*1
Ap-
Corp.,
COMPANY,
ANACONDA
a Delaware
Plaintiff
pellant,
v. GENERAL ACCIDENT FIRE
&
LIFE ASSURANCE
Corp.,
CORP., LTD.,
&
a British
and ARTHUR G. McKEE
Respondents.
Corp.,
CO., a Delaware
Defendants
No. 79-1.
May
Submitted
1980.
Sept.
Decided
1980.
Rehearing
Sept.
Denied
Mr. dissented Sheehy joined Chief Haswell *2 Justice Justice filed opinion. Allen, Butte, Corette, & Pohlman
Corette Smith R.D. argued, Butte, Black, Butte, for and argued, C. Gregory plaintiff appellant.
Poore, Roth, Robinson, Butte, & Robischon P. Harrington, James Butte, for defendants argued, and respondents.
MR. DALY delivered the opinion of Court. JUSTICE & Life Corporation Accident Fire Assurance General Appellants (McKee) (General Accident) & ap- and Arthur G. McKee Company Bow and Silver County from the order peal (Ana- Anaconda Company’s District respondent Court granting conda) crossappeals Anaconda motion for judgment. motion entered upon from the District Court’s amended judgment, of at- recovery Accident deleted McKee and General by $3,561.89. fees of torney into a Anaconda entered McKee and May
On environmen- facilities and install to expand capacity Anaconda, facilities at Mon- tal controls at Anaconda’s smelter and coverage with insurance re- tana. Part of the contract dealt to name Anaconda subcontractors of McKee McKee or quired insuring an insured under their liability policies, as additional at the smelter to the construction risks of kind relating pursuant or its subcontractors facilities undertaken McKee by contract. an Anaconda as with contract by naming McKee complied Accident. by issued policies additional for contractor’s public, These policies provided work on proj- of the subcontracting Some liability. automobile Midland Industrial Electric was ect undertaken Midland), (herein subsidiary a owned wholly as referred to In McKee. accordance Midland named Anacon- da as an additional a insured under policy issued by General Acci-
dent, also providing contractor’s public, and automobile liability coverage. Horner, Midland, W. was injured
James 18, 1975, November while at the Anaconda Smelter. At working that time was a Midland on old tanks in installing slurry pumps Smelter, at the Anaconda to as the building commonly referred Marshall, “28' tank house.” Gerald Kitchen and Ron Anaconda were of the “28' tank employees, preparing paint ceiling house” at the time of were the accident. They rigging scaffolding near the ceiling 2"xl2"xl8' over by laying planking x x4" 5" 18' timbers which were trusses. The supported by existing lost control of one of the timbers it fell Horner, some 30 feet below. while in the ground working Midland, course and of his struck scope employment timber falling injured. 19, 1977,
On January Horner filed suit Anaconda in *3 Silver Bow County the of Anaconda alleging negligence employees. 24, 1977, aBy letter of a January Anaconda made formal demand of General Accident to insure and defend Anaconda in the action 8, 1977, it a Horner. of brought against by letter General By April Accident rejected Anaconda’s demand on the grounds inci- dent did not fall within the of covered” in “description operations 20, 1977, the On policy. Anaconda that April requested again suit, General Accident insure and in defend Anaconda Horner’s which General Accident refused to do. Anaconda again then hired suit; counsel defend Horner’s and an out- against subsequently, $125,000 settlement of was of-court reached.
Anaconda then filed the instant action and McKee General a Accident seeking declaration that General was Accident obligated insure and defend in Anaconda Horner’s lawsuit. Anaconda moved for and a was summary judgment held. hearing The District Court entered order Anaconda’s adopting findings law; of fact and of conclusions and was entered judgment McKee General Accident District Court’s pursuant of Anaconda’s motion summary for granting judgment. $125,000, was in the amount of representing Horner, Anaconda in settlement paid by plus amount $5,843.23 of the in fees Anaconda in defense attorney expended by claim, $3,561.89 fees Ana- in attorney expended by settled filed in instant action. McKee and General Accident conda fact, law to amend the conclusions of findings judg- motion amend, the motion to in part, by ment. The District Court granted $3,561.89, fees previously award of attorney deleting the instant This in with the case. litigation awarded connection and Anaconda’s cross- and General Accident appeal by followed. appeal issues are as follows: appeal in the District erred Anaconda’s mo-
1. Whether Court granting tion no for issue of finding genuine judgment, existed, for Anaconda. material fact and entering judgment erred at- 2. Whether the District Court Anaconda denying fees incurred in the of this case. prosecution torney District Court Accident and McKee contend General They for summary judgment. erred Anaconda’s motion granting summary judg- that it the court improper grant argue fact. in- They ment because there remained unresolved questions action Accident in this is predicated sist that were work- of whether or not the Anaconda question employees No. time of the accident: to Contract ing pursuant issue. disputed found, contends, that it does and the District Court
Anaconda pur- were working not matter whether the what matters injury; contract at the time suant con- working pursuant whether injured employee *4 at it has been admitted that indicates tract. A review of record within working workman was injured the time the accident Contract No. 2081. performed of the work to scope 451 M.R.Civ.P., 56(c), Rule states shall be summary judgment rendered if:
“. . . the answers to pleadings, depositions, interrogatories, admissions file . . . on show that there is no as issue genuine any material fact is to a entitled as moving party judgment a matter of law.” a
The to be decided on motion for question judg summary and not ment whether there is issue of material fact genuine determined; the how that issue should be the motion is hearing 399, 1371; (1975), anot trial. 538 Fulton Clark 167 Mont. P.2d (1971), Matteucci’s Save v. Hustad 158 Super Drug Corporation 311, Mont. 705. P.2d has the burden summary party moving judgment as facts absence of issues to all
showing complete any genuine which are deemed material in of those substantive light principles him a as law. entitled matter of Harland v. 169 Mont. Anderson 613.
