Schull et al v. Maryland Casualty Company et al

Filing 61

OPINION AND ORDER: Motion to Dismiss (Doc. 45) is Granted in Part and Denied in Part. FURTHER ORDERED: Defendant shall file its answer within fourteen (14) days of entry of this Order, and that lead counsel for the respective parties shall appear in person before the undersigned on May 30, 2019 at 9:30 a.m. in Courtroom II of the United States Courthouse, Helena, Montana to participate in a preliminary pretrial conference. See order for complete details and deadlines. Signed by Judge Charles C. Lovell on 3/22/2019. (HEG)

3/22/2019

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
HELENA DIVISION
BILLIE J. SCHULL, et al.,

CV-17-76-H-CCL
Plaintiffs,

vs.

Opinion and Order

MARYLAND CASUALTY
COMPANY, a Maryland Corp; and
DOES A-Z,
Defendants.
Defendant Maryland Casualty Company (Maryland Casualty or MCC), now
known as Zurich American Insurance Company, successor by merger to Maryland
Casualty as of December 31, 2015 1, has moved under Fed. R. Civ. Pro. 12(b )(6) to
dismiss all but one of the claims 2 asserted against it in the Eighth Amended
Complaint With More Definite Statement based on the statute of limitations.

1

The Court will generally refer to Defendant as Maryland Casualty but may use the
acronym MCC when quoting from orders entered by other courts.
2

Maryland Casualty concedes that the wrongful death claim brought by the personal
representative of the estate of Alan R. Mallory is not barred by the statute of limitations. (Doc.
59 at 13).

Page 1 of 26

The twenty-nine plaintiffs named in the complaint are all represented by the
same attorneys. Plaintiffs' counsel concedes that Maryland Casualty's motion is
well taken as to Plaintiffs Randy J. Carlson and George P. Williams. Plaintiffs'
counsel also concedes that Maryland Casualty's motion is well taken as to the
survival claims brought by personal representatives on behalf of the estates of
Richard G. Davidson, Donald A. Johnson and Eddie E. Eggers, but opposes the
motion as to their wrongful death claims and as to all claims raised by the
remaining plaintiffs. 3 (Doc. 55 at 5).

PROCEDURAL BACKGROUND
Twenty-four of the plaintiffs in this case were employed by W.R. Grace
(Grace) in Libby, Montana. Five of the plaintiffs are "non-worker spouses or
children of Grace workers who were [allegedly] exposed to asbestos carried home
on Grace workers' clothing." (Doc. 55 at 5). Maryland Casualty was "Grace's
primary general liability insurer and workers' compensation carrier from 1962 to
1973 ." (Doc. 46 at 6).

3

The Court will refer to the individuals who suffer or suffered from asbestosis as
plaintiffs and by last name, rather than referencing the personal representatives bringing the
survival or wrongful death claims.

Page 2 of 26

Grace filed for bankruptcy in the United States Bankruptcy Court for the
District of Delaware (Delaware Bankruptcy Court) on April 2, 2001. Watson v.

BNSF Ry. Co., 405 P.3d 634, ~ 5 (Mont. 2017). On April 2, 2001, the Delaware
Bankruptcy Court granted Grace's request for a temporary restraining order
enjoining the prosecution or commencement of certain actions. (Doc. 46-1 ). On
May 3, 200 I, the Delaware Bankruptcy Court granted Grace's motion for
preliminary injunction staying and enjoining all actions, including cases filed or
pending in any court against Maryland Casualty, pending a final judgment in the
adversary proceeding in bankruptcy court. (Doc. 46-3)
Plaintiffs Schull, Denning, Fiebelkorn, Mack, Fredenberg, Benoit, and
Troyer filed a complaint against Maryland Casualty in the Circuit Court for
Baltimore City, Maryland (Baltimore case) on June 6, 2001. Plaintiff Johnson was
added to the Baltimore case on July 25, 2001, and PlaintiffLeCount was added on
December 13, 2001. 4

4

This information is drawn from Exhibit 5 to Plaintiffs' Response Brief Opposing
Maryland Casualty's Motion to Dismiss, which consists of an electronic record provided by the
Circuit Court of Maryland, listing plaintiffs, defendant and filing dates, and contains a disclaimer
noting that full case information cannot be made available in the electronic record. (Doc. 55-5).
Any party wishing the Court to take judicial notice of court records from other cases in future
filings should provide certified copies of the actual documents.

