                                                                                           04/14/2020


                                      DA 19-0357
                                                                                       Case Number: DA 19-0357

          IN THE SUPREME COURT OF THE STATE OF MONTANA
                                      2020 MT 86



CHERYL BRATTON, individually and on behalf
of a class of similarly situated Montanans,

           Appellants,

     v.

SISTERS OF CHARITY OF LEAVENWORTH
HEALTH SYSTEM, INC. d/b/a SCL HEALTH,

           Appellee.


APPEAL FROM:       District Court of the Thirteenth Judicial District,
                   In and For the County of Yellowstone, Cause No. DV 18-1609
                   Honorable Gregory R. Todd, Presiding Judge


COUNSEL OF RECORD:

            For Appellants:

                   John Heenan, Joe Cook, Heenan & Cook, PLLC, Billings, Montana

                   Michael P. Manning, Ritchie Manning Kautz PLLP, Billings, Montana

            For Appellee:

                   Robert C. Lukes, Garlington, Lohn & Robinson, PLLP, Missoula, Montana

                   Kathryn A. Reilly, Jessica G. Scott, Wheeler Trigg O’Donnell LLP, Denver,
                   Colorado

            For Amici Curiae Montana Legal Services, National Consumer Law Center, and
            National Association of Consumer Advocates:

                   David K. W. Wilson, Jr., Morrison, Sherwood, Wilson & Deola, PLLP,
                   Helena, Montana

                   Mark Elliott Budnitz, Bobby Lee Cook, Georgia State University College
                   of Law, Atlanta, Georgia
         For Amici Montana Bankers Association, American Bankers Association, and
         Consumer Bankers Association

               Kenneth K. Lay, Crowley Fleck, PLLP, Helena, Montana



                                           Submitted on Briefs: February 19, 2020

                                                      Decided: April 14, 2020


Filed:

               __________________________________________
                                 Clerk




                                       2
Justice Jim Rice delivered the Opinion of the Court.

¶1      Cheryl Bratton (Bratton) appeals an order granting summary judgment in favor of

Defendant Sisters of Charity of Leavenworth Health System, Inc. (SCL Health or SCL) on

her claims, entered by the Thirteenth Judicial District Court, Yellowstone County. We

affirm, and restate the issues as follows:

     1. Did the District Court err by granting SCL Health’s motion for summary judgment
        on Bratton’s request for declaratory judgment that SCL violated § 28-1-1002,
        MCA?

     2. Did the District Court err by granting SCL Health’s motion for summary judgment
        on Bratton’s request for a constructive trust based on unjust enrichment?

     3. Did the District Court err by granting SCL Health’s motion for summary judgment
        on Bratton’s Montana Consumer Protection Act claim?

     4. Did the District Court err by granting SCL Health’s motion for summary judgment
        on Bratton’s “money had and received” claim?

                    FACTUAL AND PROCEDURAL BACKGROUND

¶2      In January of 2015, SCL Health began issuing refunds to its patients, for such

reasons as overpayment on an account, in the form of prepaid MasterCard debit cards

issued through Bank of America (the Patient Refund Card Program or Program). Prior to

initiation of the Program, SCL had effectuated patient refunds via bank drafts or checks

issued through its internal billing department.        This internal process cost SCL

approximately $5.00 per check, and involved delay in the issuance of refund checks to

patients. SCL implemented the Program to reduce costs, as the cost of issuing prepaid

debit cards was approximately $3.50 each, and to provide patients with more timely access

to their refunds.

                                             3
¶3     Bratton received services at a SCL Health facility in 2018, and after Bratton’s

primary health insurer provided payment for those services, SCL billed Bratton for the

remaining cost, which Bratton paid. Subsequently, Bratton’s secondary insurer also paid

the remaining cost. Thus, SCL Health had been overpaid, and owed Bratton a refund in

the amount of $12.75, for which it initiated issuance to Bratton of a Patient Refund Card

from Bank of America in that amount, in June of 2018. In December of 2018, under similar

circumstances, SCL Health had a second Patient Refund Card issued to Bratton, in the

amount of $15, bringing the total amount refunded to Bratton through the Program to

$27.75.

