Date: Apr 4, 2026

D’Hooge v. Cincinnati Ins. Co. (2026 MT 63): Pre-2023 § 33-18-242, MCA, Does Not Limit Third-Party Claimants to Bad-Faith Theories

Introduction

In D’Hooge v. Cincinnati Insurance Company, the Montana Supreme Court addressed a first-impression question under the pre-2023 version of § 33-18-242, MCA (the private cause-of-action provision of Montana’s Uniform Trade Practices Act (UTPA)): whether a third-party claimant may sue an insurer for theories other than statutory or common law bad faith based on the insurer’s handling of the claim.

The case arose after Amber Rose D’Hooge slipped and fell in a repair shop parking lot and submitted a claim to the shop’s insurer, Cincinnati. A claims specialist emailed D’Hooge: “We are accepting liability for your claim,” after which Cincinnati made advance payments for some medical bills and lost wages. When settlement efforts later stalled and D’Hooge sued the insured (Tire Rama) and then Cincinnati, she alleged (among other theories) breach of contract, promissory estoppel, equitable estoppel, and spoliation—grounded in the premise that Cincinnati’s “accepting liability” message caused her to forgo evidence-gathering and counsel until it was too late.

The District Court ultimately held that Montana law barred such non-bad-faith claims by a third-party claimant and, alternatively, that the claims failed on their elements. The Supreme Court affirmed in part, reversed in part, and remanded.

Summary of the Opinion

Issue 1 (UTPA limitation): The Court held the pre-2023 version of § 33-18-242, MCA does not bar a third-party claimant from asserting non-bad-faith causes of action (contract, tort, or equitable theories) based on claim handling. The District Court erred in concluding otherwise.
Issue 2 (contract/promissory estoppel/spoliation/equitable estoppel merits): The Court affirmed summary judgment for Cincinnati on breach of contract and promissory estoppel (no enforceable contract; no clear and unambiguous promise), but reversed summary judgment on spoliation (duty and destruction presented fact issues) and reversed on equitable estoppel (District Court relied on an incorrect UTPA bar; no alternative element-by-element analysis; Cincinnati did not adequately support affirmance on appeal).
Issue 3/“Issue 4” (unpled claims): The Court affirmed summary judgment against D’Hooge on unjust enrichment, negligent and intentional interference with economic advantage, and constructive fraud because they were not sufficiently pled.

Net result: D’Hooge’s contract and promissory-estoppel theories are out; her spoliation and equitable-estoppel theories return to the District Court; and the Supreme Court clarifies that (pre-2023) § 33-18-242 does not confine third-party claimants to bad-faith claims alone.

Analysis

1) Precedents Cited

A. UTPA structure, third-party timing, and the insured/third-party split

Brewington v. Employers Fire Ins. Co. (1999 MT 312): Central to Issue 1. The Court relied on Brewington’s reading of § 33-18-242(3), MCA as limiting insureds—not third-party claimants—to contract/fraud/UTPA remedies. Brewington also recognized that third-party claimants can pursue common law bad faith and that the statute’s text did not eliminate that avenue. D’Hooge extends Brewington’s statutory-text approach to conclude that the pre-2023 statute likewise does not silently restrict third-party claimants to only bad faith.
Safeco Ins. Co. of Illinois v. Mont. Eighth Jud. Dist. Ct. (2000 MT 153) and § 33-18-242(6)(b), MCA: These authorities establish the “ripeness” timing rule—third-party statutory bad faith generally cannot be brought until the claimant settles with or prevails against the insured. The Court treated Cincinnati’s attempt to distinguish federal cases on this ground as moot because D’Hooge had settled with Tire Rama by the time of decision.

B. Persuasive federal authority interpreting Montana’s pre-2023 statute

Faulconbridge v. State (2006 MT 198): Cited for the proposition that federal decisions can be persuasive authority.
Dzintars v. Fireman’s Fund Ins. Co. (D. Mont. Sept. 30, 2024) and Lawson v. Fed. Rural Elec. Ins. Exch. (D. Mont. Nov. 1, 2024): Both allowed third-party claimants to assert emotional-distress tort theories in connection with claim handling, which supported the Montana Supreme Court’s textual conclusion that pre-2023 § 33-18-242 did not broadly preempt all other third-party theories.
Coleman Constr., Inc. v. Diamond State Ins. Co. (D. Mont. June 5, 2008): Important to Issue 2 (spoliation). The Court used Coleman’s reasoning to support foreseeability and an insurer’s potential duty to preserve evidence where claim-handling conduct risks impairing an injured party’s ability to prosecute the underlying liability claim.

