Lohrke v. American Family Connect Insurance

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March 25, 2026 Get Citation Alerts Download PDF Add Note

Richard R. Lohrke v. American Family Connect Insurance Agency, Inc. and American Family Connect Property and Casualty Insurance Company, f/k/a IDS Property Casualty Insurance Company

District Court, D. Montana

• Citations: None known
• Docket Number: 2:24-cv-00011

• Precedential Status: Unknown Status

• Opinion

• Authorities (16)

• Cited By (0)

• Summaries (0)

• Similar Cases (23.3K)

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Trial Court Document

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BUTTE DIVISION

RICHARD R. LOHRKE,
CV-24-11-BU-BMM
Plaintiff,

v.

AMERICAN FAMILY CONNECT ORDER ON RENEWED MOTION FOR
INSURANCE AGENCY, INC. and JUDGMENT AS A MATTER OF LAW
AMERICAN FAMILY CONNECT
PROPERTY and CASUALTY
INSURANCE COMPANY, f/k/a/ IDS
PROPERTY CASUALTY
INSURANCE COMPANY,

Defendants.

INTRODUCTION

Plaintiff Richard Lohrke (“Lohrke”) filed a complaint against American
Family Connect Insurance Agency, Inc. (“Agency”) and American Family Connect
Property and Casualty Insurance Company, f/k/a IDS Property Casualty Insurance
Company (“Connect”) (collectively “Defendants”), alleging breach of contract,
violations of the Montana Unfair Trade Practices Act, constructive fraud, and
breach of the implied covenant of good faith and fair dealing. (Doc. 19 at 11-13.)
The Court held a four-day jury trial beginning on January 20, 2026. (Doc. 189.)
The jury returned a verdict in Lohrke’s favor on January 23, 2026. (Doc. 208.)

Connect filed a renewed motion for judgment as a matter of law pursuant to Fed.
R. Civ. P. 50(b) on February 23, 2026. (Doc. 231.)
BACKGROUND

The Court is familiar with the facts of this case. Lohrke purchased
automobile insurance from Connect through its insurance broker Agency. (Doc. 97-
2 at 4.) Lohrke sustained injuries after an uninsured motorist rear-ended him on the
highway. (Doc. 19 at 3.) Medical providers diagnosed Lohrke with corneal

abrasion, concussion, and body contusions. (Id. at 4.) Lohrke experienced chronic
pain and diminished range of motion that led Lohrke to seek ongoing physical
therapy. (Id.) Lohrke alleged that he will be partially disabled for the rest of his life

due to his injures. (Id. at 5-6.) The extent and cause of Lohrke’s injuries remained
in dispute at trial. (Doc. 110 at 14-16.) Finney, the driver who crashed into Lohrke,
had no automobile insurance. (Id.)
Lohrke filed claims with Connect for payment of medical costs incurred in

the accident and for other injuries sustained. (Doc. 19 ¶¶ 51, 68-69). Lohrke filed
an action against Connect and Agency to recover for these injuries in Montana
state court. Agency removed the action to federal court more than two years ago on

February 15, 2024. (Doc. 1.)
The Court will not recount the numerous motions, hearings, and pre-trial
conflicts in the matter. The Court held a four-day jury trial from January 20, 2026,

to January 23, 2026. (Doc. 189, Doc. 192, Doc. 193, Doc. 200.) The Court
dismissed the claims against Agency before the case went to the jury. The jury
returned a verdict on January 23, 2026, finding for Lohrke on all counts against

Connect. (Doc. 208.) The jury specifically found that Connect had violated three
provisions of the UTPA, had breached its insurance contract with Lohrke, had
committed constructive fraud, and had breached the implied covenant of good faith
and fair dealing. (Id.) The jury awarded Lohrke $500,000 in compensatory

damages. (Id. at 4.) The jury also found Connect liable for actual malice or actual
fraud in its handling of Lohrke’s insurance claims. (Id.) The Court conducted a
separate punitive damage hearing pursuant to Montana law after which the jury

awarded Lohrke $5,000,000 in punitive damages. (Doc. 210.)
LEGAL STANDARD
A motion for judgment as a matter of law under Fed. R. Civ. P. Rule
50(b) can be granted only if “there is no legally sufficient basis for a reasonable

