Jarecke v. American National Property and Casualty Company

Filing 26

ORDER. Plaintiff's Motion for Partial Summary Judgment on Liability for the Auto Accident 7 is DENIED. Signed by Magistrate Carolyn S Ostby on 2/18/2014. (cp) (NOB)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
BILLINGS DIVISION
SHADYA JARECKE,

CV 13-146-BLG-CSO

Plaintiff,
ORDER
vs.
AMERICAN NATIONAL
PROPERTY AND CASUALTY
COMPANY,
Defendant.
Plaintiff Shadja Jarecke (“Jarecke”) brings this action against
American National Property and Casualty Co. (“ANPAC”) alleging two
counts. Count 1 alleges a violation of Montana’s Unfair Trade Practices
Act (“UTPA”), §§ 33-18-201 et. seq., for failure to properly pay
underinsured motorist (“UIM”) coverage benefits. Count 2 alleges that
ANPAC acted with malice. See Complaint (ECF 4)1 at 3.
Now pending is Jarecke’s Motion for Partial Summary Judgment.
ECF 7. For the reasons explained below, the Motion will be denied.

1

“ECF” refers to the document as numbered in the Court’s
Electronic Case Files. See The Bluebook, A Uniform System of Citation,
§ 10.8.3.
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I.

BACKGROUND
Jarecke alleges that she was seriously injured when an

underinsured motorist, Billie Jo Scheetz (“Scheetz”), unlawfully struck
Jarecke’s vehicle as Jarecke was making a lefthand turn in an
intersection in Billings, Montana. ANPAC issued medical payments to
Jarecke of $6,000 but, according to the Complaint, refused to pay
underinsured motorist coverage limits. ECF 4 at 2. In its answer,
ANPAC admits that the accident occurred and that Jarecke had a
policy that included UIM coverage, but denies that it violated the
UTPA and denies that it acted with malice.
At issue here is ANPAC’s second affirmative defense, which
alleges: “Plaintiff is subject to all defenses that Billie Jo Scheetz could
have asserted had Plaintiff sued Ms. Scheetz, including contributory
negligence and failure to mitigate damages.” ECF 5 at 4, ¶ 2.
II.

PARTIES’ ARGUMENTS
Jarecke moves for partial summary judgment on liability for the

auto accident. ECF 7. In her supporting brief, Jarecke argues that
because Sheetz pled guilty to careless driving, Montana law prohibits
ANPAC from contending that Jarecke is at fault. ECF 8 at 4. Jarecke

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also relies on a witness statement that Sheetz was traveling at a high
rate of speed, evidence regarding the damage to Jarecke’s vehicle, and
the investigating officer’s report. Jarecke acknowledges that M.C.A. §
61-8-340 provides that a person turning left across traffic must yield to
oncoming traffic, but submits that this statute expressly applies only to
oncoming traffic that is within the intersection or “close enough to the
intersection to constitute an immediate hazard.” Id. at 9. Jarecke
argues that she was entitled to assume that Sheetz would obey
speeding laws and that the accident would not have occurred had
Sheetz been traveling at a legal speed. Id. at 10.
ANPAC responds that Jarecke, to establish entitlement to UIM
coverage, must prove that Sheetz, the other driver, was at fault for the
accident and that the amount Jarecke is entitled to recover exceeds the
available limits of Scheetz’s policy and the amounts previously
forwarded by ANPAC. ECF 21 at 1-2. ANPAC further argues that it is
entitled to rely on any of Scheetz’s defenses to liability, including that
Jarecke bears some of the liability for the accident. Id. at 2. ANPAC
concludes that this Court may not determine as a matter of law that
Jarecke bears no liability for the accident, because such determination

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is properly a jury function. Id. at 2, 13.
III. LEGAL STANDARD
Fed. R. Civ. P. 56(a) provides for summary judgment “when the
movant shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.” One
primary purpose of Rule 56 is to dispose of factually unsupported
claims or defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24
(1986). Rule 56(a) also allows a court to grant summary adjudication
on part of a claim or defense.
“[A] party seeking summary judgment always bears the initial
responsibility of informing the district court of the basis for its motion,
and identifying those portions of ‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if
any,’ which it believes demonstrate the absence of a genuine issue of
material fact.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).
Material facts are those which may affect the outcome of the case.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as
to a material fact is genuine if there is sufficient evidence for a
reasonable fact-finder to return a verdict for the nonmoving party. Id.

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If the moving party meets its initial responsibility, the burden
then shifts to the opposing party to establish that a genuine issue as to
any material fact actually does exist. Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586 (1986). In attempting to
establish the existence of this factual dispute, the opposing party may
not rely upon the denials of its pleadings, but is required to tender
evidence of specific facts in the form of affidavits, and/or admissible
discovery material, in support of its contention that the dispute exists.
Fed. R. Civ. P. 56(c); Matsushita, 475 U.S. at 586, n.11. In ruling on a
motion for summary judgment, the evidence of the nonmovant is to be
believed, and all justifiable inferences are to be drawn in the
nonmovant’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. at 255.
To establish the existence of a factual dispute, the opposing party
need not establish a material issue of fact conclusively in its favor. It is
sufficient that “the claimed factual dispute be shown to require a jury
or judge to resolve the parties’ differing versions of the truth at trial.”
T.W. Elec. Serv., Inc. v. Pacific Elec. Contractors Ass'n, 809 F .2d 626,
631 (9th Cir. 1987). Thus, the “purpose of summary judgment is to
pierce the pleadings and to assess the proof in order to see whether

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there is a genuine need for trial.” Matsushita, 475 U.S. at 587
(quotation omitted).
The United States Supreme Court has recently noted that the
standard for avoiding summary judgment is a “relatively lenient
standard.” Amgen v. Connecticut Retirement Plans and Trust Funds,
133 S.Ct. 1184, 1203 (2013). This is particularly true in negligence
actions where particular deference has been accorded the jury in light
of its role in applying the reasonable person standard to a given fact
situation. See Wright, Miller & Kane Federal Practice and Procedure
Civil 3d § 2729.
IV.