¶4     Under the Patient Refund Card Program, when a patient is owed a refund, SCL

Health transmits the amount, name, and contact information of the patient to Bank of

America. Bank of America removes the amount due to the patient from SCL Health’s

depository account, creates and loads a prepaid debit card, and sends the card to the patient.

For fourteen days after the money has been debited from SCL’s account, SCL may request

that the money be returned to its account and the card unloaded. After fourteen days have

passed, SCL can no longer reverse the card transaction.

¶5     Along with the card, Bank of America also sends a short letter, or card carrier,

bearing SCL Health’s logo to the patient.1 The letter explains that, upon activating the

card, the patient may access her funds in a number of ways without incurring any fee: the


1
  It appears from the record that there was an approximately six-month period in which SCL’s
patients did not receive a letter with the refund cards, but Bratton received letters with her refund
cards.

                                                 4
patient may use the card as payment at any vendor who accepts MasterCard; may take the

card to any bank that accepts MasterCard and ask for the card to be exchanged for cash;

or, may withdraw the money on the card at any Allpoint ATM, including 94 locations in

Montana. To activate the card, the patient need only call the Bank of America number

provided in the letter and enter the last four digits of their phone number. Although, by

activating the card, the patient agrees to Bank of America’s terms of service for the card,

the patient is not required to open an account with Bank of America.

¶6     The letter provides customer service telephone numbers for both SCL Health and

Bank of America. At any time a balance remains on the card, if the patient wishes to

receive a check instead of using the card, she may request a check. Although checks may

be issued even after the card is activated, a patient does not need to activate the card to

request a check. In Montana, as of February 6, 2019, 194 checks were requested via this

method and sent to patients for SCL Health refunds. The checks are issued without charge.

¶7     Neither SCL nor Bank of America retain unused funds associated with the Program.

The Patient Refund Cards have a three-year expiration date and, after the card expires, the

Patient’s money remains in the account until the balance becomes eligible for escheatment

to the State of Montana after five years, in accordance with Montana’s unclaimed property

statute. See § 70-9-803, MCA.

¶8     Bratton did not incur any fees associated with either of the refund cards she was

issued. Bratton’s husband activated the first refund card, but the card was not used. Bratton

did not activate the second card, request issuance of checks for the cards, use the cards to


                                             5
pay for goods, withdraw the money from the cards at an ATM, or exchange the cards for

cash at a bank.

¶9     In October of 2018, Bratton brought this suit against SCL Health, alleging

constructive trust, conversion, unjust enrichment, violation of the Montana Consumer

Protection Act (MCPA), money had and received, and declaratory judgment and injunctive

relief.2 During her deposition in this case, Bratton made her first request to SCL that the

cards be cancelled, and that checks be issued for her refunds. Pursuant to this request, SCL

asked Bank of America to issue checks to Bratton for her total refunds, which Bank of

America did.

¶10    The parties filed cross motions for summary judgment, and after hearing, the

District Court issued an order granting SCL Health’s motions for summary judgment and

denying Bratton’s cross motion for summary judgment. Bratton appeals the dismissal of

her claims for declaratory judgment, unjust enrichment and constructive trust, money had

and received, and unfair trade practices under the (MCPA). She does not appeal the

dismissal of her conversion claim.3




2
  Bratton also asserted a putative class action in her complaint and, on April 29, 2019, filed a
motion for class certification. However, the motion was withdrawn pursuant to stipulation of the
parties on June 16, 2019. The issue of class certification is not before the Court in this appeal, and
therefore, our holding here is confined to Bratton’s case.
3
 The Court granted leave for submission of two amicus briefs in this appeal, one on behalf of the
Montana Bankers Association, American Bankers Association, and Consumer Bankers
Association (the Banker Amici); and one on behalf of Montana Legal Services, the National
Consumer Law Center, and National Association of Consumer Advocates (the Consumer Law
Amici). The Court expresses its appreciation to the assistance provided by Amici.