jury to find for that party on that issue.” Krechman v. Cnty. of Riverside, 723 F.3d
1104, 1109–10 (9th Cir. 2013) (internal quotations and citation omitted). “[I]n
entertaining a motion for judgment as a matter of law, the court . . . may not make

credibility determinations or weigh the evidence.” E.E.O.C. v. Go Daddy Software,
Inc., 581 F.3d 951, 961 (9th Cir. 2009) (alteration in original) (quoting Reeves v.
Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000)). “[T]aking a motion

under submission and ruling on it after the jury returns a verdict is proper practice,
the court ‘may not substitute its view of the evidence for that of the jury.’”
Krechman, 723 F.3d at 1110 (quoting Winarto v. Toshiba Am. Elecs. Components,

Inc., 274 F.3d 1276, 1283 (9th Cir. 2001) (internal citation omitted)).
DISCUSSION
Connect made a motion under Fed. R. Civ. Pro. 50 requesting that the Court
enter judgment as a matter of law. (Doc. 240 at 373:15-382:20.) Connect

appropriately made the motion after all the evidence had been presented and before
the Court had submitted the case to the jury. (Id.; see Fed. R. Civ. Pro. 50(a)(2).)
The Court deferred ruling on the motion and submitted all issues to the jury. (Doc.

240 at 387:7-8.) The Court denied Connect’s Rule 50(a) motion after the jury
returned its verdict. (Doc. 242 at 908:10-23.) Connect now files a renewed 50(b)
motion for judgment as a matter of law. (Doc. 232 at 6.)
Connect seeks judgment as a matter of law to reverse the jury’s conclusions

as to all Lohrke’s claims. (Id.) Connect generally argues that the Court’s previous
determination that Lohrke had not established reasonably clear liability is
determinative for Lohrke’s causes of action and that Lohrke failed to present
sufficient evidence for the jury’s findings on key elements of each claim. (Id.) The
Court will address each issue in turn.

I. Breach of Contract
Connect argues that Lohrke failed to present sufficient evidence to establish
that he was legally entitled to recover from the uninsured motorist and, therefore,

that Connect had no contractual duty to pay Lohrke the benefits of his policy. (Doc.
232 at 8-9.) Connect further asserts that Lohrke failed to present sufficient
evidence for a reasonable jury to find that Connect had denied Lohrke’s uninsured
motorist claim. (Id. at 9.)

Connect also argues that Connect had provided MedPay coverage to Lohrke
and that Lohrke had exhausted the limits of his MedPay coverage on July 6, 2025,
shortly before the date of anticipated litigation. (Id.) Connect argues that Lohrke

presented no allegations or evidence that Connect breached the MedPay provisions
of its policy with Lohrke. (Id.) The Court notes that Lohrke presented evidence that
Connect sent conflicting communications to Lohrke about the actual amount of his
MedPay coverage, and specifically whether it would stack the coverage. (Doc. 240

at 266:22-267:12, 276:18-278:12, 279:5-16.) Lohrke conceded that Connect
proceeded to stack Lohrke’s MedPay policy and pay him the full amount to which
he was entitled. (Id.) The Court will focus this discussion on the dispute over

Lohrke’s uninsured motorist coverage.
Connect reiterates arguments that the Court already has addressed several
times as it relates to the issues of reasonably clear liability and legal entitlement.

(See Doc. 143, Doc. 158, and Doc. 246.) The Court determined in its summary
judgment order that the authority, including the cases cited by Connect, make clear
that legal entitlement can be established through means beyond tort judgment,

including through settlement, or agreement of the parties, often within stipulated
facts. (Doc. 143 at 10-13, citing State Farm Mut. Auto. Ins. Co. v. Est. of Braun, 793 P.2d 253, 256 (Mont. 1990), and State Farm Mut. Auto. Ins. Co. v. Freyer, 312
P.3d 403, 411 (Mont. 2013).) Connect’s citations to cases from the early 20th

century prove unpersuasive to the Court considering the existence of conflicting
and more recent authority. (See Doc. 232 at 13, citing Conley v. U. S. F. & G. Co, 37 P.2d 565 (Mont. 1934), and Cummings v. Reins, 107 P. 904 (Mont. 1910).)

