Anaconda Co. v. General Accident Fire & Life Assurance Corp.

616 P.2d 363, 189 Mont. 447, 1980 Mont. LEXIS 837
CourtMontana Supreme Court
DecidedSeptember 8, 1980
Docket79-001
StatusPublished
Cited by6 cases

This text of 616 P.2d 363 (Anaconda Co. v. General Accident Fire & Life Assurance Corp.) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Anaconda Co. v. General Accident Fire & Life Assurance Corp., 616 P.2d 363, 189 Mont. 447, 1980 Mont. LEXIS 837 (Mo. 1980).

Opinions

MR. JUSTICE DALY

delivered the opinion of the Court.

Appellants General Accident Fire & Life Assurance Corporation (General Accident) and Arthur G. McKee & Company (McKee) appeal from the order and judgment of the Silver Bow County District Court granting respondent Anaconda Company’s (Anaconda) motion for summary judgment. Anaconda crossappeals from the District Court’s amended judgment, entered upon motion by McKee and General Accident which deleted recovery of attorney fees of $3,561.89.

On May 15, 1971, McKee and Anaconda entered into a contract to expand the capacity and install facilities relating to environmental controls at Anaconda’s smelter facilities at Anaconda, Montana. Part of the contract dealt with insurance coverage and required McKee or any subcontractors of McKee to name Anaconda as an additional insured under their liability policies, insuring against risks of any kind relating to the construction at the smelter facilities undertaken by McKee or its subcontractors pursuant to the contract.

McKee complied with the contract by naming Anaconda as an additional insured under policies issued by General Accident. These policies provided coverage for public, contractor’s and automobile liability. Some of the subcontracting work on the project was undertaken by Midland Industrial Electric Company (herein referred to as Midland), a wholly owned subsidiary of [449]*449McKee. In accordance with the contract, Midland named Anaconda as an additional insured under a policy issued by General Accident, also providing public, contractor’s and automobile liability coverage.

James W. Horner, an employee of Midland, was injured on November 18, 1975, while working at the Anaconda Smelter. At that time Midland was installing pumps on old slurry tanks in a building at the Anaconda Smelter, commonly referred to as the “28' tank house.” Gerald Kitchen and Ron Marshall, Anaconda employees, were preparing to paint the ceiling of the “28' tank house” at the time of the accident. They were rigging a scaffolding near the ceiling by laying 2"xl2"xl8' planking over 4" x 5" x 18' timbers which were supported by existing trusses. The Anaconda employees lost control of one of the timbers and it fell some 30 feet to the ground below. Horner, while working in the course and scope of his employment for Midland, was struck by the falling timber and was injured.

On January 19, 1977, Horner filed a suit against Anaconda in Silver Bow County alleging the negligence of Anaconda employees. By a letter of January 24, 1977, Anaconda made a formal demand of General Accident to insure and defend Anaconda in the action brought against it by Horner. By a letter of April 8, 1977, General Accident rejected Anaconda’s demand on the grounds that the incident did not fall within the “description of operations covered” in the policy. On April 20, 1977, Anaconda again requested that General Accident insure and defend Anaconda in Horner’s suit, which General Accident again refused to do. Anaconda then hired counsel to defend against Horner’s suit; and subsequently, an out-of-court settlement of $125,000 was reached.

Anaconda then filed the instant action against McKee and General Accident seeking a declaration that General Accident was obligated to insure and defend Anaconda in Horner’s lawsuit. Anaconda moved for summary judgment and a hearing was held. The District Court entered an order adopting Anaconda’s findings of fact and conclusions of law; and judgment was entered against [450]*450McKee and General Accident pursuant to the District Court’s granting of Anaconda’s motion for summary judgment.

judgment was in the amount of $125,000, representing the amount paid by Anaconda in settlement with Horner, plus $5,843.23 in attorney fees expended by Anaconda in defense of the settled claim, and $3,561.89 in attorney fees expended by Anaconda in the instant action. McKee and General Accident filed a motion to amend the findings of fact, conclusions of law and judgment. The District Court granted the motion to amend, in part, by deleting the award of attorney fees of $3,561.89, previously awarded in connection with the litigation of the instant case. This appeal by McKee and General Accident and Anaconda’s cross-appeal followed.

The issues on appeal are as follows:

1. Whether the District Court erred in granting Anaconda’s motion for summary judgment, finding that no genuine issue of material fact existed, and entering judgment for Anaconda.

2. Whether the District Court erred in denying Anaconda attorney fees incurred in the prosecution of this case.

General Accident and McKee contend that the District Court erred in granting Anaconda’s motion for summary judgment. They argue that it was improper for the court to grant summary judgment because there remained unresolved questions of fact. They insist that liability of General Accident in this action is predicated on the question of whether or not the Anaconda employees were working pursuant to Contract No. 2081 at the time of the accident: a disputed issue.

Anaconda contends, and the District Court found, that it does not matter whether the Anaconda employees were working pursuant to the contract at the time of the injury; what matters is whether the injured employee was working pursuant to the contract. A review of the record indicates it has been admitted that at the time of the accident the injured workman was working within the scope of the work to be performed under Contract No. 2081.

[451]*451Rule 56(c), M.R.Civ.P., states that summary judgment shall be rendered only if:

“. . . the pleadings, depositions, answers to interrogatories, and admissions on file . . . show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”

The question to be decided on a motion for summary judgment is whether there is a genuine issue of material fact and not how that issue should be determined; the hearing on the motion is not a trial. Fulton v. Clark (1975), 167 Mont. 399, 538 P.2d 1371; Matteucci’s Super Save Drug v. Hustad Corporation (1971), 158 Mont. 311, 491 P.2d 705.

The party moving for summary judgment has the burden of showing the complete absence of any genuine issues as to all facts which are deemed material in light of those substantive principles which entitled him to a judgment as a matter of law. Harland v. Anderson (1976), 169 Mont. 447, 548 P.2d 613.

In Kober v. Stewart (1966), 148 Mont. 117, 121 417 P.2d 476, this Court cited 6 Moore’s Federal Practice, ¶56.15[3]:

“ ‘The courts hold the movant to a strict standard. To satisfy his burden the movant must make a showing that is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact.

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Anaconda Co. v. General Accident Fire & Life Assurance Corp.
616 P.2d 363 (Montana Supreme Court, 1980)

Cite This Page — Counsel Stack

Bluebook (online)
616 P.2d 363, 189 Mont. 447, 1980 Mont. LEXIS 837, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anaconda-co-v-general-accident-fire-life-assurance-corp-mont-1980.