                                            NO.    85-71

               I N THE SUPREME COURT O THE STATE O F MONTANA
                                      F

                                               1986




NEAL HEGGEN,

                P l a i n t i f f and A p p e l l a n t ,



MOUNTAIN WEST F R
               A M RUREAU M T A
                           UU L
INSURANCE COMPANY,

                D e f e n d a n t and R e s p o n d e n t .




APPEAL FROM:    District Court of t h e S i x t e e n t h J u d i c i a l D i s t r i c t ,
                I n a n d f o r t h e County o f F a l l o n ,
                The H o n o r a b l e A. B. M a r t i n , J u d g e p r e s i d i n g .


COUNSEL O RECOPJ):
         F


         For Appellant:

                H u n t l e y & E a k i n ; Gene H u n t l e y a r g u e d , B a k e r , Monta-na


         For Respondent:

                C r o w l e y , Haughey, Banson, T o o l e & D i e t r i c h ; H e r b e r t
                I. P i e r c e a r g u e d , B i l l i n g s , Montana
                L . R. C a z z e n s , B i l l i n g s , Montana




                                               Submitted:         ~ o v e m b e r1 4 , 1 9 8 5
                                                   Decided:       march 4 ,
                                                                         &
                                                                            18 1986

         &" 18 ;$&
Filed:   ---



                               a
                             e4%               Clerk
                                                              0
Mr. Justice Fred J. Weber delivered the Opinion of the Court.
        Neal Heggen appeals a judgment of the Fallon County
District Court which granted Mountain West Farm Bureau Mutual
Insurance Co. (Mountain West) a summary judgment.             The Dis-
trict Court ruled that George Eichhornls steer-roping con-
tests were a business pursuit, and as such, were excluded
from coverage under a policy of insurance relating to farm
operations.      We affirm.
        While Mr. Heggen raises three issues on appeal, we find
the following issue dispositive:
        Did the District Court err in ruling that the jackpot
steer-roping contests held by Mr. Eichhorn were a "business
pursuit" excluded      from insurance coverage, rather than a
spare     time   recreational     activity   within     the   insurance
coverage?
        George Eichhorn, a Baker, Montana resident, had worked
for the State of Montana as a brand inspector since 1962.            In
July 1973, he purchased a policy of insurance for his small
ranch from Mountain West.         The policy provided coverage for
accidental bodily injury to persons on the premises with the
permission of the insured.       However, it specifically excluded
from coverage all       "business pursuits."          The policy   also
provided that written notice of an accident was to be given
by the insured to Mountain West as soon as practicable, but
in no event to exceed 60 days.
        In 1975, Mr. Eichhorn constructed a roping arena on his
land.     He began holding jackpot steer-roping contests.           He
held three or four steer-roping contests in each of the years
1975, 1976 and 1977.          Nonprofessional cowboys and ranchers
participated in the contests and paid a $48 to $50 fee to
rope a certain number of cattle.             Mr.   Eichhorn reserved
approximately $300 to $400 from each contest, and the balance
of the fees were distributed to the winning ropers as prizes.
       After Mr. Heimbuch, the local agent for Mountain West,
had    observed that Mr. Eichhorn was constructing a roping
arena in 1975, he advised Mr. Eichhorn that the roping arena
and roping contests were not covered under the Mountain West
insurance policy.       Mr. Eichhorn testified that the agent made
it plain to him that he should have another policy to cover
the ropers.     He did not take any steps to get such a policy,
because of the cost.
       On July 23, 1977, Neal Heggen was permanently injured
when    his   horse    tripped    and   fell on   him   during one of
Mr. Eichhorn's contests.         Mr. Eichhorn was present on the day
of the accident and was aware that Mr. Heggen's injuries were
serious.      Mr. Eichhorn did not immediately notify Mountain
West of the accident, based in part on his belief that Mr.
Heggen would not sue him.           Mr. Heggen's attorney contacted
Mr. Eichhorn in the spring of 1980, and in July 1980, filed a
complaint against him.           Mr. Eichhorn notified Mountain West
and delivered a copy of the complaint to Mountain West.             In
turn, Mountain West advised Mr. Eichhorn they were not going
to defend him in the action, because the jackpot steer-roping
was a "business pursuit" and excluded from coverage, and
because Eichhorn failed to timely notify Mountain West pursu-
ant to the policy provisions.           Mr. Eichhorn allowed a default
judgment to be taken against him in the action brought by
Mr. Heggen.     On October 1, 1980, Mr. Heggen signed a covenant
not to execute on the judgment against Mr. Eichhorn, in
exchange      for an   assignment to Mr. Heggen of all of Mr.
Eichhorn's policy rights against Mountain West.            Mr. Heggen
then filed suit against Mountain West, alleging that the
insurance company wrongfully refused to defend Mr. Eichhorn
in the suit brought by Mr. Heggen and wrongfully refused to
pay Mr. Heggen any damages for personal injuries.
     Mountain West moved for summary judgment.         The District
Court entered summary judgment for Mountain West, holding
that " [t]he totality of the circumstances strongly indicate
that Eichhorn was engaged in a business pursuit excluded by
the policy."     Mr. Heggen argues that summary judgment was not
appropriate because there is a genuine issue of fact as to
whether the jackpot steer-roping contests were a busirress
pursuit.
            Eichhorn's insurance policy provides that " [t]his
policy does not apply      ...   to any business pursuits of an
Insured     . . ."   The policy defines "busi.n.ess" as follows:
       "Business" means trade,       profession   or
       occupation, other than:
           (a) farming
       (b) the operation of roadside stands
       maintained on the farm premises princi-
       pally for the sale of the produce raised
       thereon, or
       (c) newspaper    delivery,   babysitting,