The Court’s order did not state that a stipulation presents the only route to
demonstrate legal entitlement through agreement, and concluded instead that
Connect’s repeated and consistent assertions to Lohrke that “no cov[erage]
concerns” existed and that Finney had been “100% at fault” could provide

sufficient evidence to demonstrate agreement and, therefore, legal entitlement.
(Doc. 143 at 12.) The case law supports this conclusion. Freyer reasoned that “[a]n
insurer's duty to indemnify hinges not on the facts the claimant alleges and hopes

to prove but instead on the facts, proven, stipulated or otherwise established that
actually create the insured's liability.” 312 P.3d at 411 (emphasis added). In other
words, Freyer concluded that legal entitlement may be proven based on facts that

are not found in a stipulation but simply proven or otherwise presented through
evidence at trial.
Connect’s argument that no cases exist allowing suit against the insurer

where liability remained in dispute ignores the fact that for two years after the
accident no indications existed that liability remained in dispute. Connect never
asserted or represented to Lohrke in any manner that liability was disputed.
Connect never communicated to Lohrke that he had failed to establish legal

entitlement or even that questions existed concerning legal entitlement. The jury
heard evidence and repeated testimony of that fact. (Doc. 239 at 95:8-23, 151:1-22,
152:7-16; Doc. 240 at 231:25-232:11, 246:3-18; and Doc. 241 at 666:10-23, 669:1-

25, 670:12-19; 672:4-673:19.) Connect seemingly avoided raising the issue to
Lohrke with the hopes that Lohrke eventually would give up and Connect could
avoid payment or discussion over the issue. Connect cannot now claim that
disputes over liability preclude Lohrke’s suit when it failed to even suggest to

Lohrke that such a dispute existed until after the anticipation of litigation.
Connect also cursorily repeats an argument it made in its motion for a new
trial asserting that the Court’s order denying summary judgment to Lohrke on the

issue of reasonably clear liability conclusively proves that Lohrke could not
establish legal entitlement. (Doc. 232 at 11-12.) The Court briefly reiterates that
case authority conclusively establishes that “whether liability was ‘reasonably

clear’ is a question of fact for the jury.” Cranska v. UMIA Ins., Inc., 709 F. Supp.
3d 1200, 1213 (D. Mont. 2024), aff'd, No. 24-947, 2025 WL 1098879 (9th Cir. Apr.
14, 2025); see also Fryer v. UMIA, No. CV 22-14-BLG-SPW, 2025 WL 670383, at

*11 (D. Mont. Mar. 3, 2025) (concluding the same). Cranska and Fryer directly
refute Connect’s argument that a denial of summary judgment to a plaintiff on the
issue of reasonably clear liability precludes a successful claim.
Connect asserts another argument that the Court addressed in its order on

Connect’s motion for a new trial. Connect argues that Lohrke presented insufficient
evidence that Connect refused to pay or denied Lohrke’s claim. (Doc. 232 at 12.)
Connect focuses on the fact that Lohrke did not present unpaid medical bills to the

jury. (Id.) The Court will briefly address the evidence Lohrke presented regarding
Connect’s refusal to pay.
Lohrke presented evidence that he communicated to Connect that his
medical bills were not getting paid and that he was concerned about payment.

(Doc. 240 at 239:18-240:1, 241:17-245:9.) The Court also correctly instructed the
jury that “[a] defendant cannot cure a violation of the UTPA by subsequently
paying a claimant’s claim[.]” (Doc. 201 at 14, Ins. No. 12; see Lorang v. Fortis Ins.

Co., 192 P.3d 186, 191 (Mont. 2008) (eventual payments do not cure § 33-18-
201(4) violation).) The parties further agreed that Lohrke had exhausted his
MedPay coverage before July 25, 2022, and that Lohrke had not completed needed

medical treatment before that time. (Doc. 232 at 9; Doc. 240 at 240:25-22; and
Doc. 241 at 650:15-651:3.) The jury could make the reasonable inference that
Lohrke may have had continuing and outstanding medical payment obligations

past the date when Lohrke had exhausted his MedPay coverage.
Lohrke’s claim also did not rely solely upon an alleged failure to pay
specific medical bills, but also on Connect’s refusal to settle the matter, and

Connect’s denial of Lohrke’s uninsured motorist coverage in its entirety. The Court
addressed Connect’s arguments related to the refusal to settle in its order on the
motion for a new trial and briefly will reiterate that analysis. (See Doc. 246.)

