                                                                           FILED
                           NOT FOR PUBLICATION                             NOV 12 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


THERESA JOSEPH and LEAH JOSEPH,                  No. 12-35659

              Plaintiffs - Appellants,           D.C. No. 9:11-cv-00109-DWM-
                                                 JCL
  v.

WALTER WILMERDING, in his                        MEMORANDUM*
fiduciary capacity and in his individual
capacity,

              Defendant - Appellee.


                    Appeal from the United States District Court
                            for the District of Montana
                    Donald W. Molloy, District Judge, Presiding

                          Submitted November 7, 2013**
                                Portland, Oregon

Before: M. SMITH and HURWITZ, Circuit Judges, and PRO, Senior District
Judge.***



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable Philip M. Pro, Senior District Judge for the U.S.
District Court for the District of Nevada, sitting by designation.
      Plaintiffs-Appellants Theresa and Leah Joseph appeal from the district

court’s order granting Defendant-Appellee Walter Wilmerding’s motion for

summary judgment. The Josephs challenge the district court’s conclusions that (1)

Wilmerding did not have a duty under Montana law to purchase homeowner’s

insurance for the Josephs’ benefit; and (2) Wilmerding did not have a duty under

Montana law to repair the home after the fire for the Josephs’ benefit. Because the

parties are familiar with the facts and procedural history of this case, we repeat

only those facts necessary to resolve the issues raised on appeal. We affirm.

      Under Montana law, “[t]o maintain an action in negligence, the plaintiff

must prove four essential elements: duty, breach, causation, and damages.” Fisher

v. Swift Transp. Co., 181 P.3d 601, 606 (Mont. 2008) (citing Eklund v. Trost, 151

P.3d 870, 878 (Mont. 2006)). In determining whether a duty exits, courts consider

“whether the imposition of that duty comports with public policy, and whether the

defendant could have foreseen that his conduct could have resulted in an injury to

the plaintiff.” Id. (citing Henricksen v. State, 84 P.3d 38, 45–46 (Mont. 2004)).

“The policy considerations weighed to determine whether to impose a duty

include: (1) the moral blame attached to the defendant’s conduct; (2) the desire to

prevent future harm; (3) the extent of the burden to the defendant and the

consequences to the community of imposing a duty to exercise care with resulting


                                           2
liability for breach; and (4) the availability, cost[,] and prevalence of insurance for

the involved.” Henricksen, 84 P.3d at 46 (quoting Estate of Strever v. Cline, 924

P.2d 666, 670 (Mont. 1996)).

      Wilmerding was not negligent in failing to purchase homeowner’s insurance

because he had no duty to do so. The failure to purchase insurance creates

foreseeable risks for the homeowner, not for third parties. Wilmerding’s failure to

purchase insurance was not morally blameworthy, nor would it have prevented

future harm. Henricksen, 84 P.3d at 46. And imposing such a duty would impose

a costly burden on homeowners outweighing any benefits to third parties. Id.

      Similarly, Wilmerding had no duty to repair the home. The Josephs have

waived any argument that Wilmerding’s power to evict them was limited by

principles of promissory estoppel or Montana landlord-tenant law. See United

States v. Wahchumwah, 710 F.3d 862, 868 n.2 (9th Cir. 2013). Because

Wilmerding could have evicted the Josephs at any time, his failure to make repairs

was not morally blameworthy. Nor would imposing a duty to repair the home

prevent future harm.

      For the foregoing reasons, the district court properly granted Wilmerding’s

motion for summary judgment.

      AFFIRMED.


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