C. Advance payments and “accepting liability” in the third-party context

Shepard v. Farmers Ins. Exch. (2020 MT 320), citing Shilhanek v. D-2 Trucking, Inc. (2003 MT 122) and Ridley v. Guaranty Nat’l Ins. Co. (286 Mont. 325 (1997)): These cases describe the insurer’s obligation to advance pay certain third-party medical expenses when liability is “reasonably clear.”
DuBray v. Farmers Ins. Exch. (2001 MT 251): Clarifies that “advance pay” can include lost wages that are reasonably certain and directly related to the insured’s negligence or wrongful act. D’Hooge’s conversation with the claims specialist invoked this line of authority, and the Supreme Court treated it as a plausible alternative meaning of Cincinnati’s “accepting liability” email: it could reflect acceptance of “reasonably clear liability” for advance payments rather than a settlement-like acceptance of full tort liability.
Depositors Ins. Co. v. Sandidge (2022 MT 33): Reinforced that insurers may reevaluate liability and cease payments; thus, “accepting liability” for advance pay does not necessarily equate to committing to make the claimant whole. This undercut D’Hooge’s contract and promissory-estoppel framing while simultaneously informing the Court’s concern about the claimant being “hamstrung” if told not to gather evidence without the insurer preserving it.

D. Summary judgment procedure and fairness in briefing

Smith v. Farmers Union Mut. Ins. Co. (2011 MT 216), Park Place Apartments, L.L.C. v. Farmers Union Mut. Ins. Co. (2010 MT 270), and McClue v. Safeco Ins. Co. of Illinois (2015 MT 222): Cited for de novo review of summary judgment, Rule 56 standards, and the obligation to view admissible facts in the light most favorable to the non-movant.
Junkermier, Clark, Campanella, Stevens, P.C. v. Alborn, Uithoven, Riekenberg, P.C. (2016 MT 218) and Chapman v. Maxwell (2014 MT 35) (citing Cole v. Flathead Cnty. (1989)): Established that a court must independently apply Rule 56 even if arguments are imperfectly presented and may look beyond briefs to the record. This supported the Court’s refusal to treat Cincinnati’s earlier briefing choices as a waiver that prevented later Rule 56 analysis.
WLW Realty Partners, LLC v. Cont’l Partners VIII, LLC (2015 MT 312) and Worledge v. Riverstone Residential Group, LLC (2015 MT 142): Provided the “fairness” framework for arguments raised for the first time in a reply brief—whether the opponent had a meaningful opportunity to respond. The Court found D’Hooge had that opportunity (and did not show what additional evidence she would present), so the District Court could consider Cincinnati’s reply arguments on contract/spoliation.
HSBC Bank USA, Nat’l Ass’n v. Anderson (2017 MT 257): Cited for the principle that the Court will not develop legal analysis for a party—used to reject Cincinnati’s unsupported attempt to uphold summary judgment on equitable estoppel without substantive argument.

E. Contract formation, promissory estoppel, and spoliation elements

Hurly v. Lake Cabin Dev., LLC (2012 MT 77), Jarussi v. Sandra L. Farber Trust (2019 MT 181), Zier v. Lewis (2009 MT 266), and Olsen v. Johnston (2013 MT 25): These cases supplied the contract-law framework: enforceability requires essential terms and mutual assent; “essential terms” are critical issues, not mere details or performance matters. They powered the Court’s conclusion that Cincinnati’s one-line email lacked essential terms (scope of damages, what “claim” meant, how amounts would be determined), defeating contract formation as a matter of law.
Nationwide Ins. Co. v. Heck (873 N.E.2d 190 (Ind. Ct. App. 1980)): Cited and distinguished. The Court used Heck as a foil to show what an enforceable “liability acceptance” agreement looks like—clear delineation of claims accepted, damages categories, and that only damages remained. Cincinnati’s email did not come close.
S&P Brake Supply, Inc. v. STEMCO LP (2016 MT 324) and Tope v. Taylor (224 Mont. 131 (1986)): Provided the promissory estoppel elements and the caution that summary judgment may be inappropriate when promise terms are ascertainable with further factfinding. Still, the Court held Cincinnati’s statement was too indeterminate to qualify as a “clear and unambiguous promise,” and deposition testimony about how D’Hooge might perceive the email did not establish Cincinnati’s intended promise.
Oliver v. Stimson Lumber Co. (1999 MT 328): Set out the elements of negligent spoliation, including duty to preserve evidence, destruction, and significant impairment of the underlying case.
Lokey v. Breuner (2010 MT 216) and Jackson v. State (1998 MT 46): Supplied Montana’s foreseeability framing. These cases enabled the Court to hold that harm to D’Hooge’s ability to prove Tire Rama’s negligence fell within the scope of risk created by Cincinnati’s conduct and was reasonably foreseeable given insurers’ litigation awareness.

