Northland Cas. Co. v. Mulroy

357 F. Supp. 3d 1045
CourtDistrict Court, D. Montana
DecidedJanuary 11, 2019
DocketCV 13-232-M-DLC
StatusPublished
Cited by3 cases

This text of 357 F. Supp. 3d 1045 (Northland Cas. Co. v. Mulroy) is published on Counsel Stack Legal Research, covering District Court, D. Montana primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Northland Cas. Co. v. Mulroy, 357 F. Supp. 3d 1045 (D. Mont. 2019).

Opinion

Dana L. Christensen, Chief Judge *1047Before the Court are the parties' cross-motions for summary judgment (Docs. 128 & 131) and the Defendants' motion to supplement the record (Doc. 138).

BACKGROUND

In 2006, Defendant and Counterclaimant Joseph S. Mulroy hired Duane Keim's company, Northwest Log Homes, LLC,1 to build a log home near Trego, Montana. Among other responsibilities, Keim was to build and stain the log component of the home. He also partially remodeled a guest home using logs. Keim purchased logs from a log broker, and he did not treat the logs for insects. Several years later, Mulroy noticed signs of an active wood-boring powderpost beetle infestation in both the main home and the remodeled guest home. The infestation caused substantial damage to both structures, and it remains ongoing.

Mulroy asserted a claim for damages against Keim, and Keim tendered the claim to his insurer, Plaintiff and Counter-defendant Northland Casualty Company ("Northland"). Northland notified Keim of its position that the operative commercial general liability ("CGL") policy did not cover Mulroy's damages. Mulroy proceeded to file a complaint in state court, and Northland provided a defense under a reservation of rights. Without Northland's consent, Mulroy and Keim settled the claim. Keim admitted liability and assigned any rights under the CGL policy to Mulroy. Following a damages hearing, which Keim did not attend, the state court awarded $208,824.58 in damages for remediation costs and $120,000 for loss of value, for a total of $328,824.58, plus interest and costs.

LEGAL STANDARD

A party is entitled to summary judgment if it can demonstrate that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Summary judgment is warranted where the documentary evidence produced by the parties permits only one conclusion. Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 250-51, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Only disputes over facts that might affect the outcome of the lawsuit will preclude entry of summary judgment; factual disputes that are irrelevant or unnecessary to the outcome are not considered. Id. at 248, 106 S.Ct. 2505. In ruling on a motion for summary judgment, a court must view the evidence "in the light most favorable to the opposing party." Adickes v. S.H. Kress & Co. , 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). "[T]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson , 477 U.S. at 255, 106 S.Ct. 2505.

DISCUSSION

The sole question before the Court is whether Northland has a duty to indemnify Keim for the damages suffered by Mulroy. Northland relies on three of the CGL policy's business risk exclusions to support *1048its position that coverage cannot be found: (1) exclusion j(6),2 which excludes coverage for certain property damage arising from the insured's work on the damaged property; (2) exclusion k, excluding coverage for damages to the insured's "product"; and (3) exclusion l, which bars coverage for certain property damage to the insured's work arising from that work. Mulroy argues that the exclusions do not apply, either unambiguously or because they are ambiguous and accordingly must be construed in favor of coverage. If those arguments fail, Mulroy nonetheless contends that the reasonable expectations doctrine operates to create coverage.

The Court looks to Montana law for the "rules of decision." 28 U.S.C. § 1652. "The interpretation of an insurance contract is a question of law." Babcock v. Farmers Ins. Exch. , 299 Mont. 407, 999 P.2d 347, 348 (2000). "If the language of a policy is clear and explicit, the policy must be enforced as written." Nat'l Farmers Union Prop. & Cas. Co. v. George , 290 Mont. 386, 963 P.2d 1259, 1261 (1998). "Ambiguities are construed against the insurer and exclusions from coverage are construed narrowly because they are contrary to the fundamental protective purpose of insurance policies." Id. Further, "because exclusions are contrary to the fundamental purpose of the policy, such exclusions are frequently subject to challenge for ambiguity or inconsistency." Newman v. Scottsdale Ins. Co. , 370 Mont. 133, 301 P.3d 348, 355 (2013).

Under the terms of the policy, Mulroy suffered "property damage"-"[p]hysical injury to tangible property." (Doc. 26-1 at 34.) This Court previously found that the initial grant of coverage did not extend to Mulroy's claim for property damage because Keim's defective construction did not constitute an "occurrence." The Ninth Circuit reversed, applying Employers Mutual Casualty Co. v. Fisher Builders, Inc. , 383 Mont. 187

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Bluebook (online)
357 F. Supp. 3d 1045, Counsel Stack Legal Research, https://law.counselstack.com/opinion/northland-cas-co-v-mulroy-mtd-2019.