                                                                                              08/04/2020


                                            DA 19-0542
                                                                                          Case Number: DA 19-0542

              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                        2020 MT 197N


MERVIN GUNDERSON and PATRICIA GUNDERSON,
husband and wife, and ALL SECURE, INC.,

               Plaintiffs and Appellants,

         v.

LIBERTY MUTUAL INSURANCE and THE OHIO CASUALTY
INSURANCE COMPANY and CENTRAL INSURANCE AGENCY,

               Defendants and Appellees.


APPEAL FROM:           District Court of the Eighteenth Judicial District,
                       In and For the County of Gallatin, Cause No. DV-17-767BX
                       Honorable John C. Brown, Presiding Judge

COUNSEL OF RECORD:

                For Appellants:

                       Geoffrey C. Angel, Angel Law Firm, Bozeman, Montana

                For Appellees:

                       John E. Bohye r, Ryan T. Heuwinkel, Boyer, Erickson, Beaudette &
                       Tranel, PC, Missoula, Montana

                       Nicholas J. Pagnotta, Alexander T. Tsomaya, Williams Law Firm,
                       Missoula, Montana



                                                    Submitted on Briefs: May 20, 2020

                                                              Decided: August 4, 2020

Filed:

                                  cir-641.—if
                       __________________________________________
                                         Clerk
Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1    Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating

Rules, this case is decided by memorandum opinion and shall not be cited and does not

serve as precedent. Its case title, cause number, and disposition shall be included in this

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana

Reports.

¶2    Plaintiffs and Appellants Mervin Gunderson (Mervin), Patricia Gunderson

(Patricia), and All Secure, Inc. (All Secure), appeal the Order Granting Defendants Liberty

Mutual Insurance’s and Ohio Casualty Insurance Company’s Motion for Summary

Judgment and Denying Plaintiffs’ Cross-Motion for Summary Judgment issued by the

Eighteenth Judicial District Court, Gallatin County, on December 14, 2018, along with the

Order Granting Defendant CIA’s Motion to Dismiss issued by the District Court on

September 6, 2019. We affirm.

¶3    Mervin, who has since passed away, and Patricia were the sole shareholders of All

Secure, a security company. In 2015, the Gundersons went to Central Insurance Agency

(CIA) to obtain coverage for All Secure’s two company vehicles—a 2005 Ford Focus and

a 2005 Ford Escape. Through CIA, the Gundersons purchased a business auto policy for

All Secure. The policy was issued by Ohio Casualty Insurance Company (OCIC), and

provided that the “Named Insured” on the policy was All Secure, a corporation. The policy

included Uninsured Motorist (UM) and Medical Payments (MP) coverage on the two

company vehicles.

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¶4     On April 20, 2016, Mervin was riding his personal motorcycle—insured by State

Farm—on Highway 408 near Fairfield when he was involved in a single-vehicle accident.

Mervin suffered life-threatening injuries in the crash and was ultimately paralyzed due to

his injuries before he later passed away. After the crash, Mervin alleged he was run off the

road by an unidentified vehicle. The Montana Vehicle Crash Report prepared by Montana

Highway Patrol Trooper Danny Sons reported that Mervin drove off the roadway in a

distracted, inattentive, or careless manner. The MHP crash report further states Mervin

“was inattentive when he encountered a 90-degree left-hand curve in the roadway.

[Mervin] failed to negotiate the left-hand curve and ran off the roadway on the south side.”

The crash report makes no mention of any other vehicle.

¶5     Following the motorcycle accident, the Gundersons sought coverage under the UM

and MP provisions of the OCIC policy. OCIC denied coverage because the Named Insured

under the policy was the corporation All Secure, not the Gundersons individually, and

Mervin did not qualify as an “insured” under the policy’s Declarations. On September 8,

2017, the Gundersons and All Secure initiated the instant lawsuit. The Gundersons sought

a declaratory judgment that Mervin was insured under the UM and MP provisions of the

policy; Liberty Mutual and OCIC (collectively OCIC) violated Montana’s Unfair Trade

Practices Act; and CIA committed professional negligence when it sold All Secure the

policy at issue in this case.

