Fire Insurance Exchange v. Tibi

Decision Date25 October 1995
Docket NumberNo. CV-93-141-GF-PGH.,CV-93-141-GF-PGH.
Citation51 F.Supp.2d 1065
PartiesFIRE INSURANCE EXCHANGE, a Reciprocal and Inter-Insurance Exchange, Plaintiff, v. Pierre TIBI, Jonathan Kayser, and Allstate Insurance Company, Defendants.
CourtU.S. District Court — District of Montana

Lyman H. Bennett, III, Morrow, Sedivy & Bennett, PC, Bozeman, MT, for Plaintiff.

Barry A. MacBan, Michael L. Barth, Weyl, Guyer, MacBan & Olson, Phoenix, AZ, David A. Veeder, Veeder Law Firm, PC, Thomas D. Gai, Office of the Yellowstone County Attorney, Billings, MT, K. James Malady, III, Malady Law Office, Bennington, VA, Steve Reida, Landoe, Brown, Planalp & Braaksma, PC, Bozeman, MT, for Defendants.


HATFIELD, Chief Judge.

In the present declaratory judgment action the court is called upon to determine whether certain personal injury claims advanced by defendant Jonathan Kayser against defendant Pierre Tibi are covered under a policy of automobile liability insurance issued by defendant Allstate Insurance Company ("Allstate"); and a policy of homeowner's insurance issued by the plaintiff, Fire Insurance Exchange. The subject claims emanate from a bullet wound Kayser sustained on a hunting trip with Tibi. Jurisdiction is vested in this court pursuant to 28 U.S.C. § 1332, in conjunction with 28 U.S.C. §§ 2201 and 2202.

Presently before the court are cross-motions for summary judgment submitted by all parties. The motions were initially referred to United States Magistrate Judge Robert M. Holter for a recommended decision pursuant to 28 U.S.C. § 636. When Magistrate Judge Holter concluded that the motions should be denied, the parties filed timely objections in accordance with Fed.R.Civ.P. 72(b).

Having conducted a de novo review of the record, the court deems it appropriate to GRANT the motions for summary judgment submitted by Tibi and Kayser, and DENY the motions for summary judgment submitted by Fire Insurance Exchange and Allstate.


The undisputed facts underlying this action establish that Tibi, an Arizona resident, engaged the services of Cabinet Divide Outfitters to provide a guided antelope hunt near Turner, Montana, in October of 1992. The owner of Cabinet Divide Outfitters, Terry Kayser, arranged to have his son Jonathan Kayser act as Tibi's guide. A 1974 Chevrolet Suburban, titled in the name of Robert Colwell, was provided by Terry Kayser for use by Jonathan Kayser and Tibi in connection with their hunting trip.

On the morning of October 19, 1992, Tibi successfully harvested both a buck and a doe antelope. After field dressing the doe antelope, Jonathan Kayser drove the Suburban to where the buck antelope was located. At that juncture, Tibi took off his coat and shirt and placed them on the front seat of the Suburban together with his knapsack and rifle. The men then proceeded to field dress the buck antelope and load the carcass in the Suburban. After the antelope was in the Suburban, Kayser walked to the driver's side of the vehicle where he stopped to remove some dried antelope blood from his hands. Contemporaneously, Tibi opened the front passenger door of the Suburban and began repositioning his coat, knapsack and shirt, from the front seat of the vehicle to the back seat, so he could occupy the front passenger position. As Tibi was moving his personal belongings, his rifle discharged inside the Suburban.1 The bullet that exited the gun passed through the metal panel between the driver's side front and rear windows, striking Kayser, who was standing outside the vehicle near the driver's door.

At the time pertinent to the accident, Tibi was a named insured under a homeowner's insurance policy issued by Fire Insurance Exchange.2 The homeowner's policy provides personal liability coverage in the sum of $500,000 per occurrence. The Suburban was listed as an insured vehicle in an automobile liability insurance policy issued by Allstate to Robert and Suzanne Colwell.3 The automobile policy provides bodily injury liability coverage in the sum of $100,000 per individual, and $300,000 per occurrence.

Subsequent to the shooting accident, Kayser instituted a negligence action against Tibi in this court alleging the injuries he sustained were caused by the negligent handling of a rifle by Tibi.4 The present declaratory judgment action followed.


