Alamar Ranch, LLC (Alamar) sued the County in federal court in January 2008, alleging the County violated the FHA. At the time, the County had a Public Entity Multi–Lines Insurance Policy (the Policy) with ICRMP, which included errors and omissions coverage.1 The County timely notified ICRMP of Alamar's FHA claims. ICRMP declined to defend the County because ICRMP determined that Alamar's claims were beyond the scope of the Policy's coverage. Alamar's complaint alleged2 :
4. This case arises out of Boise County's violations of the Fair Housing Act, 42 U.S.C. § 3601 et seq. ("FHA")....
6. On April 19, 2007, Alamar submitted an application to the [County's Planning and Zoning Commission (P & Z) ] requesting a Conditional Use Permit ("CUP") allowing Alamar to operate a 72–bed [residential treatment facility (RTC) ] and private school on [its] Property.... Alamar was required to apply for a CUP because the RTC is identified by Boise County as a use to be reviewed by Boise County under the conditional use process. The question under the CUP process, however, is not whether this proposed use should be allowed (it is an allowed use) but whether conditions of approval are warranted to ensure that such use does not "cause any damage, hazard, nuisance or other detriment to persons, property, or natural resources in the vicinity."
7. On August 2, 2007, Alamar presented its application to the P & Z during a public hearing.... On August 15, 2007, the P & Z once again convened to request responses from both Alamar as well as members of the public opposed to the application....
10. Although Alamar satisfied its burden of demonstrating at the hearing that Alamar's project satisfied each of the nine standards in the Boise County Zoning and Development Ordinance ("BCZDO") for issuance of a CUP, the application was denied by vote of the P & Z commissioners at the conclusion of the August 15, 2007 hearing (the P & Z arrived at a 3–3 tie vote on the motion, which Boise County deemed a denial of the application).
11. On September 28, 2007, the P & Z issued a written decision denying Alamar's application. Because there was no basis within the CUP standards to deny the application, the P & Z commissioners, as a pretext, manufactured the following reasons for the denial of the application.... Neither rationale is among those listed in the BCZDO for denial of a CUP.
12. On October 18, 2007, Alamar timely filed a notice of appeal of the P & Z's decision to the Boise County Board of Commissioners ("Board"). In its appeal, Alamar informed Boise County that it had a duty under the FHA to approve the CUP and allow the project to be built so that housing could be made available for the "handicapped" youth that Alamar proposed to serve....
13. The Board heard the appeal at a public hearing held on January 28, 2008....
14. The Board deliberated (on the record) on March 10, 2008. The Board, knowing that it could not issue an absolute denial of the application, instead reversed the denial of the application. In doing so, however, it carried out its discriminatory purpose of preventing the project from being built by knowingly imposing numerous conditions on the CUP that individually or cumulatively made the proposed use of the property impossible. In essence, the conditions were a pretext designed to conceal the Board's discriminatory motive of preventing the project from being built.
15. On April 21, 2008, the Board entered a written decision and order delineating several onerous, arbitrary and discriminatory conditions for the permit....
25. Boise County refused to make the necessary accommodation [for handicapped individuals] by placing onerous, arbitrary and unreasonable conditions on the approval of the application which destroyed the feasibility of the project....
30. Upon information and belief, Boise County has approved other developments without such conditions.
31. Upon information and belief, a discriminatory reason more likely than not motivated the challenged decision of Boise County....
36. Boise County unlawfully interfered with the exercise of [FHA] rights by obstructing the construction or availability of housing for individuals protected under the FHA....
38. Pursuant to 42 U.S.C. § 3613(c), Alamar requests punitive damages.
The Policy had, in its General Conditions, a statement regarding ICRMP's duty to defend the County:
Defense of Claims or Suit. We may investigate or settle any covered claim or suit against you. We will provide a defense with counsel of our choice, at our expense, if you are sued for a covered claim.
Section IV of the Policy, the errors and omissions section, provided:
We agree, subject to the terms and conditions of this Coverage, to pay on your behalf all sums which you shall become legally obligated to pay as damages because of any claim which is first made against you during this Policy Period, arising out of any wrongful act by you.
The Policy defined "wrongful act" as used in the errors and omissions section:
"Wrongful Act" means the negligent performance of or failure to perform a legal duty or responsibility in a tortious manner pursuant to the Idaho Tort Claims Act or be [sic] premised upon allegations of unlawful violation of civil rights pursuant to Federal law arising out of public office or position.
The Policy also contained numerous exclusions specifically applicable to the errors and omissions section:
The Errors and Omissions Insuring Agreement does not cover any claim: ...
2. Arising out of any dishonest, fraudulent, criminal, malicious, deliberate or intended wrongful act committed by you or at your direction....
4. Resulting from a wrongful act intended or expected from the standpoint of any insured to cause damages. This exclusion applies even if the damages claimed are of a different kind or degree than that intended or expected....
12. To any claim of liability arising out of or in any way connected with the operation of the principles of eminent domain, condemnation proceedings, inverse condemnation, annexation, regulatory takings, land use regulation or planning and zoning activities or proceedings, however characterized, whether such liability accrues directly against you or by virtue of any agreement entered into by or on your behalf....
16. No claim exists where the alleged harm for which compensation is sought derives from performance or nonperformance of terms of a contract, concerns the measure of performance or payment related to contract performance, derives from fines, penalties or administrative sanctions imposed by a governmental agency, or is generated by intergovernmental handling or allocation of funds according to the law. The claims for which this section provides defense and indemnification must arise out of conduct of a tortious nature or be premised upon allegation of unlawful violation of civil rights pursuant to state or federal law.
The County filed this action against ICRMP, seeking a declaratory ruling that ICRMP had a duty to defend and indemnify it against Alamar's claims. Both parties moved for summary judgment. The district court determined "that if coverage exists, it arises only under the Errors and Omissions Insuring Agreement." The County apparently conceded this point. The parties also agreed that the errors and omissions section did apply to Alamar's allegations, so, unless ICRMP could invoke an exclusion, ICRMP had a duty to defend the County.
The district court concluded that Alamar's claims arose from or were connected with planning and zoning or land use decisions and that Alamar alleged intentional misconduct. The court further determined that the Policy expressly excluded coverage for those types of claims. It therefore held that ICRMP had no duty to defend the County and granted summary judgment to ICRMP. The County timely appealed. The only issue for this Court is to determine whether the district court erred in holding that the County's claim for defense was excluded.
In reviewing a grant of summary judgment, "this Court employs the same standard as used by the district judge originally ruling on the motion." Hoyle v. Utica Mut. Ins. Co., 137 Idaho 367, 371, 48 P.3d 1256, 1260 (2002). Summary judgment must "be rendered forthwith if the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a...
