See National Surety Corp. v. Mack, 2015 WL 8779995 *4 (D. Mont. 2015). Allstate argues that the Montana Supreme Court's decision in Tenas v. Progressive Preferred Ins. Co., 197 P.3d 990 (Mont. 2008), supports a determination that the policy must be interpreted under Kansas law. The facts presented here differ from the those in Tenas.

¶19 The Restatement analysis under § 187 is a conjunctive test requiring a party establish that (1) but for the contractual choice of law, Montana law would apply, (2) Montana has a materially greater interest than the state chosen by the parties, and (3) applying the state law chosen by the parties would violate a fundamental Montana policy. Tenas v. Progressive Preferred Ins. Co. , 2008 MT 393, ¶ 34, 347 Mont. 133, 197 P.3d 990 ; Modroo , ¶ 54. Because Barber has not shown that Montana law would apply or that Montana has a materially greater interest in the issue, our analysis ends there.

As a general rule, Montana courts enforce choice-of-law provisions and apply the law of the state the parties chose. Tenas v. Progressive Preferred Ins. Co. , 2008 MT 393, ¶ 32, 347 Mont. 133, 197 P.3d 990 (citing Restatement (Second) of Conflict of Laws § 187(2) ). A court will not apply a choice-of-law provision if either (1) "the chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties’ choice" or (2) "application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state in the determination of the particular issue and which ... would be the state of the applicable law in the absence of an effective choice of law by the parties."

Under this approach, the court determined that the factors weighed in favor of applying Montana law.¶ 44 On appeal Comerica argues that the court's failure to adhere to Montana's precedent of promoting contracting parties' rights to choose governing law amounts to legal error, citing Tenas v. Progressive Preferred Ins. Co., 2008 MT 393, ¶¶ 30–32, 347 Mont. 133, 197 P.3d 990. As to the District Court's declaring the motion untimely, Comerica contends that the choice-of-law argument was not waived, as Comerica had in fact raised the choice-of-law issue in prior pleadings, and then filed its motion well before the November 5, 2013 motion deadline. Comerica also argues that the court erred in attaching significance to Comerica's invocation of Montana law in its previous motions, noting that all of its previous motions were procedural in nature and therefore necessarily required the application of Montana law. Finally, Comerica argues that even under the court's “most significant relationship” approach, Michigan law still should apply.