Cusenbary v. US Fidelity and Guar. Co., 01-066.

• Decision Date: 13 December 2001
• Docket Number: No. 01-066.,01-066.
• Citation: 307 Mont. 238,37 P.3d 67,2001 MT 261
• Parties: Jonathan CUSENBARY, Plaintiff and Appellant, v. UNITED STATES FIDELITY AND GUARANTY COMPANY; St. Paul Companies, Inc.; St. Paul Fire and Marine Insurance Company; John Doe Corporation I; and John Doe Corporation II, Defendants and Respondents.
• Court: Montana Supreme Court

37 P.3d 67

2001 MT 261

307 Mont. 238

Jonathan CUSENBARY, Plaintiff and Appellant, v. UNITED STATES FIDELITY AND GUARANTY COMPANY; St. Paul Companies, Inc.; St. Paul Fire and Marine Insurance Company; John Doe Corporation I; and John Doe Corporation II, Defendants and Respondents.

No. 01-066.

Supreme Court of Montana.

Submitted on Briefs June 14, 2001.

Decided December 13, 2001.

For Appellant: Norman L. Newhall, Linnell, Newhall, Martin & Schulke, Great Falls, MT.

For Respondents: Guy W. Rogers and Don M. Hayes, Brown Law Firm, Billings, MT.

Justice JIM RICE delivered the Opinion of the Court.

¶ 1 Appellant Jonathan Cusenbary (Cusenbary) appeals from the order of the Eighth Judicial District Court, Cascade County, granting summary judgment in favor of Respondent United States Fidelity & Guaranty (USF & G). We affirm.

¶ 2 The following issue is presented on appeal:

¶ 3 Whether there is coverage under the insurance policy issued to Glen Mortensen for the $750,000.00 judgment entered against him in Cusenbary v. Mortensen, Eighth Judicial District Court Cause No. ADV-96-759.

FACTUAL AND PROCEDURAL BACKGROUND

¶ 4 Glen A. Mortensen (Mortensen) is the owner of the Town Tavern, a business which sells, serves and furnishes alcoholic beverages. On July 28, 1993, Cusenbary suffered serious personal injuries at the Town Tavern when a car driven by James Wells (Wells) crashed through the wall of the bar.

¶ 5 On that evening, prior to the incident giving rise to this action, Wells was a patron of the Town Tavern. Wells arrived at the bar having already consumed a significant amount of alcohol. Wells was in an intoxicated state, and he continued to drink alcoholic beverages that Mortensen's establishment continued to serve him. Wells left the bar around 10:00 p.m. and drove his vehicle through the Town Tavern's outer wall. Cusenbary was pinned between Wells' vehicle and the water cooler.

¶ 6 At the time of the incident, Mortensen was insured under a commercial general liability policy issued by USF & G, which contained a liquor liability exclusion. Mortensen tendered the Complaint to USF & G for defense, but USF & G denied coverage and refused to defend, based on the exclusion.

¶ 7 Cusenbary's claim was tried to a jury, which entered a special verdict finding that Mortensen was negligent; that Mortensen's negligence was the cause of Cusenbary's injuries; that Cusenbary's damages were in the amount of $750,000.00; and that Cusenbary was not entitled to punitive damages. Mortensen appealed, and the verdict and the judgment entered by the District Court were affirmed in Cusenbary v. Mortensen, 1999 MT 221, 296 Mont. 25, 987 P.2d 351.

