                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JUN 15 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


BREANNE WALDEN; et al.,                          No.   15-35870

              Plaintiffs-Appellants,             D.C. No. 9:13-cv-00222-DLC

 v.
                                                 MEMORANDUM*
MARYLAND CASUALTY COMPANY,

              Defendant-Appellee.


                    Appeal from the United States District Court
                            for the District of Montana
                    Dana L. Christensen, Chief Judge, Presiding

                             Submitted June 13, 2017**
                                Seattle, Washington

Before: D.W. NELSON, M. SMITH, and CHRISTEN, Circuit Judges.

      Plaintiffs appeal from the district court’s grant of summary judgment in

favor of Maryland Casualty Company. We have jurisdiction under 28 U.S.C.

§ 1291, and we affirm in part, reverse in part, and remand for further proceedings.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      We affirm the district court’s determination that Maryland Casualty did not

breach its duty to defend Dahl’s College of Beauty against plaintiffs’ complaint

and First Amended Complaint under Coverage B of the policy. As relevant,

Coverage B covered “personal and advertising injury” arising out of “[t]he

wrongful eviction from, wrongful entry into, or invasion of the right of private

occupancy of a room, dwelling or premises that a person occupies, committed by

or on behalf of its owner, landlord or lessor.” We see no error in the district

court’s application of the ordinary, common understanding that “eviction” involves

denying a possessory interest in real property, nor in its conclusion that Maryland

Casualty did not breach its duty to defend by failing to equate expulsions with

Coverage B “evictions.”

      In light of Employers Mutual Casualty Co. v. Fisher Builders, Inc., 371 P.3d

375 (Mont. 2016), the district court erred by concluding that the policy excluded

coverage for bodily injuries that were the unintended or unexpected consequences

of intentional acts. Although plaintiffs complained of only intentional acts, the

district court concluded: “Though Plaintiffs’ collective emotional distress, and the

physical manifestations accompanying it, was likely unforeseen and unintended by

the Dahl’s defendants, that is simply not the focus of the coverage analysis.”

Contrary to this ruling, Fisher explained that, under Montana law, an “occurrence”


                                           2
is excluded from coverage if: “1) the act itself was intentional, and 2) . . . the

consequence or resulting harm stemming from the act was intended or expected

from the actor’s standpoint.” Id. at 378 (emphasis added). In light of Fisher, we

reverse the district court’s October 7, 2015 order and remand for further

proceedings.

      AFFIRMED in part, REVERSED in part, and REMANDED.




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