Progressive Northwestern Insurance Company v. Jensen et al

Filing 34

ORDER denying 17 Motion for Summary Judgment; denying 24 Motion for Summary Judgment. Signed by Judge Dana L. Christensen on 2/23/2017. (ASG)

FILED
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MONTANA
MISSOULA DIVISION

FEB 23 2017
Clerk, U.S Diatrict Court
District Of Montana
Missoula

CV -16-29-M-DLC

PROGRESSIVE NORTHWESTERN
INSURANCE COMPANY,

ORDER

Petitioner,
vs.
SHAWNA JENSEN, MEGAN
COLLINS, LEONARD PIEDALUE
and WARREN JAMES,
Respondents.

Before the Court are the parties' cross-motions for summary judgment in
this declaratory judgment action. On August 17, 2016, Petitioner Progressive
Northwestern Insurance Company ("Progressive") filed its motion for summary
judgment, arguing that it has discharged its duties to Respondents. On September
27, 2016, Respondents Shawna Jensen, Megan Collins, Leonard Piedalue, and
Warren James responded to Progressive's motion and filed their cross-motion for
summary judgment, seeking entry of judgment in their favor. For the reasons
explained below, the Court denies each party's motion.

BACKGROUND
On the evening of August 27, 2015, Respondent Shawna Jensen was

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traveling west on Montana Highway 200 in her 2002 GMC Yukon when she
crossed the center line. On the other side of the dividing line was a dump truck
driven by Respondent Leonard Piedalue. As Piedalue moved toward the shoulder,
he felt the impact of Jensen's Yukon, "and then [he] was in the air." (Doc. 31 at
2.) Within a matter of moments, the Yukon struck a second vehicle, Respondent
Warren James's Ford F-150 Extended Cab, which was following Piedalue's dump
truck in the eastbound lane. Both Piedalue and James suffered extensive damages.
Petitioner Progressive insured Jensen's Yukon at the time of the collisions.
The policy in play provided liability coverage with limits of"$300,000 combined
single limit each accident" subject to the other terms and conditions of the
Progressive policy. The policy does not define "accident." Both Piedalue and
James have demanded a separate $300,000 limit. Following receipt of
Respondents' claims, Progressive accepted liability and paid a single limit of
$300,000 to be divided between Piedalue and James.
The parties dispute whether the collisions between Jensen's vehicle and
those driven by Piedalue and James constitute one accident or two. In addition to
the legal question of policy interpretation, some facts remain in dispute,
particularly: the time between the collisions, the location of the second collision,
and Jensen's actions and control of the Yukon between the collisions. The
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relevance of these disputes is discussed below.
LEGAL STANDARD
Summary judgment is appropriate when the moving party demonstrates that
"there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law." Fed. R. Civ. P. 56(a). To determine whether a
factual dispute is material, the Court looks to substantive law; "[o]nly disputes
over facts that might affect the outcome of the suit under the governing law will
properly preclude the entry of summary judgment." Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 251 (1986). In diversity cases, the Court applies the
substantive law of the forum state. Kabatoffv. Safeco Ins. Co. ofAm., 627 F.2d
207, 209 (9th Cir. 1980).
DISCUSSION
Petitioners argue that, under the unambiguous terms of the policy, only one
accident occurred, regardless of the specific facts in dispute. Respondents argue
both: (1) that the policy is ambiguous and should be construed in favor of
coverage; and (2) that under Montana insurance law, two accidents occurred. The
Court disagrees that the policy is ambiguous, but it determines that the question of
how many accidents occurred cannot be resolved without an adjudication of
relevant factual disputes.
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I.

Interpretation of the Term "Accident"
The parties dispute whether the term "accident" is ambiguous such that it

should be construed in favor of coverage. The Court agrees with Petitioner that
even if the term could be construed as ambiguous in other circumstances, that
ambiguity would be irrelevant to this Order.

"An ambiguity exists where the contract, when taken as a whole, is
reasonably subject to two different interpretations. Whether an ambiguity exists is
determined through the eyes of 'a consumer with intelligence but not trained in the
law or insurance business.'" Hardy v. Progressive Specialty Ins. Co., 67 P.3d
892, 896 (Mont. 2003) (internal citations omitted). Where an ambiguity exists, it
"must be construed in favor of the insured and in favor of extending coverage."
Id.
Here, the policy's insuring agreement states, "[Progressive] will pay
damages for bodily injury and property damage for which an insured person
becomes legally responsible because of an accident." (Doc. 1-1 at 2.) The policy
does not define the term "accident," but the use of the singular indefinite article
"an" clearly demonstrates that whatever an accident is, one accident triggers
Progressive's duties under the policy.
Respondents cite to Ike v. Jefferson National Life Insurance Co. for the
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proposition that the Montana Supreme Court views the term "accident" as
ambiguous. 884 P.2d 471, 476 (Mont. 1994). Even accepting Respondents'
reading of Ike, however, does not lead to a determination that "accident" is
ambiguous in the circumstances presented. In Ike, the question was whether a
death was accidental under a life insurance policy when the deceased died from
pulmonary aspiration of vomit and the insurer produced no evidence that the death
was caused by the use of alcohol-in which case, under the terms of the policy, it
would not have been accidental. Id. at 4 72-73. Here, the issue is simply whether
there was one accident or two, and the fact that the policy does not define the term
has no bearing on its resolution.
In fact, a different Montana case resolves Respondent's claim that the
ambiguity of the term "accident" entitles them to summary judgment. In Infinity

Insurance Co. v. Dodson, the Montana Supreme Court wrote that "a reasonable
person in the position of an insured would understand that the term 'accident' as
used throughout the policy refers to a singular event where bodily injury or
property damage results from the ownership, maintenance, or use of a vehicle." 14
P.3d 487, 493 (Mont. 2000) (emphasis added). Infinity is not squarely on point,
and it does not resolve the dispute between the parties. However, it reinforces that
the issue is not one of policy interpretation.
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II.

