Travelers Indem. Co. v. Andersen
Decision Date | 30 August 1999 |
Docket Number | No. 98-413.,98-413. |
Citation | 1999 MT 201,983 P.2d 999 |
Parties | The TRAVELERS INDEMNITY COMPANY, Plaintiff and Respondent, v. Niel ANDERSEN, Defendant and Appellant. |
Court | Montana Supreme Court |
Kenneth H. Gray; Jackson & Rice, Helena, Montana, For Appellant.
Joe Seifert; Keller, Reynolds, Drake, Johnson & Gillespie, Helena, Montana, For Respondent.
¶ 1 Niel Andersen (Andersen) appeals from the judgment entered by the First Judicial District Court, Lewis and Clark County, on a jury verdict in favor of The Travelers Indemnity Company (Travelers). We affirm.
¶ 2 Andersen raises the following issues:
¶ 3 1. Did the District Court err in denying Andersen's motion for summary judgment asserting that Travelers' cause of action was barred by the statute of limitations?
¶ 4 2. Did the District Court abuse its discretion in excluding expert witness testimony?
¶ 5 3. Did the District Court abuse its discretion in excluding a report prepared by a deputy state fire marshal?
¶ 6 In 1974, Andersen purchased a large house in Helena, Montana, which subsequently was destroyed by fire on May 25, 1988. Local authorities investigating the fire determined the cause was arson, but could not determine with any certainty who was involved in the arson.
¶ 7 At the time of the fire, the house was insured under a policy issued by Travelers. Andersen submitted a claim to Travelers, requesting payment under the insurance policy for the losses incurred by the destruction of the house. In conjunction with his claim, Andersen provided Travelers with his sworn statement that he was not involved in setting the fire which destroyed the house and he did not know who was responsible for the fire. In September of 1988, Travelers paid Andersen over $450,000 pursuant to the policy terms.
¶ 8 Several years after the fire, the Lewis and Clark County Attorney (County Attorney) received information which he believed implicated Andersen and two others in a conspiracy to commit the 1988 arson. The County Attorney investigated further and, in July of 1992, filed an information in district court charging Andersen and Thomas Rippingale (Rippingale) with the felony offense of conspiracy to commit arson. A third alleged co-conspirator, Brian Hardy (Hardy), was charged with and pled guilty to the offense of arson in a separate proceeding.
¶ 9 Upon learning of the newly discovered evidence and the filing of criminal charges relating to the 1988 arson fire, Travelers filed this action against Andersen, Rippingale and Hardy. The complaint alleged that the defendants conspired to commit the arson which destroyed Andersen's house and sought reimbursement of the monies it paid Andersen under the insurance policy. Andersen subsequently moved for summary judgment, asserting that Travelers' cause of action was barred by the statute of limitations, and the District Court denied his motion.
¶ 10 Hardy eventually was dismissed from the action and the proceedings against Rippingale were stayed as a result of his filing a petition for bankruptcy. The case proceeded to jury trial with Andersen as the sole defendant. The jury returned a verdict for Travelers, awarding it $465,175 in damages. Travelers then successfully moved the District Court to award prejudgment interest on the damages. The District Court entered judgment on the verdict, plus prejudgment interest and costs, in the amount of $905,789.94. Andersen appeals.
¶ 11 1. Did the District Court err in denying Andersen's motion for summary judgment asserting that Travelers' cause of action was barred by the statute of limitations?
¶ 12 Andersen moved for summary judgment on the grounds that Travelers' complaint alleged a cause of action based on fraud and that, pursuant to § 27-2-203, MCA, the statute of limitations for an action based on fraud is two years. He argued that, because the actions which Travelers alleged constituted fraud occurred in 1988, the complaint—filed four years later in 1992—was untimely and the action was barred. The District Court denied the motion, but did not set forth the basis for its decision. Andersen asserts error.
Rule 56(c), M.R.Civ.P. Generally, we begin our summary judgment review by determining whether the moving party established the absence of genuine issues of material fact. Gomez, ¶ 7. In the present case, however, the parties do not dispute the material facts relating to the summary judgment issue. Consequently, the question before us is whether Andersen was entitled to judgment as a matter of law. The District Court concluded that Andersen was not entitled to judgment as a matter of law and we review that conclusion to determine whether the interpretation of the law is correct. See Gomez, ¶ 7 (citation omitted).
¶ 14 Andersen reiterates on appeal his arguments that Travelers' complaint alleged a cause of action sounding in fraud, for which the statute of limitations is two years, and that, because the complaint was not filed until nearly four years after the alleged fraudulent acts, the action is barred. Travelers responds that the gravamen of its complaint is breach of the insurance contract, rather than fraud, and its complaint was filed well within the 8-year statute of limitations period set forth in § 27-2-202(1), MCA, for an action based on a written contract.
¶ 15 Under certain circumstances, potential tort liability may coexist with contract liability. Thiel v. Taurus Drilling Ltd. 1980-II (1985), 218 Mont. 201, 209, 710 P.2d 33, 38; Unruh v. Buffalo Bldg. Co. (1981), 194 Mont. 553, 555, 633 P.2d 617, 618. Where an action may be based either in tort or contract, the injured party may elect the theory under which he or she wishes to proceed and the statute of limitations governing that theory will control. Weible v. Ronan State Bank (1989), 238 Mont. 235, 237, 776 P.2d 837, 838. However, where doubt exists as to the theory of the action—and, therefore, which statute of limitations should apply—the general rule is that the doubt is resolved in favor of the longer statute of limitations. Weible, 238 Mont. at 237, 776 P.2d at 838 (citing Thiel, 218 Mont. at 212, 710 P.2d at 40). "The choice of which statute of limitation should apply ultimately rests on a characterization of the essence of the claim." Thiel, 218 Mont. at 210, 710 P.2d at 38. Consequently, we look to the substance of the complaint to determine the nature of the action and which statute of limitation applies. Weible, 238 Mont. at 237, 776 P.2d at 838.
¶ 16 Travelers' complaint alleges that it issued a policy to Andersen insuring his house which included fire hazard coverage. The policy provided that the fire hazard coverage was not available if the property was damaged through intentional arson by Andersen. The policy required that, in the event of a fire loss, Andersen was to provide Travelers with a true and correct proof of loss statement. The complaint further alleges that, pursuant to this insurance contract provision, Andersen presented Travelers with two sworn proofs of loss stating that he was not involved with the incident which caused the destruction of his house and also gave Travelers sworn statements that he was not responsible for the fire and did not know the identity of the responsible people. The complaint alleges that, in reliance on Andersen's representations that he was not involved with the arson, Travelers paid him monies pursuant to the policy's terms.
Thiel, 218 Mont. at 209-10, 710 P.2d at 38.
¶ 19 We conclude that Travelers' complaint sufficiently alleges a cause of action based on breach of a written contract to allow application of the 8-year statute of limitations set forth in § 27-2-202(1), MCA. As a result, we further conclude that the complaint, filed within four years of the alleged acts on which the...
To continue reading
Request your trial-
Plath v. Schonrock, 99-705.
...defense of setoff with regard to this claim, which is a requirement in order to present evidence concerning this defense. Travelers Indem. Co. v. Andersen, 1999 MT 201, ¶ 34, 295 Mont. 438, ¶ 34, 983 P.2d 999, ¶ 34; Workman v. McIntyre Const. Co. (1980), 190 Mont. 5, 11-12, 617 P.2d 1281, 1......
-
Blanton v. the Dep't of Pub. Health
...of limitation applies,” and it is the “gravamen of the claim ... [that] controls the limitations period to be applied.” Travelers Indem. Co. v. Andersen, 1999 MT 201, ¶ 15, 295 Mont. 438, 983 P.2d 999; Erickson v. Croft, 233 Mont. 146, 153, 760 P.2d 706, 710 (1988). The omission of any ment......
-
Tin Cup County Water v. Garden City Plumb.
...appeal. Tin Cup first argues that it may elect to pursue either a contract or tort claim. Tin Cup cites to Travelers Indem. Co. v. Andersen, 1999 MT 201, 295 Mont. 438, 983 P.2d 999, for support. Tin Cup points to a statement in Travelers that "where an action may be based in either tort or......
-
Weimar v. Lyons
...is to simplify issues, prevent surprise and allow counsel to prepare their cases for trial based on the pretrial order." Travelers Indem. Co. v. Andersen, 1999 MT 201, ¶ 34, 295 Mont. 438, ¶ 34, 983 P.2d 999, ¶ 34 (citing State ex rel. Ins. Fund v. Berg, 279 Mont. 161, 180, 927 P.2d 975, 98......