Heggem Ex Rel. Heggem v. Capitol Indemnity Corp.

2007 MT 74, 154 P.3d 1189, 336 Mont. 429, 2007 Mont. LEXIS 92
CourtMontana Supreme Court
DecidedMarch 14, 2007
Docket04-360
StatusPublished
Cited by33 cases

This text of 2007 MT 74 (Heggem Ex Rel. Heggem v. Capitol Indemnity 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
Heggem Ex Rel. Heggem v. Capitol Indemnity Corp., 2007 MT 74, 154 P.3d 1189, 336 Mont. 429, 2007 Mont. LEXIS 92 (Mo. 2007).

Opinions

CHIEF JUSTICE GRAY

delivered the Opinion of the Court.

¶1 Thirteen-month-old Dane Heggem died in early 2003 as a result of a toxic dose of diphenhydramine administered at a day care facility. Dane’s parents and brother asserted violations of Montana’s Unfair Trade Practices Act by the insurer of the day care facility for misrepresenting the applicable liability limit of the insurance policy. They appeal from the judgment entered by the Thirteenth Judicial [431]*431District Court, Yellowstone County, on its order granting summary judgment to the insurer. We affirm.

¶2 We address the following issues:

¶3 1. Did the District Court abuse its discretion in denying the Heggems' motion to conduct discovery on issues relating to interpretation of the insurance policy?

¶4 2. Did the District Court err in determining that the policy’s provisions relating to the coverage available were unambiguous as a matter of law and the available policy limit was $300,000 as represented by the insurer, and in granting the insurer’s motion for summary judgment on those bases?

BACKGROUND

¶5 Sabine Bieber and Denise Smith operated Tiny Tots group day care facility in Laurel, Montana. On the afternoon of January 31,2003, Bieber discovered that Dane Heggem had failed to awaken from his midday nap at Tiny Tots. Dane was airlifted to St. Vincent's Hospital in Billings, Montana, where he was pronounced dead. Dane’s death certificate described the cause of death as diphenhydramine (generic Benadryl®), and indicated the death occurred by Dane being given a toxic dose of that liquid allergy and cold medicine. The autopsy report indicated the cause of death as “most likely an overdose of diphenhydramine.” Investigators for the State of Montana learned that, during the previous year, Tiny Tots had purchased enough diphenhydramine to supply more than eleven doses of the medicine per day, and that no directions to Tiny Tots from the Heggems or parents of other children explained the use of the medicine in that amount.

¶6 On March 18,2003, Travis and Calista Heggem-Dane's father and mother-filed an action against Bieber and Tiny Tots which requested, in pertinent part, compensatory damages “in all categories available under Montana law” for Bieber’s and Tiny Tots’ negligent administration of Benadryl® which caused Dane’s “last illness, suffering, and death.” Discovery ensued in that action. In the spring of 2003, Bieber responded to an interrogatory by identifying Capitol as her insurer and the policy’s liability limit as $300,000.

¶7 In mid-July of 2003, the Heggems’ attorney made a demand on Capitol for settlement of the $300,000 policy limit in the action against Bieber and Tiny Tots. Capitol responded that it would pay the demand. Within a week, the Heggems withdrew that demand and demanded $600,000. Capitol refused the demand.

[432]*432¶8 On July 25,2003, the Heggems filed a complaint asserting Unfair Trade Practices Act (UTPA) violations and misrepresentation against Bieber and Capitol. In quick succession, they filed a first amended complaint and a second amended complaint.

¶9 The second amended complaint named Capitol as the only defendant. It alleged that the State had filed criminal charges against Bieber in July of2003 in connection with Dane’s death and-along the same lines as its action against Bieber and Tiny Tots-that Bieber had given Dane the lethal dose of diphenhydramine which caused his death. The Heggems further alleged that, since Bieber’s liability was reasonably clear by that time, Capitol’s obligation was to honestly represent the insurance coverage available. They asserted that Capitol violated the UTPA, §§ 33-18-101 through -1006, MCA, by misrepresenting the maximum amount of liability insurance available when it offered the Heggems $300,000 as the available policy limit in the action against Bieber and Tiny Tots. The Heggems alleged entitlement under their third-party rights to twice the policy limit under an Aggregate Limits provision in the Capitol policy for “all ‘occurrences’ ” during a policy period, referencing the claims very broadly alleged in the separate action against Bieber and Tiny Tots. In the latter regard, the Heggems alleged these claims “triggered the multiple aggregate claims provisions” in Capitol’s policy. Finally, the second amended complaint alleged a first-party claim, based upon a written assignment to them by Bieber of her first-party rights, claiming that Capitol breached its obligations to Bieber under the UTPA by failing to settle the underlying suit within the alleged $600,000 policy limit and failing to obtain a release for Bieber.

¶10 Capitol answered the second amended complaint in September of 2003, denying the allegation it had violated the UTPA. It also moved to dismiss the third-party claims in this UTPA action pursuant to § 33-18-242(6)(b), MCA, which provides that a third-party claimant may not file an action until after the underlying claim has been settled or judgment entered for the claimant. The Heggems promptly opposed the motion to dismiss, primarily on the basis that the question presented under their third-party claims is the same as that presented under their first-party claims, which may be filed prior to a settlement or judgment on the underlying claim. See § 33-18-242(6)(a), MCA. Briefing on Capitol’s motion to dismiss was completed.

¶11 Capitol also moved for summary judgment on the entirety of the UTPA action on the basis that its maximum liability to the Heggems under the policy is $300,000. It argued that the policy language at [433]*433issue was unambiguous and sought a determination as a matter of law that the term “occurrence” used in the policy limits its liability to $300,000. Capitol asserted that, even assuming the truth of the Heggems’ allegation of entitlement to damages in the separate action against Bieber and Tiny Tots, it is liable for only one “occurrence’-Dane’s death-as defined in the insurance policy.

¶12 On the same day it filed its motion for summary judgment, Capitol moved for a protective order with regard to answering discovery requests from the Heggems. It asked the District Court to stay factual discovery until the court had rendered a legal determination interpreting the liability policy at issue. The Heggems responded in opposition and moved for discovery pursuant to M. R. Civ. P. 56(f) for purposes of addressing the summary judgment motion. They stated the discovery sought related to “the pertinent facts behind [Capitol’s] drafting, underwriting, sale, and use of its Aggregate Limits provision.” The parties agreed to suspend further briefing on the motion for summary judgment pending a ruling on the discovery motion. The District Court later granted Capitol’s motion for protective order, stayed further activities in this case (and in the earlier action against Bieber and Tiny Tots) and, in December of 2003, denied the Heggems’ motion for discovery.

¶13 In January of 2004, after the Heggems filed a negligence action against Smith, they filed their brief-and numerous exhibits-in opposition to summary judgment in the present action. Capitol replied.

¶14 In March of2004, the District Court granted summary judgment to Capitol, concluding the Heggems’ claims were based on a single occurrence during a single policy period, and determining Capitol's liability to the Heggems cannot exceed $300,000.

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Cite This Page — Counsel Stack

Bluebook (online)
2007 MT 74, 154 P.3d 1189, 336 Mont. 429, 2007 Mont. LEXIS 92, Counsel Stack Legal Research, https://law.counselstack.com/opinion/heggem-ex-rel-heggem-v-capitol-indemnity-corp-mont-2007.