Lead Opinion
delivered the Opinion of the Court.
¶1 Appellant Eleanor Monroe (Monroe) appeals from the decision of the Eighth Judicial District Court, Cascade County, denying her underinsured motor vehicle coverage and granting summary judgment in favor Safeco Insurance Company (Safeco) and Cogswell Agency (Cogswell). We affirm in part, reverse in part and remand for further proceedings.
¶2 We consider the following issues on appeal:
¶3 1. Whether the District Court erred in granting summary judgment in favor of Safeco.
¶4 2. Whether the District Court erred in granting summary judgment in favor of Cogswell.
¶5 3. Whether the District Court erred in granting summary
FACTUAL AND PROCEDURAL BACKGROUND
¶6 On November 19,2003, Eleanor and Hugh Monroe (the Monroes) were traveling as passengers in Hugh Monroe’s 2003 Dodge Durango. Their daughter-in-law, Laura Monroe (Laura) was driving the vehicle and lost control. In the ensuing accident all three sustained serious injuries. Hugh Monroe suffered the worst injuries and has since died.
¶7 At the time of the accident the Monroes were named insureds on two Safeco policies which provide coverage for their six vehicles. Under the Monroes’ two policies bodily injury liability was limited to $ 100,000 each person and $300,000 each occurrence while property damage liability was limited at $50,000 each occurrence. In addition, medical payments under the policy were limited to $5,000. Finally, uninsured motorist coverage (UM) and underinsured motorist coverage (UIM) were limited to $100,000 each person and $300,000 each accident. Laura and her husband Hughie also carried a Safeco policy for their two vehicles. Laura and Hughie’s policy had the same coverage as the Monroes.
¶8 Following the accident, the Monroes recovered $5,000 of medical payment benefits for each of the six vehicles they owned and $5,000 of medical payment benefits for each of the two vehicles covered under Laura and Hughie’s policy. Safeco also paid an additional $100,000 to each of the Monroes under both their own policy and Laura and Hughie’s policy. In total, Safeco paid out $480,000 to the Monroes. Nevertheless, on April 13, 2004, Monroe, on behalf of herself and in her capacity as the personal representative of the estate of Hugh Monroe, filed a complaint for declaratory judgment claiming an entitlement to coverage under the UIM provisions of the insurance policies. In addition, Monroe claimed that Cogswell, which had helped them secure the Safeco policies at issue here, was negligent due to the agency’s failure to obtain sufficient coverages.
¶9 On Safeco’s motion, the District Court granted summary judgment in Safeco’s favor and certified that judgment as final pursuant to M. R. Civ. P. 54(b). Monroe filed a notice of appeal which we dismissed without prejudice on December 7, 2006. Subsequently, the District Court granted Safeco’s motion for summary judgment on the grounds that Cogswell was not its agent. The District Court also granted Cogswell’s summary judgment motion on the grounds that it had no duty to advise the Monroes or to produce adequate coverage. Monroe appeals.
STANDARD OF REVIEW
¶11 Summary judgment is proper only when no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Newbury v. State Farm Fire & Cas. Ins. Co. of Bloomington, Ill,
DISCUSSION
¶12 1. Whether the District Court erred in granting summary judgment in favor of Safeco.
¶13 With respect to Safeco, the controversy here boils down to whether Monroe is entitled to UIM coverage over and above the $480,000 she has already received from Safeco under both her own policies and Laura and Hughie’s policy. In granting Safeco’s motion for summary judgment the District Court, drawing parallels between our reasoning in Stutzman v. Safeco Ins. Co. of Am.,
¶14 On appeal, the parties vigorously dispute this conclusion. Parroting the District Court’s ruling, Safeco argues that “[ujnder the contract’s usual, common sense language, the Durango [in which the accident occurred] is not an ‘underinsured motor vehicle’ because it was owned by Hugh, who is an insured and is Eleanor’s husband (a resident spouse and family member).” Safeco also contends our decision in Stutzman is both applicable to, and dispositive of, the controversy presented here. Monroe counters that an insurance policy, as a contract of adhesion, must be strictly construed with all ambiguities being resolved in favor of the insured. She asserts that the policy language at issue here is ambiguous and that the exclusionary provisions are in conflict with the declarations pages so that “in practically all circumstances, [the] Monroes will recover nothing from the UIM coverage.” She also maintains that our decision in Stutzman
¶15 It is well established that in construing and analyzing the terms of an insurance policy we look first to the policy’s plain language. Stutzman,
¶16 In pertinent part, the UIM provisions of both the Monroes’ and Laura and Hughie’s insurance policies provide that Safeco:
[w]ill pay damages which any insured is legally entitled to recover from the owner or operator of an ... underinsured motor vehicle because of bodily injury:
1. Sustained by an insured; and
2. Caused by an accident.
The policy defines “underinsured motor vehicle” as:
a land motor vehicle or trailer of any type to which a bodily injury liability bond or policy applies at the time of the accident but the amount paid for bodily injury under the bond or policy to an insured is not enough to pay the full amount the insured is legally entitled to recover as damages.
However, “underinsured motor vehicle” does not include any vehicle or equipment:
1. Owned by or furnished for the regular use of you or any family member.
¶17 Under these provisions alone, we agree with Safeco that the plain language of the policy, clearly excludes the Monroes’ vehicles from the definition of an underinsured motor vehicle. This so called “owned vehicle” exclusion clearly states that an underinsured motor vehicle does not include motor vehicles “[ojwned by or furnished for the regular use of you or any family member.” It is undisputed that the Monroes owned both the Dodge Durango in which the accident happened, and the five other motor vehicles insured under their Safeco
¶18 With respect to public policy, Monroe first argues that the limiting language in the Safeco policies violates public policy because it creates illusory UIM coverage. Monroe contends that with the “owned vehicle” exclusion, the Monroes would have no underinsured coverage in “virtually all circumstances where the highest probability of injury would occur to them (riding in one of their six vehicles).” Monroe submits that, based on our holdings in Hardy v. Progressive Specialty Ins. Co.,
¶19 Once again, we begin our analysis by looking to the plain language of the policy. Here, while the language makes UIM coverage unavailable for single car crashes that only involve the insured’s own vehicle, UIM coverage is available in all other accidents so long as the accident involves another vehicle that is not owned by the insured. In other words, even if the Monroes were driving or riding in their own vehicle, as long as another motor vehicle they did not own was involved in the accident, the policy would provide UIM coverage to the Monroes. In fact, the only instance in which the “owned vehicle” exclusion renders UIM coverage per se unavailable is when the accident only involves the insured’s own vehicle. Accordingly, far from being illusory, Monroe’s contention that they paid valuable consideration for non-existent UIM coverage is unfounded and thus, the provisions do not violate public policy.
¶20 Monroe also argues that the District Court erred in relying on Stutzman to support summary judgment in favor of Safeco. In Stutzman, we concluded that public policy supports enforcing UIM exclusionary language that denies coverage in a single car accident if the only vehicle in the accident is owned by the insured. We explained that “invalidating] an exclusion which prohibits recovery of underinsured motorist benefits where the vehicle in question is owned by or furnished for the regular use of the named insured or any relative, would, in effect, convert underinsured motorist coverage into
¶21 In relevant part the Monroes’ policies state that:
If there is other applicable liability insurance we will pay only our share of the loss. Our share is the proportion that our limit of liability bears to the total of all applicable limits. However, any insurance we provide for a vehicle you do not own shall be excess over any other collectible insurance. [Emphasis added.]
This language clearly explains that under the Safeco policies, the initial $200,000 in liability coverage paid to the Monroes came from their own policy, which covered Laura as a permissive driver. Rather than being the primary source of liability coverage as Monroe asserts, Laura and Hughie’s policy provided only secondary “excess” coverage of $200,000.