       caddying, lawn care, and similar activi-
       ties ordinarily performed by minors, when
       the activity is not the principal occupa-
       tion of the Named Insured, and is not a
       full-time occupation of any insured.
     Montana has not specifically adopted criteria for deter-
mining what is a "business pursuit" for purposes of insurance
policy excl.usionary clauses.     Other jurisdictions, in their
definitions of "business pursuit," have addressed the idea. of
profit or profit motive, and most have required some 1-eve1 of
continuity or regularity of the activity.         See Annot., 48
A.L.R.3d    1096 (1973).
     The Supreme Court of Oklahoma has elaborated upon the
profit or profit motive element of a business pursuit as
follows:
        In a business pursuit the profit motive,
        or purpose of a profit, is important.
        Whether there is or is not actual profit
        is immaterial. Does a pursuit have to be
        successful from a profit standpoint
        before it is a business pursuit?     If a
        business suffers a loss, was it not a
        business?     The answers are obvious.
        Profit motive, not actual profit, makes a
        pursuit a business pursuit.
Wiley v. Travelers Insurance Company (1974 Okla.) , 534 P.2d
1.293, 1295.    That court found that a man who bred, raised,
and sold St. Bernard puppies part-time at his residence, in
addition to holding another full-time job, was engaged in a
business pursuit because of the presence of a profit motive.
There was testimony that he intended to retire and raise St.
Bernard puppies.           Wiley, 534 P.2d    at 1295.       The part-time
aspect of the dog operation did not prevent it from involving
a profit motive, and it was not necessary that the activity
result in actual net profits to possess a profit motive.                We
agree with the reasoning of the Oklahoma court and hold that
the presence of a profit motive is one characteristic of a
"business pursuit."
      The exclusionary provision in the insurance policy in
the Wiley case defined business, as does the present policy,
as "a trade, profession, or occupation."               Yet, the part-time
nature of Mr. Wiley's dog operation did not prevent it from
being a "business pursuit."          The Oklahoma Court distinguished
Mr. Wiley's business of raising, breeding, and selling St.
Bernard puppies from simply holding a family pet litter sale.
It    pointed   out    the     continuing     nature    of   Mr.   Wiley's
venture--he had extensively renovated a barn to serve as a
kennel and had done extensive fencing in his back yard.
FJiley, 534 P.2d      at 1295.       In contrast, some jurisdictions
require an activity to be the sole or primary occupation of
the    insured,       in     order    to     be   a     "continually    or
regularly-conducted activity."           See Brown v. Peninsular Fire
Ins. Co.        (Ga. 1984), 320 S.E.2d    208, 209.       We reject that
view.         The more expansive interpretation of regularity or
continuity in a. "business pursuit" is consistent with the
provision in Mr. Eichhorn's insurance policy that "business
       -
pursuits of an insured"         (emphasis added) are not covered.
We, as have others, hold that an activity which is continu-
ally or regularly conducted may be a business pursuit even
though it is not the primary occupation of the insured.               See
citations at Krings v.         Safeco Ins. Co. of America            (Kan.
1981), 628 P.2d 1.071, 1075.
        Mr.    Eichhorn's testimony, in a deposition which was
before the District Court when it considered the motion for
summary judgment, establishes a profit motive.                  From his
testimony, it is clear that he received something in the
vicinity of $1,200 to $1,500 each year from the fees paid on
the steer-roping contests.            He listed those amounts on his
income tax returns.        He listed a s expenses on his income tax
                                      .
returns the steers which he purchased for the steer-roping
and the hay which he fed the steers and the eight or ten
horses which were used in the steer-roping.               It is true that
he testified that his income tax return showed no profit, but
that appeared to be because he lost money on buying and
selling the steers.        We hold that Mr. Eichhorn's testimony on
the income and expenses, and his treatment of them on his
income tax returns, established a profit motive.
    Mr.        Eichhorn   testified    that   he   held   three or   four
steer-roping contests in each of the years 1975, 1976 and
1977.     Mr. Eichhorn also testified by deposition at length as
to the roping arena which he built in 1975.               It was a perma-
nent arena, with catch pen, return alley, timer's box, chutes
and bleachers.       He described the fence around the outside of
the arena as having posts which consist of railroad ties and
woven wire on the posts with a plank around the top of the
woven wire and a bumper pole in the middle, the fence being
five feet high.       The planks were 2" x 8".      There were two
sets of bleachers with three plank rows for each set.          The
total   capacity    of    the bleachers was    approximately forty
persons.   Mr. Eichhorn's testimony clearly establishes that
these steer-roping contests were held on a regular basis in a
permanently designed roping arena constructed expressly for
that purpose.       We hold that the evidence established that
there was a regular and continuous level of activity which
amounted to a business pursuit.
     A summary judgment is proper if the record discloses no
genuine issue of material fact.        Downs v. Smyck (1982), 200
Mont. 334, 344, 651 P.2d 1238, 1243.          There is no issue of
material fact which has been shown.        There is no contradic-
tion in the facts.       The question to be decided is whether the
testimony on behalf of the plaintiff, uncontradicted in any
aspect, is sufficient to establish that Mr.          Eichhorn was
engaged in a business pursuit.        We hold that Mr. Eichhorn's
own testimony establishes that there was a profit motive and
that he conducted the steer-roping contests on a regular and
continuing basis.        We affirm the District Court in its con-
clusion that Mr. Eichhorn was engaged in a business pursuit.
We therefore do not consider the other issues raised.
    Af firmed   .
Justices
Mr. Justice William E. Hunt, Sr., dissenting:


