*1 TRAVIS, CALISTA CONNOR HEGGEM, for themselves as individuals and on behalf of HEGGEM, deceased,
DANE Appellants, Plaintiffs and CAPITOL INDEMNITY CORPORATION,
Madison, Wisconsin,
Respondent.
Defendant
No. 04-360.
on Briefs
Submitted
March
2005.
March
Decided
CHIEF JUSTICE GRAYdelivered early a result Heggem Dane died in 2003 as Thirteen-month-old facility. day at a care administered of a toxic dose Unfair of Montana’s asserted violations parents Dane’s brother facility day by care Trade Practices Act insurer the insurance limit of misrepresenting applicable Thirteenth Judicial entered judgment from the appeal Court, on its order County, granting District Yellowstone We to the insurer. affirm. following We address the issues: denying Did the Court District abuse discretion discovery relating Heggems' motion to conduct issues policy? of the insurance interpretation determining policy’s 2. Did the District Court err in
provisions relating unambiguous available $300,000 matter of law and the available was insurer, insurer’s represented by the and in motion granting summary judgment on those bases?
BACKGROUND Tiny day Denise operated group Sabine Bieber and Smith Tots facility Laurel, January 31,2003, care Montana. On the afternoon of Heggem Bieber discovered that Dane had failed awaken from his midday nap Tots. Dane airlifted to Hospital St. Vincent's Billings, Montana, pronounced where he was dead. Dane’s death certificate described the cause of death as diphenhydramine (generic Benadryl®), and being given indicated the death occurred Dane allergy toxic dose of that liquid autopsy report and cold medicine. The *3 indicated the cause of death as “most an likely overdose diphenhydramine.” Investigators for the State Montana learned that, during Tiny previous year, enough the Tots had purchased diphenhydramine supply more than eleven doses the medicine day, per Tiny and that no directions to Tots from the Heggems parents of other the explained children use of the medicine in that amount. 18,2003, March Heggem-Dane's On Travis and Calista father and against Tiny
mother-filed an and which requested, action Bieber Tots in pertinent part, compensatory damages categories “in all available Tiny negligent under Montana law” for and Tots’ Bieber’s administration illness, Benadryl® which caused Dane’s “last suffering, in In Discovery spring and death.” ensued that action. the interrogatory by identifying to an as responded Capitol Bieber insurer $300,000. her and limit as policy’s liability the mid-July attorney In the made a demand on $300,000 policy against for limit in action Capitol settlement the Tiny Capitol pay that it the demand. responded Bieber Tots. would week, Heggems Within the that demand demanded withdrew $600,000. Capitol refused the demand. 25,2003, complaint asserting Unfair July Heggems On filed a (UTPA) misrepresentation against Act violations and
Trade Practices succession, they In a first amended Capitol. quick filed Bieber complaint complaint. and a second amended complaint amended named second charges against filed criminal alleged defendant. It that the State had and-along in Dane’s death July Bieber of2003 connection with Tiny Bieber had against lines its action Bieber and Tots-that same caused his given Dane the lethal dose of which that, liability alleged since was Heggems death. further Bieber’s time, obligation honestly reasonably by Capitol’s clear the insurance available. asserted represent -1006, MCA, UTPA, through 33-18-101 violated §§ maximum amount of insurance available misrepresenting $300,000 limit in as the available when offered Tiny The Heggems alleged action Tots. against Bieber third-party rights entitlement under their twice Capitol policy Limits in the “all Aggregate under ” during referencing very the claims policy period, ‘occurrences’ broadly Tots. alleged alleged “triggered these claims regard, the latter policy. Finally, the multiple aggregate provisions” claims claim, upon complaint alleged first-party amended based second rights, her assignment first-party to them Bieber of written to Bieber under the claiming obligations breached by failing underlying to settle the suit within UTPA $600,000 failing to a release for Bieber. policy limit and obtain complaint September amended Capitol answered the second allegation It also denying the it had violated UTPA. moved to 33- third-party pursuant dismiss the claims this UTPA action § MCA, may not 18-242(6)(b), third-party which that a claimant provides claim settled or underlying file an action until after the has been opposed claimant. The promрtly entered dismiss, question on the basis that primarily the motion to presented is the same as that third-party under their presented prior filed to a settlement claims, may their which be first-party *4 33-18-242(6)(a), MCA. underlying the claim. See judgment § on completed. Briefing on motion to dismiss was Capitol’s entirety the summary on the Capitol judgment also moved for liability Heggems its maximum to the action the basis that UTPA on policy language the $300,000. argued It policy under the as a unambiguous sought issue was and a determination matter law liability policy the term “occurrence” used in the limits its to $300,000. that, assuming Capitol asserted even truth of entitlement to in the action Heggems’ allegation Tiny Tots, and for against Bieber liable one “occurrence’-Dane’s death-as defined day On the it filed motion for judgment, same its regard for a protective answering moved order with