                                                  6
                               STANDARD OF REVIEW

¶11    This Court reviews a district court’s grant of summary judgment de novo, using the

same criteria as the district court. Graham-Rogers v. Wells Fargo Bank, N.A., 2019 MT

226, ¶ 12, 397 Mont. 262, 449 P.3d 798 (citations omitted). Therefore, “[s]ummary

judgment is proper when no genuine issues of material fact exist and the moving party is

entitled to judgment as a matter of law.” Sprunk v. First Bank Sys., 252 Mont. 463, 465,

830 P.2d 103, 104 (1992) (citing M. R. Civ. P. 56(c)). It is the moving party’s initial burden

to establish that no genuine issues of material fact exist. Once the moving party has done

so, the burden then shifts to the non-moving party to establish the existence of a genuine

issue of material fact. Sprunk, 252 Mont. at 465-66, 830 P.2d at 104. In doing so, the party

opposing summary judgment “‘must set forth specific facts and cannot rely on speculative,

fanciful, or conclusory statements.’” Sprunk, 252 Mont. at 466-67, 830 P.2d at 105

(quoting Simmons v. Jenkins, 230 Mont. 429, 432, 750 P.2d 1067, 1069 (1988)).

                                       DISCUSSION

¶12 1. Did the District Court err by granting SCL Health’s motion for summary
judgment based on Bratton’s request for a declaratory judgment that SCL violated § 28-1-
1002, MCA?

¶13    Bratton asserts the District Court erred by denying her declaratory claim that SCL

Health’s use of the Patient Refund Card Program violated § 28-1-1002, MCA. She argues

SCL Health, by the Program, transferred to Bank of America its obligation to pay debt

owed to her. SCL answers that use of the Program does not violate the statute because it

does not transfer or otherwise discharge SCL Health’s obligation to pay Bratton. Rather,


                                              7
the Program is simply a financial mechanism by which SCL fulfilled its obligation to

Bratton.4

¶14    Section 28-1-1002, MCA, part of the Field Code, provides, “[t]he burden of an

obligation may be transferred with the consent of the party entitled to the benefits, but not

otherwise[.]” When interpreting a statute, this Court looks first to the statute’s plain

language. City of Missoula v. Fox, 2019 MT 250, ¶ 18, 397 Mont. 388, 450 P.3d 898

(citations omitted). “We construe a statute by reading and interpreting the statute as a

whole, without isolating specific terms from the context in which they are used by the

legislature.” Fox, ¶ 18 (quoting Mont. Sports Shooting Ass’n v. State, 2008 MT 190, ¶ 11,

344 Mont. 1, 185 P.3d 1003) (internal quotations omitted). “Statutory construction should

not lead to absurd results if a reasonable interpretation can avoid it.” Mont. Sports Shooting

Ass’n, ¶ 11.

¶15    There is no demonstrated issue of material fact regarding application of the statute

to SCL’s actions. Under the statute’s plain language, the “burden” at issue here is the

money obligation SCL owed to Bratton. Although Bratton correctly notes that SCL used

Bank of America to distribute refund payments to her, the undisputed facts in the record

demonstrate that SCL Health did not transfer its obligation, or “burden” of owing money,



4
  SCL also argues Bratton did not raise a statutory violation before the District Court and, therefore,
the issue is improperly raised on appeal. However, although Bratton did not frame her declaratory
judgment claim in the District Court as primarily based upon the statute, the record reveals the
statute was a part of her declaratory judgment argument before the District Court, and that SCL
had opportunity to address to the argument below. Therefore, we conclude Bratton properly
preserved this issue for appeal.