In Kober v. Stewart P.2d Practice, this Court cited 6 Moore’s Federal ¶56.15[3]: “ ‘The hold movant a strict To his courts standard. satisfy burden the movant make a what quite must that is clear showing is, the truth and that excludes real doubt as existence issue of material fact. genuine “ ‘Since it not the function of the trial court to adjudicate factual issues genuine at on the motion for hearing judgment, the motion all ruling inferences fact from the at the be drawn proofs proffered must the movant hearing and in favor the motion. party opposing And papers sup- scrutinized, movant’s porting position are while the closely oppos- treated, ing papers indulgently determining whether movant has satisfied his burden.’ “ motion, ‘. . . If there is doubt as to the propriety [a] ” should,
courts without deny the same.’ hesitancy, Kober v. Stewart, 148 Mont. at *5 underlying dispute between to this rests on parties appeal of question focus. General Accident and insist that to
determine must one focus on the actions of the Anaconda, hand, who caused accident. the other on that the focus should on the argues be workman. injured Both base their parties of arguments varying interpretations two in Contract provisions No. 2081:
“Article Insurance. “(d) an additional to owner to made Contractor cause agrees liability policies insuring all of contractor’s named insured under and to in arrange, of the construction any risks owner, will consti- that such in advance policies terms approved claims owner in the event of any tute primary coverage such that are insurable under any policies.” “Article 15. Subcontracts.
“(d) shall requirements Contractor the insurance bring to the attention of all invited sub- persons hereof Paragraph subcontracts, invitation, mit bids for the time of such and to all who are subcontractors for subcontracts persons prospective invited, as with which the submission of bids to be respect to not such negotiations as in the subcon- early practicable tracts, met suc- by any and shall assure such requirements bidder.” cessful subcontract on the con- focus their arguments both parties
More specifically, kind relating “risks to the to be language struction given portions the above quoted which contained the construction” is made either party No mention No. 2081. of Contract would exclude themselves policies the insurance provision Further, bring any did not these policies review of here. surface. such exclusions therefore, is con- of this appeal resolution that the
It appears, As language. above quoted we give construction tingent earlier, stated both from different parties approach problem however, focal It real us is points. issue appears, facing what of risks did the to cover the in- type intend parties surance of Contract No. 2081. provisions Rivers,
As we stated in Glacier v. Wild Inc. Campground intention to a contract parties ascertained, is be if from used in the in- possible, solely language strument, and resort may be had to extrinsic when evidence face, on its or also appears ambiguous uncertain. See 28-3-303; 28-3-306(2), sections MCA. this Being subject ap- *6 the peal, “risks of language relating to construction” ap- or pears ambiguous uncertain.
This Court has held previously is usual- summary judgment ly where the inappropriate intent of the is an contracting parties important (1975), consideration. v. Clark Fulton Mont. 1371, 1373; Kober v. Stewart 148 Mont. 117, 122, 123, 476, 479; Moore’s Federal Practice ¶56.17[41.-1].
General Accident admits that the contractor’s insurance liability which named Anaconda as an additional insured issued to pro- tect from persons risks created of negligence insured. This of has type been explained general terms:
“A contract of contractor’s insurance will re- generally quire harm be work-related or otherwise that there specify be some casual between the nature relationship of the contractor’s and the activity harm which is sustained.” 11 Couch on [insured’s] Insurance, (2d 1963). 44.338 Sec. ed.
There must be some relationship between the risk created by tortfeasors, alleged the Anaconda employees, and the harm sustained. In is determining it to relationship look at necessary employment which created the risk and the work done pursuant thereunder. Were we to focus on the ac- merely tivities of the injured workman and not the activities of the named insureds, we would render of application Contract No. 2081 overly broad and make General Accident the insurer all Anaconda ac- at
tivities the Smelter that resulted in injuries anyone working of control and benefit. This pursuant regardless Court will no such burden place anyone.