Page 3 of 26

Plaintiffs filed the instant case in the Montana First Judicial District Court,
Lewis and Clark County, on November 19, 2001. (Doc. 5 at 15). The only
defendant named in Plaintiffs' initial complaint was the State of Montana. (Doc. 6
at 5). Plaintiffs filed an amended complaint adding Maryland Casualty on March
22, 2002. (Doc. 7). There is nothing in the state court record indicating that either
the amended complaint or the second amended complaint, which was filed on July
11, 2002, were served on Maryland Casualty. (Doc. 5).
On January 22, 2002, the Delaware Bankruptcy Court modified its "May 3,
2001 Injunction for the express purpose of 'reinstat[ing] the bar against the
commencement of new actions against Affiliated Entities."' Watson, 405 P .3d at

,r 20.

In its January 22, 2002, Order, the Bankruptcy Court stated: "Any additional

Actions that are filed and served upon Affiliated Entities are, upon completion of
service, stayed and enjoined pending a final judgment in this adversary proceeding
or further order of this Court;." (46-4 at 5).
The Bankruptcy Court clarified the application of its injunction as to
affiliated entities again on June 20, 2002, when it denied a motion made by Carole
Gerard. (Doc. 46-5). Gerard sought clarification of the Bankruptcy Court's

Page 4 of 26

injunction to allow her to proceed with a civil suit against Maryland Casualty filed
in Baltimore, Maryland. Gerard continued to pursue her civil suit after the
Bankruptcy Court denied her motion, resulting in a contempt order being entered
against Gerard's counsel. (Doc. 55-4). Gerard was represented by Jon L.
Heberling and McGarvey, Heberling, Sullivan & McGarvey, P.C. on May 24,
2004, when the Bankruptcy Court entered its contempt order. (Doc. 55-4 at 2).
Shortly after the contempt order was issued, Mr. Heberling, who represented
Plaintiffs in the instant case until recently, filed a notice of dismissal without
prejudice of their case against Maryland Casualty and a number of other
defendants. 5
The Delaware Bankruptcy Court's injunction was lifted on February 3,
2014. Watson, 405 P.3d at ii 21. Plaintiffs filed their Seventh Amended
Complaint on June 6, 2014. (Doc. 13). The Eighth Amended Complaint was filed
on May 8, 2017. (Doc. 14). Maryland Casualty executed an acknowledgment and
waiver of service on June 1, 2017, (Doc. l at ii 7), and removed the case to federal
courtonJune30,2017. (Doc. 1).

5

The notice was signed on June 25, 2004, and filed on June 28, 2004. (Doc. 59-1 ).

Page 5 of 26

LEGAL STANDARD FOR MOTION TO DISMISS

When determining a motion to dismiss under Rule 12(b)(6), this Court
accepts all factual allegations and reasonable inferences as true and construes them
in the light most favorable to the nonmoving party, but does not consider
conclusory allegations of law and unwarranted inferences. Adams v. Johnson, 355
F .3d 1179, 1183 (9th Cir.2004) (citing Sprewell v. Golden State Warriors, 266
F.3d 979, 988 (9th Cir.2001)). To survive a 12(b)(6) motion to dismiss, a plaintiff
must allege sufficient facts to state a "claim to relief that is plausible on its face."