¶22 As we reasoned in Stutzman, one of the purposes behind the exclusionary language is to limit UIM coverage to situations where the injured party has no control over the tortfeasor’s policy’s limits. In the present case, Laura was the tortfeasor and she was insured by two liability policies-her own policy and the Monroes’ policy (because she was a permissive driver, and, thus an insured). The only way UIM coverage could potentially be available is if the limits of both policies were exhausted. The Monroes controlled how much those combined limits would be because one of the policies was their own. Unlike Lemen v. Allstate Ins. Co.,
¶23 The dissent contends that, although the Monroes’ vehicle is an “owned vehicle” and thus excluded from UIM coverage, the two vehicles owned by Hughie and Laura are not owned by Hugh and Eleanor and thus not excluded as the basis for UIM coverage. This argument however, does not account for the plain meaning of the policy exception which provides that, “[t]he owner’s or operator’s liability for these damages must arise out of the ownership, maintenance or use of the ... underinsured motor vehicle.” Here, Laura’s liability for the Monroes’ damages did not arise out of the ownership of her two uninvolved vehicles. Rather, her liability arose out of the fact that she was the tortfeasor and the negligent driver of the Monroes’ vehicle. Her liability as a driver is independent of her ownership of two uninvolved vehicles.
¶24 The ownership language upon which the dissent relies would arguably have application in a situation where John Doe, an owner of a vehicle, allows a permissive driver to use his vehicle and the driver negligently injures a third party. The driver would be liable as the user and Doe would be liable as the “owner” of the vehicle involved in the accident. Here, the vehicles owned by Laura were not involved in the accident and her ownership of them did not give rise to her liability.
¶25 The dissent’s argument that since Safeco paid $200,000 out of Laura’s policy, Laura’s liability therefore arises out of her ownership of her own vehicles is untenable. The $200,000 payment the Monroes received from Laura’s policy came from Laura’s “Liability Coverage” not from her UIM coverage. Under her policy, Safeco “will pay damages for bodily injury or property damages for which any insured becomes legally responsible because of an auto accident.” Safeco’s payment under this “Liability Coverage” was based solely on Laura’s status as a tortfeasor. It had nothing to do with the fact that she owned vehicles of her own which were not involved in the accident. Safeco’s payment under the “Liability Coverage” provision of Laura’s policy does not trigger an obligation to pay UIM coverage. Rather, as the
¶26 2. Whether the District Court erred in granting summary judgment in favor of Cogswell.
¶27 In its order, the District Court concluded Cogswell was entitled to summary judgment because Monroe could not, as a matter of law, meet her burden of proving the causation, duty or breach elements of her negligence claim. On appeal, Monroe argues that the pleadings, depositions, and affidavits present numerous genuine issues of material fact which the District Court failed to address and which “preclude summary judgment as to whether Cogswell was negligent under either a professional or reasonable man standard.” She points to the following eight genuine issues of material fact that she claims preclude summary judgment: (1) how Cogswell could procure insurance for the Monroes and verify what insurance they sought without ever having communicated with them; (2) whether Cogswell was negligent in failing to advise the Monroes that they had inadequate coverage; (3) whether Cogswell explained how an umbrella policy worked; (4) whether Cogswell failed to explain the limits of UIM coverage under the Safeco policies; (5) whether the Monroes knew they had inadequate coverage and whether they made a conscious choice to keep inadequate coverage; (6) whether Cogswell’s failure to assess the financial status of the Monroes was negligent; (7) whether Cogswell acted as an expert for the purposes of procuring insurance, given Cogswell’s representation to the Monroes that it had specialized knowledge; and (8) whether in 2003-2004 an umbrella policy was available in Montana for the Monroes that would have supplemented the liability, UIM, and UM limits.
¶28 Cogswell counters that the District Court properly granted summary judgment because Monroe failed to meet the burden of presenting “material and substantial evidence ... to raise a genuine issue of material fact.” Cogswell further maintains that at the time it procured insurance coverage for the Monroes there was no policy approved in Montana that would have provided the Monroes with the coverage they now seek. Cogswell argues that since Monroe did not produce evidence of such a Montana approved policy, the District Court properly granted summary judgment in favor of Cogswell.