                                                  8
to Bank of America. The refund money received by Bratton was debited from SCL

Health’s bank account, establishing that the payment came from SCL’s funds, not Bank of

America’s. Consistent therewith, the record demonstrates a continuous acknowledgment

by SCL Health throughout the process that it remained liable for refunds due Bratton,

despite its use of Bank of America to distribute the refunds. Bratton brought this lawsuit

against SCL Health, not Bank of America, and SCL never disclaimed liability by asserting

Bank of America was the cause of any injuries suffered by Bratton. Although Bratton

contends the positions taken by SCL in this litigation incorporate “the notion that SCL

Health is not liable for paying Bratton’s refund[,]” the record here is otherwise, establishing

no attempt by SCL to assert any transfer of the burden of its obligation to Bank of America

in violation of the statute.

¶16    The Restatement (Second) of Contracts § 318(1), helps to illustrate the distinction

between actions prohibited by § 28-1-1002, MCA, and SCL’s actions here.                   The

Restatement explains that, “[a]n obligor can properly delegate the performance of his duty

to another unless the delegation is contrary to public policy or the terms of his promise.”

(Emphasis added.) This highlights the difference between delegating one’s duty and

delegating one’s performance of a duty. Here, SCL fulfilled its duty by transferring its own

funds to pay its obligation to Bratton, while delegating the performance of this duty—the

actual delivery of the money to Bratton—to Bank of America. The statute’s plain language

does not prohibit, without consent, a transfer of the performance of an obligation; rather, it

is the “burden of [the] obligation” itself that may not be transferred without consent.


                                              9
¶17    The Restatement offers further guidance for the situation here, providing “where

payment or offer of payment of money is made a condition of an obligor’s duty, payment

or offer of payment in any manner current in the ordinary course of business satisfies the

requirement unless the obligee demands payment in legal tender and gives any extension

of time reasonably necessary to procure it.” Restatement (Second) of Contracts, § 249

(emphasis added). The District Court concluded that the process SCL Health implemented

to refund money owed to Bratton is similar to the authorization of a wire transfer or

cashier’s check, because the money was debited from SCL’s account and then transferred

to Bratton using Bank of America’s system. While Amici for both parties explain the

nuances of such transactions, including how they are like or dislike issuance of a check,5

we cannot conclude the record here demonstrates either a departure from a “manner current

in the ordinary course of business” of these transactions or the imposition of another

financial burden upon consumers, here Bratton. And, as noted by the Restatement,

accommodation was made here for Bratton, as the obligee, to demand payment in the form

of a check.




5
  Banker Amici assert the Program and “every feature of the transaction to which [Bratton] objects
is, in fact, no different from that what would occur in a check transaction,” because “[a] person
presenting a check for cashing is also obtaining money from a bank, not the party writing the
check.” (Emphasis in original.) In opposition, the Consumer Law Amici assert the Program differs
from other forms of payment because it forces consumers like Bratton to have a relationship with
a particular bank. The Consumer Law Amici also argue the debit cards differ from other forms of
payment because they are governed by different laws and potentially allow for varying levels of
consumer protection. Our decision here is premised upon the record made in this case, particularly,
the lack of proof of any disability in the proffered method of payment.
                                                  10
¶18    The cases cited by Bratton in support of her argument are distinguishable. In

Skinner v. Scholes, 229 N.W. 114 (N.D. 1930), the plaintiff purchased land from the

Scholes Land Company (the Company) on an installment contract that provided the

Company would transfer the land in fee simple, “clear of all encumbrances whatever, by

good sufficient warranty deed[.]” Skinner, 229 N.W. at 115. Prior to completion of

performance, the Company deeded the property to a third party, assigned the contract to

that third party, and dissolved. When preparing to make his final contract payment,

plaintiff learned of the deed transfer and contract assignment, and sought to rescind the

contract and recover his payments and costs. Skinner, 229 N.W. at 115. The North Dakota

Supreme Court held that the plaintiff could properly rescind the contract because “[t]he

plaintiff was entitled to insist upon the terms of the contract and to a deed in conformity

therewith.” Skinner, 229 N.W. at 116. It based this conclusion on the contract’s terms,

which it determined included a condition to convey a covenant against encumbrances,

which the third party could not provide to the same extent, because any covenant against

encumbrances it made would not “run with the land” under the laws of North Dakota.