Bell At/. Corp. v. Twombly, 550 U.S. 544, 570 (2007). "When a motion to dismiss
is based on the running of the statute oflimitations, it can be granted only if the
assertions of the complaint, read with the required liberality, would not permit the
plaintiff to prove that the statute was tolled." Cervantes v. City of San Diego, 5
F.3d 1273, 1275 (9th Cir.1993) (quoting Jablon v. Dean Witter & Co., 614 F.2d
677, 682 (9th Cir.1980)).
Although a court is generally limited to considering the contents of the
complaint when deciding a Rule 12(b)(6) motion, "a court may properly look
beyond the complaint to matters of public record and doing so does not convert a

Page 6 of 26

Rule 12(b)(6) motion to one for summary judgment." Mack v. S. Bay Beer
Distributors, Inc., 798 F.2d 1279, 1282 (9th Cir.1986), abrogated on a different
issue by Astoria Fed. Sav. and Loan v. Solimino, 501 U.S. 104, 107 (1991). The
history of this case, which Plaintiffs originally filed in state court against the State
of Montana in November of 2001, is unusually complex and involves documents
filed in state court, which have been incorporated into this case, and various orders
entered by the United States Bankruptcy Court for the District of Delaware. Both
parties have cited orders entered by the Delaware Bankruptcy Court and this Court
takes judicial notice of those orders in deciding Maryland Casualty's motion to
dismiss.
DISCUSSION

The Court's analysis of the statute oflimitations issues raised by the parties
begins with the following basic principles. This Court applies the state law of the
forum state when deciding substantive issues in cases, like this, in which its
jurisdiction is based on diversity of citizenship. Erie R. Co. v. Tompkins, 304 U.S.
64, 73 (1938). The Court therefore looks to Montana law to determine the statute
of limitations and related issues raised by the parties. Cervantes, 5 F.3d at 1275.

Page 7 of 26

Montana's general tort limitations period is three years and applies to
Plaintiffs' bad faith and negligence claims. Mont. Code Ann.§ 27-2-204(1)
(2017). 6 In Montana, "a claim or cause of action accrues when all elements of the
claim or cause exist or have occurred, the right to maintain an action on the claim
or cause is complete, and a court or other agency is authorized to accept
jurisdiction of the action." Mont. Code Ann. 27-2-102(a) (2017). The statute of
limitations for a wrongful death action is also three years in Montana, unless the
wrongful death results from homicide. Mont. Code Ann.§ 27-2-204(2) (2017).
Wrongful death claims accrue at the time of decedent's death. Carroll v.
WR.Grace & Co., 830 P.2d 1253, 1255 (Mont. 1992).

The Montana Supreme Court began using the discovery doctrine to toll the
statute of limitations long before the Montana Legislature adopted the discovery
doctrine by statute in 1987. See Wilson v. Brandt, 406 P.3d 452, ,i,i 16 - 17 (Mont.
20 l 7) (discussing history of discovery doctrine). "The doctrine was based on
equitable considerations of' giving full scope to the statute of limitations on the
one hand and according a reasonable measure of justice to the plaintiff on the
6

The Court cites to the latest version of the Montana Code, unless an amendment to an
earlier version materially affects the Court's reasoning.

Page 8 of 26

other."' Id. at ,r 16 (quoting Grey v. Silver Bow Cnty., 425 P.2d 819, 821 (Mont.
1967).
The Montana Supreme Court recognizes the doctrine of equitable tolling,
which "arrests the running of statutes of limitation while the claimant reasonably
and in good faith pursues one of several possible legal remedies." Sorenson v.
Massey-Ferguson, Inc., 927 P.2d 1030, 1032 (Mont. 1996). A plaintiff seeking

application of the equitable tolling doctrine "must first show a reasonable and
good faith pursuit of one of several possible remedies and then demonstrate the
[following] three criteria ... have been satisfied: (1) the defendant was notified
timely within the statute of limitations by the filing of the first claim; (2) the
defendant's ability to gather evidence for defense of the second claim was not
prejudiced; and (3) the plaintiff reasonably and in good faith filed the second
claim." Lozeau v. Geico Indemnity Co., 207 P.3d 316, ,r 14 (Mont. 2009).
Montana law protects injured parties who are prohibited from filing suit by
an injunction or court order. When an injunction or court order stays the
commencement of an action, the time during which that order is in place "is not
part of the time limited for the commencement of the action." Mont. Code. Ann.