discovery Heggems. from the It asked the Court requests District stay discovery fаctual court a legal until had rendered interpreting liability determination Heggems at issue. The responded in for opposition discovery pursuant moved to M. R. 56(f) P. purposes addressing summary judgment Civ. for motion. They stated discovery sought related to “the pertinent facts behind sale, [Capitol’s] drafting, underwriting, use of Aggregate Limits provision.” parties agreed suspend briefing further on the motion for summary judgment ruling pending on the discovery motion. granted The District Court later Capitol’s motion for protective order, (and stayed further activities this case in the earlier action Tots) and, in December denied the Heggems’ discovery. motion In January after the negligence filed
against Smith, they filed their brief-and numerous exhibits-in opposition summary judgment present replied. action. of2004, granted March the District Court summary judgment Capitol, concluding single claims were based on a occurrence a single period, and determining Capitol's $300,000. Then, cannot ruling exceed without dismiss, on motion to judgment the court entered in favor of Capitol on the policy interpretation, filed of entry notice of judgment. having The District directly Capitol's Court failed to rule claims,
motion to dismiss the third-party moved for certification judgment purposes appeal as final for 54(b). pursuant motion, to M. R. Civ. P. later withdrew that however, upon agreement parties' that certification “neither was necessary nor appropriate” ripe appeal. agreeing District Court entered an parties, stating, order with the “the 26,2004 Judgment Court’s entered March is stipulated by parties (and agrees) dispositive Court as final and of all issues [UTPA] action.”
434 by District judgment from entered the Heggems appeal the
¶16 granting summary judgment Capitol. to raise on its Court order forth above and resolved below. the two issues set OF
STANDARDS REVIEW discovery rulings for abuse of a district court's We review ¶17 Service, Maner, MT & Tree Inc. v. 2000 Constr. Spooner discretion. (citation omitted). 24, 268, 24, 641, P.3d 24 161, Mont. 3 ¶ ¶ 300 ¶ 56(c), no summary judgment proper P. when Under M. R. Civ. moving party fact is entitled genuine issues of material exist and Overall, summary we review a judgment to as a matter law. America, Co. Wages de novo. v. First Nat. Ins. judgment decision (citation 1095, 9, ¶ MT 318 Mont. 79 P.3d ¶ ¶ omitted).
ISSUE denying Court its discretion Diet the District abuse relating on to discovery conduct issues Heggems’ motion to policy? of the insurance interpretation summary judgment, responding Capitol’s motion for 56(f), seeking P. discovery under M. R. Civ. Heggems also moved for relating Capitol’s interpretation factual information in other cases. The policies Limits its insurance Aggregate motion, determining had not Court denied the District 56(f) and, R. P. since motion requirements of M. Civ. met the sought legal interpretation that the summary judgment for discovery requested would be ambiguous, and not was clear time. irrelevant 56(f) that, appears P. if it from affidavits provides M. Civ. R. party summary motion that the party opposing judgment
filed necessary justify opposition its timely present facts cannot summary motion, may deny judgment the motion for court district Here, file the Heggems did not proceedings. or continue the 56(f) Rule conjunction with their required by M. R. Civ. P. affidavit 56(f) Therefore, District Court did abuse we conclude the motion. 56(f) R. P. motion denying M. Civ. its discretion Consequently, we need rule. requirements failure to meet the denying rationale for District Court’s second not address the Heggems’ motion.
ISSUE in determining policy’s Did District Court err relating available provisions unambiguous as a matter of law and the available $300,000 insurer, represented granting and in insurer’s motion those bases? language governs of a interpretation contract if
language
28-3-401,
explicit.
Interpretation
is clear and
Section
MCA.
question
Augustine Simonson,
of an insurance contract is a
of law.
(citation
(1997)
omitted).
259, 263, 940
116, 118
283 Mont.
P.2d
Courts
must look at an insurance
as a
and attempt
contract
whole
to reconcile
the various
each
parts
give
meaning and effect. Farmers Alliance
*6
Holeman,
MT 155, 25, 289
25,
Mut. Ins. Co.
Mont.
¶
¶
(citation omitted).
P.2d
ambiguity
An
exists
¶
when
contract,
whole,
reasonably subject
insurance
taken as a
is
to two or
(citation omitted).
Holeman,
more different interpretations.
25¶
may
exists,
a court
an ambiguity
create
where none
nor
may a court rewrite an
policy by ignoring
insurance
clear and
unambiguous
language
“good
a
accomplish
purpose.” See Stillwater
Condominium Ass’n
Co.,
v. American
F. Supp.
Home Assur.