Further, the contract between the buyer and the Land Company “did not enable either party

to transfer the burden of personal covenants by mere assignment without the consent and

agreement of their assignees.” Skinner, 229 N.W. at 116-17. Finally, the North Dakota

Supreme Court concluded that, from the contract’s language, the parties had not “intended

to contract in advance to consent to the transfer of the obligations of the contract” to come

within the provisions of § 5782, Comp. Laws 193, allowing for “the burden of an


                                             11
obligation” to be “transferred with the consent of the party entitled to its benefit.” Skinner,

229 N.W. at 116.

¶19    The holding in Skinner was premised on the determination that the plaintiff could

not receive the property interest as contracted, because it could not be transferred with the

proper covenants. Here, first, the parties did not contract regarding the method of any

refund, but, more significantly, Bratton takes issue only with the form or mechanism of the

refund. Bratton does not allege she did not receive the value of money owed to her, or

demonstrate that she suffered any cost or disability because of the manner in which it was

delivered. Bratton acknowledged in her deposition that if the refund had been issued to

her in the form of a check, rather than a prepaid debit card, she would have been satisfied.

This is distinguishable from Skinner, where the plaintiff suffered a concrete injury.

¶20    In AICCO, Inc. v. Ins. Co. of N. Am., 90 Cal. App. 4th 579, 588 (Cal. Ct. App. 2001),

an insurer transferred its obligations under several insurance policies to another insurer.

The original insurer then contended that as a result of this transfer, it was “free of any

obligation to its California policyholders under the . . . policies it had written. . . . if [the

new insurer] is unable to satisfy all those obligations, the owners of the transferred policies

will have no recourse against [the original insurer][.]”          As explained above, SCL

maintained just the opposite, and Bratton’s attempt to equate SCL’s inability to reverse a

transfer from its bank account to a debit card after fourteen days, to the disclaimer of

liability by the insurer in AICCO, Inc., is not persuasive. Unlike the insurer in AICCO,

Inc., SCL did not contend that, after fourteen days, it no longer owed Bratton the money.


                                               12
Rather, after fourteen days, SCL’s funds remained in an account, which would not revert

to SCL. Thus, in addition to involving the obligations of an insurer, AICCO, Inc.,

concerned a disclaimed liability not at issue here.

¶21     We conclude the District Court did not err in holding SCL Health is entitled to

summary judgment regarding Bratton’s request for a declaration that SCL violated

§ 28-1-1002, MCA, by refunding the money it owed to her through the Patient Refund

Card.

¶22 2. Did the District Court err by granting SCL Health’s motion for summary
judgment on Bratton’s request for a constructive trust based on unjust enrichment?

¶23     Bratton argues she is entitled to relief on her claim of unjust enrichment because

SCL Health indisputably saved money by implementing the Program, which SCL unjustly

retained the benefit of in light of its violation of § 28-1-1002, MCA.6 SCL Health contends

the District Court correctly entered summary judgment in its favor because Bratton “cannot

prove that SCL Health unjustly retained the benefit she conferred,” as SCL returned the

value of her refund to her.

¶24     A constructive trust is a remedy for unjust enrichment and arises under statute

“when a person holding title to property is subject to an equitable duty to convey it to

another on the ground that the person holding title would be unjustly enriched if he were

permitted to retain it.” Section 72-38-123, MCA; Volk v. Goeser, 2016 MT 61, ¶ 45, 382