Page 9 of 26

27-2-406 (2017). In other words, the limitation period is tolled while an
injunction or court order prohibits a party from filing a civil suit.
In considering issues relating to the statute of limitations in Montana, this
Court must keep in mind that the Montana Rules of Civil Procedure allow
plaintiffs far more time to serve a filed complaint than the Federal Rules. A
plaintiff has three years to accomplish service of process under Mont. R. Civ. P.
4(t) while a plaintiff in most cases has only 90 days to serve a filed complaint
under Fed. R. Civ. P. 4(m).
APPLICATION & ANALYSIS
Accrual Dates for Individual Plaintiffs

The Montana Supreme Court considered the accrual date for asbestosis
related claims in Orr v. State, 106 P.3d 100 (Mont. 2004). After noting the lack of
dispute as to the fact that "asbestosis can take years to manifest," the Court held
that plaintiffs' negligence claims against the State accrued when Plaintiffs'
asbestosis related diseases manifested. Id. at 172. The Montana Supreme Court
reasoned that the provisions of"Montana's statutory version of the discovery rule"
are "instructive on the question of when a Montana cause of action accrues." Id.

Page 10 of 26

at 176. The Court noted that Montana and other states adopted the discovery
doctrine "because it fairly allows injured plaintiffs to seek relief for long-dormant
injuries caused by tortious conduct that occurred much earlier." Id. at 173. The
parties in this case appear to agree that the negligence and bad faith claims
accrued when the particular plaintiff making the claim was diagnosed with
asbestosis and that the wrongful death claims accrued at death.
The following information is drawn from the second attachment to the
Eighth Amended Complaint With More Definite Statement. (Doc. 40-2).
I.

Plaintiff Schull' s negligence and bad faith claims accrued when he
was diagnosed, on August 26, 1998.

2.

PlaintiffDenning's negligence and bad claims accrued on July 22,
1998 and his wrongful death claim accrued on June 8, 2004.

3.

PlaintiffFiebelkom's negligence and bad faith claims accrued when
he was diagnosed, on July 28, 1998.

4.

Plaintiff Mack's negligence and bad faith claims accrued when he
was diagnosed, on July 28, 1998.

5.

PlaintiffFredenberg's negligence and bad faith claims accrued when
he was diagnosed, on July 28, 1998.

6.

Plaintiff Johnson's negligence and bad faith claims accrued on
November 9, 1981 and his wrongful death claim accrued on July 30,
1998.
Page 11 of 26

7.

Plaintiff Benoit's negligence and bad faith claims accrued when he
was diagnosed, on August 26, 1998. His wrongful death claim
accrued on January 18, 2009.

8.

Plaintiff Davidson's negligence claim accrued on September 21,
1998, and his wrongful death claim accrued on December 21, 2000.

9.

PlaintiffTroyer's negligence and bad faith claims accrued on
September 15, 1998, and his wrongful death claim accrued on August
26, 2007.

10.

PlaintiffLeCount's negligence and bad faith claims accrued on
December 17, 1998.

11.

PlaintiffWilliams's negligence and bad faith claims accrued when he
was diagnosed, on December 29, 1998.

12.

Plaintiff Eggers negligence and bad faith claims accrued on January
5, 1999, and his wrongful death claim accrued on August 26, 2006.

13.

Plaintiff Carlson's negligence and bad faith claims accrued on
January 6, I 999.

14.

Plaintiff Day's negligence claim accrued on February 2, 1999.

15.

PlaintiffSkramstad's negligence claim accrued on March 10, 1999.

16.

Plaintiff Ludwig's negligence and bad faith claims accrued when he
was diagnosed, on August 12, 1999.

17.

Plaintiff Warner's negligence claim accrued on December 9, 1999.

18.

Plaintiff Reich's negligence and bad faith claims accrued on
December 29, 1999.
Page 12 of 26

19.

PlaintiffSchnackenberg's negligence and bad faith claims accrued on
January 25, 2000.

20.

Plaintiff Johnson's negligence claim accrued when she was
diagnosed, on January 25, 2000.

21.

Plaintiff Shavlik' s negligence and bad faith claims accrued when he
was diagnosed, on March 7, 2000.

