Glacier General Assur. Co. v. Hisaw

Decision Date17 September 1982
Docket NumberNo. 13577,13577
PartiesGLACIER GENERAL ASSURANCE COMPANY, a Montana corporation, Plaintiff-Appellant, v. Mike HISAW, Defendant-Respondent.
CourtIdaho Supreme Court

John P. Howard, of Quane, Smith, Howard & Hull, Boise, for plaintiff-appellant.

Roger D. Ling, of Ling, Nielsen & Robinson, Rupert, for defendant-respondent.

McFADDEN, Justice.

The instant appeal is from the entry of partial summary judgment in favor of Mike Hisaw against Glacier General Assurance Company, on a fire insurance policy issued by Glacier on property owned by Hisaw which was destroyed by fire. The partial summary judgment was certified under I.R.C.P. 54(b). For the following reasons the appeal is dismissed.

Mike Hisaw owned certain real property in Paul, Idaho, upon which was located a motel, gift shop, and a bar, known as "The Rocking Chair Bar." The property was insured against loss from fire under an insurance policy issued by Glacier General Assurance Company (hereinafter Glacier or insurer). The insurance policy contained the condition that "[Glacier] shall not be liable for loss occurring (a) while the hazard is increased by any means within the control or knowledge of the insured ...." On November 20, 1978, the building in which the bar was located was destroyed by fire.

Hisaw made timely notice to Glacier, seeking a settlement under the insurance policy for the loss occasioned by the fire. Glacier refused to settle, and then brought a declaratory judgment action against Hisaw. Specifically, the relief sought was an adjudication that the insurer was absolved from liability under the provision of the insurance policy relating to an increase in hazard within the control or knowledge of the insured.

In answer to Glacier's complaint for a declaratory judgment, Hisaw alleged that the complaint failed to state sufficient facts to constitute a claim upon which relief can be granted and denied the allegations of the complaint that the hazard of loss to the insured premises was increased by any means within his control or knowledge. In addition, Hisaw filed a counterclaim, which set forth three different claims for relief. First, Hisaw sought a money judgment in the sum of $73,000.00 plus accrued interest against Glacier for the maximum amount of recovery allowed under the terms of the insurance policy. Second, Hisaw sought punitive damages in the sum of $40,000.00 against Glacier for unfair claim settlements practices. Finally, an award of reasonable attorney fees in the sum of $20,000.00 was sought.

Hisaw subsequently moved the district court, pursuant to I.R.C.P. 56, to enter summary judgment dismissing Glacier's complaint and in his favor for the relief demanded under his counterclaim. The motion also requested that "[i]f summary judgment is not rendered in counter-claimant's favor upon the whole case or all of the relief asked and a trial is necessary, that the court ... ascertain what material facts are actually and in good faith controverted, and thereupon make an order specifying the facts that appear without substantial controversy and directing such further proceedings in the action as are just."

Following a hearing on the matter, the district court ordered that Hisaw's motion for summary judgment be granted partially, insofar as the motion related to Glacier's liability or obligation under the insurance policy. In so ordering, the district court adjudged as a matter of law that the insured had not increased the hazard of loss to the insured premises by any means within his control or knowledge so as to avoid coverage under the insurance policy. Accordingly, partial summary judgment was entered on November 5, 1979. It reads as follows:

"IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the motion for Summary Judgment be, and hereby is, partially granted; that the Plaintiff Glacier General Assurance Company is obligated under the insurance policy in question to pay for Defendant Hisaw's loss, with statutory interest from February 28, 1979; and that the Motion for Summary Judgment is denied as to Plaintiff's liability for punitive damages and attorney's fees."

With regard to the partial summary judgment, the district court made the following findings pursuant to I.R.C.P. 54(b): "[T]here is no just reason for delay of the entry of a final judgment and ... hereby direct[s] that the above Judgment or Order shall be a final judgment upon which execution may issue and appeal may be taken ..."

Thereafter Hisaw moved the district court to amend the partial summary judgment. The motion reads:

"COMES NOW the defendant and counterclaimant, Mike Hisaw, by and through his attorney, and moves the Court to amend its Order on Defendant's Motion for Summary Judgment and Partial Summary Judgment, to provide that defendant have partial summary judgment in the sum of $73,000.00, plus interest thereon at the rate of 8% per annum from February 28, 1979, on the grounds and for the reasons that there is no genuine issue as to the material fact that the face amount of the policy is $73,000.00, that the property insured was totally destroyed and that the actual cash value of the property at the time of the loss far exceeds the face amount of the policy, as shown by the affidavit in support of this motion attached hereto and made a part hereof, together with the affidavits previously filed herein."

Glacier also moved the district court to clarify the partial summary judgment so that it reflects "that the...

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8 cases
  • Rife v. Long
    • United States
    • Idaho Supreme Court
    • August 30, 1995
    ...judgment as final and appealable under I.R.C.P. 54(b) does not restrict our right to review the matter. Glacier Gen. Assurance Co. v. Hisaw, 103 Idaho 605, 608, 651 P.2d 539, 542 (1982). Multiple parties were involved in this action and the judgment appealed from wholly terminated at least ......
  • Doe, Matter of, 21833
    • United States
    • Idaho Court of Appeals
    • February 9, 1996
    ...432, 121 L.Ed.2d 352 (1992); Milbank Mutual Ins. Co. v. Carrier Corp., 112 Idaho 27, 730 P.2d 947 (1986); Glacier General Assurance Co. v. Hisaw, 103 Idaho 605, 651 P.2d 539 (1982). In addition, where the trial court has declined to enter a Rule 54(b) certificate, an aggrieved litigant may ......
  • Mosell Equities, LLC v. Berryhill & Co.
    • United States
    • Idaho Supreme Court
    • February 22, 2013
    ...theories to prove a claim for negligence, a judgment could not be entered on one of those theories); Glacier Gen. Assur. Co. v. Hisaw, 103 Idaho 605, 608, 651 P.2d 539, 542 (1982) (judgment cannot be entered establishing liability but leaving the issue of damages for trial); Twin Falls Cnty......
  • Acoustic Specialties, Inc. v. Wright
    • United States
    • Idaho Supreme Court
    • September 17, 1982
    ... ... Jones, both subcontractors furnished materials and supplies to the general contractor. Upon completion of the construction of the Hilton Inn, R.K. & ... ...
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