6
  Bratton pled constructive trust as a separate cause of action. To clarify, our case law provides
that a constructive trust is a “remedy to rectify the unjust enrichment of a party.” N. Cheyenne
Tribe v. Roman Catholic Church, 2013 MT 24, ¶ 39, 368 Mont. 330, 296 P.3d 450 (emphasis
added). Thus, Bratton must first prove unjust enrichment in order for a court to consider and
invoke the remedy of a constructive trust.
                                                 13
Mont. 382, 367 P.3d 378. Additionally, this Court “has broad discretion afforded by the

principles of equity to impose a constructive trust despite lack of any wrongdoing by the

person holding the property.” Volk, ¶ 45 (citing N. Cheyenne Tribe v. Roman Catholic

Church, 2013 MT 24, ¶ 29, 368 Mont. 330, 296 P.3d 450). To succeed on a claim for

unjust enrichment, in the context of a constructive trust, the plaintiff must prove three

elements: “(1) a benefit conferred upon a defendant by another; (2) an appreciation or

knowledge of the benefit by the defendant; and (3) the acceptance or retention of the benefit

by the defendant under such circumstances that would make it inequitable for the defendant

to retain the benefit without payment of its value.” Volk, ¶ 45 (quoting N. Cheyenne Tribe,

¶ 39).

¶25      To the extent Bratton’s unjust enrichment argument is premised upon her allegation

that SCL violated § 28-1-1002, MCA, that contention was resolved above in favor of SCL.

Beyond that, Bratton correctly states that she conferred a benefit upon SCL Health when

she paid for medical services, and subsequently, her secondary insurance also paid SCL

for those services. SCL Health does not dispute it had knowledge of its receipt of that

benefit. However, it is undisputed on the record that SCL Health did not retain that benefit,

because it arranged for and funded the return of the benefit to Bratton. Bratton does not

dispute this fact, and while she contends the benefit was returned to her in a manner she

did not prefer, she has not provided proof that the subject debit cards were not a valid form

of payment. Neither would SCL or Bank of America ultimately retain the benefit of

Bratton’s money because, even if Bratton chose not to activate the card or request a check,


                                             14
under the Program her money would escheat to the state in accordance with Montana’s

laws on unclaimed property. Therefore, Bratton has not proven the third element of her

unjust enrichment claim, and by extension, the necessity of her request for relief by

constructive trust.

¶26    Finally, we are likewise unpersuaded by Bratton’s argument that the benefit

conferred in this case is the money SCL Health saved by issuing her a prepaid debit card

rather than a check. In any event, Bratton eventually requested issuance of her refunds by

checks, which were issued to her, and therefore any savings SCL could have obtained under

the Program did not occur in her case, eliminating any “benefit conferred.”

¶27    We conclude the District Court did not err by holding SCL was entitled to summary

judgment on Bratton’s unjust enrichment claims, and therefore, was not entitled to the

remedy of constructive trust.

¶28 3. Did the District Court err by granting SCL Health’s motion for summary
judgment on Bratton’s Montana Consumer Protection Act claim?

¶29    Bratton argues there are issues of material fact regarding whether SCL’s Program

violated the MCPA, and argues she suffered an ascertainable loss because “it is undisputed

she cannot obtain her money from SCL Health . . . and SCL Health has disclaimed all

liability for paying it.” SCL Health argues the District Court did not err in granting

summary judgment in its favor because it found upon the record Bratton did not suffer an

ascertainable loss, which is required to bring a claim under the MCPA.

¶30    Section 30-14-103, MCA, provides that “[u]nfair methods of competition and unfair

or deceptive acts or practices in the conduct of any trade or commerce are unlawful.” To

                                           15
bring a claim under the MCPA, the plaintiff must allege they suffered “any ascertainable

loss of money or property, real or personal[.]” Section 30-14-133(1), MCA; see also

Ternes v. State Farm Fire & Cas. Co., 2011 MT 156, ¶ 36, 361 Mont. 129, 257 P.3d 352

(“only those individuals who suffer ascertainable damages may bring an individual

complaint under the MCPA.”); Morrow v. Bank of Am., N.A., 2014 MT 117, ¶ 67, 375

Mont. 38, 324 P.3d 1167 (“[a] consumer may sue under the act if he or she has suffered

‘any ascertainable loss of money or property’ as the result of an unfair practice.”). In

applying the terms in the MCPA, the statute is to be “liberally construed.” Baird v.