Amberg v. Travelers Cas. & Sur. Co. of Am., No. CV 24-70-BU-DLC, 2025 WL
1811459, at *6 (D. Mont. July 1, 2025), concludes that “a rejection of an initial
settlement demand does not, in and of itself, indicate an insurer's refusal to pay a
claim.” Amberg further states an insurer’s initial refusal of a settlement demand is

undercut when the insurer later does, “in fact, settle[.]” Id. Connect never agreed
to settle with Lohrke and made no effort at settlement. The Court determines that
the jury heard sufficient evidence to reasonably conclude that Connect had refused

to pay in breach of the insurance contract. The Court concludes that a “legally
sufficient basis existed for a reasonable jury to find for” Lohrke on his breach of
contract claim. Krechman, 723 F.3d at 1109–10.

II. Violations of the UTPA
Connect asserts that “[a] reasonable jury could not have found that Connect

violated Mont. Code Ann. § 33-18-201 (1), (4), and (6)[.]” (Doc. 232 at 13.) The
Court will address each UTPA claim in turn.
A. Mont. Code Ann. § 33-18-201 (1)
Connect first argues that “[t]he evidence undisputedly showed that Connect

did not misrepresent pertinent facts or policy provisions.” (Id. at 14.) The Court
addressed Connect’s argument in depth in its order on Connect’s motion for a new
trial. (See Doc. 246.) The Court briefly will repeat its analysis.

The Court acknowledges that Connect correctly claims that Mont. Code
Ann. § 33-18-201 (1) requires a misrepresentation of facts or policy provisions,
rather than a purely legal misrepresentation. The Court first concludes that Lohrke
presented sufficient evidence of an affirmative misrepresentation by Connect as to

its MedPay stacking policy. Lohrke presented evidence from his policy with
Connect concerning his MedPay coverage that clearly prohibited stacking. (Doc.
240 at 266:22-267:12.) The jury heard evidence that one of Connect’s adjusters,

Charlene Fransen, communicated to Lohrke that Connect would nonetheless stack
Lohrke’s MedPay coverages. (Id. at 276:18-278:12.) The jury heard evidence that
Connect followed Fransen’s assurance with a letter to Lohrke stating that it would
not stack his MedPay coverages. (Id. at 279:5-16.) Connect argued that this letter

was automatic, a form letter, but that does not cure the fact that Connect was
apparently misrepresenting its own policy provisions, or how it factually
implemented MedPay coverages. The Court determines that this evidence presents

a legally sufficient basis for a reasonable jury to find that Connect had
misrepresented pertinent facts of policy provisions of the coverage at issue.
The Court also believes it necessary to clarify Moe’s holding. Moe focused
on when an insured triggered an insurer’s Ridley obligations. 2020 WL 6214882,

*2. The plaintiff in Moe had argued that the insurer had an obligation under Ridley
to pay medical expenses even when the insured had never demanded the payments. 2020 WL 6214882, *1. The discussion over the triggering point for Ridley

obligations presented a purely legal issue and did not address any particular
language in the insurance company’s policy. Id. Connect’s policy provisions differ from Moe in that Connect’s policy

actually included misrepresentations about stacking. Connect’s position also
creates a hypothetical where insurance companies could include clearly illegal
provisions within their policies and not be liable under § 33-18-201(1). This result

would prove absurd and clearly beyond the intent of the Montana legislature when
it crafted the UTPA. This case further differs from Moe in that Connect’s policy
provision could not legally be enforced in fact. Connect’s anti-stacking policy
wrongfully stated Montana law and, as a matter of fact, could not be legally

implemented in Montana. The Court concludes that Moe must be limited to its
facts and not extended in the manner Connect suggests.