¶6     OCIC was served with the Complaint and thereafter filed its Answer on October 26,

2017. Then on November 29, 2017, OCIC moved for summary judgment on the two claims

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against it. At this time, CIA had not yet been served or made an appearance. The

Gundersons filed a cross-motion for summary judgment on January 2, 2018. After the

parties completed briefing on their competing motions, the District Court held a hearing on

May 21, 2018. On December 14, 2018, the District Court issued its order granting OCIC’s

motion for summary judgment and denying the Gundersons’ cross-motion for summary

judgment. The District Court entered its Judgment on December 19, 2018.

¶7    Subsequent to the District Court granting summary judgment to OCIC, Gundersons

served CIA with the Complaint on December 20, 2018. On January 8, 2019, CIA filed a

motion to dismiss pursuant to M. R. Civ. P. 12(b)(6). After the parties briefed CIA’s

motion to dismiss, the District Court granted the motion on September 6, 2019. The

Gundersons and All Secure appeal.

OCIC’s Motion for Summary Judgment

¶8    We review a district court’s ruling on a motion for summary judgment de novo,

using the same M. R. Civ. P. 56 criteria as the district court. Norbeck v. Flathead Cty.,

2019 MT 84, ¶ 12, 395 Mont. 294, 438 P.3d 811 (citing Chapman v. Maxwell, 2014 MT

35, ¶ 7, 374 Mont. 12, 322 P.3d 1029). Summary judgment is only appropriate if there is

no genuine dispute as to any material fact and the moving party is entitled to judgment as

a matter of law. Kucera v. City of Billings, 2020 MT 34, ¶ 6, 399 Mont. 10, 457 P.3d 952

(citing Davis v. Westphal, 2017 MT 276, ¶ 9, 389 Mont. 251, 405 P.3d 73). In evaluating

a motion for summary judgment, we view the evidence in the light most favorable to the




                                            4
nonmoving party, drawing all reasonable inferences in their favor. Hughes v. Lynch, 2007

MT 177, ¶ 7, 338 Mont. 214, 164 P.3d 913.

¶9     In granting OCIC’s motion for summary judgment, the District Court held the

Gundersons were not “insureds” pursuant to the All Secure policy with OCIC because

Mervin was not operating a covered auto during the accident; that the policy’s UM

coverage was personal and portable, but only for an “insured”; that the policy did not

provide illusory UM and MP coverage; and that the policy was not ambiguous. The District

Court further found the Gundersons submitted no competent corroborating evidence the

accident was caused by an uninsured motorist.

¶10    On appeal, the Gundersons ask us to review three issues relating to OCIC’s motion

for summary judgment: (1) whether the policy by its express terms provides for personal

and portable MP and UM coverages; (2) whether non-personal and non-portable UM

coverage violates § 33-23-201, MCA; and (3) whether the policy is ambiguous and subject

to multiple reasonable interpretations.

¶11    We begin by first addressing whether the policy is ambiguous. “The interpretation

of an insurance contract is a question of law which we review de novo.” Stonehocker v.

Gulf Ins. Co., 2016 MT 78, ¶ 10, 383 Mont. 140, 368 P.3d 1187 (citing Tidyman’s Mgmt.

Servs. v. Davis, 2014 MT 205, ¶ 13, 376 Mont. 80, 330 P.3d 1139). “Ambiguity does not

exist just because a claimant says so.” Holmstrom v. Mut. Benefit Health & Accident Ass’n,

139 Mont. 426, 428, 364 P.2d 1065, 1066 (1961).




                                            5
¶12   In this case, the policy was issued to All Secure, a corporation whose business is

security. The policy’s Declarations provide:

      This policy provides only those coverages where a charge is shown in the
      premium column below. Each of these coverages will apply only to those
      “autos” shown as covered “autos.” “Autos” are shown as covered “autos”
      for a particular coverage by the entry of one or more of the symbols from the
      COVERED AUTO Section of the Business Auto Coverage Form next to the
      name of the coverage.

