No. 89-474 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

BENJAMIN H. GERBER, 

Plaintiff and Appellant, 

-vsCOMMISSIONER OF INSURANCE OF THE STATE 

OF MONTANA; RICHARD E. BACH and DAVE DRYNAN, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable G. Todd Baugh, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

George T. Radovich; Radovich Law Firm, Billings, 

Montana 

For Respondent : 

Brad H. Anderson; Moulton, Bellingham, Longo & Mather, 

Billings, Montana 

Submitted on Briefs: Dec. 14, 1989 

Decided: February 15, 1990 a 
Chief Justice J. A. Turnage delivered the Opinion of the Court. 

Plaintiff Benjamin H. Gerber appeals the order of the District 

Court of the Thirteenth Judicial District, Yellowstone County, 

dismissing his tort action against the Montana Commissioner of 

Insurance and her employees Richard E. Bach and Dave Drynan. We 

affirm. 

The appellant raises the single issue of whether the District 

Court erred in holding that quasi-judicial immunity barred the 

appellant's tort action against respondents. 

On October 14, 1983, appellant Gerber borrowed $10,000 from 

Rimrock Bank of Billings, Montana, and applied for the attendant 

credit-life-disability insurance from Acceleration Life Insurance 

Company. That same day, the bank's loan officer informed Gerber 

that the insurer would not accept coverage. Gerber filed two 

complaints with the Commissioner of Insurance arguing that the 

binder given to him by the loan officer created a contract 

requiring the insurer to compensate him for an unspecified, 

accidental injury. Following both complaints, insurance commission 

employees issued Gerber written opinions which correctly stated 

that under 5 33-21-203 (1) , MCA, insurance policies do not become 

effective until the insurer accepts the risk of coverage. 

Gerber then filed a tort action against the Insurance 

Commissioner, and against commission employees Richard Bach and 

Dave Drynan claiming damages for bad faith, legal malpractice, 
negligent misrepresentation, and intentional or negligent infliction of emotional distress. The complaint alleged that the Commissioner failed to hold a hearing as required by 5 33-1-701(2), MCA, 

and that Bach and Drynan verbally misrepresented to Gerber that he 

was entitled to recover under the insurance binders. The District 

Court granted the defendantst motion to dismiss under Rule 

12(b)(6), M.R.Civ.P., for failure to state a claim upon which 

relief can be granted. Gerber now appeals that dismissal. 

The decisional standards in this case are not at issue. The 

District Court may dismiss a claim on the pleadings when no set of 

facts would support the claim. Wheeler v. Moe (1973), 163 Mont. 

154, 161, 515 P.2d 679, 683. Our standard in reviewing motions to 

dismiss is de novo. Koppen v. Board of Medical Examiners (Mont. 

1988), 759 P.2d 173, 175, 45 St.Rep. 1433, 1436. We agree with the 

District Court that the only issue in this case is a question of 

law and that the law bars the appellant's claim. 

With exceptions not relevant to this case, 5 2-9-305(5), MCA, 

grants absolute immunity to state employees acting within the scope 

of their employment. The appellant offers no allegation or 

argument that respondents Bach and Drynan acted outside of the 

scope of their employment. Therefore, the District Court properly 

dismissed the claim against them. 

We also affirm the District Court's dismissal of the claims 

against the Insurance Commissioner. Gerber's District Court 
complaint alleges that the Insurance Commissioner failed to 

investigate his grievance against the insurer, misinformed him of 

his rights, and refusedto enforce his alleged insurance contracts. 

In Koppen v. Board of Medical Examiners this Court held that the 

common law doctrine of quasi-judicial immunity protects executive 

agencies when carrying out discretionary functions. Koppen, 759 

P.2d at 176, 45 St.Rep. at 1438. The investigation of consumer 

complaints such as Gerberls and the resulting action, if any, fall 

within the Commissionerls expressly-provided, discretionary powers. 

The commissioner may conduct such examinations 

and investigations . . . as [she1 may deem 

proper . . . . 

Section 33-1-311(3), MCA. (Emphasis added.) 

The commissioner may hold hearings for any 

purpose within the scope of this code deemed 

by rherl to be necessary. 

Section 33-1-701(1), MCA. (Emphasis added.) 

The commissioner may, after having conducted 

a hearing pursuant to 33-1-701, impose a fine 

Section 33-1-317, MCA. (Emphasis added.) 

Whenever it appears to the commissioner that 

a person has engaged in or is about to engage 

in an act or practice constituting a violation 

of [this act, she] may . . . issue an order 

directing the person to cease and desist . . . [or] bring an action in a court of competent 

jurisdiction to enjoin such acts or practices 
Section 33-1-318, MCA. (Emphasis added.) As a discretionary 

function, the Insurance conduct of an investigation 

based on a consumerls complaint against an insurer is protected by 

quasi-judicial immunity. 

Gerber argues that, nonetheless, the Commissioner is not 

immune from suit based on her failure to hold a hearing because the 

hearing is not discretionary. He asserts that on filing of his 

complaint against the insurer, the Commissioner was statutorily 

required to convene a hearing on the issue and failed to do so. 

The section cited by Gerber states in pertinent part: 

The commissioner shall hold a hearing . . . upon written demand therefor by a person 

aggrieved by any act, threatened act, or 

failure of the commissioner to act or by any 

report, rule, or order of the commissioner . . . . [Sluch hearing shall be held within 30 

days after receipt by the commissioner of 

demand therefor. 

Section 33-1-701(2), MCA. (Emphasis added.) 

The appellant misconstrues this section. Section 33-1- 

701 (2) , MCA, by its plain language, applies only to grievances 

arising from the actions of the Insurance Commissioner. It does 

not require the Commissioner to hold a hearing on consumer complaints against an insurer. 

Even if Gerber had demanded a hearing on the actions of the 

Commissioner, the effort would have been futile. Gerberls grievance is with the Commissionerls investigation and action on his 
complaint. As noted above, those functions are protected by quasijudicial immunity. 

Gerber's argument is analogous to claiming that a prosecutor 

must prosecute every criminal complaint received. Like the 

prosecutor, the Commissioner has the discretion to investigate and 

determine whether further action is warranted. The Commissioner 

is not required to hold a purely ritualistic hearing on every 

groundless complaint. 

Affirmed. 

C 

~~ie'f Justice 

We concur: