"The existence of a legal duty is a question of law to be determined by the court." Fisher v. Swift Transp. Co., Inc. , 342 Mont. 335, 181 P.3d 601, 607 (2008). "At the most basic level, we all share the common law duty to exercise the level of care that a reasonable and prudent person would under the same circumstances."

To maintain a negligence action, a plaintiff must prove duty, breach, causation and damages. Fisher v. Swift Transportation Co., Inc. , 342 Mont. 335, 181 P.3d 601, 606 (2008).Mid-Continent makes two negligence arguments.

To maintain a negligence action, a plaintiff must prove duty, breach, causation and damages. Fisher v. Swift Transportation Co., Inc., 181 P.3d 601, 606 (Mont. 2008). Mid-Continent makes two negligence arguments.

Defendants need not foresee the specific injury in order for a third-party act to be foreseeable. Fisher v. Swift Transp. Co., 2008 MT 105, ¶ 40, 342 Mont. 335, 181 P.3d 601 (citations omitted).

In determining whether a duty of care exists, Montana courts consider the following two factors: “(1) whether the imposition of that duty comports with public policy, and (2) whether the defendant could have foreseen that his conduct could have resulted in an injury to the plaintiff.” Fisher v. Swift Transp. Co., 181 P.3d 601, 607 (Mont. 2008) (internal citations omitted). A court will weigh the following considerations with respect to the public policy factor: (1) “the moral blame attached to a defendant's conduct;” (2) “the prevention of future harm;” (3) “the extent of the burden placed on the defendant;” (4) “the consequences to the public of imposing such a duty;” and (5) “the availability and cost of insurance for the risk involved.” Id.

Code Ann. § 72–34–103; Hofer v. Mont. Dept. of Public Health & Human Servs., 329 Mont. 368, 124 P.3d 1098, 1103 (2005) (observing that a “trustee” is “one who, having legal title to property, holds it in trust for the benefit of another and owes a fiduciary duty to that beneficiary” (citing Black's Law Dictionary 1519 (Bryan A. Garner ed., 7th ed., West 1999))). Rather than a fiduciary duty, the Josephs assert their negligence claim based on the common-law duty of care. See Fisher v. Swift Transp. Co., Inc., 342 Mont. 335, 181 P.3d 601, 606–09 (2008). Whether a duty is owed is a question of law that the Court decides.

"At the most basic level, we all share the common law duty to exercise the level of care that a reasonable and prudent person would under the same circumstances." Fisher v. Swift Transportation Co., Inc., 181 P.3d 601, 606 (Mont. 2008). But the existence of a legal duty applicable in a specific situation "turns primarily upon foreseeability" — the foreseeability of whether particular conduct could expose a person to a risk of harm.

A plaintiff “must prove four essential elements: duty, breach, causation, and damages” to establish negligence under Montana law. Fisher v. Swift Transp. Co., 181 P.3d 601, 606 (Mont. 2008).

The existence of a legal duty presents a question of law to be determined by the court. Fisher v. Swift Transp. Co., 181 P.3d 601, 607 (Mont. 2008). In a negligence action, a duty may arise from a statutorily imposed obligation.

Any state law claim requiring such a decision is expressly preempted.See Fisher v. Swift Transp. Co. , 342 Mont. 335, 181 P.3d 601, 606 (2008).Plaintiff's negligence claim is based on an untimely coverage decision. It is grounded in the concept of what a "reasonable time under the circumstances" would be under Montana law. It conflicts with the Medicare Act's applicable regulation program.