¶29 It is well established that summary judgment is appropriate when there is no genuine issue of fact material to the substantive principles upon which the movant relies for judgment as a matter of law. Richland Natl. Bank & Trust v. Swenson,
¶30 In determining whether genuine issues of material fact exist, all reasonable inferences must be drawn in favor of the non-moving party so that if there is any doubt as to the existence of a genuine issue of material fact, that doubt must be resolved in favor of the party opposing summary judgment. Lorang v. Fortis Ins. Co.,
¶31 [2] Turning to the duty element of Monroe’s negligence claim, we note at the outset that duty is a question of law. Nautilus Ins. Co. v. First Natl. Ins.,
¶32 It is well established that an insurance agent owes an absolute duty to obtain the insurance coverage which an insured directs the agent to procure. See Lee,
¶33 Here, in granting Cogswell’s motion for summary judgment, the District Court specifically acknowledged that Jennifer Webster (Webster), the Cogswell representative who wrote and sold the Safeco
¶34 While we acknowledge that a complete failure of proof concerning an essential element of a claim makes judgment appropriate as a matter of law, we cannot conclude that here there is a complete failure of proof. Without the testimony of Webster, which Cogswell admits, and the District Court determined, was directly relevant to the issuance of the Safeco policy at issue, it is premature to conclude that Monroe cannot meet her ultimate burden at trial. In this instance, where all the parties (and the District Court) agree that it was Webster who sold the Monroes the Safeco policy, her testimony must be presented before a court can conclude as a matter of law that Monroe cannot succeed on her negligence claim. To hold otherwise would ignore the plain language of our case law which clearly explains that, in order to meet its burden, the moving party, through supporting affidavits, must make a clear showing as to what the truth is so as to exclude any real doubt as to the existence of any genuine issue of material fact. Furthermore, the dissent’s concern that our conclusion today will result in sending every case to trial because litigants will avoid summary judgment by withholding their evidence is unfounded. This is not an instance of mere speculation as to the existence of a potential witness on the part of a litigant so as to avoid summary judgment. Here, the District Court acknowledged, and
¶35 The District Court also reasoned that Monroe, having failed to produce an alternate, more expansive UIM or umbrella insurance policy, could not meet the causation element of her negligence claim. However, if, as alleged, Monroe requested higher limits of liability coverage, that request could have been honored within the context of the Safeco policy that was issued. Monroe did not need to produce a different or alternative policy in order to prove her claim that she requested higher liability limits.
¶36 3. Whether the District Court erred in granting summary judgment on the issue of whether Cogswell acted as Safeco’s agent.
¶37 At the outset, we note that for the purposes of determining whether Cogswell and Safeco had an agency relationship we must first determine whether Cogswell, as an insurance agency, is an independent soliciting agent or a general agent. An independent soliciting agent is one that does not have an exclusive relationship with one particular insurer. Since Cogswell had access to, and offered the policies of, at least six different insurance companies at the time it engaged with the Monroes, Cogswell was acting as an independent soliciting agent when it performed the insurance transactions at issue here.
¶38 As an independent soliciting agent, the process Cogswell goes through in obtaining insurance coverage for a client consists of two independent steps. First, Cogswell discusses the client’s specific situation and individual needs. At that point, Cogswell has not selected a specific insurer to cover the client’s needs. Second, after the client has described his or her specific needs, Cogswell selects a specific policy from a specific insurer to which the client then applies. This distinct two-step process is at the heart of the agency issue and, although we have not specifically addressed it, our jurisprudence suggests, and other jurisdictions conclude, that for the purposes of agency analysis, an independent soliciting agent only becomes an agent of the insurer during the second step-after it has selected that insurer’s specific policy.
¶39 In Deonier & Assocs. v. Paul Revere Life Ins. Co.,
¶40 In Etheridge v. Atlantic Mut. Ins. Co.,
¶41 The Rhode Island Supreme Court’s decision in Etheridge is eminently sensible and thus, we reject Monroe’s argument that an agency is an agent of the insurer from the moment a client solicits the agency to procure insurance. Under such an approach, as soon as a client solicits an entity such as Cogswell to assist in procuring insurance, all insurance companies from which the agent could possibly select a policy would become liable through their principal/agent relationship with the insurance agency. Accordingly, we now explicitly conclude what we implicitly assumed in Deonier-that the insurance procurement process is logically divided into two steps and only after the insurance agency solicits a specific policy from a particular insurer does the principal/agent relationship arise with the insurer. Applying this analytical approach, we now turn to the specific facts of the case at bar.