     The majority holds that as a matter of law jackpot
steer-roping contests are a business pursuit.                   I cannot
agree.    A business pursuit is characterized by continuity and
the existence of a profit motive.
        In the case at bar, the steer-roping contests were not
hel-d on a regular basis.         Three to four were held in the
summer of 1976, for example, but only one in the summer of
1980.      Throughout this period, Eichhorn continued in his
occupation    as   a   State Brand      Inspector.      While    Eichhorn
participated. in the contests held at his ranch, he did not
participate in all the contests held in the area.              There is a
genuine issue of fact whether this level of activity is
"continuous" enough to amount to a business pursuit.
     A     business    pursuit    is    also   characterized     by    the
existence of a profit motive.             As the majority correctly
points out, it is the motive to realize a profit and not the
actual realization of a profit that is the critical factor.
All the money Eichhorn collected from the participants in the
contests     was   awarded   to   the    contest     winners    with   the
exception of a small amount retained by Eichhorn to cover the
cost of feeding the stock.        Bleachers were sometimes erected
to accommodate spectators, but spectators were never charged
admission.     While Eichhorn listed the fees he collected and
the expenses he incurred from the contests on his income tax
returns, the majority's reliance on this fact is misplaced.
Income tax returns are a device to determine the amount of
tax owed to the governmert, and nothing more.             They are not
used to demonstrate financial worth or a profit motive.                Had
Eichhorn failed to report these items on his income tax
return, he would have been in violation of the law.                The fact
that he did report these items as required by law does not
evince a profit motive.
      Since this is an appeal from a summary judgment, all
reasonable inferences that can be dra.wn must be drawn in
favor of the losing party, Eichhorn.                  That being the case,
there is a genuine question whether Eichhorn was engaged in a
business pursuit, characterized by continuity and a profit
motive.         This question should have been decided by the jury,
and   not       by   the   trial   court upon    a    motion   for summary
j udqment   .



      Mr. Justice John C. Sheehy and Mr. Justice Fra.nk R .
hlorrison, Jr. join in the dissent of Mr. Justice William E.
Hunt, Sr.




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                                                .//     Justices