Number of Accidents Involved

The ultimate issue is whether one or two accidents occurred. Petitioner
argues that only one accident occurred because the two collisions had only one
cause-Jensen crossing the center line. Respondents assert that the relationship
between the two collisions is more attenuated. The Court determines that each
party is correct in arguing that the other party has not met its burden on summary
judgment. A question of fact remains-what caused the second collision?
The parties' arguments center on three cases. American National Property
& Casualty Co. v. Stirling, decided by this Court in 1999, is the most factually

similar, and it favors Respondents. 28 Mont. Fed. Rpt. 149 (D. Mont. 1999).
Petitioner, on the other hand, leans heavily on Crow v. Safeco Insurance Co. of
Illinois, which-though distinguishable on the facts-is more recent, having been

decided in 2013. No. CV 12-71-M-DLC, 2013 WL 989822 (D. Mont. March 13,
2013). Most importantly, a Montana Supreme Court case, Heggem v. Capitol
Indemnity Corp., decided in 2007, explains the difference between Stirling and
Crow and provides the framework the Court must use to analyze the parties'

arguments. 154 P.3d 1189 (Mont. 2007).
Under Montana law, the number of accidents that occurred depends on what
event or events caused the collisions. See Heggem v. Capitol Indem. Corp., 154
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P.3d at 1195. Montana has joined the majority of states "in interpreting the term
'occurrence' in liability policies which limit the insurer's liability to a specified
amount per 'occurrence'" by "view[ing] it from the perspective of
causation-referring to the cause or causes of the damage or injury-and not the
number of injuries or claims." Id. Respondents argue that Heggem should not
apply because it is factually inapposite and because the policy-not Montana
law-should guide the Court's decision. Although the facts of Heggem are indeed
distinguishable, Montana's adoption of the cause theory cannot be distinguished
away. 1 The Court is bound to apply Montana law.
Respondents argue that Heggem should have no bearing on the applicability
of Stirling. Stirling involved strikingly similar facts: a driver crossed the
centerline before striking two separate vehicles in rapid succession, and the issue
was whether there was one "occurrence" or two. 25 Mont. Fed. Rpt. at 15 0-51.
This Court determined that there had been two separate occurrences, largely
because it found that the policy was ambiguous as to the meaning of the term

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Respondents have also suggested that Heggem is inapplicable in part because the issue
here involves a definition of the term "accident" rather than an "occurrence." This argument is
unsuccessful. In Heggem, the term "occurrence" was defined as "an accident." 154 P.3d at
1193-94; see also Crow, 2013 WL 989822, at *3 ("Although the policy at issue in Heggem was
an occurrence-based policy, unlike [the policy in Crow], this distinction is not dispositive ....
[C]ourts have equated the terms 'accident' and 'occurrence' when faced with precisely this
issue.").

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"occurrence." Id. at 150-57. Although Stirling's factual similarity would make it
a useful guide, Montana law has changed meaningfully since it was decided. See

Crow, 2013 WL 989822, at *3 ("Crow's argument that [Stirling] controls also fails
because Montana adopted the cause theory in Heggem after Stirling was
decided.").
Thus, the issue is narrowed to whether, as Petitioner argues, both accidents
share a single cause-Jensen's crossing over the center line. Neither Montana nor
this Court has decided a factually similar case following Heggem. Heggem itself
involved a child's death triggered by a fatal dose of diphenhydramine; the
Montana Supreme Court rejected the arguments of the child's parents that there
were multiple occurrences because all alleged injuries were caused by the child's
death. 154 P.3d at 1196-97. The facts of Crow are a little more complicated, but
the case is similar to Heggem in that multiple injuries were caused by what was
clearly a single event. In Crow, the insured driver struck a car driven by Michael
Crow, the plaintiff; six days later Crow struck a separate vehicle. Crow alleged
that the first accident resulted in a head injury, causing the second accident. 2013
WL 989822, at * 1.
Neither Crow nor Heggem is factually analogous. Here, the parties disagree
whether it was inevitable that Jensen would eventually strike James when she
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initially crossed over into the lane of oncoming traffic. Unlike the unsuccessful
parties in Heggem and Crow, Respondents have not alleged that all injuries were
caused by a single event. Remaining factual disputes are relevant to the question
of whether the two collisions constituted a single accident or two separate
accidents. Particularly important is the issue of whether, at the time of the second
impact, Jensen had some level of command over the Yukon-as Respondents
claim-or had been thrown into the passenger seat-as Petitioner argues. Each
party has produced some evidence supporting its theory, and the Court cannot
determine which is correct without infringing upon the province of the jury. A
factual dispute remains, and neither party is entitled to summary judgment.
Accordingly, IT IS ORDERED that
(1) Petitioner's Motion for Summary Judgment (Doc. 17) is DENIED; and
(2) Respondents' Motion for Summary Judgment (Doc. 24) is DENIED.
Dated this z.3v-Lday of February, 201 .

Dana L. Christensen, Chief Judge
United States District Court

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