For both the MP and UM coverages, the covered auto symbol is 2. Symbol 2 applies to

“[o]nly those autos you own[.]” The form further notes that “[t]hroughout this policy the

words ‘you’ and ‘your’ refer to the Named Insured shown in the Declarations.” The only

“Named Insured” listed on the Declarations is All Secure. The only vehicles owned by All

Secure are the 2005 Ford Focus and 2005 Ford Escape listed in the policy. It is undisputed

Mervin was driving his personal motorcycle at the time of the accident, not an auto owned

by All Secure. The District Court found “the Declarations make clear that there is only

MP and UM coverage for autos owned by All Secure, Inc.” We agree.

¶13   The body of the policy further makes clear that the policy “insured” All Secure and

its two vehicles, and not the Gundersons personally or their personal vehicles. In the MP

coverage, an “insured” is defined as:

      1. You while “occupying” or, while a pedestrian, when struck by any “auto”.

      2. If you are an individual, any “family member” while “occupying” or,
      while a pedestrian, when struck by any “auto”.

      3. Anyone else “occupying” a covered “auto” or a temporary substitute for
      a covered “auto”. The covered “auto” must be out of service because of its
      breakdown, repair, servicing, loss, or destruction.

                                            6
The UM coverage of the policy provides:

      We will pay all sums the “insured” is legally entitled to recover as
      compensatory damages from the owner or driver of an “uninsured motor
      vehicle”. The damages must result from “bodily injury” sustained by the
      “insured” caused by an “accident”. The owner’s or driver’s liability for these
      damages must result from the ownership, maintenance, or use of the
      “uninsured motor vehicle”.

The UM coverage defines who is an “insured” under the policy:

      If the Named Insured is designated in the Declarations as:

                                        .   .   .

      2. A partnership, limited liability company, corporation or any other form of
      organization, then the following are “insureds”:

              a. Anyone “occupying” a covered “auto” or a temporary substitute
      for a covered “auto”. The covered “auto” must be out of service because of
      its breakdown, repair, servicing, “loss” or destruction.

             b. Anyone for damages he or she is entitled to recover because of
      “bodily injury” sustained by another “insured”.

¶14   At the time Mervin was injured in the accident, he was driving his personal

motorcycle, not either of the vehicles owned by All Secure. Under the clear language of

the policy, Mervin does not meet any of the definitions of an “insured” because he was

neither the Named Insured nor operating a covered auto at the time of the accident. “We

will not expand the terms of a policy to provide coverage when the terms and phrases are

clear and unambiguous.” Am. States Ins. Co. v. Flathead Janitorial & Rug Servs., 2015

MT 239, ¶ 16, 380 Mont. 308, 355 P.3d 735 (citations omitted). The “you” referenced

throughout the policy is the Named Insured—All Secure. This language is not ambiguous.

See Flathead Janitorial, ¶ 18. For similar reasons, Patricia also does not qualify as an
                                            7
“insured” for her claims under the policy. The District Court correctly found the policy

was unambiguous and the Gundersons did not qualify as “insureds” pursuant to the policy’s

plain language. “It would be unreasonable to expect that a corporate policy of insurance,

clearly identifying the named insured as the corporation, would cover [Mervin] when [he]

was not occupying a covered vehicle or in any way conducting corporate business.”

Flathead Janitorial, ¶ 22.

¶15    Moving on to the Gundersons’ other claims, we begin with whether the policy

provides personal and portable MP and UM coverages. We agree with the District Court

that the UM coverage provided by the policy is personal and portable, but only for persons

who are “insured” under the policy. As discussed above, it is clear the Gundersons are not

“insureds” under All Secure’s policy.

¶16    The Gundersons assert that pursuant to Jacobson v. Implement Dealers Mut. Ins.

Co., 196 Mont. 542, 640 P.2d 908 (1982), OCIC could not limit the personal and portable

mandatory UM coverage required by § 33-23-201, MCA. Section 33-23-201(1), MCA,

requires UM coverage be offered in all motor vehicle liability policies in Montana, “for the

protection of persons insured under the policy[.]” The District Court correctly rejected

Gundersons’ argument in this regard—most importantly—as the Gundersons are not

“insureds” under the policy. The District Court further noted this Court has rejected the

“personal and portable” argument asserted by Gundersons in Kilby Butte Colony, Inc. v.