Connect also cites Bentle v. Farmers Ins. Exch., 2023 WL 7549512, at *2
(9th Cir. 2023), to support its argument. Bentle affirmed this Court’s order granting
summary judgment to an insurance company on the issue of § 33-18-201(1)
misrepresentations when the plaintiff alleged that the insurer had misrepresented

“the contents of its internal investigation, the findings of its records review, and the
true value of [the plaintiff’s] claims. Id. at *1. Bentle concluded that the plaintiff
never alleged that the insurer had misrepresented the coverage provisions of his

policy. Id. Bentle does not change the Court’s analysis. The Court determines that a
legally sufficient basis existed for a reasonable jury to determine that Connect had
misrepresented pertinent facts or policy provisions to Lohrke pursuant to § 33-18-
201(1) both to Connect’s inconsistent communications over MedPay, and to

Connect’s erroneous anti-stacking policy for uninsured motorist coverage.
B. Mont. Code Ann. § 33-18-201 (4)

Connect argues that Lohrke presented no evidence that Connect had refused
to pay his claims and that “reasonable persons could not differ on the issue that
there had been no constructive denial, as of July 25, 2022.” (Doc. 232 at 16.) The
Court has repeatedly addressed this issue. The Court refers Connect to earlier
sections in this order, the Court’s order on the motion for a new trial (Doc. 246),

and the Court’s order on summary judgment (Doc. 143). To the extent Connect
makes new arguments, the Court will address those here.
Connect cites Bentle to support its argument that an insurer “ha[s] nothing to

refuse” when a plaintiff does not provide evidence linking the accident to his
medical bills. 2023 WL 7549512, at *2. The plaintiff in Bentle had settled his
underinsured motorist claim with his insurer and then submitted medical bills to
his insurer for his MedPay coverage but “failed to provide any evidence linking the

accident to those medical bills despite [the insurer’s] repeated requests for such
information.” Id. Bentle differs from this case. Connect paid Lohrke’s MedPay
coverage but refused to settle Lohrke’s uninsured motorist claim. Beyond the

opposite posture, Bentle further differs from this case because Connect has
presented no evidence that it “repeated[ly] request[ed]” any “linkage” information
or gave Lohrke any direction on what information it needed before paying his
uninsured motorist claims. Id. Connect now represents that its email response denying Lohrke’s request for
settlement “indicate[d] a desire to see more information about the scope and
completion of treatments.” (Doc. 232 at 18.) The email from Jen Law to which

Connect appears to be referring explains why Connect had failed to pay several
medical bills from Lohrke. (Doc. 218 Ex. 8 at 1; Doc. 241 at 685:13-688:5.) Law
states that Connect will not pay Lohrke any money under his uninsured motorist

coverage because it “is a one time settlement amount that is reviewed once all
treatment is complete.” (Doc. 218 Ex. 8 at 1; Doc. 241 at 685:13-688:5.) Law
states that Connect would request all bills and records and review Lohrke’s claim

as a whole once Lohrke had completed treatment. (Doc. 218 Ex. 8 at 1; Doc. 241 at
685:13-688:5.) Lohrke responded that his doctors indicated that his “treatment may
never be complete” due to ongoing needs and that he could not afford to continue
treatment without support from his insurance company. (Doc. 218 Ex. 8 at 2; Doc.

241 at 685:13-688:5.)
Connect’s communications to Lohrke do not represent “repeated requests”
for evidence linking the accident to Lohrke’s medical bills. Bentle, 2023 WL

7549512, at *2. Connect instead stated that it would not pay Lohrke’s medical
bills, or negotiate a settlement for his uninsured motorist coverage, until he had
completed treatment, despite the fact that Lohrke represented that he may never
complete treatment. Connect effectively indicated that it would refuse to work with