¶43 Here, Monroe’s complaint alleges that Safeco and Cogswell negligently failed to procure “appropriate and/or adequate amounts of coverage” for the Monroes. As we have already explained, Monroe’s claims regarding Cogswell’s failure to properly assess their financial status, or explain how an umbrella policy worked were appropriately resolved in favor of Cogswell at summary judgment. However, throughout the course of this controversy, Monroe has also contended that Cogswell acted negligently by failing to procure adequate coverage, including higher policy limits that the Monroes requested. Monroe’s allegation that Cogswell negligently failed to procure the higher policy limits they requested, necessarily implies that Cogswell had solicited the specific Safeco policy at issue-a contention that clearly falls under the second step of the insurance procurement process and implicates an agency relationship between Cogswell and Safeco as a matter of law.
¶44 Thus, we affirm the District Court to the extent that its conclusions applied to Monroe’s claims that were alleged to have occurred before Cogswell selected the Safeco policy. With respect to Monroe’s allegation that Cogswell negligently failed to procure the higher policy limits the Monroe’s requested however, we conclude that the District Court erred and that Cogswell was acting as Safeco’s agent.
¶45 Affirmed in part, reversed in part, and remanded for proceedings in accordance with this Opinion.
Dissenting Opinion
dissents.
¶46 I concur with the Court’s disposition of Issues 2 and 3.1 dissent from the Court’s resolution of Issue 1.
¶47 At the outset, I agree with the Court that it is well established that in construing and analyzing the terms of an insurance policy, we first look to the plain language of the policy. See Stutzman v. Safeco Ins. Co. of Am.,
¶48 Before looking specifically at the language of the policy, there are several points to be made: (1) under Part C (UNINSURED/UNDERINSURED MOTORISTS COVERAGE), the Monroes’ policy provides for UIM coverage from either the owner or operator of an underinsured vehicle; and, (2) UIM coverage is available after liability coverage is exhausted under any applicable liability policy. In my view, the plain and unambiguous language of the Monroes’ policy provides that Laura’s vehicle is “underinsured” for the purpose of providing UIM coverage.
¶49 Under Part A of both Laura’s and the Monroes’ policies, Safeco’s obligation to provide liability coverage is described as follows:
We will pay damages for bodily injury ... for which any insured becomes legally responsible because of an auto accident.
Laura is a named insured under her own policy, and under the Monroes’ policy, she is a “person using [the Monroes’] covered auto.” Laura is an “owner” under her own policy, and she is an “operator” and permissive user under the Monroes’ policy. Safeco was obligated to pay liability coverage-and in fact did pay liability coverage-because under both policies, Laura was legally responsible for the Monroes’ injuries.
¶50 Under Part C of the Monroes’ policy, Safeco’s obligation to provide UIM coverage arises from the Monroes’ legal right to recover damages that exceed the liability coverage from either an owner or operator of an underinsured vehicle. By removing all language related to operator and leaving only language related to owner, the pertinent parts of Part C read as follows:
A. We [Safeco] will pay damages which an insured [the Monroes] is legally entitled to recover from the owner [Laura] ... of an ... underinsured motor vehicle because of bodily injury:
1. Sustained by an insured; and
2. Caused by an accident.
The owner’s [Laura’s] ... liability [legal responsibility to pay damages] for these damages must arise out of the ownership ... of*433 the ... underinsured motor vehicle.
We will pay under Underinsured Motorists Coverage only if...:
1. The limits of liability under any applicable bodily injury liability ... policies have been exhausted by payment of ... settlements ....