F. Pleading sufficiency

Kunst v. Pass (1998 MT 71) and Mysse v. Martens (279 Mont. 253 (1996)): Controlled Issue 3/“Issue 4.” A complaint must put the defendant on notice of the facts to be proved and must disclose the elements necessary to make the claim; mere suspicion is not enough. Applying these standards, the Court held the amended complaint did not sufficiently plead unjust enrichment, interference with economic advantage, or constructive fraud.

2) Legal Reasoning

A. Statutory interpretation: what the pre-2023 text does—and does not—say

The centerpiece of the Opinion is a textual, structural reading of § 33-18-242, MCA (2019). The Court emphasized two points:

§ 33-18-242(1), MCA affirmatively grants both insureds and third-party claimants an independent statutory cause of action for enumerated UTPA violations (statutory bad faith).
§ 33-18-242(3), MCA expressly limits only insureds to contract, fraud, or UTPA remedies “but not under any other theory or cause of action.”

From these premises, the Court drew a negative implication: because the Legislature placed an express “exclusive remedies” limitation on insureds but not on third-party claimants, courts may not judicially add an exclusivity limitation for third parties under the pre-2023 statute. The Court also highlighted that the 2023 amendment added precisely such a limitation for third parties—suggesting the prior law did not already do that work.

B. Contract: “accepting liability for your claim” lacks essential terms

The Court treated D’Hooge’s contract theory as an attempt to transform a claims-handling communication into a binding agreement to pay all damages arising from the slip and fall. Applying Montana contract doctrine (essential terms and mutual assent), the Court concluded the email was too indeterminate to be enforceable: it did not define the scope of liability accepted, what damages categories were included, or how any disputed damages would be resolved.

Importantly, the Court contextualized the email in the advance-payment framework of Ridley and DuBray: “accepting liability” could plausibly mean only that Cincinnati found liability “reasonably clear” for purposes of advance payments—an interpretation reinforced by Depositors Ins. Co. v. Sandidge, which recognizes insurers’ ability to reevaluate.

C. Promissory estoppel: no “clear and unambiguous promise”

Promissory estoppel requires a clear and unambiguous promise. The Court held the same indeterminacy that doomed contract also doomed promissory estoppel: the promise’s content cannot be reliably extracted from the email’s text.

The Court rejected D’Hooge’s reliance on deposition testimony suggesting D’Hooge might have understood the email to mean acceptance of general and special damages; that testimony, in the Court’s view, did not establish Cincinnati’s intended commitment (and intent is what matters for the promisor’s promise).

D. Spoliation: duty and “destruction” can be fact questions when the insurer discourages evidence-gathering

The Court’s most consequential merits analysis concerns spoliation. The District Court had held Cincinnati owed no duty to preserve evidence and doubted evidence existed to be destroyed. The Supreme Court disagreed on both points at the summary judgment stage.

Duty: Using foreseeability principles (Lokey; Jackson) and insurer litigation experience (including reasoning drawn from Coleman Constr., Inc. v. Diamond State Ins. Co.), the Court held it was foreseeable that telling a claimant to stop collecting evidence—while the insured remained exposed to liability—could impair the claimant’s ability to prove the underlying negligence case. The Court cautioned against a regime where an insurer can accept a claim without express reservation, deter evidence-gathering, and yet owe no preservation duty.
Destruction/impairment: The Court deemed Cincinnati’s “no evidence existed” argument speculative and noted the practical problem: D’Hooge’s inability to timely investigate (witness fading; footage becoming irretrievable) is precisely how “destruction” and “significant impairment” can manifest in spoliation disputes. The record created fact issues, precluding summary judgment.