State Farm Mut. Auto. Ins. Co., 2017 MT 246, ¶ 13, 389 Mont. 48, 403 P.3d 664. The

Gundersons argue Kilby Butte Colony is inapplicable because it discussed underinsured

                                             8
motorist (UIM) coverage, not uninsured motorist coverage. We disagree and find Kilby

Butte Colony to be on point.

¶17    As a preliminary matter, and noted by the District Court in its order and OCIC in its

briefing on appeal, we have previously applied the rules from our UIM decisions to the

UM context. “In previous cases interpreting similar policies under which a corporation

was the named insured, ‘[w]e have not expanded coverage to injured persons involved in

the corporation who are not occupying vehicles covered under the policy at the time of the

accident.’” Stonehocker, ¶ 17 (citing Lee v. Great Divide Ins. Co., 2008 MT 80, ¶ 16, 342

Mont. 147, 182 P.3d 41). In Stonehocker, we noted “Montana law allows an insurer to

limit coverage to a corporation or other business entity.” Stonehocker, ¶ 15 (citing Lee,

¶ 16). We further affirmed that “we interpret an insurance contract ‘from the viewpoint of

a consumer with average intelligence, with no training in the law or insurance.’”

Stonehocker, ¶ 15 (citing Flathead Janitorial, ¶ 22). We addressed a UM policy with a

corporation as the named insured and found a “reasonable person of average intelligence”

would recognize that the “you” in the policy for purposes of UM coverage was the policy

holder—the corporation. Stonehocker, ¶ 16.

¶18    As we have previously applied our UIM decisions to UM decisions, we reiterate our

decision that an exception to the “personal and portable” rule “exists for corporate or

business auto insurance policies that require occupancy of the corporate owned vehicle as

a condition of coverage.” Kilby Butte Colony, ¶ 13. Though the Gundersons refer to the

policy as a “dual purpose family/commercial Policy,” it is clear the policy at issue is simply

                                              9
a business auto policy, not a “dual purpose family/commercial” one. “The Policy is a

business or corporate policy, and ‘as long as it is legal for an insurer to sell an automobile

liability policy to a corporation, which is the named insured, it is legal for the insurer to

limit the class of covered individuals to those who are occupying covered vehicles at the

time they are injured.’” Kilby Butte Colony, ¶ 15 (quoting Hanson v. Emp’rs Mut. Cas.

Co., 336 F. Supp. 2d 1070, 1076 (D. Mont. 2004)). UM coverage is “personal and

portable” only for those persons who are insured by the subject policy. The Gundersons

are not “insureds” under the policy here and therefore do not qualify for UM coverage.

Restricting UM coverage to persons actually covered by the policy does not violate

§ 33-23-201, MCA, or render any UM coverage OCIC promised to provide to All Secure

illusory.

¶19    The policy is unambiguous, the Gundersons do not qualify as “insureds” pursuant

to the policy’s plain language, and the MP and UM coverage provided by the policy is

neither illusory nor violates § 33-23-201, MCA. The District Court correctly granted

OCIC’s motion for summary judgment.

CIA’s Motion to Dismiss

¶20    We review a district court’s ruling on a motion to dismiss pursuant to M. R. Civ. P.

12(b)(6) de novo. Cowan v. Cowan, 2004 MT 97, ¶ 10, 321 Mont. 13, 89 P.3d 6. A motion

to dismiss under Rule 12(b)(6) has the effect of admitting all well-pleaded allegations in

the complaint. Wise v. CNH Am., LLC, 2006 MT 194, ¶ 6, 333 Mont. 181, 142 P.3d 774.

We construe the complaint in the light most favorable to the plaintiff, and all allegations

                                             10
of fact contained therein are taken as true. Wise, ¶ 6. A court “is under no duty to take as

true legal conclusions or allegations that have no factual basis or are contrary to what has

already been adjudicated.” Cowan, ¶ 14 (citation omitted).