Lohrke to come to a solution to allow him to access his ongoing medical care. The
Court concludes that a legally sufficient basis existed for a reasonable jury to
determine that Connect had denied, or constructively denied, Lohrke’s insurance

claims for the purposes of § 33-18-201(4).
C. Mont. Code Ann. § 33-18-201 (6)
Connect states that its motion for judgment as a matter of law on Lohrke’s

claim under § 33-18-201(6) “is based on two grounds, first, there is a legal bar to
the verdict rendered by the jury under the principles of collateral estoppel, and,
second, the evidence was legally insufficient to support the verdict rendered by the

jury.” (Doc. 232 at 19.) The Court already has addressed Connect’s arguments
alleging collateral estoppel on the issue of reasonably clear liability and
insufficient evidence to support the verdict. (See Doc. 246.) The Court refers
Connect to its order on the motion for a new trial. To the extent Connect makes

new arguments, the Court will address those here.
Connect also asserts that the “declaratory action cases and the standalone §
33-18-201(6) and (13) cases all rely on the same statutory ‘reasonably clear’

language and therefore there is no difference between the legal standard applied in
a declaratory action case, like Giambra, Teeter, and Sandidge, and one for a
standalone claim for violation of § 33-18-201(6).” (Doc. 232 at 21.) Cranska
refutes Connect’s argument. 709 F. Supp. 3d at 1214. Cranska distinguished the §

33-18-201(6) UTPA claim from the issues presented in Depositors Ins. Co. v.
Sandidge, 504 P.3d 477 (Mont. 2022). The claims in Sandidge “were brought as
declaratory judgment actions seeking to resolve whether advance payments were

required under Ridley prior to the filing of a UTPA or common law bad faith
action.” Cranska, 709 F. Supp. 3d at 1214. The Court declines to adopt Connect’s
arguments in contravention to Cranska’s binding authority.

Connect further argues that the Court, and the cases upon which it relies, do
not address Shepard v. Farmers Ins. Exch., 477 P.3d 1114 (Mont. 2020). (Doc. 232
at 21-22.) Connect asserts “[u]nder Shephard, a district court’s determination that

‘reasonably clear liability’ had not been established as a matter of law on the
underlying claim, is both dispositive of the § 33-18-201(6) claim, and warrants
dismissal as Connect had a reasonable basis to contest the claim.” (Doc. 232 at 26.)
Connect argues that Cranska and Fryer are wrong and that Shephard, Ridley,

Giambra, Teeter, and Sandidge correctly apply the standard for reasonably clear
liability and its preclusive effect. (Doc. 232 at 23-25; see also Cranska, 709 F.
Supp. 3d at 1214; Fryer v. UMIA, No. CV 22-14-BLG-SPW, 2025 WL 670383, at

*7 (D. Mont. Mar. 3, 2025); Shepard, 477 P.3d at 364; Ridley v. Guar. Nat. Ins.
Co., 951 P.2d 987, 991 (Mont. 1997), as modified on denial of reh'g (Jan. 30,
1998); Giambra v. Travelers Indem. Co., 78 P.3d 880, 882 (Mont. 2003); Teeter v.
Mid-Century Ins. Co., 406 P.3d 464, 468 (Mont. 2017); and Sandidge, [504 P.3d

477](https://www.courtlistener.com/opinion/6353301/depositors-ins-v-sandidge/).)
Connect fails to address the fact that Cranska and Fryer represent the most
recent precedent on the issue. Cranska addressed the defendant insurer’s arguments

that Teeter, Sandidge, and Giambra concluded that it proved proper for a district
court to make a reasonably clear analysis at summary judgment. Cranska, 709 F.
Supp. 3d at 1213. Cranska did not specifically distinguish Shephard, yet the

principles and reasoning remain applicable to Shephard. Shephard differs from
Cranska and the case here.
Shephard also does not appear to stand for the contention that Connect

suggests that a court’s denial of summary judgment to a plaintiff on reasonably
clear liability always precludes a successful § 33-18-201(6) claim. Shephard
clearly stated that the determination of liability is left to a jury if objectively
reasonable debate exists. Shepard, 477 P.3d at 364. Shephard affirmed the district

court’s application of issue preclusion to bar the plaintiff’s UTPA claim. Id. Shephard did not rely solely on the trial court’s statement about the plaintiffs’
failure to demonstrate reasonably clear liability in the interpleader action. Id. Shephard further reasoned that the trial court correctly had observed that “[i]n
addition to the findings in the [interpleader] litigation, [the plaintiffs] failed to
demonstrate any factual basis for alleging the insure[r]s acted without a reasonable
basis for contesting the claims, or for alleging liability was reasonably clear.” Id. (emphasis in original) (edited for clarity). Shephard emphasized that the trial
court’s decision to bar the plaintiffs’ claims relied heavily on the fact that the
plaintiffs had been unable to demonstrate that liability “was ever reasonably clear.” Id. (emphasis in original).
Not only does Shephard differ procedurally and factually, but it differs in
that Lohrke has presented numerous pieces of evidence suggesting that liability

had been reasonably clear at one point, and seemingly for most of the two years
following the crash. (Doc. 241 at 666:10-23, 669:1-25, 670:12-19, 672:4-673:19.)
The Court remains unpersuaded that it should ignore intervening precedent in