(Emphasis added.) To me, this language is clear and unambiguous. Laura is the owner of a motor vehicle covered by an applicable liability policy, the limits of which were paid to the Monroes because of Laura’s legal responsibility for the Monroes’ injuries in an auto accident. Under the plain language of the Monroes’ policy, Safeco is obligated to provide UIM coverage because Laura is the owner of an underinsured vehicle as defined under the policy.
¶51 The Court correctly concludes that under the plain language of the Monroes’ policy, their vehicles are excluded as “underinsured vehicles.” Opinion, ¶ 17. However, Laura’s vehicle is not excluded as an “underinsured vehicle.” Again, removing all language related to operator and leaving language related to owner, Part C of the Monroes’ policy defines an underinsured vehicle as follows:
C. “Underinsured motor vehicle” means a land motor vehicle ...to which a bodily liability ... policy [Laura’s] applies at the time of the accident but the amount paid for bodily injury under that... policy to an insured [the Monroes] is not enough to pay the full amount the insured [the Monroes] is legally entitled to recover as damages.
However, “underinsured motor vehicle” does not include any vehicle ...:
1. Owned by ... you [the Monroes]....
(Emphasis added.) Again, the language is clear and unambiguous. Laura is the owner of a vehicle covered by a liability policy under which policy limits were paid to the Monroes. Thus, her vehicle qualifies as an underinsured vehicle under the policy definition. The only vehicles excluded under the policy definition are those owned by the Monroes. Laura’s vehicle is not excluded.
¶52 Because the plain, clear, and unambiguous language of the Monroes’ policy is broad enough to incorporate Laura’s vehicle under its definition of underinsured motor vehicle, the Monroes are entitled to make a claim for UIM coverage under their policy. This claim would not violate any of the principles of public policy established in Stutzman-i.e., “double-dipping” from the same policy and converting cheap UIM coverage to expensive liability coverage when the insured controls the amount of liability coverage. Stutzman,
¶53 To me, the Monroes’ policy clearly provides that Safeco should pay UIM benefits for any damages in excess of the liability coverage from both the Monroes’ and Laura’s policy. However, other members of this Court, as well as some of the parties, interpret this language differently. Although I disagree with their interpretation, it is another interpretation and as we have held, when the language of the contract is subject to two interpretations, it is ambiguous. GiacomeLLi v. Scottsdale Ins. Co.,
¶54 By way of illustration, I note that the Court points to the policy language that provides, “[t]he owner’s or operator’s liability ... must arise out of the ownership, maintenance or use of the ... underinsured motor vehicle,” for the proposition that Laura’s liability arose from her use of the Monroes’ vehicle “independent of her ownership of two uninvolved vehicles.” Opinion, ¶ 23. On the other hand, when the above language is read in conjunction with the language defining an underinsured motor vehicle as one “to which a bodily injury liability... policy applies at the time of the accident,” I maintain that an equally plausible interpretation is that Laura’s vehicles qualify as UIM vehicles. Nowhere in the policy does it state that the underinsured vehicle has to be “involved in the accident,” as asserted by the Court. Opinion, ¶ 24. At the very least, the definition of an underinsured motor vehicle is ambiguous and can be read to mean either the Monroes’ vehicle or Laura’s vehicles. Because this language is ambiguous, we should construe it in favor of the Monroes. GiacomeLLi, ¶ 31.
¶55 Additionally, the Court states that “the $200,000 payment the Monroes received from Laura’s policy came from Laura’s ‘Liability Coverage’ not from her UIM coverage” means that this payment “was based solely on Laura’s status as a tortfeasor” and had nothing to do with her ownership of vehicles not involved in the accident. Opinion, ¶ 25.1 do not dispute Laura’s status as a tortfeasor. I do dispute that the policy restricts the tortfeasor to a particular vehicle. The policy language refers instead to “any applicable bodily injury ... policies ...
¶56 At the very least, the contrast between my interpretation and the Court’s interpretation of this policy provision demonstrates that reasonable minds can differ in their reading of this language. This language is subject to two competing interpretations and therefore is ambiguous. Giacometti, ¶ 32. I maintain, again, that we should construe this ambiguity in favor of the Monroes.
