hooge’s
attorney began to gather evidence in October 2023, the employee who was working at the
nearby food truck could not recall any specifics about the day of the incident and any
security footage captured by a nearby business had become irretrievable. D’Hooge also
lost the opportunity to interview other potential witnesses or obtain other footage to prove
she was walking rather than running before she fell, which would be relevant to rebutting
Tire Rama’s witness who would testify to seeing D’Hooge running across the parking lot
when she slipped and fell. While the record does not definitively establish that evidence
was destroyed, it creates a factual dispute that precluded summary judgment on D’Hooge’s
spoliation claim.
¶47 The District Court granted summary judgment on D’Hooge’s equitable estoppel
claim on the grounds that it was barred by the UTPA. The District Court neglected to
alternatively analyze whether the undisputed material facts established that D’Hooge could
not prove the elements of equitable estoppel if the UTPA did not bar the cause of action.
Cincinnati argues that the District Court correctly “determined that [D’Hooge’s] equitable
estoppel claim also failed as a matter of law even if it was not barred by the UTPA and
20 common law bad faith.” Cincinnati fails to offer any substantive argument beyond relying
on the District Court’s non-existent analysis. Cincinnati asserts that “none of the facts
support” D’Hooge’s equitable estoppel cause of action without explaining what facts it
relies on or how they establish the absence of a dispute of material fact. We do not develop
legal analysis to support a party’s position. HSBC Bank USA, Nat’l Ass’n v. Anderson,
2017 MT 257, ¶ 41 n.4, 389 Mont. 106, 406 P.3d 416 (citation omitted). We decline to
address Cincinnati’s argument on appeal. The District Court erred by granting summary
judgment on equitable estoppel.
¶48 Issue 4: Whether the District Court erred by concluding that D’Hooge failed to raise claims for unjust enrichment, negligent and intentional interference with economic advantage, and constructive fraud.
¶49 Cincinnati argues the District Court correctly granted summary judgment on
D’Hooge’s theories of recovery that she asserted in her brief opposing Cincinnati’s motion
for summary judgment (i.e., unjust enrichment, negligent and intentional interference with
economic advantage, and constructive fraud) because D’Hooge did not plead them in the
complaint or amended complaint. D’Hooge contends the District Court improperly granted
summary judgment on these claims because she sufficiently pled the causes of action in
the amended complaint.
¶50 “[A] complaint must put a defendant on notice of the facts the plaintiff intends to
prove; the facts must disclose the elements necessary to make the claim; and the complaint
must demand judgment for the relief the plaintiff seeks.” Kunst v. Pass, 1998 MT 71, ¶ 35,
288 Mont. 264, 957 P.2d 1 (citing Mysse v. Martens, 279 Mont. 253, 266, 926 P.2d 765,
21 773 (1996)). “[A] complaint must state something more than facts” that would breed only
a suspicion that the plaintiff is entitled to relief. Mysse, 279 Mont. at 266, 926 P.2d at 773
(citation omitted).
¶51 The amended complaint asserts factual allegations that indicate D’Hooge would
attempt to prove that Tire Rama negligently maintained its parking lot, Cincinnati admitted
liability on behalf of itself and Tire Rama, and Cincinnati deterred D’Hooge from gathering
evidence to prove Tire Rama’s negligence. The amended complaint enumerated the causes
of action that the factual allegations may support, but the extensive list did not include
unjust enrichment, negligent and intentional interference with economic advantage, or
constructive fraud. The amended complaint does not sufficiently plead causes of action
based on unjust enrichment, intentional and negligent interference of economic advantage,
and constructive fraud because the factual allegations do not indicate, reference, or imply
how the alleged facts would support these causes of action. The District Court did not err
by granting Cincinnati’s motion for summary judgment regarding these causes of action.
CONCLUSION
¶52 The District Court erred by concluding that the pre-2023 version of § 33-18-242,
MCA, precluded D’Hooge from asserting any causes of action other than statutory or
common law bad faith. The District Court did not err by denying D’Hooge’s motion for
partial summary judgment and granting Cincinnati’s motion for summary judgment on
promissory estoppel, breach of contract, and the insufficiently pled causes of action. The
District Court erred by granting summary judgment on spoliation and equitable estoppel.
22 We affirm in part, reverse in part, and remand for further proceedings consistent with this
Opinion.
/S/ JAMES JEREMIAH SHEA
We Concur:
/S/ JIM RICE /S/ LAURIE McKINNON /S/ BETH BAKER /S/ KATHERINE M. BIDEGARAY