(D.
1982).
(9th
1981),
1080 Mont.
as matter that not misrepresent did its express and unambiguous policy language, any which set the limit for one $300,000. occurrence brief-interpreting motion and “one occurrence” provision in the policy-were based on the allegations set forth Heggems’ in the earlier action against Tots and their second amended UTPA complaint: primarily, that Bieber gave the lethal ofdiphenhydramine death, Dane dose which caused his and that-pursuant to the “all occurrences” policylanguage-the various separate claims in their action and Tiny Bieber Tots “triggered multiple, aggregate provision” claims in Capitol’s policy. The response exhibits, Heggems’ brief and they submitted after filed a against Smith, separate large relied to a on a theory extent the aggregate applied limits of the policy multiple persons because multiple by tortfeasors, have claims caused two Bieber and Smith. In words, they other “multiple relied on a theory. occurrences” The argued improper was had because there case, been more thereby invoking than one “occurrence” $600,000 Aggregate provision policy. Capitol Limits replied, pointing out-among away things-this allegations other shift from complaint.
in the UTPA second amended pay sums the insured issue states will obligated bodily injury. of legally pay because becomes “bodily “Bodily injury” injury, sickness or disease defined by resulting any from of these at person, including death sustained most any provision “[t]he of Insurance” states we time.” The “Limits damage any applicable or is the pay will loss one occurrence Declarations,” Limit [$300,000] regardless of Insurance shown insureds, made, or or brought persons suits of the number is defined organizations making bringing claims or suits. “Occurrence” accident, including exposure repeated as “an continuous substantially policy’s conditions.” The general the same harmful limit, limit, $300,000 triggered only which is twice the aggregate policy period. when there is more than one “occurrence” Capitol policy language concluded the The District Court unambiguous Aggregate and the Limits clear and circumstances presented under here. It policy was not invoked of occurrences is determined the number determined the number causes, effects, rejecting contention not the number result person brought injury who a claim as a of Dane’s that each represents Capitol policy. “occurrence” under the death alleged prior rejected court also claim that to Dane were additional administrations The court determined as “occurrences” $300,000 and that limit was applicable policy matter law It misrepresenting had the UTPA limit. not violated granted summary judgment Capitol. *7 language primarily policy Court relied on District (D.D.C. Co., Supp. Ins. 984 F. 12
analysis v. State Farm Greaves (C.A.D.C. 1998), reaching its conclusion 1997), F.3d 919 aff'd, 172 “occurrence.” Greaves was that is liable to the one by brought a landlord’s insurer declaratory judgment against a against the landlord for underlying negligence suit in an plaintiffs building fire. On cross- injuries apartment death an a related action, parties declaratory both judgment motions for suggested clear, plaintiffs and the language policy asserted ambiguity profound a alternatively interpretation their “evinces... Greaves, at 14. The Supp. 984 F. coverage limitations.” policy’s of the owner’s policy plaintiffs argued applicable “for all aggregate provision an million under $2 insurance was Greaves, F. Supp. 984 policy’s period.” occurrences
437
a
bodily injury
at 14.
contended each
who suffered
person
Greaves,
occurrence under
F.
represented
occurrence,
argued
only
at 15. The insurer
there was
one
with
Supp.
Greaves,
million.
an
limit of
984 F.
at 14.
policy
Supp.
$1
available
Observing
disagreement
meaning
over the
of an insurance
provision
ambiguous,
not render the
the federal district
policy
does
and, thus,
injuries
only
court determined one fire caused the
there was
noting
majority
jurisdictions
one occurrence. Further
that the
vast
construe the term “occurrence” as used in insurance
refer to
policies to
the cause
injury
injuries,
or causes of the
rather than the number of
rejected
plaintiffs’
the court also
argument
negligent
that each
act
or omission
led to the
a separate
which
fire constituted
occurrence.
(citations omitted).
Greaves, 984 F.
Supp. at
Robertson,
District Court also relied on
Co.
Scottsdale Ins.
v.
2003).
(App.