Cranska and instead apply Connect’s interpretation of Shephard. The Court
determines that collateral estoppel did not bar the jury from hearing the issue of
reasonably clear liability.
Connect next argues that insufficient evidence existed to support the jury’s

finding that liability had been reasonably clear as of July 25, 2022. (Doc. 232 at
26.) The Court directed the jury on how to evaluate reasonably clear liability using
the instruction provided in Peterson v. St. Paul Fire and Marine Ins. Co., [239 P.3d

904, 915](https://www.courtlistener.com/opinion/889317/peterson-v-st-paul-fire-marine-insurance/#915) (Mont. 2010). The Court’s Instruction No. 14 stated the following:
Liability in the underlying case need not be certain in order to be
reasonably clear. Liability is “reasonably clear” when a reasonable person,
with knowledge of the relevant facts and law, would conclude, for good
reason, that the defendant is liable to the plaintiff for the damages claimed.

In doing so, you should take into account that, under Montana law, if a
tortfeasor was 50% or more negligent, then a plaintiff would be entitled to
recover damages from the tortfeasor, even if the plaintiff was partially
negligent. You must determine in this case whether a person, with
knowledge of the relevant facts and law, would have concluded for good
reason that the tortfeasor—the uninsured driver—was 50% or more
negligent.
(Doc. 201 at 16, Ins. No. 14.) The Court further instructed the jury as follows:
In deciding whether liability was reasonably clear, you must consider the
information known to Connect at the time of its claims handling, or readily
available to Connect through reasonable efforts. You should not consider
information known only by Mr. Lohrke or his attorney. You should not
consider what information would have been presented to a jury at a trial
concerning liability for the automobile collision.

(Id. at 17, Ins. No. 15.) The Court based Instruction No. 15 on an instruction given
in Fryer et al v. UMIA et al, 1:22-cv-00014-SPW (Nov. 11, 2025) (citing Graf v.
Continental Western Ins. Co., 89 P.3d 22 (Mont. 2004)). The Court tasked the jury
to use these instructions to interpret and analyze the information presented to them
by both parties.
Connect asserts that the jury heard only a “he-said-he-said dispute over

liability” and that no evidentiary showing existed to demonstrate an absence of
objectively reasonable debate about liability. (Doc. 232 at 27.) The jury heard
significant evidence in this “he-said-he-said dispute[,]” however, and reasonably
could conclude that no objectively reasonable debate existed about liability.

The jury heard all the known facts about the accident. The jury heard that
Lohrke was driving on the highway and intended to turn into a pull-out off the
highway to park his truck. (Doc. 240 at 208:4-21, 210:19-211:20.) Lohrke had

slowed down to look at one pull-out and then decided to park in the next pull-out.
(Id.) Lohrke did not speed back up all the way to the highway speed limit in order
to immediately slow down and make a ninety degree turn and park. (Id.; 289:1-

291:24.) Finney, the uninsured motorist, was driving with his cruise control set to
five to ten miles per hour over the posted speed limit and alleged that he did not
see Lohrke because he had driven around a blind corner or, in another version, a

blind crest. (Id. at 408:18-24, 409:11-16.) Finney was not sure if he had turned on
his headlights despite the early morning darkness. (Id. at 213:24-25.) Finney rear-
ended Lohrke when Finney was going about 70 mph and Finney stated that he
never even braked before crashing into Lohrke. (Id. at 408:18-24; Doc. 241 at

