Opinion
DA 24-0190
05-07-2024
DEPOSITORS INSURANCE COMPANY and AMCO INSURANCE COMPANY, Plaintiffs and Appellants, v. THE BRIARWOOD, MATTHEW PAYOVICH, KAREN PAYOVICH, JIM SLADE, SHANE BAKKEN, TRACEY BAKKEN, SCOTT DANA, KATELIN HAGENBUCH, JACOB HAGENBUCH, THAD LENSING, JACKSON SMITH, CHAD KER, MARK ZAGEL, GARY BAKER, WHITNEY BLOOMBERG, RITA BOWKER, EMILY BRESTER, KRIS BRESTER, PIER BREWER, CRAIG BURSON, JUANITA BURSON, BAYLEE EISENMAN, ERIK FREEMAN, JAMIE GARCIA, MIKEL GARCIA, MELISSA GRAVES, SEAN GRAVES, IAN GROSULAK, DALTON HAGADONE, JERRY HAGADONE, JORDAN HENNESSY, KALI HENNESSY, BRANDON HURST, DESIRAE JOHNSTON, TYLER JOHNSTON, KRISTOFER KRAUSE, NOLAN LAGALY, JOE LAUER, JOSH BERRY ROBERTS, DAVID STARCEVICH, CHRIS NILE, AND INDIVIDUAL DOES 1-30. Defendants and Appellees.
ORDER
Appellees Matthew Payovich, Karen Payovich, Jim Slade, and Baylee Eisenmann move to dismiss this appeal as premature. Appellants Depositors Insurance Company and AMCO Insurance Company ("Insurers") oppose the motion, arguing that the appeal is proper under Mont. R. App. P. 6(3)(h). The remaining Appellees have not objected.
The case arises from a deck collapse at The Briarwood Country Club in Billings, resulting in injuries to more than fifty people. The Briarwood was insured by the Insurers for an aggregate amount of $3,000,000. The Insurers filed a Complaint in the Thirteenth Judicial District to interplead their policy limits. On motion of several of the Defendants, the District Court entered an order (1) directing the Insurers to deposit the $3,000,000 into an interest-bearing account pending resolution, (2) directing the Insurers to pay interest at the statutory interest rate on the interpleaded funds from the date of filing the original Complaint in Interpleader until the funds were actually deposited, and (3) appointing a special master, at the Insurers' expense, to value the claims. The Insurers objected to the interest order and to paying the expenses of the special master. The District Court denied their request to modify the order, and this appeal followed.
Appellees argue that there has not been a final judgment, writ of supervisory control, or Rule 54(b) certification and that none of the circumstances under Mont. R. App. P. 6(3) applies to allow appeal. The Insurers respond that the District Court's assessment of interest forms part of the interpleaded property that the claimants ultimately will divide and orders the payment of the special master's compensation to effectuate that division. In essence, the Insurers contend, "it represents the transfer of property that makes up the res of the interpleader itself,-and is therefore within the scope of Appellate Rule 6(3)(h)."
A party may not take an appeal until the trial court has issued either a final judgment that has determined all rights and claims in the underlying proceeding or an order otherwise appealable under the Montana Rules of Appellate Procedure; M. R. App. P. 4(1), 6(1), 6(3). Rule 6(3)(h) permits appeal "[f]rom an order directing the delivery, transfer, or surrender of property[.]" We conclude that this provision is not applicable. The District Court's order directs the deposit of interpleaded funds and makes the Insurers responsible for certain payments. There has been no order approving or specifying the amount of any such payments or directing that such payments be made from the interpleaded funds. Deposit of the insurance proceeds is not synonymous with delivery, and the order does not direct any transfer or surrender of property. The Insurers retain a right to appeal from any final judgment.
IT IS THEREFORE ORDERED that this appeal is DISMISSED without prejudice. The Clerk is directed to provide notice of this Order to all counsel of record.