E. Equitable estoppel: remand driven by incorrect legal premise and inadequate appellate support

The District Court dismissed equitable estoppel on the mistaken belief the UTPA barred it. Once the Supreme Court rejected that premise, the equitable-estoppel ruling lacked an alternative merits analysis. Cincinnati’s attempt to affirm on appeal was conclusory, and the Court invoked HSBC Bank USA, Nat’l Ass’n v. Anderson to decline to construct Cincinnati’s argument for it. The claim returns for proper analysis.

F. Pleading: listing “possible” causes of action is not enough to add new ones later

D’Hooge’s amended complaint included an “extensive list” of potential causes of action her facts might support, but did not include unjust enrichment, interference with economic advantage, or constructive fraud. Under Kunst v. Pass and Mysse v. Martens, the Court held the complaint did not disclose elements or facts that would put Cincinnati on notice of those claims. Summary judgment on those theories was affirmed.

3) Impact

A. Clarifying the pre-2023 landscape (and sharpening the post-2023 contrast)

The Opinion establishes a clear rule: under the pre-2023 version of § 33-18-242, MCA, third-party claimants are not categorically limited to statutory or common law bad faith when suing insurers over claim handling. This is a meaningful expansion/confirmation for older claims (and any claims governed by pre-amendment law), aligning Montana state law with the federal district court’s approach cited in the Opinion.

At the same time, the decision highlights the significance of the 2023 amendment, which expressly restricts third-party claimants to UTPA or fraud theories “but not under any other theory or cause of action.” Practically, D’Hooge may become a frequent citation in disputes about which version applies and what remedies remain available for pre-amendment conduct.

B. Claims-handling communications now carry sharper spoliation risk

The Court’s spoliation analysis signals that insurers’ early communications with unrepresented third-party claimants can generate duties with litigation consequences. Where an insurer’s statements or instructions foreseeably suppress evidence-gathering, courts may be more willing to find (at least at the fact-dispute stage) that a duty to preserve arose and that “destruction” can be established through loss of footage, fading memories, or missed witness identification opportunities.

C. Limits: “accepting liability” is not automatically a settlement contract or a promissory-estoppel promise

Despite siding with D’Hooge on statutory access to non-bad-faith theories (Issue 1), the Court drew a firm line on contract and promissory estoppel: general claims-language—especially in the context of advance-pay obligations—will not easily be converted into an enforceable promise to pay all damages. Future litigants will need far more specific communications (akin to the detailed memorialization in Nationwide Ins. Co. v. Heck) to survive summary judgment on those theories.

Complex Concepts Simplified

Third-party claimant: An injured person making a claim against someone else’s liability insurance (here, D’Hooge claiming against Tire Rama’s insurer, Cincinnati).
UTPA / statutory bad faith (§ 33-18-242, MCA): A statute creating a private lawsuit for certain unfair insurance practices. For third-party claimants, Montana law also imposes timing limits: they usually must resolve the underlying claim against the insured before bringing statutory bad faith.
Common law bad faith: A judge-made tort claim alleging an insurer handled a claim in bad faith, distinct from the UTPA’s statutory cause of action.
Advance payments (Ridley/DuBray line): When liability is “reasonably clear,” an insurer may have to pay certain medical bills and lost wages before final settlement—without necessarily admitting full liability for all damages.
Summary judgment (Rule 56): A pretrial ruling where the court decides there is no genuine dispute of material fact and the movant is entitled to judgment as a matter of law.
Promissory estoppel: Enforces a promise (even without a contract) when there is a clear promise, reasonable reliance, and injury. The promise must be clear and unambiguous.
Spoliation of evidence: A claim (or doctrine) based on wrongful loss/destruction of evidence that significantly impairs another’s ability to prove a case. It often turns on whether there was a duty to preserve and whether the loss materially harmed the underlying lawsuit.
Equitable estoppel: A fairness doctrine preventing a party from taking a position inconsistent with prior conduct or representations when another reasonably relied on them to their detriment.

Conclusion

D’Hooge delivers two key lessons. First, it establishes that under the pre-2023 version of § 33-18-242, MCA, third-party claimants are not confined to statutory or common law bad faith when suing insurers over claim handling; other tort and equitable theories may proceed if otherwise viable. Second, it simultaneously limits overreach: a vague “accepting liability” email—especially against the backdrop of Montana’s advance-payment doctrine—does not, without more, create an enforceable contract or a clear promissory-estoppel commitment to pay all damages.

On remand, the litigation will focus on whether Cincinnati’s conduct created spoliation liability and whether equitable estoppel applies—issues the Supreme Court held could not be disposed of on the District Court’s reasoning or on the current summary-judgment record.