There,
creating an ambiguity which the language reasonably used is subject to two or more interpretations. different Capitol responds that argument and, is raised for first on appeal time for that reason, we should not address it. is correct that dowe See, address issues raised or presented appeal. new theories on e.g., Peterson, City Billings 21, 322 232, 444, 21, 2004 MT Mont. ¶ ¶ (citаtion omitted). 532, P.3d Here, however, ¶ we will discuss the sufficiently contention because intertwined with arguments considered the District Court in its determination that Capitol’s policy unambiguous is clear and a as matter of law. The rely properly Leibrand v. Farmers National Property Co.,
Union and Cas. 272 Mont. 898 P.2d (1995) (citation omitted), that, for the proposition ambiguity when an exists, Montana courts construe an insurance disagreement meaning insurer. a mere of an over the
438 ambiguous. See provision does not render Here,
Greaves, we conclude that none Supp. 984 F. “occurrence” under the proposed interpretations of reasonable; supported by upon nor the case law policy they are are rely. which the liability policies used in interpreting the term “occurrence” as specified per to amount liability a
which limit insurer’s “occurrence,” majority perspective it from the the vast courts view damage оr to the or causes of causation-referring cause injuries or Inc. et Transp., not the number of claims. CSX injury-and (Md. (citations 1996) Co., A.2d 1091 al. v. Continental Ins. omitted). Co., Michigan v. Am. Home Assur. Corp. See also Chemical (6th Sullivan, 374, 379 1984);Michael P. What Constitutes 728 F.2d Cir. Policy Liability Limiting Accident or Occurrence Within Single Occurrence, Liability Amount Per Accident Specified Insurer’s to (2005). adopt theory interpreting 4th “cause” for 64 A.L.R. We this liability limits the in an insurance term “occurrence” liability specified per amount “occurrence.” insurer’s to they interpretation, first are proposed Under the four different eligible Capitol policy under the for argued, are Bieber's As those occurrences “occurrences.” Dane; to Smith’s administration of a toxic dose of act; family’s learning negligent prevent failure to Bieber’s (which they contend caused them concerning Dane's death facts damage); learning cоncerning their of the facts Smith’s emotional (which they also caused them prevent Bieber’s act contend failure damages). emotional Ins. rely Property and Cas. Guar. Fund Arizona (Ariz. Helme, 1987), support interpretation. P.2d 451 an accident victim’s underlying
Helme arose from an
which
look at x-
negligently
had
failed to
physicians
survivors claimed two
surgery
rays
in connection with consultation
spine
victim’s
litigation,
stipulated
each doctor
following
During
the accident.
recognize
x-rays
or to
negligence
failing
his
to either review
own
Helme,
P.2d at 455. The
x-rays.
problem
revealed
those
action,
Helme, declaratory
brought
doctors’insurer then
limit
one
obligation
pay
that, because
Court ofArizona determined
Supreme
“occurrence.”
doctor to fail
to cause the second
nothing
the first doctor did
unrelated
separate,
constituted
x-rays, the two failures
examine the
аnd,
consequently,
injury
causal acts which resulted
result,
complaint alleged
two
occurrences. As
survivors
for claims
both doctors under the
could recover
*9
Helme,
caused “continuous or the same Helme, However, general harmful in no conditions.” unlike facts underlying record in the case Tots are before Moreover, us. both the earlier action and the UTPA second amended complaint at allege only issue here one cause: Bieber’s lethal dose diphenhydramine. That is the alleged cause at the times Bieber Capitol represented policy $300,000. the available limit as allegation that Smith to stop failed Bieber’s administration of the Heggems medicine-assuming could establish she had an opportunity authority stop or it-had not been made at that time. The other two “occurrences” claimed by under this interpretation family’s learning are the cause of Dane’s death and their learning prevent failure to Smith’s it. neither family’s learning ‘learning the cause of death nor the of Smith’s prevent failure” to the death had alleged been as an occurrence at times the policy represented $300,000. any event, limit was both alleged results, of these two omissions, occurrences focus on not or acts reasonably aresult, cannot be termed “causal acts.” As Helme does support these interpreting separate “results” as “occurrences” under the policy issue here. Under the Heggems’ proposed alleged second each interpretation, given
dose of
at Tiny
alleged
Dane
Tots and each
failure of
being
Smith tо
warn
Dane was
medicated
constituted an “occurrence.” Under this
interpretation,
contend
is liable for
aggregate
limits of the policy for two
separate years,
they
because
claim
given
some doses were
to Dane in
on New
policy year prior
rely
to the one in
which he died.
(Fla.
Hampshire
Co.,
Ins. Co. v.
RLI Ins.
807 So.2d 171
App.
Dist. Ct.
(Fla.
