No. 89-027
IN THE SUPREME COURTOF THE STATEOF MONTANA
1989

WILLIAM T. "BILL"HOWELL, and JENSENHOWELL, Plaintiffs and Appellants,-vsGLACIER GENERALASSURANCE COMPANY and the 

### r STATE OF MONTANA and its agent,THEMONTANA 0 Z POTATO IMPROVEMENTASSOCIATION, 

## 2 .-I Defendants and Respondents, zD - rn -and-

.. 6' - MONTANA INSURANCE GUARANTEEASSOCIATON, --- i a non-profit association, 

### -

,.. Plaintiff in Intervention and Respondent -vs- 141 : GRANGE INSURANCEASSOCIATION, a corporation; and 0 .' '. WILLIAM T. "BILL" HOWELL and JENSEN HOWELL, individuals,

### 5

. Defendants In Intervention and Appellants.-i

APPEAL FROM: District Court of the Fourth JudicialDistrict, In and For the County ofMissoula, The Honorable James R. Wheelis, Judgepresiding.
COUNSELOF RECORD: ForAppellant:
JonR. Binney and Lon J. Dale argues;Milodraqovich, Dale & Dye,Missoula,Montana
For Respondent:
Robert Phillips argued; Snavely & Phillips, Missoula,Montana Randy J. Cox argued; Boone,Karlberg & Haddon, Missoula,Montana

Filed: Submitted:September 25, 1989 Decided:December 27, 1989Justice John Conway Harrison delivered the Opinion of the Court.

This is an appeal by 

### c ill and Jensen Howell (~owells) and Grange Insurance Association (Grange) from a grant of summary judgment in favor of respondent Montana Insurance Guarantee ~ssociation(MIGA), the State of Montana and the Montana Potato ImprovementAssociation (MPIA). Also appealed is the ~istrict Court's denial of appellants' motion to stay pending completion of discovery and its granting of respondents' motion forprotective order. We affirm inpart,
reverse inpart and remand for further proceedings. Appellants present essentially two issues for review: 1. 

### id the court abuse its discretion in denying plaintiffs' motion to stay ruling pending completion of discovery and in granting defendants' motion for protective order? 2. Did the District Court err in granting summary judgment in favor of defendants State of Montana, Montana Potato Improvement~ssociation and plaintiff-in-~ntervention, Montana Insurance Guarantee~ssociation? At all timesmaterial to this litigation, calendar years 1976-1977, the Howells were Montana seed potato producers. The State was an insured of Glacier General under a policy titled "municipality comprehensive liability policy." MPIA is an agent of the State in seed certificationmatters. The policies insured the State against certain risks enumerated in policies ML101, effective July 1-June 30, 1976 and ML102, effective J.uly 1, 1976-June 30, 1977. Grange insured Howells. The instant action arose out of a Washington civil case wherein certain Washington potato farmers sought compensation 

### for damages they incurred because they had.p.urchased.seedpotatoes infected with ring rot. The ~ashington plaintiffs filed suit in 1979 in Washington against the Howells, certain ~ashington warehousemen and MPIA, who had certified the seed potatoes. Grange, under a reservation of rights, defended the Howells in the Washington litigation. On March 20, 1981, judgment was entered in the ~ashingtonlitigation. The judgment in excess of $485,000
ran directly against the warehousemen and MPIA jointly and severally. The Howells were found not negligent but they
were ordered to indemnify one of the Washington warehousemen because of breach of warranty claims. On September 17, 1981,theWashington plaintiffs filed a complaint in Montana to enforce the judgment in Montana and
on August 24, 1983, judgment was entered against MPIA and Howells. During the time between September 1981 and October 1983 Grange and Howells tried to get MPIA and the State to pay some or all of the judgment but their efforts were unsuccessful. In October 1983, the Washington plaintiffs assigned their judgments to the Howells with Grange furnishing the entire consideration for the assignment. Grange paid the consideration under a reservation of rights agreement. Then in December 1983, Howells and Grange initiated this action. ~uringthe pendency of this action, 

### h lacier General was declared insolvent and MIGA was granted permission to intervene. Discovery in this action spans several years. Appellants deposed Thomas Haggerty; claimsmanager ofGlacier General, in December of 1985. Later, in January of 1987, appellants deposed John Maynard. After these depositions, appellants attempted to depose J. Michael Young, Dr. Sun and James McLean, defendants

### ' agents. Prior to the summaryjudgment motion counsel had tried to schedule these depositions but were unable to do so because of scheduling conflicts. Appellants filed notices of depositions for September 19 and 26, 1988. In the meantime respondents filed their motion for summary judgment.

