                                                                            FILED
                            NOT FOR PUBLICATION                              JUL 17 2012

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



HEIDI A. FRY, individually and on behalf         No. 11-35691
of all others similarly situated, AKA Heidi
A. Johnson-Fry,                                  D.C. No. 2:11-cv-00004-RKS

              Plaintiff - Appellant,
                                                 MEMORANDUM *
  v.

STATE FARM MUTUAL
AUTOMOBILE INSURANCE
COMPANY,

              Defendant - Appellee.



                    Appeal from the United States District Court
                            for the District of Montana
                     Keith Strong, Magistrate Judge, Presiding

                             Submitted July 13, 2012 **
                               Seattle, Washington

Before: SCHROEDER, KLEINFELD, and M. SMITH, Circuit Judges.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Plaintiff-Appellant Heidi A. Fry appeals the district court’s dismissal with

prejudice of her putative class action lawsuit against Defendant-Appellant State

Farm. Fry seeks a declaratory judgment for the residual diminished value (RDV)

of her vehicle, which was damaged by a driver who was insured by State Farm. As

the facts and procedural history are familiar to the parties, we do not recite them

here except as necessary to explain our disposition. We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

      In Montana, third parties may not directly sue a tortfeasor's insurer “until

after the underlying claim has been settled” or the third party obtains a judgment

against the tortfeasor on the underlying claim. Mont. Code Ann. 33-18-242(6)(b).

Fry contends that her claim falls within the exception to that statute that was

created by Ridley v. Guaranty National Insurance Co., 951 P.2d 987 (Mont. 1997),

which allows a third party to bring a declaratory judgment action against the

insurer if the insurer refuses to pay medical expenses or lost wages. This argument

is unavailing because the Montana Supreme Court recently ruled that Ridley does

not apply to RDV claims. Hop v. Safeco Ins. Co., 261 P.3d 981, 984 (Mont. 2011)

(“RDV does not qualify as the type of damage that must be paid in advance as ‘not

reasonably in dispute.’”). Accordingly, we affirm the district court’s dismissal

with prejudice of Fry’s complaint.


                                           2
AFFIRMED.




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