McQuaig,
and American Indem. Co. 2002),
Appeal-аpplying
resident,
person,
injured
each of which
a different
a condominium
condominium association's
constituted three occurrences
Ins.,
Similarly,
Hampshire
New
which the available of diphenhydramine, on Dane’s death from the overdose premised was injury to “bodily bodily No injury” Capitol's policy. as defined time. of the medication at that alleged regarding prior doses Dane was McQuaig, Ins. incurred and Hampshire Unlike New overdose bоdily Dane from one act-the injury arose *10 Ins. Hampshire neither New result, As a which caused Dane’s death. adopted McQuaig, interpretation on the “cause” we nor which both rest to above, Heggems’ theory multiple as “occurrences.” supports the interpretation, there were proposed the third Under ¶39 life, resulting the emotional the loss of Dane’s and four occurrences: They rely on U.E. surviving family to members. distress the three Co., One-Barrington, Star Indem. F.3d Ltd. v. General Texas (5th of “occurrence.” 2003), interpretation of an “effects” support Cir. Texas, however, cause, U.E. focused on not effects. Texas, buildings sought In U.E. apartment the of 19 owner buildings from damages its insurer for water
recovery from
affirmed
federal
Appeals
The Fifth Circuit Court
leaking pipes.
separate
damage constituted 19
ruling
court
that
water
district
the
result,
pay
19 insurance
“occurrences;”
required
as
the owner was
that,
significant
The Fifth Circuit Court deemed
deductibles.
single plumbing
of a
part
all installed
although
pipes
the
were
building.
damage
to each
system,
responsible
leaks were
different
law,
that,
Texas
Texas,
stated
U.E.
at 278.
court
332 F.3d
is
interpreting
events
focus in
“occurrence”
proper
liability, rather
than on
insured's
injury
give
rise
cause
Texas,
disagree
their proper
over
378; Greaves,
728 F.2d at
F.
Supp.
15. Because none of the
Heggems’ proposed interpretations
of “occurrence” is
reasonable in
unique
case,
somewhat
context of
have not shown
“occurrence,”
subject
as defined in the
Capitol policy,
reasonably
interpretations.
result,
to two or more different
As a
we conclude
Heggems have not established that
the term
“occurrence” as used
Holeman,
See
Capitol policy
ambiguous.
¶
Finally,
negligent
contend the law on
infliction
emotional
them,
distress allows
claims for each
citing
Co.,
Treichel
v. State Farm Mut. Auto. Ins.
443, 930
280 Mont.
P.2d 661
Press,
High Country
Inc.,
(1997),
Independent
and Sacсo v.
271 Mont.
(1995).
209, 896
cases,
P.2d 411
In those
recognized
we
an independent
cause of
infliction of emotional distress. See
negligent
action for
Treichel,
665; Sacco,
emotional distress separately were not Bieber Tots and had not been raised the time limits representations of available policy spring were made in the event, any summer of 2003. In those asserted claims do relate the number of occurrences which Capitol is liable under its policy policy language limiting coverage because of the “regardless of the persons Moreover, number of... claims made ... or making claims.” *11 effects, emotional distress claims are not causes. ambiguity language reasonably No exists unless the
¶45 is Michigan See Chemical susceptible to than interpretation. more one Corp., F.2d We conclude that nоne of the alternative interpretations by light is in advanced reasonable language Capitol policy, clear of the the cases advanced support in of their interpretations, alternative the cause interpretation of an “occurrence” utilized the vast Finally, adopted. which we have majority jurisdictions, now the time the ambiguity exists because no importantly, in at issue this policy hmits-specifically available representations of made, cause of Dane’s death was UTPA action-were of diphenhydramine. Bieber’s lethal dose Special closing, is to address the appropriate it Before regard to with Special Concurrence correct Concurrence. proceeded have and been in which this UTPA action should manner fashion, did not in that proceed in the District Court. The case resolved case howevеr, job presented not this Court’s to “remake” the and is Nevertheless, Special provides Concurrence to the District Court. in future cases. practitioners and district courts guidance valuable did not err in summary, hold that the District Court we relating determining policy provisions the available as a matter law unambiguous available were Therefore, $300,000 by Capitol. we represented limit was granting summary not err in that the District Court did further hold judgment Capitol. Affirmed. LEAPHART, WARNER, RICE concur. MORRIS and
JUSTICES NELSON, concurring. specially JUSTICE err in District Court did not agree I with the Court that the I with summary judgment, agree granting Capitol’s motion However, analysis. I do believe much Court’s made proper case and resolution are issue in this dispositive Thus, separately I write Opinion. in Court’s sufficiently clear summary judgment proper. clarify why that issue and District great deal of effort in the expended have parties death, fact, Dane’s arguing Court about whethеr Court and whether the limit of than one “occurrence” and involved more result, is, fact, $300,000.00. As liability arising out ofDane’s death declaratory appearance on the of a this case has taken is liable in the amount for which concerning questions Smith.1 against actions actually just one “occurrence” Dane’s death constitutes whether Complaint that regard, Amended asserted in their Second In this Yet, language.” judgment’ regarding policy ‘declaratory an action for “this not they Capitol policies at issue afford a determination that appeal, coverage “ask this Court for $1,200,000.00, a matter of law.” the amount for the
