330 P.3d 1139 (Mont. 2014), DA 13-0228, Tidyman's Mgmt. Servs. v. Davis
|Docket Nº:||DA 13-0228|
|Citation:||330 P.3d 1139, 376 Mont. 80, 2014 MT 205|
|Opinion Judge:||Michael E Wheat Justice.|
|Party Name:||TIDYMAN'S MANAGEMENT SERVICES INC., a Washington corporation; LENORA DAVIS BATEMAN, VICKI EARHART, CAROL HEALD, THERESA YOUNGQUIST, BARBARA GAUSTAD, SHARON YOUNG, DIANE MOLES, KYLE BAILEY, MARK RADEMAN, DREW OLSEN, CHADNEY SAWYER, THOMAS NAGRONE, DAN NAGRONE, DARRELL NACCARATO, PAT DAHMEN, JANELLE SELLS, TERRI ORTON, WILLIAM EVANSON, BILL EVANSON,|
|Attorney:||For Appellant: James H. Goetz, Goetz, Baldwin & Geddes, P.C., Bozeman, Montana; Robert F. James, Gary M. Zadick, Mary K. Jaraczeski, Ugrin, Alexander, Zadick & Higgins, P.C., Great Falls, Montana; Allan H. Baris, Moore, O'Connell & Refling, Bozeman, Montana; Timothy R. MacDonald, Edwin P. Aro, Ar...|
|Judge Panel:||MICHAEL E WHEAT. We Concur: MIKE McGRATH, PATRICIA COTTER, JIM RICE. Justice Michael E Wheat delivered the Opinion of the Court. Justice Laurie McKinnon, concurring in part and dissenting in part. MICHAEL E WHEAT, We Concur: MIKE McGRATH, PATRICIA COTTER, JIM RICE Laurie McKinnon (In Part) Justic...|
|Case Date:||August 01, 2014|
|Court:||Supreme Court of Montana|
Submitted on Briefs: April 23, 2014.
Released for Publication August 19, 2014.
[Copyrighted Material Omitted]
APPEAL FROM: District Court of the Fourth Judicial District, In and For the County of Missoula, Cause No. DV-10-695. Honorable Karen Townsend, Presiding Judge.
[376 Mont. 83]
[¶1] National Union Fire Insurance Company of Pittsburgh, Pennsylvania (NUFI) appeals from the order of the Montana Fourth Judicial District Court, Missoula County,
granting the plaintiffs' motion for summary judgment and motions to approve stipulations for entry of judgment and enter judgment accordingly. We affirm in part, reverse in part, and remand for proceedings consistent with this Opinion.
[¶2] We address the following issues:
1. Did the District Court correctly conclude that Montana, rather than Washington, law applied in this case?
2. Did the District Court err in concluding that NUFI had breached its duty to defend without analyzing coverage under the policy? 3. Did the District Court err in denying NUFI a hearing and discovery on reasonableness and collusion related to the stipulated settlements? 4. Did the District Court err by awarding pre-judgment interest, or in its determination of when the interest began accruing?
FACTUAL AND PROCEDURAL BACKGROUND
[¶3] On May 21, 2010, the plaintiffs and Tidyman's Management Services Inc. (TMSI) filed a complaint against Michael A. Davis (Davis) and John Maxwell (Maxwell) in their capacities as officers and directors of TMSI and/or its subsidiary, Tidyman's LLC. The complaint alleged breach of corporate duties arising out of a merger between TMSI and SuperValu, which created Tidyman's LLC, and requested punitive damages and attorney fees. The merger at issue occurred despite advice from a financial advisor TMSI had retained that the [376 Mont. 84] company should be sold, and the complaint alleged that the directors and officers, including Davis and Maxwell, had misrepresented the merit of the transaction. TMSI is a Washington corporation with its principal place of business in Montana, and is a member of Tidyman's LLC. Essentially, employee shareholders own TMSI.