22.

Plaintiff Bruce C. Baker's negligence and bad faith claims accrued on
March 21, 2000, when he was diagnosed. His wrongful death claim
accrued on February 4, 2002.

23.

Plaintiff Mallory's negligence and bad faith claims accrued on April
6, 2000, and his wrongful death claim accrued on September 1, 2011.

24.

PlaintiffChalmers's negligence and bad faith claims accrued when he
was diagnosed, on April 13, 2000. His wrongful death claim accrued
on July 6, 2009.

25.

PlaintiffFarrar's negligence and bad faith claims accrued when he
was diagnosed, on April 26, 2000.

26.

PlaintiffKnopp's negligence and bad faith claims accrued when he
was diagnosed, on May 18, 2000.

27.

Plaintiff Jam's negligence and bad faith claims accrued when he was
diagnosed, on May 30, 2000.

28.

Plaintiff Wood's negligence and bad faith claims accrued when he
was diagnosed, on July 1, 2000.

29.

PlaintiffDartyn W. Baker's negligence claim accrued when he was
diagnosed, on July 24, 2000.
Page 13 of 26

Equitable Tolling and Baltimore Filing

Maryland Casualty argues that the following claims, which accrued before
January 22, 1999, should be dismissed because the limitations period ran before
the tolling period imposed by the Delaware Bankruptcy Court began on January
22, 2002: 1) PlaintiffSchull's negligence and bad faith claims; 2) Plaintiff
Denning's negligence and bad faith claims; 3) PlaintiffFiebelkom's negligence
and bad faith claims; 4) Plaintiff Mack's negligence and bad faith; 5) Plaintiff
Fredenberg's negligence and bad faith; 6) Plaintiff Johnson's negligence, bad
faith, and wrongful death claims;7 7) Plaintiff Benoit's negligence and bad faith
claims; 8) Plaintiff Davidson's negligence claim; 9) PlaintiffTroyer's negligence
and bad faith claims; 10) PlaintiffLeCount's negligence and bad faith claims; 11)
PlaintiffWilliams's negligence and bad faith claims; 12) PlaintiffEggers's
negligence and bad faith claims; and 13) Plaintiff Carlson's negligence and bad
faith claims. (Doc. 46 at 15 and n. 7). 8

7

Plaintiff Johnson admits that his negligence and bad faith claims, which accrued in
1981, are time-barred.
8

As noted above, Plaintiffs Carlson and Williams concede that Maryland Casualty's
motion is well taken and Plaintiffs Davidson and Eggars concede that Maryland Casualty's
motion is well-taken as to all but their wrongful death claims.

Page 14 of 26

Plaintiffs Schull, Denning, Fiebelkorn, Mack, Fredenberg, Johnson,
Benoit, Troyer and Lecount argue that their claims are not time-barred because
they filed their claims against Maryland Casualty in Baltimore within three years
of the accrual date for those claims. (Doc. 55 at 14 - 15). In its reply brief,
Maryland Casualty argues that the filing of claims in Baltimore has "no impact on
the Montana case before this Court" and that "Plaintiffs fail to apply the standard
of equitable tolling in Montana." (Doc. 59 at 8).
While it is true that Plaintiffs failed to specifically apply the equitable
tolling factors to their claims, they raise equitable tolling by arguing that all their
claims (with the exception of those referenced in footnotes 7 and 8 above) were
timely filed either in Baltimore or in this action. (Doc. 55 at 25). Plaintiffs also
point out that Maryland Casualty had notice of their claims against it "[f]rom at
least the date of the March 18, 2002, Bankruptcy Court hearing forward." (Doc.
55 at 26).
Under Montana law, a plaintiff seeking application of the equitable tolling
doctrine "must first show a reasonable and good faith pursuit of one of several
possible remedies and then" satisfy the following criteria: (1) the defendant was