At the outset, the court notes that the construction of insurance contracts in Montana5 is governed by the general law of contract interpretation contained in Title 28, Chapter 3, Montana Code Annotated, and the case law which has developed thereunder in the context of insurance.6 Accordingly, the interpretation of insurance policies is governed by several broad principles. First, if the language employed in an insurance contract is clear, the language controls, and any expectation which is contrary to the language is not "objectively reasonable." Wellcome v. The Home Insurance Co., 257 Mont. 354, 849 P.2d 190, 193 (1993). Second, if a provision in an insurance policy is ambiguous, all ambiguities must be construed against the insurer. Atcheson v. Safeco Ins. Co., 165 Mont. 239, 527 P.2d 549 (1974). The determination of whether an ambiguity exists requires an examination of the language utilized from the viewpoint of the consumer of average intelligence not trained in the law or in the insurance business. Whispering Creek Condominium Owner Assoc. v. Alaska National Ins. Co., 774 P.2d 176 (1989); Sparks v. Republic National Life Ins. Co., 132 Ariz. 529, 647 P.2d 1127 (1982). If language in the policy is capable of more than one construction, an ambiguity exists. Farmers Union Mutual Ins. Co. v. Oakland, 251 Mont. 352, 825 P.2d 554, 556 (1992). Finally, all words of limitation and exclusions in an insurance policy must be strictly construed against the insurer regardless of whether or not they are ambiguous. Bauer Ranch v. Mountain W. Farm Bur. Mut. Ins., 215 Mont. 153, 695 P.2d 1307, 1309 (1985). Cognizant of these principles of contract construction, the court now turns to the coverage issues presented.

A. The Allstate Policy

The coverage agreement in the Allstate automobile liability policy states:

"Allstate will pay for all damages an insured person is legally obligated to pay because of bodily injury or property damage ... arising out of the ownership, maintenance or use, loading or unloading of an insured auto."

Allstate argues that its auto policy fails to provide coverage to Tibi for the personal injury claims advanced by Jonathan Kayser because: (i) Tibi was not an "insured person" under the Allstate policy; and (ii) the injuries sustained by Kayser did not arise "out of the ... use, loading or unloading of an insured auto." Additionally, Allstate argues that the auto policy contains three exclusionary provisions which operate to preclude coverage. The court shall address each argument in turn.

i) Was Tibi an insured person under the Allstate policy?

The Allstate automobile liability policy defines "insured persons" as follows:

1. While using your7 insured auto8:

a) you,

b) any resident, and

c) any other person using it with your permission.

2. While using a non-owned auto:

a) you,

b) any resident relative using a four wheel private passenger auto or utility auto.

3. Any other person or organization liable for the use of an insured auto if the auto is not owned or hired by this person or organization provided the use is by an insured person under 1. or 2. above.

The determination of whether Tibi was an "insured person" under the Allstate policy hinges on whether Colwell owned the Suburban on the date of the accident. If Colwell owned the Suburban, Tibi would have been a permissive user of the vehicle, and thus an "insured person", as defined under paragraph 1(c) of the Allstate policy, referenced above. Conversely, if the Suburban was owned by Terry Kayser, as Allstate contends, Tibi would not have been an "insured person" under either paragraphs 1, 2 or 3 of the Allstate policy.

The owner of a vehicle, for insurance purposes, is to be determined, if possible, by reference to the specific language employed in the insurance policy. Colonial Insurance Company of California v. Blankenship, 231 Mont. 469, 753 P.2d 880, 882 (1988), citing, Safeco Ins. Co. v. Lapp, 215 Mont. 196, 695 P.2d 1310, 1312 (1985). Because the Allstate policy at issue fails to expressly define how the owner of an insured vehicle is to be determined, the court is constrained to determine ownership in accordance with the common meaning of that term.9 Bauer Ranch v. Mountain W. Farm Bur. Mut. Ins., 215 Mont. 153, 695 P.2d 1307 (1985). In undertaking this task, the court is guided by the prior pronouncements of the Montana Supreme Court and the prescriptions of the Montana Legislature. The state's highest court has stated, in construing a comprehensive farm insurance policy, that the owner of a vehicle is the person with "the ability to control, how, when and where and by whom the vehicle will be used." Truck Insurance Exchange v. Nelson, 228 Mont. 233, 743 P.2d 572, 575 (1987). The term "ownership" is similarly defined by statute as the "right of one or more persons to possess and use ... [a thing] to the exclusion of others." Mont.Code Ann. § 70-1-101.

Mindful of these definitions, the court now reviews the facts relevant to the determination of this issue. The record reveals that in September of 1992, Colwell drove his Suburban to Terry Kayser's ranch in Heron, Montana, where it was to be stored along with a boat. While at the Kayser ranch, Colwell gave Terry Kayser permission to use the Suburban in connection with Kayser's hunting guide business. Colwell also advised Terry Kayser that he would sell the Suburban for $1,000. Subsequently, Kayser began using the Suburban. Kayser was in possession of the Suburban when the referenced accident occurred on October 19, 1992. In the Spring of...

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