Northwest Bank, 255 Mont. 317, 327, 843 P.2d 327, 333 (1992). Consistent therewith, we

have held an “ascertainable loss of money and property” does not require a showing of

“actual damages[.]” Puryer v. HSBC Bank USA, N.A., 2018 MT 124, ¶ 36, 391 Mont. 361,

419 P.3d 105.

¶31    Bratton’s claim that SCL Health “disclaimed all liability” for her refunds was

resolved under our analysis above. On this record, Bratton did not establish that SCL had

transferred its obligation or otherwise disclaimed liability for her refunds. Similarly, while

Bratton is not required to show actual damages to support a MCPA claim, she has not

established an ascertainable loss. It is undisputed on this record that Bratton received the

refunds owed her by SCL, initially by way of the Bank of America prepaid debit cards, and

ultimately by issuance of two checks. Bratton admitted she did not read the accompanying

letter or terms of service that were issued with the cards, and thus, no deception or

ascertainable injury was established by these means. Prior to the litigation, Bratton neither


                                             16
attempted nor was frustrated in a request for issuance of a check in place of her cards, never

attempted to use the cards issued to her, and did not attempt to cash or deposit them. Thus,

Bratton has not demonstrated any injury in the refund process employed by SCL.

Consequently, even though we interpret the MCPA liberally, we cannot conclude on this

record that Bratton suffered any ascertainable injury, as is requisite for a claim under the

Act.

¶32    We conclude the District Court did not err in concluding SCL Health is entitled to

summary judgment on Bratton’s MCPA claims. Because we find Bratton was not entitled

to bring suit under § 30-14-133(1), MCA, we need not further address Bratton’s claims that

SCL Health’s actions here were deceptive or unfair.

¶33 4. Did the District Court err by granting SCL Health’s motion for summary
judgment on Bratton’s “money had and received” claim?

¶34    Bratton contends the District Court erred in granting summary judgment to SCL on

her money had and received claim because “it is undisputed that SCL . . . was obligated to

return Bratton’s overpayment” but “rather than returning the overpayment directly to

Bratton, SCL paid it to Bank of America, ceded all control over the funds, and disclaimed

any further liability.” SCL maintains Bratton’s claim for money had and received fails

because Bratton received the funds owed to her by SCL Health through the prepaid debit

cards. Similarly, the District Court held that “SCL Health paid Bratton the money it owed

her[,]” and therefore, Bratton’s claim failed.

¶35    Generally, a claim of money had and received is based on the premise that the

defendant received money to be paid to the plaintiff, but the defendant did not in fact pay

                                             17
the plaintiff that money. See, e.g., Donovan v. McDevitt, 36 Mont. 61, 92 P. 49 (1907);

Olson v. McLean, 132 Mont. 111, 112, 313 P.2d 1039, 1040 (1957). The cause of action

“was invented by the common law judges to obtain relief from the common law procedure

which, in many cases of merit, afforded no remedy.” Grady v. Livingston, 115 Mont. 47,

88-89, 141 P.2d 346, 365-66 (1943) (Adair, J. dissenting). As the District Court noted,

Montana’s case law has not dealt substantially with money had and received claims in

several decades.

¶36   As we have determined above, Bratton received the money owed to her by SCL

Health. Additionally, as we have concluded, SCL Health’s use of Bank of America to

distribute the payments does not equate to SCL Health disclaiming the obligation to refund

the money to Bratton. Therefore, the District Court did not err by granting summary

judgment to SCL Health on Bratton’s money had and received claims.

¶37   Based on the record in Bratton’s individual case, we conclude the District Court did

not err by granting summary judgment to SCL Health on Bratton’s claims, and by denying

Bratton’s cross motions for summary judgment.

¶38   Affirmed.


                                                /S/ JIM RICE

We concur:

/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ DIRK M. SANDEFUR



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