443 $300,000.00 Capitol actually than whether is liable for more are completely in this case. irrelevant Heggems brought the Unfair Trade action under (Title “UTPA”). 33, 18, hereinafter, Chapter MCA;
Practices Act 33-18-242(1), MCA, a an Section establishes cause action insured actual third-party against or claimant insurer for caused (13) (4), (1), (5), (6), (9), insurer’s violation of subsection 33-18-201, Although specific MCA. did not reference a § any subsection of their 33-18-201 of the three versions of § complaint, pleadings they from apparent their (1), under proceeding prohibits subsection which an insurer from pertinent “misrepresenting] provisions facts or insurance relating at coverages 33-18-201(1), Indeed, issue.” Section MCA. 33-18-201(1) they cite Objection Capitol in their Response § Indemnity’s for Summary Judgment.2 Motion Attorneys Liability Redies v. recently As Protect. explained we Soc., 233, MT (2007), 2007 335 Mont. 150 P.3d brought a claim analyzed under the UTPA must be on based what the insurer knew at Redies, UTPA. See the time it see also allegedly 29, 40; violated ¶¶ Co., Continental Western Ins. 105, 17, 321 MT Mont. ¶ Graf v. (“The 17, 89 P.3d UTPA standards focus on ¶ ¶ what the insurer knows a particular at point trial, in time-before investigative Thus, settlement stage.”). proper resolution summary judgment motion for requires anаlysis following questions: 33-18-201(1)? Capitol allegedly
1. When did violate § (related issue) 2. Capitol What did at coverages know that time?
3. did Capitol represent What at that time the limits of coverages under the at issue?
4. Did this constitute a misrepresentation pertinent facts or insurance policy provisions relating to the coverages issue? Complaint “[t]he also asserted their Second Amended totality [Capitol] of the circumstances that has created in this also case ... violates Act, MCA, seq., Montana Consumer et § Protection 30-14-101 and constitutes unlawful deceptive practices 30-14-103, 30-14-133(1), MCA, and establishes a MCA.” Section § private cause action violation of the Consumer Protection Act. However, Judgment, UTPA; Response Objection Capitol Indemnity’s Summary in their Motion for brought characterized the action as one under the instant they appeal, Act neither mention the Consumer Protection nor raise challenge pertaining allegations Thus, to their under that Act. we need not address it. summary judgment on the
5. entitled Is claim? misrepresentation UTPA implicates a four these any questions
If the answer to of the first fact, summary judgment to material then genuine issue as 56(c). M. P. improper. R. Civ. allegedly 33-18-201(1)? § violate did When during mid-2003, policy provisions allegedly misrepresented Bieber Heggems’ negligence context of the *13 18, Tots, particular, on March 2003. In which was filed or about (with Complaint Amended Heggems identified in their Second complaint) attached three corresponding documentation misrepresented allegedly had on which occasions 22,2003 letter from First, Heggems April referenced an provisions. counsel, in counsel Heggems’ Capitol’s which Capitol’s counsel policy declarations indicate that “Please note that the business stated: Second, $300,000.00 liability.” Heggеms’ of limits exist for Tiny and against 2 in their action Bieber Interrogatory referenced No. Tots, Tiny Tots “the limits of which from Bieber and requested you contend liability” (policies) of insurance any “policy for type against you Complaint on the dates described covered (which response April risk here.” Bieber’s of involved Capitol) at of was that “the Heggems alleged was made the direction Third, “$300,000.00.” referenced liability’ of limits Capitol’s counsel and July 25,2003 telephone conversation between counsel, memorialized in a letter which counsel (dated “[Capitol] to and have day) prepared [was] follows: that same Bieber, you the sum of me, of to tender asked on behalf Sabine on $300,000.00 the total limit available they which believe is (The Heggems initiated the instant pay.” for and med this case 2003.) i.e., day, July on UTPA action that same issue) coverages (related to the 2. know What did during 2, and at the responded Interrogatory No. mid-2003? When communications for the and between counsel time had with presented been Capitol, counsel complaint, and Tots. In their negligence Bieber had as follows: business, owner, and they trusted 1. the defendant and To son, Dane. entrusted, day care, young their beloved 2003, Dane, care, January, premises on those 2. in that While airlifted care, unresponsive; was defendants’ became and under died, January 2003. and then Hospital, to St. Vincent Montana, authorities, County 3. The State and Yellowstone investigation, and determined autopsy after have and written on Dane’s death certificate that his death “homicide.” owner, them, 4. The defendant business and and each of had administered, negligently, and without consent of Travis and Benadryl Dane, [Heggem], quantities Benadryl Calista which illness, suffering, quantity caused his last and death.