¶21    The Gundersons also appeal the District Court’s ruling on CIA’s motion to dismiss

and ask us to review whether the Complaint states a claim against CIA that is plausible on

its face. The Gundersons asserted a claim of professional negligence against CIA for not

procuring personal and portable UM and MP coverage for the Gundersons under All

Secure’s policy with OCIC. We agree with the District Court that the Gundersons did not

state a cognizable claim against CIA and dismissal of their claim was appropriate.

¶22    The All Secure policy contains the following language:

       3. “Uninsured motor vehicle” means a land motor vehicle or “trailer”:

                                         .   .    .

       c. That is a hit-and-run vehicle and neither the driver nor owner can be
       identified. The vehicle must either:

             (1) Hit an “insured”, a covered “auto” or a vehicle an “insured” is
       “occupying”; or

              (2) Cause “bodily injury” with no physical contact with an “insured”,
       a covered “auto” or a vehicle an “insured” is “occupying” at the time of the
       “accident” provided the facts of the “accident” can be corroborated by
       competent evidence other than the testimony of any person having a
       claim under this or any similar insurance as the result of such “accident”.

(Emphasis added.) The District Court, in its order granting OCIC summary judgment,

found that even if the Gundersons were “insureds” under the policy—which they are not—

they still would not be entitled to UM coverage under the policy because the only testimony

                                             11
to Mervin’s claim he was run off the road by an unidentified vehicle was his own affidavit.

Patricia also submitted an affidavit attesting to Mervin’s story, but she was not present for

the accident; thus, the District Court found her affidavit lacked foundation. Regardless, as

Patricia also put forth a claim under the policy, her testimony also cannot meet the policy’s

“competent evidence” requirement.         The District Court was presented with no

corroborating evidence to support Mervin’s story of being run off the road by an

unidentified vehicle. The only other competent evidence providing the facts of the accident

presented to the District Court was the contrary evidence of the MHP crash report which

stated Mervin drove off the road in a distracted, inattentive, or careless manner—with no

mention of another vehicle involved. Accordingly, the District Court properly concluded

Gundersons had not established, through corroborating evidence, the existence of an

uninsured motorist when it granted OCIC’s motion for summary judgment.

¶23    CIA was not served with the Complaint in this matter until after the District Court

granted OCIC summary judgment and held no corroborating evidence was presented to

establish an uninsured motorist existed. After being served, CIA moved to dismiss for

failure to state a claim. The District Court granted the motion, holding its decision

regarding the uninsured motorist to be the law of the case; that CIA had no legal duty to

procure the Gundersons individual MP coverage; and CIA had no heightened duty to

inform the Gundersons about the limitations and exclusions of the All Secure policy.

¶24    Regarding the Gundersons’ claim against CIA as it related to UM coverage, the

District Court took judicial notice of its prior summary judgment decision and held its

                                             12
decision regarding the failure to present the corroborating evidence necessary to establish

the existence of an uninsured motorist to be the law of the case. “The ‘law of the case’

posits that when a court decides upon a rule of law, that decision should continue to govern

the same issues in subsequent stages in the same case.” Norbeck, ¶ 26 (citing Arizona v.

California, 460 U.S. 605, 618, 103 S. Ct. 1382, 1391 (1983)). Where claims are pleaded

generally against all defendants, “the legal determinations regarding those claims made by

the court during the litigation are applicable to all the parties to the litigation.” Norbeck,

¶ 28.

¶25     The District Court had already addressed Mervin’s claim of being run off the road

by an uninsured motorist.        The Gundersons were required to put forth competent

corroborating evidence to support his claim, but came forth with only their own affidavits.1

Though the Gundersons now argue pictures of the scene support Mervin’s story, those

pictures were not before the District Court when it granted summary judgment. “A motion

for summary judgment turns on the evidence in the record at the time of the motion.”

