Summary: Respondent requests reconsideration of the Court's previous determination, 2004 MTWCC 55, that the decision in Mathews v. Liberty Northwest Ins. Corp., 2003 MT 116, 315 Mont. 441, 68 P.3d 865 is retroactive.

Held: The Court overlooked Poppleton v. Rollins, 226 Mont. 267, 735 P.2d 286 (1987), in holding that Mathews v. Liberty Northwest Ins. Corp., 2003 MT 116, 315 Mont. 441, 68 P.3d 865 applies retroactively. Poppleton requires nonretroactive application if any of the three Chevron factors favors nonretroactive application. Since I found that one factor favors nonretroactive application of Mathews, that decision must be applied prospectively only.

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Courts: Retroactivity of Decisions. If any one of the three Chevron factors favors nonretroactive application, then the decision at issue must be applied prospectively and not retroactively. Poppleton v. Rollins, 226 Mont. 267, 735 P.2d 286 (1987).

¶1 Liberty Northwest Insurance Corporation (Liberty) requests a new trial or amendment of this Court's Order and Judgment Concerning Class Action, Retroactivity, and Common Fund. The motion challenges the Court's conclusion that the Supreme Court decision in Mathews v. Liberty Northwest Ins. Corp., 2003 MT 116, 315 Mont. 441, 68 P.3d 865, is retroactive. Liberty argues that the Court overlooked Poppleton v. Rollins, 226 Mont. 267, 735 P.2d 286 (1987), in concluding that the Mathews decision is retroactive. The Court agrees.

¶2 In the challenged decision, found at 2004 MTWCC 55, I held that the retroactivity issue is governed by the Chevron test, Chevron Oil Co. v. Huson, 404 U.S. 97 (1971), rather than the per se rule of retroactivity more recently adopted by the United States Supreme Court in Harper v. Virginia Dept. of Taxation, 509 U.S. 86 (1993). The Chevron test is based on three factors. Those factors are (1) whether the decision at issue establishes a new principle of law by overruling precedent or "by deciding an issue of first impression whose result was not clearly foreshadowed"; (2) whether the rule announced in the case will be furthered or retarded by a retroactive application; and (3) whether retroactive application of the rule announced in the case is equitable. Ereth v. Cascade County, 2003 MT 328, ¶ 29, 318 Mont. 355, ¶ 29, 81 P.3d 463, ¶ 29.

¶3 In my Order and Judgment Concerning Class Action, Retroactivity, and Common Fund, I found that the first factor "favors non-retroactive application." (2004 MTWCC 55 at ¶ 35.) I went on to find that the other two factors favored retroactive application. I then "weighed" all three factors and found that the three factors weighed in favor of applying the Mathews decision retroactively.

¶4 In its motion, Liberty correctly notes that I misapplied the Chevron factors. Specifically, it cites Poppleton v. Rollins, Inc., 226 Mont. 267, 735 P.2d 286 (1987). In that case the Supreme Court held, "The general rule is that a rule of law will not be applied retroactively if any of the [Chevron] factors listed below are present." 226 Mont. at 271, 735 P.2d at 289 (emphasis added). In my prior order, I specifically found that factor one favored nonretroactive application. Under Poppleton, there is no wriggle room: my finding concerning factor one required that I find that the Mathews decision, 2003 MT 116, is prospective only. I therefore erred in holding it to be retroactive.

¶5 Accordingly, my Order and Judgment Concerning Class Action, Retroactivity, and Common Fund is amended to find and hold that the decision in Mathews v. Liberty Northwest Ins. Corp., 2003 MT 116, 315 Mont. 441, 68 P.3d 865, is not retroactive but is prospective only.

SO ORDERED.

DATED in Helena, Montana, this 12^th of August, 2004.

(SEAL)

\s\ Mike McCarter
JUDGE

c: Mr. Geoffrey C. Angel
Mr. Larry W. Jones
Submitted: August 4, 2004