ANALYSIS
Jarecke argues that “summary judgment is appropriate on the

issue of liability, leaving solely the damage issues for determination by
the trier of fact.” ECF 8 at 3. But this action is not a negligence action;
it is a UTPA action. Jarecke has not set forth the elements of her
UTPA action or made any argument why the Court must grant
summary judgment on UTPA liability. Instead, Jarecke disputes that
ANPAC may contest liability “for the accident” and questions ANPAC’s
affirmative defense of contributory negligence. ECF 8 at 2. Therefore,

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the Court believes that the question is more properly framed as follows:
Is there any genuine issue of material fact regarding the contributory
negligence of Jarecke? This focuses the analysis not exclusively on the
facts indicating that Sheetz was negligent but also on the question of
whether any evidence exists to support a claim that Jarecke was also
negligent. If so, then that is a question a jury must resolve, not this
Court.
The Court finds that fact issues preclude summary judgment on
the contributory negligence defense. For example, M.C.A. § 61-8-340
provides that a driver intending to turn left must yield to any vehicle
approaching from the opposite direction that is “close enough to the
intersection to constitute an immediate hazard.” Whether Sheetz was
close enough to constitute an immediate hazard is a question of fact.
Witnesses to the accident, such as Calvin Phillips (ECF 8-1 at 3),
apparently saw the Sheetz vehicle moving very fast. It is a question of
fact whether Jarecke did see or also could have seen the vehicle
approaching quickly had she been keeping a proper lookout.
Jarecke argues that she is entitled to presume that others are
obeying the law, citing the Montana Pattern Instruction No. 2.04. Even

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assuming that this is a proper citation to controlling Montana
authority, it is inconclusive because the instruction provides: “In the
absence of a reason to think otherwise, it is not negligent for a person to
fail to anticipate an injury which can result only from another’s
violation of the law or failure to use reasonable care.” M.P.I. 2.04
(emphasis added). Also, it has been held that Montana’s statute
requiring drivers making left turns to yield to other traffic may apply
even if that other traffic is itself violating the law. Bellon v. Heinzig,
347 F.2d 4, 6 (9th Cir. 1965) (noting “one is never excused from
exercising ordinary care, and may not assume that another will obey
the law when in the exercise of ordinary care it would be apparent that
the other will not”).
Under Montana’s comparative negligence statute, contributory
negligence does not bar recovery of damages for negligence resulting in
injury but may diminish recovery of damages in proportion to the
percentage of negligence attributable to the person recovering. M.C.A.
§ 27-1-702. Therefore, recognizing the strong evidence2 that Sheetz

2

ANPAC’s counsel is simply wrong in representing to the Court
that Sheetz’ guilty plea is inadmissible. ECF 21 at 7. The case that is
cited in support of this erroneous statement, Hart-Anderson v. Hauck,
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was negligent does not end the inquiry. In Hart-Anderson v. Hauck,
781 P.2d 1116, 1118 (Mont. 1989), the Montana Supreme Court
reaffirmed its prior holding that the defense of contributory negligence
on plaintiff’s part (here Jarecke) is available to a defendant (here,
ANPAC standing in the shoes of Sheetz) who has violated a traffic
statute. The Court wrote: “It is for the fact finder to determine the
comparative degree of negligence on the part of plaintiff and
defendant.” Id. (quoting Reed v. Little, 680 P.2d 937, 940 (Mont. 1984)).
Similarly, in Tonner v. Cirian, the Montana Supreme Court reversed a
summary judgment order in a negligence action, reaffirming that even
a “favored driver cannot ignore obvious dangers by blindly relying on
her right-of-way ... but instead must maintain a proper lookout and use
reasonable care.” 291 P.3d 1182, 1186 (Mont. 2012).
On the record before the Court, it cannot be determined as a

781 P.2d 1116, 1119 (Mont. 1989) holds only that issuance of a criminal
citation is inadmissible because it is “irrelevant and prejudicial.” Id.
That case did not address the admissibility of a guilty plea – unlike
New Hampshire Ins. Group v. Strecker, 798 P.2d 130, 131-132 (Mont.
1990), which held that a guilty plea “may be introduced in the
subsequent civil action as an admission.” Counsel is reminded that
effective advocacy demands thoroughness and accuracy in all
representations.
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matter of law that Jarecke was not contributorily negligent to any
degree. For example, the Court is not qualified to examine the damage
to the vehicle and draw conclusions of relative negligence. Such a
determination generally requires expert testimony. See Wheaton v.
Bradford, 300 P.3d 93, 98-99 (Mont. 2013). Although the Court is
mindful of Jarecke’s statement that she was so badly injured in the
accident that she has no memory of it, the Court has before it little
information regarding her conduct prior to the accident. Finally, the
duty to weigh the facts and the credibility of witness belongs to the
jury. As noted in Tonner, “it falls upon ‘the factfinder to determine the
comparative degree of negligence on the part of plaintiff and
defendant.’” 291 P.3d at 1187 (quoting Reed, 680 P.2d at 940).
V.

CONCLUSION
For the reasons set forth above, IT IS HEREBY ORDERED that

Plaintiff’s Motion for Partial Summary Judgment on Liability for the
Auto Accident (ECF 7) is DENIED.
DATED this 18th day of February, 2014.
/s/ Carolyn S. Ostby
United States Magistrate Judge

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