Issue I Did the court abuse its discretion in denying plaintiffs' motion to stay ruling pending completion of discovery and in granting defendants' motion for protective order? Rule 56(f)

### ,M.R.Civ.P. is as follows: Should it appear from the affidavitsof a party opposing the motion that he cannot for reasons stated present by affidavit facts essential to justify his opposition, the court may refuse the application for judgment or may order a continuance to permit affidavits to be obtained or depositions to be taken or discovery to be had or may make such other order as is just.
A review of the District Court's order and opinion discloses that the district judge did read and consider plaintiffs' arguments. However, the District Court, in its discretion,decided that the plaintiffs did not sufficiently establish how that proposed discovery could precl.udesummary judgment. A review of appellants' motion and affidavit persuades us that the ~istrictCourt did not abuse its discretion. Further, in light of our holding on Issue 11, reopening discovery as outlined by appellants is unnecessary. We affirm the DistrictCourt.Issue I1 Did the District Court err in granting summary judgment in favor of defendants State of Montana and Montana Potato Improvement ~ssociation and plaintiff-in-~ntervention, Montana Insurance GuaranteeAssociation? The ~istrict Court found that respondents were entitled to summary fudgment because this action is essentially a subrogation action and the Montana Insurance Guaranty ~ssociationAct (MIGAA) prohibits recovery from MIGA by insurance companies. We agree with the District Court as to MIGA, but disagree with the District Co.urt1s holding as to MPIA 

### and the State.

MIGA MIGAA states inpertinent part as follows: 33-10-102(2)(b) "Covered claim" shall not include any amount due a reinsurer, insurer, insurance pool, or underwriting association,as subrogation recoveries or otherwise.
The MIGAA clearly prohibits subrogation recoveries fromMIGA by an insurance company. In the instant case, the District Court correctly found dispositive the fact that Grange purchased the judgments from the Washington plaintiffs. SinceGrange owns the judgments,5 33-10-102(2)(b),MCA,bars appellants' claim againstMIGA. Appellants contend that even though Grange paid for the judgments, Grange's reservationof rightspreserves the claim
as Howells'. Thus, appellants argue that the Howells have a claim against MIGA which is not barred by 5 33-10-102(2)(b), MCA

# . However, the reservation of rights issue only determines the party (Grangeor Howells) who receivespayment of the judgment. The insurance coverage dispute between Grange and Howells does not impact the liability of the Stateor MPIA nor does it alter the effectofGrangepurchasing the judgments. We affirm the summary judgment in favor of MIGA.

The StateandMPIA The District Court's opinion does not directly address why it granted summary fudgment for the State and MPIA. Apparently the District Court concluded that since 

### 5 33-10-102(2)(b),MCA,barred recovery fromMIGA, it somehow barred recovery from the State or MPIA as well because they are insureds of an insolvent insurer. However the District Court erred in granting summary judgment in favor of the State and MPIA. The District Court's opinion, in effect, nullifies the valid judgment that appellants hold against MPIA. Respondents correctly argue that MIGA affords limited protection to the insureds of insolvent insurers. However, that limited protection does not absolve tortfeasors from judgments against them because coincidentallytheir insurance carriers become insolvent. Regardless of the effect of the MIGAA on this litigation, appellants still hold a valid judgment against MPIA that remains unsatisfied and judgment should be entered against MPIA. As to the liability of the State ofMontana,we remand to the DistrictCourt for further proceedings to determine the liability of the State of Montana. We therefore reverse the DistrictCourt's award of summary judgment in favor of the State and MPIA and direct entry of summary judgment in favor of the appellants against MPIA. Affirmed as to MIGA, reversed as to the State and MPIA, and remandec? for further proceedings consistent with this opinion.
9Weconcur:

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The

## t on or able Frank I. Haswell, RetiredChief Justice, sitting forChief Justice J.A. Turnage