Page 15 of 26

notified timely within the statute oflimitations by the filing of the first claim; (2)
the defendant's ability to gather evidence for defense of the second claim was not
prejudiced; and (3) the plaintiff reasonably and in good faith filed the second
claim." Lozeau, 207 P.3d at ,i 14. Because this issue is being decided at the
motion to dismiss stage, the Court reads the complaint and the filings from other
cases of which it takes judicial notice liberally and will only grant the motion if it
appears that there is no set of facts that would permit each plaintiff to establish
equitable tolling. Cervantes, 5 F.3d at 1275.
Plaintiffs Schull, Denning, Fiebelkorn, Mack, Fredenberg, Benoit, Troyer
and LeCount filed their claims against Maryland Casualty in Baltimore before
their limitations period ran in Montana. Plaintiff Johnson timely filed his
wrongful death claim against Maryland Casualty in Baltimore before the
limitations period ran on that claim. To the extent that filing of the first claim
qualifies as notification to the defendant, Plaintiffs have met the first requirement
of equitable tolling.
There is no indication that Maryland Casualty's ability to gather evidence in
defense of either the Baltimore or Montana claim was prejudiced by the untimely

Page 16 of 26

filing of the Montana claim. Maryland Casualty could not have engaged in
discovery during the Grace bankruptcy proceeding because the prosecution and
defense of the cases against it were stayed by the Delaware Bankruptcy Court.
Plaintiffs have therefore met the second equitable tolling requirement.
While Plaintiffs have not explained their reason for filing a complaint in
Montana against Maryland Casualty when their Baltimore complaint was still
pending or for waiting to amend their Montana complaint to add Maryland
Casualty as a defendant prior to the running of their various limitations periods,
there is no indication that they were acting in bad faith. Plaintiffs have therefore
met the third equitable tolling requirement.
Delaware Bankruptcy Court Filings

Maryland Casualty argues that any claim against it was time-barred unless
re-filed within sixty days of February 3, 2014, when the bankruptcy stay was
lifted, regardless of the time remaining on said limitations period at the time the
preliminary injunction was entered. (Doc. 46 at 22). This argument is based on an
order entered by the Delaware Bankruptcy Court on June 20, 2002. (Doc. 46-5).
In addition to denying the motion filed by an individual who is not a plaintiff in

Page 17 of 26

the instant case, the Delaware Bankruptcy Court expanded its January 22, 2002,
order by stating in its June 20, 2002, order:
ORDERED that the Preliminary Injunction applies to
any current or potential plaintiffs who may seek to
proceed with any and all suits alleging causes of action
similar to those alleged by the plaintiffs in the Baltimore
Action or the Montana Action which have been brought
against or may be brought against Maryland Casualty
Company and/or Continental Casualty Company or any
other Insurance Carriers, as defined in the Preliminary
Injunction, and proceeding with any similar suits without
first obtaining relief from this Court shall be considered
a contempt of this Court's Preliminary Injunction; and it
is further ordered that as to any suit or potential claim
against any Insurance Carrier that is stayed by this
Preliminary Injunction and has not yet been been
commenced in any court, the statute of limitation (or
other applicable time bar established by statute or order)
is tolled and shall not expire until the later of either ( 1)
its own expiration period or (2) 60 days after this
Preliminary Injunction (a) expires and is not further
extended; or (b) is terminated by the Court for all parties
and claims subject to it; or (3) 60 days after entry of an
Order as to a particular party who files an appropriate
motion for relief from this Preliminary Injunction,
granting said motion.
(Doc. 46-5 at 3). 9

9

The Court has quoted this portion of the Bankruptcy Court's order in full because the
interpretation offered by Maryland Casualty differs widely from that offered by Plaintiffs.