[¶4] On January 8, 2007, the plaintiffs had filed a complaint in federal court alleging violations of the Employee Retirement Income Security Act of 1974 (ERISA). They amended their complaint in December 2007 to include allegations against the officers and directors of TMSI for breach of corporate fiduciary duties. In the course of the federal litigation, the ERISA claims settled. The plaintiffs also settled their claims against the officers and directors of TMSI, except for those claims against Davis and Maxwell. During the federal court litigation, NUFI provided a defense to Davis and Maxwell through their respective counsel, James King (King) and James McPhee (McPhee). After the settlements, the federal district court dismissed the federal court action without prejudice after declining to exercise supplemental jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367. See Nagrone v. Davis, No. CV-07-04-M-DWM-RKS, (D. Mont. Apr. 21, 2010); Nagrone v. Davis, No. CV 07-04-M-DWM-RKS, (D. Mont. May 14, 2010). The plaintiffs and TMSI then filed the instant action in state district court, alleging the same claims against Davis and Maxwell as were alleged in the federal litigation.
[¶5] In 2006, NUFI issued a corporate liability insurance policy (Policy) to Tidyman's LLC and insured Davis and Maxwell against liability incurred in their positions as officers and directors of Tidyman's LLC. Pursuant to this Policy, NUFI provided a legal defense for Davis and Maxwell throughout the federal court litigation. When the plaintiffs filed in state court, they added TMSI as a plaintiff in their suit against Davis and Maxwell in their capacities as directors and officers of the LLC--of which TMSI was a member. On August 5, 2010, after the state court litigation had commenced, Jessica Lermond (Lermond), who worked for Chartis Claims, Inc. (Chartis), which managed claims on behalf of NUFI, sent a letter to counsel for Davis and Maxwell asserting that NUFI would no longer cover defense costs in the matter. She based the denial of coverage upon the " Insured v. Insured" exclusion set forth in Clause 4(i) as amended by Endorsement #13 of the Policy, stating:
As set forth in Clause 4(i) of the Policy as amended [by] Endorsement 13, [NUFI] shall not be liable to make any payment [376 Mont. 85] for Loss which is brought by any Insured (other than an Employee, but solely with respect to a Securities Claim) or by the Company; or which is brought by any security holder of the Company, whether directly or derivatively, unless such security holder's Claim is instigated and continued totally independent of, and totally without the solicitation of, or assistance of, or active participation of, or intervention of any Insured . . . .
. . . Please note that based on the foregoing, it appears that the Complaint filed in on [sic] May 21, 2010, in the Montana Fourth Judicial District, County of Missoula does not implicate the Policy . . . .
In the ensuing litigation, NUFI has conceded that Lermond's interpretation incorporated a flawed understanding of the corporate structure.
[¶6] After Davis and Maxwell received this letter, on August 12, 2010, the plaintiffs and TMSI amended their complaint to add NUFI as a defendant. The plaintiffs and TMSI alleged that until Lermond's August 5, 2010, letter, NUFI had provided a defense under the Policy to Davis and Maxwell. In addition to their previous claims, the plaintiffs and TMSI also sought a declaratory judgment that the liability asserted against Davis and Maxwell was covered under the Policy.
[¶7] On September 2, 2010, Davis's counsel, King, sent a letter to Lermond inquiring as to whether NUFI would continue to pay defense costs for the action, so he could advise his client about his options:
Please advise whether the carrier is going to continue to pay for the costs of defense of this matter through and including trial and to include reasonable attorney's fees, expert expenses, etc. Your letter states that there is no coverage but you left a voice mail about paying for " a Motion to Dismiss."
[¶8] When Lermond failed to respond, King sent a follow up letter on September 20, 2010: " This will serve as a follow up to my September 2nd correspondence to your [sic] regarding this matter. I would appreciate an answer to the question posed forthwith." On September 23, 2010, NUFI filed a motion to dismiss for lack of coverage. While that motion was pending, Lermond failed to respond " forthwith" and, on October 26, 2010, Maxwell's counsel, McPhee, was obliged...
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