Atcheson v. Safeco Ins. Co., 12636

• Decision Date: 22 October 1974
• Docket Number: No. 12636,12636
• Citation: 165 Mont. 239,527 P.2d 549,31 St.Rep. 839
• Parties: Arthur J. ATCHESON, Plaintiff and Respondent, v. SAFECO INSURANCE COMPANY and General Insurance Company of America, Defendant and Appellant.
• Court: Montana Supreme Court

Page 549

527 P.2d 549

165 Mont. 239

Arthur J. ATCHESON, Plaintiff and Respondent, v. SAFECO INSURANCE COMPANY and General Insurance Company of

America, Defendant and Appellant.

No. 12636.

Supreme Court of Montana.

Submitted Sept. 10, 1974.

Decided Oct. 22, 1974.

Loble, Picotte, Loble, Pauly & Sternhagen, Gene A. Picotte (argued), Carter N. Picotte (argued), Helena, , henningsen, Purcell & Genzberger, Butte, for defendant-appellant.

Corette, Smith & Daen, R. D. Corette, Jr. (argued), Gerald R. Allen (argued), Butte, for plaintiff-respondent.

JOHN C. HARRISON, Justice.

This is an appeal by the two appellant insurance companies from a partial summary judgment ordering the two insurance companies to provide a defense for respondent Atcheson in an action pending in the United States District Court for the District of Alaska.

The two insurance companies, hereinafter referred to as Safeco, are the insurer of respondent Atcheson on policies issued on his business of being a taxidermist. The respondent's place of business is located in Butte, Montana. His business operations are worldwide. His deposition indicates that animals are sent to him from hunters from various parts of the world because of As a result of these business connections in Zambia, a hunter from Alaska, Murray Clark, was referred to him as a taxidermist. It would appear from the deposition that one of Clark's lifetime drerams was to go to a warmer claimate to hunt and kill, among other animals, a prime, old, heavymaned trophy lion. In 1970 Clark fulfilled his lifelong ambition and went to Zambia where he killed what is described in his complaint, 'a prime, old, heavy-maned, trophy lion'. In addition he shot a buffalo, an eland, an oribi, a water buck, a leche, a sable, and a warthog. All of these trophy animals were sent to the respondent to be mounted or processed by his taxidermy business.

his reputation and expertise as a taxidermist built up over a period of more than 15 years. He has traveled widely particularly in Africa, and he has established business connections and friendships with various Safari Companies on that continent and particularly in the country of Zambia.

What happened thereafter is described by the appellants as 'bizarre'. The various trophy animals were shipped to this country in several shipments, all of which were opened and handled by customs before being forwarded to the respondent. Few of the items appeared to have been labeled as Clark's but were assumed to be, by the respondent, due to the fact they came from Zambia and were the type of animals claimed by Clark. By the time some of them were mounted and forwarded to Clark in Alaska, a dispute arose with Clark who claimed, among other things, that he got the wrong lion. He alleged it was smaller, less well maned than the one he shot. Too, that the eland horns were the wrong horns. The dispute resulted in the filing of a cause of action in Alaska against the respondent and upon being served with a summons and complaint in Butte, the respondent immediately turned to his insurance companies for a defense. Among other allegations of the complaint it was alleged that the respondent did not comply with his agreement to mount nine trophy animals, that they were improperly shipped by him, that some of the trophies were not his and that the respondent has improperly handled, lost or destroyed some of the trophies.

The respondent did business with appellants through their agents in Butte. The deposition indicated that priior to the difficulty above referred to the respondent had the appellants' agent come to his place of business where he showed them through the business, explained its operations and that these agents put together a voluminous policy covering what they thought was what was needed to cover the operations of the business. The respondent in his deposition stated that he told them: 'Don't tell me what I have, tell me what I don't have and I'll buy it.' The policy sold was a 'liability policy' and it contained a 'Bailees Customers Laundries and Dry Cleaners Form'. We direct our attention to Section II of the Policy, which is the liability portion of the policy, and to the above 'Bailees Customers Laundries and Dry Cleaners Form' to ascertain whether or not there was a duty of Safeco under the blanket policy to defend the respondent. The provisions of same are hereinafter set forth:

Section II, the Blanket Liability portion of the policy begins its first paragraph as follows:

'The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage to which this insurance applies, caused by an occurrence. The company shall have the right and duty to defend any suit against the insured seeking damages on account of such bodily injury or property damage, even if any of the allegations of the suit are groundless, false or fraudulent, and may make such investigation and settlement of any claim or suit as it deems expedient. The company shall not be obligated to pay any claim or judgment or to defend any suit after the applicable limit of the company's The 'Bailees Customers Laundries and Dry Cleaners Form' reads:

liability has been exhausted by payment of judgments or settlements.'

'1. COVERAGE: This form covers on all goods or articles accepted by the insured for cleaning, renovating, pressing, dyeing, repairing or laundering, the property of his customers, while contained on the premises occupied by the insured, or in the custody of his agents or branch stores, provided these locations are scheduled or endorsed hereon, and while being transported to and from the premises of his customers or branch stores or agents.

'2. ADJUSTMENT AND PAYMENT OF PREMIUMS. The premiums for insurance under this form shall be computed by applying the rates shown in the declarations. Premiums so computed shall be due and payable on or before the tenth day of each month for the preceding month.

'3. THIS FORM INSURES, except as hereinafter provided, against direct loss or damage caused by:

'(a) Fire, arising from any cause whatsoever, including lightning;

'(b) Explosion, whether or not fire ensues;

'(c) Accidental collision of the vehicle on which the property is carried, with any other vehicle or object, including the overturning of the vehicle, or collapse of bridges;

'(d) Tornado, cyclone or windstorm, including any loss or damage that may occur from hail, rain, sleet, or snow, whether or not driven by wind;

'(e) Earthquake;

'(f) Sprinkler leakage;

'(g) Flood, meaning thereby the rising of navigable waters;

'(h) Theft, burglary and hold-up;

'(i) Strikes riots and civil commotion;

'(j) Water damage (meaning the accidental discharge, leakage or overflow of water or stream from the plumbing system, overhead tanks, steam or hot water heating pipes, including radiators, standpipes for fire hose, sprinkler system or by bursting steam or water pipes, boilers or tanks within the premises);

'(k) Smoke damage directly caused by the breakdown or faulty operation of the fuel burning equipment used in connection with steam boilers, hot water boilers, or heating apparatus;

'(l) Transportation risks by public carriers or mail service;

'(m) Aircraft or vehicles;

'(n) Confusion of goods resulting from any of the foregoing perils.

'4. THIS FORM DOES NOT INSURE

G.R.

NON MONEY

By (Signature not legible)

'(a) Accounts, bills, deeds, currency, evidences of debt, money, notes, securities;

'(b) Theft by any person in the service or employment of the insured, whether or not occurring during the hours of such service or employment;

'(c) Theft of goods or packages left on delivery vehicles overnight, unless locked in insured's private garage or building occupied by insured;

'(d) Loss or damage to goods while in the custody of other dyers, cleaners and pressers, or laundries unless specifically endorsed hereon;

'(e) Loss, if at the time of loss of damage there be any other insurance covering against risks assumed by this form which would attach if this insurance had not...