Page 18 of 26

Plaintiffs correctly point out that the Bankruptcy Court's June 20, 2002,
order describes three possible tolling expiration events, the later of which would
end the tolling period. (Doc. 55 at 24). Plaintiffs argue that by making the first
event "its own expiration period" and adding a 60-day extension of the injunction
in the second and third clauses, the Delaware Bankruptcy Court did not intend to
shorten any existing statute of limitations but to add the 60 days to the end of any
existing statute of limitations. (Doc. 55 at 24 - 25).
This Court agrees with Plaintiffs that the Delaware Bankruptcy Court, like
this Court, must defer to the substantive law of the forum state when considering
substantive issues, including the statute of limitations. It follows, therefore, that
the Bankruptcy Court's 60-day extension was to lengthen the tolling period, rather
than shorten the applicable state statute of limitations.
This reasoning is consistent with the Montana Supreme Court's application
of Montana's tolling statute (Mont. Code. Ann. 27-2-406) and consideration of
some of the orders of the Delaware Bankruptcy Court at issue here. Watson, 405
P.3d at ,i,i 18 - 20. The Montana Supreme Court determined that the running of
any limitation period based on harm allegedly caused by W.R. Grace and its

Page 19 of 26

affiliated entities that accrued between the Delaware Bankruptcy Court's
imposition of the order on January 22, 2002 and the lifting of the order on
February 3, 2014 was tolled. Id. at ,r 21. The Montana Supreme Court also held
that the statute oflimitations "resumed running" on February 3, 2014, when the
"Bankruptcy Court's Preliminary Injunction was lifted." Id.
Maryland Casualty, like BNSF, is an entity affiliated with W.R. Grace. This
Court therefore follows and expands on the reasoning of the Montana Supreme
Court in holding that the statute of limitations was tolled for any plaintiff and any
claim that had not expired prior to the Delaware Bankruptcy Court's January 22,
2002, order. Any unexpired statute of limitations resumed running when the
injunction was lifted on February 3, 2014.
The Court calculated the limitations period remaining for each plaintiff after
the statute of limitations resumed running, since neither Plaintiffs nor Maryland
Casualty performed the calculation. For purposes of this calculation, the Court
accepts Plaintiffs' argument that the Delaware Bankruptcy Court's June 20, 2002,
order added 60 days to the limitations period for any plaintiff whose limitations
period expired during those 60 days.

Page 20 of 26

Plaintiff Day had only fourteen days left on his limitations period once the
tolling period ended. Plaintiff Skramstad had only twenty days left on her
limitations period once the tolling period established by the Delaware Bankruptcy
Court ended. The Seventh Amended Complaint was not filed until June 6, 2014,
which was over 120 days after the tolling period ended. Day and Skramstad
cannot rely on equitable tolling because there is no indication that either filed their
claims against Maryland Casualty in any court before the Delaware Bankruptcy
Court issued its preliminary injunction. The Court will therefore grant Maryland
Casualty's motion as to Plaintiffs Day and Skramstad.
Dismissal Without Prejudice

Maryland Casualty argues that "Plaintiffs forfeited any timely-filed claims
when they voluntarily dismissed MCC in 2004." (Doc. 46 at 17). Although the
unpublished opinion of the Montana Supreme Court cited by Maryland Casualty
in support of its argument has no precedential value, a case cited in that opinion is
instructive. See Chapman v. Credit Assocs.,, 138 Pl3d 426, ,r 11 (Mont. 2006). In
Beck v. Caterpillar Inc., the United States Court of Appeals for the Seventh

Circuit held that the plaintiffs statute of limitations was not tolled "during the

Page 21 of 26

pendency" of a "suit that was voluntarily dismissed pursuant to Fed. R. Civ. P.
4l(a)" because that suit was "treated as ifit had never been filed." 50 F.3d 405,
407 (7 th Cir. 1995).
Unlike the plaintiff in Beck, Plaintiffs in the instant case have not relied on
the filing of their dismissed complaint to toll their statute oflimitations. They rely
on the Delaware Bankruptcy Court's preliminary injunction, which was entered
before Plaintiffs filed the amended complaint naming Maryland Casualty as a
defendant in the instant case. Once Plaintiffs' counsel realized that he could be
subject to sanctions for proceeding with Plaintiffs' case against Maryland
Casualty, Plaintiffs dismissed their claims without prejudice. In following the
Seventh Circuit's holding in Beck, the Court treats both the amended complaint,
which first added Maryland Casualty as a defendant, and the dismissal of the
claims against Maryland Casualty in the instant case, as having never been filed.
Approximately four months after the stay was lifted, Plaintiffs filed the
Seventh Amended Complaint. For all but a few of the plaintiffs, that complaint
was timely filed because their limitations period had been tolled while the
preliminary injunction was in place.