5. reported State of Montana authorities have determined and day given other children Defendants’ care were also quantities Benadryl, knowledge without consent or those children’s parents. acts, stated,
6. The negligent day of defendant care and its owner, Calista, took Dane from Travis and as well as structure, Dane’s family entire but the circumstances are of such require defendants, character as to also the imposition, upon them, both of punitive substantial damages, punish, importantly, more any tragic deter such other breaches duties Parents, owed to children, and their day when entrusted to care. The Heggems requested compensatory damages “in categories all available under Montana law ... as a result of the circumstances surrounding son, Dane”; the loss of their punitive damages; “[s]uch other relief just as the Court deems proper.” Capitol represent limits of ¶55 What did mid-2003 as the *14 liability cоverages $300,000.00. under the at issue? misrepresentation pertinent 4. Did this constitute of facts or policy provisions relating coverages insurance No; at issue? for the follow, reasons which the have not shown that there is genuine issue of material fact respect question. with to this policy ¶57 The states the Capitol pay that most will for damage loss or any in one “occurrence” the applicable Limit of Insurance shown in $300,000.00. the Declarations: Capitol pay injury The most will for or damage arising from all policy period “occurrences” the is twice (i.e., $600,000.00). this theory limit the interpreting Under “cause” of the liability term “occurrence” in policy that limits the to a liability specified “occurrence,” insurer’s amount per that term refers to the cause or See damage injury. Opinion, causes of the or 31. At the of alleged misrepresentations, ¶ time the had been prеsented only with of one cause Dane’s death: act Bieber’s Thus, negligently administering diphenhydramine (Benadryl) to Dane. coverages issue, the then at the limits $300,000.00.
446 act to subsequently alleged that Smith’s failure to See, e.g., Dane’s death. Dane was a cause of protect Phalen, 448, 455, Cas. Co. v. Mont. 597 P.2d Northwestern Nat. (“[T]he (1979) in 720, ‘occurrence’ is fact broader than the word case, In the so intended the insurer. such ‘accident’ and is word omissions of the insured.” policy is to insure the acts intent of added)). However, is based on UTPA action (emphasis mid-2003, Smith as a Heggems alleged in representations before separate cause. addition, proffered a number of Heggems subsequently support position. of their These
interpretations of “occurrence” in theories of relief based interpretations reflected several different administrations and alleged Bieber multiple Dane, prоtect all over multiple alleged failures of Smith to act 23, 32, 36, 39, See Opinion, multiple policy periods. ¶¶ Tiny prior contains no against Bieber and Tots complaint And injuries to Dane.3 there is negligence corresponding and acts up leading mid-2003 nothing in the record of communications Heggems presented suggest UTPA that the filing the record discloses contrary, claims. To Capitol with such been filed. the UTPA action had these claims were articulated after Objection argued Response in their Judgment had Indemnity’s Summary Motion “miserably fail[ing] to policy provisions by misrepresented pertinent Further, they forth in the identify aggregate policy.” at all the set exploiting isolating “carefully Capitol and its counsel of accused statement They acknowledged that page.” the declarations 22,2003 letter-specifically, “[pjlease note April Capitol’s counsel $300,000.00 of limits declarations indicate that that the business added)-was true,” “technically they but liability” (emphasis exist aggregate “conceals the critical this statement claimed action, Heggems allege Complaint Amended instant In their Second Tiny “plead negligence complaint Tots in the action was that their Yet, fully Montana law.” while all claims under terms so as to invoke available in broad pleading requirements any generally subject plaintiffs technical are favor, Zempel Liberty, broadly plaintiffs complaints must construed be 16, 17, 16, 17, 16, 17, ¶¶ ¶¶ 333 Mont. P.3d MT ¶¶ complaint against diphenhydramine the administration Tots references Bieber *15 illness, suffering, 31,2003, and January which caused Dane’s “last added), compensatory of the (emphasis requests “as result and death” circumstances added). son, (emphasis surrounding This cannot of their Dane” the loss omissions) (and fairly arising Smith’s out of Bieber’s actions be read to raise claims
447 Heggems’ is therefore untrue best.” assertions two critical overlook facts. First, had full access to the insurance policy, which provided Capitol’s to them with letter from counsel dated April
22,2003. There is no indication in the record that withheld or Rather, pertinent provisions “concealed]” the record and allegations forth in the Heggems’ Complaint set Second Amended Heggems simply reveal that did not policy” “scour[] bother to 21 or July until 2003.4 33-18-201(1) Second, and more importantly, prohibits § an insurer misrepresenting “pertinent”