¶57 I would therefore reverse the District Court’s grant of summary judgment in favor of Safeco and remand the case for further proceedings. I dissent from our failure to do so.
Concurrence Opinion
concurring in part and dissenting in part.
¶59 I concur with the Court on Issue 1 and with affirming the claims in favor of Cogswell under Issue 2. However, I would likewise affirm the entry of summary judgment on the remaining claim and thus dissent from that portion of Issue 2.
¶60 I part ways with the Court’s conclusion that because Cogswell has
¶61 In Grenz v. Prezeau,
¶62 This is a common principle of summary judgment recognized by commentators and other courts. James Wm. Moore, Moore’s Federal Practice vol. 11, § 56.13 (3d ed., Mathew Bender Supp. 2010) explains:
In addition to these basic procedural burdens (always imposed on the movant if summary judgment is to be granted) and counterburdens (imposed on the nonmovant when movant satisfies its initial burden), the burden of persuasion applicable to the substantive claims of the case also plays a role in summary judgment practice. For example,... if the movant is defending the claim at issue, the initial summary judgment burden is satisfied if the movant establishes that the claimant lacks adequate proof of an essential element of the claim. Similarly, the substantive trial burden affects the nonmovant’s procedural burdens.... [I]fthe nonmovant is a claimant, its response burden requires it to submit more substantial material that would support a judgment in its favor after a trial at which nonmovant bore the burden of persuasion.
(Emphasis added.) See also Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure vol. 10A, § 2727 (3d ed., West 1998). The U.S. Supreme Court has explained:
In our view, the plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to*437 establish the existence of an element essential to that party’s case, and on which that party will bear the burden of proof at trial. In such a situation, there can be “no genuine issue as to any material fact,” since a complete failure of proof concerning an essential element of the nonmoving party’s case necessarily renders all other facts immaterial. The moving party is “entitled to a judgment as a matter of law” because the nonmoving party has failed to make a sufficient showing on an essential element of her case with respect to which she has the burden of proof.
Celotex Corp. v. Catrett,
¶63 Thus, it is inconsequential that Cogswell produced no statement from Jennifer Webster. Cogswell satisfied its initial summary judgment burden by demonstrating the absence of any evidence in support of Monroes’ claim that they had requested Cogswell to obtain higher liability limits. Cogswell outlined that the Monroes’ daughter, Robin, had submitted an affidavit stating she had called Cogswell to set up a meeting, but had no other involvement; Eleanor Monroe could not recall any conversations with Cogswell because “[a]ll she ever did was pay them”; and, finally, Hugh Monroe had passed away December 5,2006, without testifying as to his conversations with Cogswell. Thus, Cogswell demonstrated that the Monroes had failed to provide factual support for their alleged request of higher limits. The burden then shifted to the Monroes to “present substantial evidence, as opposed to mere denial, speculation, or conclusory statements, raising a genuine issue of material fact.” Peterson v. Eichhorn,
¶64 Correctly applying this summary judgment principle becomes all the more important in light of recent cases. Recently, the Court
We cannot say beyond doubt that McKinnon can prove no set of facts in support of his claim that would entitle him to relief under these circumstances. At a minimum, the District Court should have afforded McKinnon the opportunity to develop the record through discovery to attempt to show intentional and deliberate action on the part of Western Sugar. McKinnon’s claim may fail at the summary judgment stage if he fails through further discovery to establish sufficient evidence to support his allegations.
McKinnon v. Western Sugar Coop. Corp.,
¶65 I would affirm.
Notes
I understand the Court’s opinion to reverse the District Court’s entry of summary judgment only on Monroes’ claim that Cogswell should have obtained higher liability limits. Based on that assumption, I address that claim only.
Dissenting Opinion
dissents.
¶58 I dissent. I agree with that portion of Justice Wheat’s dissent that deems ambiguous Part C of the Monroes’ policy. ¶ 53. I believe that Part C presents a situation where the definition of “underinsured motor vehicle” reasonably could be construed in two different ways by a consumer with average intelligence, but untrained in the law or the insurance business. Mitchell v. State Farm Ins. Co.,