Page 22 of 26

CONCLUSION & ORDER

For the reasons outlined above, IT IS HEREBY ORDERED that Defendant
Maryland Casualty's Motion to Dismiss (Doc. 45) is GRANTED as to the
negligence and bad faith claims and DENIED as to the wrongful death claim
brought on behalf of Donald A. Johnson and his heirs by his personal
representative; GRANTED as to the negligence claim and DENIED as to the
wrongful death claim brought on behalf of Richard G. Davidson and his heirs by
his personal representative; GRANTED as to Plaintiff George P. Williams;
GRANTED as to the negligence and bad faith claims and DENIED as to the
wrongful death claim brought on behalf of Eddie E. Eggers and his heirs by his
personal representative; GRANTED as to Plaintiff Randy J. Carlson; GRANTED
as to Plaintiff Don L. Day; GRANTED as to PlaintiffNorita I. Skramstad and
DENIED as to all other plaintiffs.
IT IS FURTHER ORDERED that Defendant shall file its answer within
fourteen (14) days of entry of this Order, and that lead counsel for the respective
parties shall appear in person before the undersigned on May 30, 2019 at 9:30
a.m. in Courtroom II of the United States Courthouse, Helena, Montana to

Page 23 of 26

participate in a preliminary pretrial conference. The conference is intended to
develop a case-specific plan for discovery and a schedule for disposition of the
case. Counsel should prepare to take part in meaningful discussions of material
contained in the pretrial statements. The case management plan resulting from the
preliminary pretrial conference is not subject to revision absent compelling
reasons.
IT IS FURTHER ORDERED:
1.

If the parties have not already served initial disclosures conforming

with Fed. R. Civ. P. 26(a)(l), they must serve their initial disclosures on or before
April 26, 2019. Initial disclosures shall not be filed.

2.

On or before May 3, 2019, lead trial counsel shall confer to consider

the matters set forth in Fed. R. Civ. P. 26(f), to discuss possible stipulated facts,
and to develop a proposed case management plan. Plaintiff must file the proposed
case management plan on or before May 10, 2019.
The proposed case management plan shall contain deadlines for the
following pretrial motions and events or shall state that such deadlines are not
necessary:

Page 24 of 26

Motions to Amend the Pleadings
Motions to Join Parties (including naming John Doe Defendants)
Motions for Judgment on the Pleadings (fully briefed)
Plaintiffs Designation of Expert Witnesses
Defendant's Designation of Expert Witnesses
Completion of Discovery
Motions for Summary Judgment (fully briefed)
Motions in Limine (fully briefed)
Additional Deadlines agreed to by the Parties.
"Fully briefed" means that the motion, the brief in support thereof, and the
opposing party's response brief are all filed with the Court by the deadline. Expert
disclosures must comply with Fed. R. Civ. P. 26(a)(2)(B) on or before the
deadline.
The proposed plan shall also state the parties' views and proposals on all
topics listed in Fed. R. Civ. P. 26(f)(3) and identify likely areas of expert
testimony.
The parties should bear in mind that, as the case develops, they may agree
among themselves to extend discovery. See Fed. R. Civ. P. 29. However, the
discovery deadline set by the Court will not be continued absent compelling
reasons, nor will the Court entertain discovery motions based on post-deadline
occurrences.

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3.

On or before May 10, 2019, Plaintiff shall separately file a

Statement of Stipulated Facts to which all parties agree. See L.R. l 6(2)(b )(3).
4.

On or before May 10, 2019, counsel for the respective parties shall

each file a preliminary pretrial statement. See Fed. R. Civ. P. 26(a)(l). The
statement of each party shall address all matters listed in L.R. l 6.2(b )( 1).
5.

Counsel are advised that failure to provide adequate information in

the preliminary pretrial statement may be deemed an admission that this is a noncomplex case. Failure to comply with this order or with the local rules may also
result in the imposition of sanctions.
Done and dated this

f t ~ of March, 2019.

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