Masters Group Int’l, Inc. v. Comerica Bank, 2015 MT 192, ¶ 90, 380 Mont. 1, 352 P.3d

1101 (citing M. R. Civ. P. 56(c)(3)). The District Court correctly applied the law of the

case doctrine to bar the Gundersons’ claims regarding UM coverage.                 Because the

Gundersons were unable to establish the existence of an uninsured motorist, the

Gundersons could not make a cognizable negligence claim for UM coverage.


1
  Even if Patricia had not made a claim herself, her affidavit could not serve as corroborating
evidence as to the facts of the accident as she was not present at the accident and her affidavit
merely reiterated Mervin’s rendition of the accident.
                                                13
¶26   Turning to the Gundersons’ claims regarding MP coverage in the policy, the District

Court held that claim failed because CIA had no duty to procure MP coverage for the

Gundersons. With regard to a negligence claim, “duty is a question of law.” Monroe v.

Cogswell Agency, 2010 MT 134, ¶ 31, 356 Mont. 417, 234 P.3d 79 (citing Nautilus Ins.

Co. v. First Nat’l Ins., 254 Mont. 296, 299, 837 P.2d 409, 411 (1992)). “Medical payments

coverage is not mandatory in Montana. Its presence in an insurance contract is at the sole

discretion of the parties to the contract.” Newbury v. State Farm Fire & Cas. Ins. Co.,

2008 MT 156, ¶ 36, 343 Mont. 279, 184 P.3d 1021. An insurance agent owes a duty to

obtain the insurance coverage “which an insured directs the agent to procure.” Monroe,

¶ 32. The District Court found the Gundersons’ Complaint made no allegation they

directed CIA to procure them individual MP coverage or that CIA committed to providing

the Gundersons with individual MP coverage. We agree with the District Court.

¶27   For similar reasons, the Gundersons’ general claim of professional negligence for

CIA breaching its “duty to inform the principals of All Secure, Inc., Mervin Gunderson

and Patricia Gunderson regarding the limitations and exclusions that rendered Liberty

Mutual’s Medical Payments and Uninsured Motorist coverage illusory” also fails. We

have never recognized such a heightened duty of care—such as a requirement for an agent

to inform all scheduled drivers under a corporate insurance policy of any possible

exceptions and limitations they may personally have under the corporation’s policy when

they are not “insureds” at the time of an off-duty accident in their personal vehicles—and

the Gundersons do not put forth a good reason to adopt one now. See Monroe, ¶ 31.

                                           14
¶28   On appeal, the Gundersons further argue the District Court should have allowed

them leave to amend their Complaint rather than simply dismissing their claims against

CIA. A district court should freely allow amendment “when justice so requires.” M. R.

Civ. P. 15(a)(2). However, “[a] court may properly deny amendment of a pleading if the

proposed amendment would be futile as a matter of law.” Peeler v. Rocky Mountain Log

Homes Can., Inc., 2018 MT 297, ¶ 29, 393 Mont. 396, 431 P.3d 911 (citation omitted).

The District Court found leave to amend the Complaint would be futile. We agree. The

Gundersons merely made a conditional request to amend their complaint if the District

Court was going to dismiss its claims against CIA and did not include a proposed amended

complaint or explain what additional factual allegations they would make if allowed to

amend their complaint. The District Court correctly refused to “engage in a guessing

game” on the substance of the Gundersons’ requested amendment and did not abuse its

discretion by denying leave to amend the Complaint.

¶29   In conclusion, the All Secure policy was not ambiguous, the Gundersons were not

“insureds” under that policy at the time of Mervin’s accident, the policy’s MP and UM

coverage does not violate § 33-23-201, MCA, and the Gundersons failed to state a

cognizable claim against CIA. The District Court correctly granted both OCIC’s motion

for summary judgment and CIA’s motion to dismiss.

¶30   We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our

Internal Operating Rules, which provides for memorandum opinions. In the opinion of the




                                          15
Court, the case presents a question controlled by settled law or by the clear application of

applicable standards of review.

¶31    Affirmed.


                                                 /S/ INGRID GUSTAFSON


We concur:

/S/ MIKE McGRATH
/S/ LAURIE McKINNON
/S/ DIRK M. SANDEFUR
/S/ JAMES JEREMIAH SHEA




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