521:12-13.) Finney had also provided three different versions of the story, first to
the trooper, then at two separate times to Connect. (Doc. 241 at 521:12-13.)
The trooper who responded to the accident call nearly an hour later, but did

not witness the crash, issued warnings to both men—Finney for speeding and
Lohrke for obstructing traffic. (Doc. 240 at 408:18-24.) Neither the trooper nor
Connect ever provided an explanation of how Lohrke properly should have turned
into the pull-out without slowing down on the highway. Connect’s theory of the

accident suggests that it is your fault if you are rear-ended on a highway because
you slowed down to turn off the road onto a designated pull-out or side road.
Connect’s position depends entirely on this theory, an accident report created by a
non-witness to the accident, and a statement made to Connect by an uninsured
driver whose clear interest was to avoid any liability.

The Court fails to see how this evidence proved insufficient to allow a
reasonable jury to conclude that Finney was 50% or more at fault for the accident.
The Court reiterates that “[l]iability in the underlying case need not be certain in

order to be reasonably clear.” Fryer, 2025 WL 670383, at *29. “Instead,
‘reasonably clear’ liability is established when it is “’clear enough’ that reasonable
people assessing the claim would agree on the issue of liability, and that the facts,
circumstances, and applicable law leave little room for objectively reasonable

debate about whether liability exists.” Peterson, 239 P.3d at 913–14.
The Court “may not make credibility determinations or weigh the
evidence[]” at the judgment as a matter of law stage. Go Daddy Software, Inc., [581

F.3d at 961](https://www.courtlistener.com/opinion/1265013/equal-employment-opportunity-commission-v-go-daddy-software-inc/#961). The Court also “may not substitute its view of the evidence for that of
the jury.” Krechman, 723 F.3d at 1110 (internal citation omitted). The Court
remains unpersuaded that the evidence presented failed to provide a legally
sufficient basis for a reasonable jury to conclude that no objectively reasonable

debate existed over Finney’s liability for the crash. The Court determines that a
legally sufficient basis existed for a reasonable jury to find that Lohrke had
established reasonably clear liability for the purposes of his § 33-18-201(6) claim.

III. Constructive Fraud
The Court already has addressed Connect’s numerous arguments related to
constructive fraud in its order on the motion for a new trial. (See Doc. 246.) The

Court will not repeat its analysis on the issue of the jury instructions or the dispute
over misrepresentations of policy provisions. The Court determines that a legally
sufficient basis existed for a reasonable jury to determine that Connect committed

constructive fraud either in its inconsistent communications concerning Lohrke’s
MedPay coverage, or in its erroneous application of Lohrke’s uninsured motorist
coverage.
IV. Breach of the Implied Covenant of Good Faith and Fair Dealing

The Court already has addressed Connect’s arguments about the breach of
the implied covenant of good faith and fair dealing in its order on the motion for a
new trial. (See Doc. 246.) The Court concluded that Lohrke had presented evidence

about the reasonableness of Connect’s settlement offers, or denial and failure to
counter Lohrke’s settlement offer, at trial. (Id.) The Court determined in its order
on summary judgment that King v. Health Care Servs. Corp., No. CV-24-32-GF-
BMM, 2024 WL 3430602, at *3 (D. Mont. July 15, 2024), “create[d] clear

distinction between the reasonableness of a settlement offer from the insurer and
the reasonableness of the insurer’s processing of the claim.” (Doc. 143 at 29.)
Lohrke’s breach of the implied covenant of good faith and fair dealing claim

proved to be more than just “an insurance bad faith claim in disguise” because he
presented evidence beyond claims handling and into the realm of settlement
reasonableness. King, 2024 WL 3430602, at *3. The Court determines that Lohrke
presented a legally sufficient basis for a reasonable jury to find that Connect had
breached the implied covenant of good faith and fair dealing in the reasonableness
of its settlement offers.
CONCLUSION

The Court remains unpersuaded by Connect’s kitchen-sink approach to post-
trial relief. The parties presented testimony and evidence to the jury. The jury
ruled. The Court declines each of Connect’s judgment as a matter of law
challenges.

ORDER
Accordingly, IT IS ORDERED:

e Connect’s Renewed Motion for Judgment as a Matter of Law (Doc.
231) is DENIED.
DATED this 25th day of March, 2026.

VY □ 1)

United States District Court

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