from policy provisions “relating insurance added). at issue” coverages to It (emphasis require does not the insurer recite, in response to to an interrogatory requesting limits “the liability,” every limit set policy; indeed, forth in the a statement Aggregate Limits amount of liability is could be if misrepresentation is not “at issue.” And while 33-18- § 201(4) requires the insurer to investigation conduct “a reasonable based all upon claim, available information” refusing before to pay 33-18-201(1) insurer, require does not responding § when limits inquiry claimant’s as to the of liability, every to conceive of possible theory may have, of relief the claimant yet but not has articulated, response on coverages that could be, base but are 33-18-201(1) presently, Rather, at issue. requires the insurer § to truthful, forthcoming, be and accurate with to respect “pertinent” Black’s provisions relating coverages “at issue.” Cf. Dictionary Law 1999) (Bryan ed., ed., A. Garner 7th West (defining “misrepresentation” “a false or misleading statement facts”). about something” or “an assertion that does not accord with the In this regard, six after Capitol months made the alleged misrepresentations, stated in January their Response Objection Capitol Indemnity’s Summary Motion for Judgment just that “the begun have to piece together what haрpened to many Dane over months at Tots. Those facts must application language.” drive of insurance nolicv This latter statement certainly unreasonable, then, trae. It be would expect Capitol to Interrogatory base its answer 2No. on facts that were neither counsel, July 22, 2003, In letter from the counsel dated counsel states he is “more than a bit taken aback at what we have discovered, during past hours’-namely, policy coverage “that true (based tragic incident, event, life-scarring $600,000” Aggregate on the Limits provision). *16 allegations and claims Heggems’ presented implicated to it nor sure, Tiny Capitol To itself could have Tots. be against ascertained-indeed, may supposed Smith’s failure have done so-that See, e.g., Ariz. of Dane’s death. Dane was a cause protect to (Ariz. 1987). Helme, 451, 458 & Fund v. P.2d Prop. Cas. Ins. Guar. 33-18-201(1) insurer, require responding not But does when § aсtion, interrogatory negligence in a to formulate its liability” “limits of are not named as on tortfeasors who response potential based defendants. Heggems’ summary judgment Capitol on the 5. Is entitled misrepresentation UTPA only remaining question claim? just As summary judgment Capitol proper. of was favor whether alleged misrepresentations in which the explained, period premised only made, liability under the was on were negligently administering act of Dane’s death: Bieber’s one cause January 31, the “cause” to Dane 2003. Under “occurrence,” constitutes theory the term this one cause interpreting Therefore, the limits of Capitol’s statements one “occurrence.” $300,000.00 not coverages under the then issue were genuine no issue as Accordingly, because there is misrepresentations. “$300,000.00” question on the of whether any material fact Capitol, and policy provisions by misrеpresentation constitutes a matter of law on the judgment is entitled to Capitol because claim, summary judgment Heggems’ misrepresentation UTPA proper. claim Capitol on that was Court Capitol, District judgment In granting Limits Aggregate that the as follows: “This Court concludes
concluded the circumstances is not invoked provision as a matter law.” Indemnity entitled conclusion, supports “[caselaw] the court reasoned that reaching this of a Indemnity’s death was the result position that Dane’s occurrence constituting single occurrence and that such single cause of claims made or regardless of the number gave rise to all Further, “[t]he court reasoned that have brought.” suits has under the place one occurrence taken not shown that more than avoiding summary judgment.” purposes circumstances actually was the result Dane’s death of whether questions actually was liable for one cause, whether single Bieber, against “occurrence,” various and whether actually trigger the Aggregate Limits Tots, and Smith completely capable are irrelevant-and are not of being resolved-in this UTPA action. thing, For one the time the District Court entered order on 15, 2004, a
March verdict had not been handed down either of the negligence arising Thus, actions out ofDane’s death. the District Court juncture could not state at this that Bieber’s administration of the diphenhydramine was, fact, the “cause” of Dane’s death. That is an Bieber, against element of the tort claim yet proven. which had to be Furthermore, there may death, have been another cause of Dane’s negligence Smith for her failure protect to act to Dane. The District suggestion Court’s that Dime’s cause, therefore, death was the “single” result of a inappropriate. Lastly, did need to show in this UTPA case that more than one “occurrence” had place taken under the circumstances *17 Rather, they Dane’s death. needed to show that at time Capitol’s alleged misrepresentations, they had presented Capitol with facts or allegations implicating more than one occurrence. did not make showing. Accordingly, to the extent the purported District Court issue ruling in favor of Capitol’s position “that Dane’s death was the result of a single cause constituting single occurrence and that such gave occurrence rise to all regardless number made or brought,” suits court erred. because proper in this not, case-because did during the here, misrepresent communications issue the limits of coverages $300,000.00-the then at issue as District Court reached the correct result. basis, On this I concur in this Court’s decision. joins
JUSTICE COTTER in the special concurrence of JUSTICE NELSON.