Fry v. State Farm Mutual Automobile Insurance

478 F. App'x 450

• Court: Court of Appeals for the Ninth Circuit
• Decided: July 17, 2012
• Docket: 11-35691
• Status: Unpublished

Opinion

MEMORANDUM **

Plaintiff-Appellant Heidi A. Fry appeals the district court’s dismissal with prejudice of her putative class action lawsuit against Defendant-Appellant State Farm. Fry seeks a declaratory judgment for the residual diminished value (RDV) of her vehicle, which was damaged by a driver who was insured by State Farm. As the facts and procedural history are familiar to the parties, we do not recite them here except as necessary to explain our disposition. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

In Montana, third parties may not directly sue a tortfeasor’s insurer “until after the underlying claim has been settled” or the third party obtains a judgment against the tortfeasor on the underlying claim. Mont.Code Ann. 33-18-242(6)(b). Fry contends that her claim falls within the exception to that statute that was created by Ridley v. Guaranty National Insurance Co., 286 Mont. 325, 951 P.2d 987 (Mont.1997), which allows a third party to bring a declaratory judgment action against the insurer if the insurer refuses to pay medical expenses or lost wages. This argument is unavailing because the Montana Supreme Court recently ruled that Ridley does not apply to RDV claims. Hop v. Safeco Ins. Co., 361 Mont. 510, 261 P.3d 981, 984 (Mont.2011) (“RDV does not qualify as the type of damage that must be paid in advance as ‘not reasonably in dispute.’”). Accordingly, we affirm the district court’s dismissal with prejudice of Fry’s complaint.

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.