¶ 8 Mortensen then assigned all of his rights to coverage under his USF & G commercial general liability policy to Cusenbary. Cusenbary filed a Complaint in the present action, alleging two counts of breach of contract, a count alleging tortious breach of the implied covenant of good faith and fair dealing, a count alleging violation of the Unfair Trade Practices Act, and also claiming punitive damages. Cusenbary filed a motion for summary judgment for indemnity up to the amount of policy limits, under Count I, on the single issue of whether USF & G had a duty to indemnify Mortensen based on the judgment. Cusenbary argued that negligent behavior by Mortensen in the management of the tavern, separate from that involved in providing alcohol to Wells, but proved at trial, was also a cause of Cusenbary's injuries for which USF & G had a duty to indemnify Mortensen, as it was not excluded from coverage by the liquor liability exclusion. USF & G filed a cross-motion for summary judgment on all counts of the Complaint. The District Court denied Cusenbary's motion for summary judgment on Count I and granted USF & G's motion for summary judgment on all five Counts. Cusenbary appeals from the District Court's denial of his motion for summary judgment on Count I, and from the grant of USF & G's motion for summary judgment on Count I only.

STANDARD OF REVIEW

¶ 9 The interpretation of an insurance contract is a question of law. Babcock v. Farmers Insurance Exchange, 2000 MT 114, ¶ 5, 299 Mont. 407, ¶ 5, 999 P.2d 347, ¶ 5. We review a district court's conclusions of law de novo to determine whether they are correct. Babcock, ¶ 5, 999 P.2d 347. In an appeal from a grant of summary judgment, this Court's standard of review is also de novo. Babcock, ¶ 5, 999 P.2d 347. To be granted summary judgment, the moving party

must demonstrate that no genuine issues of material fact exist. Once this has been accomplished, the burden then shifts to the non-moving party to prove, by more than mere denial and speculation, that a genuine issue does exist. Having determined that genuine issues of fact do not exist, the court must then determine whether the moving party is entitled to judgment as a matter of law.

Ensey v. Colorado Casualty, 2001 MT 152, ¶ 7, 306 Mont. 68, ¶ 7, 30 P.3d 350, ¶ 7, quoting Bruner v. Yellowstone County (1995), 272 Mont. 261, 264-65, 900 P.2d 901, 903.

DISCUSSION

¶ 10 Did the jury verdict for $750,000.00 in Cusenbary v. Mortensen include liability which is not excluded from coverage by the liquor liability exclusion of Mortensen's USF & G commercial general liability policy?

¶ 11 In Sheffield Insurance Company v. Lighthouse Properties (1988), 234 Mont. 395, 763 P.2d 669, the insurer filed a declaratory judgment action seeking a determination that its policy did not cover liability for injuries caused by a driver who was served intoxicating beverages by the insured bar. The Complaint alleged the bar owner and employees knowingly sold alcohol to the plaintiff who was intoxicated, and that the plaintiff's injuries were the direct result of the negligence of the bar in selling alcohol to the plaintiff. The plaintiff also alleged negligence on the part of the bar in the management and supervision of the bar employees. This Court found that the language of the policy was unambiguous, and the policy explicitly excluded coverage for liability imposed by violation of a statute or by reason of the sale or service of alcoholic beverages:

While Mr. Tibbetts attempts to argue that there is a basis to consider his allegations of negligence separately from the sale or service of alcohol, our analysis of the pleadings and affidavits considered in connection with the granting of summary judgment leads us to conclude that Mr. Tibbetts has failed to set forth a theory of negligence separate and apart from the sale or service of alcohol. As a result, we hold that coverage is specifically excluded by the language of the policy.

Sheffield, 234 Mont. at 398, 763 P.2d at 671.

¶ 12 In this case, USF & G contends that Mortensen's negligence in serving, selling or furnishing alcohol to Wells, while Wells was visibly intoxicated, is specifically excluded from coverage by the unambiguous language of the policy and that all of Cusenbary's claims were based on the sale or service of alcohol. The exclusion upon which USF & G denied coverage is similar to the exclusion in Sheffield, and states in pertinent part:

2. Exclusions.

This insurance does not apply to:

...

c. "Bodily injury" or "property damage" for which any insured may be held liable by reason of:

(1) Causing or contributing to the intoxication of any person;

(2) The furnishing of alcoholic beverages to a person under the

...