In the evidence as whether record there controverted the work the time performed being No. 2081. We the accident undertaken Contract pursuant hold this is issue material fact. genuine Ana- issue of erred in denying The whether District Court case is fees incurred this not attorney prosecution conda for review at this time. ripe the absence
Plaintiffs have not met their burden
establishing
is vacated
summary
issue of material fact. The
judgment
for trial.
and set aside. The cause is remanded to District Court
and SHEA concur.
HARRISON
MR. JUSTICES
SHEEHY,
MR.
MR. CHIEF
joined by
JUSTICE
JUSTICE
HASWELL, dissent:
under Rule
of motion for
purpose
trial,
Silloway
eliminate
unnecessary
delay,
expense.
a motion
Jorgenson presented by the formal issues summary judgment, and the court must consider are not controlling pleadings file, oral admissions interrogatories, answers to depositions, *7 should prevail and exhibits determine who testimony, presented on the motion. v. Hager Tandy the motion for summary facts established under
447. When the facts those and under undisputed, undisputed are this Court on legal theory, is not entitled to prevail plaintiff to the plain- of summary judgment should affirm the grant review tiff. decide this appeal facts that should
The salient undisputed these: & Assurance Corporation and Fire Life General Accident
1. Ltd., comprehensive general including its liability policy, issued & is in which Arthur G. liability, McKee policy insured, an named and the Comapny by Anaconda endorsement additional insured. reason insurance to Anaconda provided policy a contract with Anaconda that recited: Owner
“Contractor to cause agrees [McKee] [Anaconda] an all made additional named insured under of Contractor’s risks the construc- liability policies insuring Owner, in terms in advance tion and arrange, approved will such event of any constitute policies primary coverage claims Owner that are insurable such under any added.) policies.” (Emphasis
3. The insurance or defines “insured” as policy any person as an under organization qualifying and further policy, as to several provides insureds the same policy: “. . . The insurance afforded applied separately to each insured whom claim is made or suit brought, except to the limits of the company’s insurance company] liability.” [the added.) (Emphasis
4. At the time of his McKee’s injury, was on Anaconda premises pursuant to work in progress under contract no. the contract between McKee as contractor and Ana- conda as owner.
5. Anaconda’s were negligent dropping plank- ing caused injury to McKee’s employee. Accident,
In
determining
if
any,
here,
we look to the terms of the
An insurance
policy.
like
other
policy,
must be given that interpretation
which is reasonable and which is consonant with the manifest ob
ject
intent
the parties. National Farmers Union Property
(9th
405;
1966),
Casualty
Cir.
Company Colbrese
368 F.2d
cert. den. 386 U.S.
87 S.Ct.
Insurance Com- v. State Farm Mutual Auto Insurance Company liability pany (garage policy). Anaconda, agreed McKee
Under McKee’s agreement
an
in McKee’s policies
additional named insured
make Anaconda
risks of
kind
the construction”
“insuring
any
a claim
in the event of
would constitute
coverage”
“primary
Anaconda.
Anaconda in its own
right,
If this
has been
policy
purchased
would be
McKee’s
there is no doubt that the
injury
makes no
It
that
insurable for Anaconda under
policy.
risk
was purchased by
that here the insurance contract
difference
as an
insured. By
Anaconda is named
additional
McKee
that
we
clause which
have
interests
severability
reason of
fact,
above,
are two separate
and McKee
here Anaconda
quoted
the limits
the same
limitation
policy,
being
insureds under
the two
its
Each of
Accident under
policy.
General
Anaconda,
entities,
under all the
McKee
separately
effect of
severability
As
of the
example
terms of
policy.
clause,
Corners,
Truck Insurance Ex
see
Inc. v.
Caribou Four
also,
1971),
(10th
In
The majority of all Anaconda activities cident should be the insurer in an anyone working pursuant Smelter result injury That statement of control benefit. regardless
457' no. 2081 that Anaconda would be overlooks clause an additional named insured with to “risks of *9 to the construction”. relating
The endorsement which makes Anaconda an additional insured under the is as follows: general liability policy Anaconda, Montana,
“... is an ad- Company, ditional insured under this in accordance with policy provisions contract no. 2081 with Arthur G. and dated Company 15, 1971.” May
McKee’s was not on Anaconda’s employee interloper premises at the time of the He there in furtherance of contract injury. no. 2081. The risk that he be Anaconda’s might injured by was within the “risks of to the con- struction” for which McKee insurance to agreed provide Anaconda.
There is no reason to return this case
to District Court under
guise
the “intent” of the
seeking
parties
insurance here provided. Where the
of the insurance
language
admits of
one
there is no basis
policy
meaning,
for the inter
pretation
under the
policy coverage
guise
Univer
ambiguity.
sal Underwriters Insurance
v. State Farm Mutual Auto
Company
Insurance
Since the to McKee’s within injury plainly extended to Anaconda Accident by General under this insurance, the District Court correct policy awarding to Anaconda for the amount to settle the claim required of McKee’s the cost of defense that employee, Anaconda in- plus curred in the claim it McKee’s handling against by employee. District Court in this case should affirmed.