Liberty Mutual Insurance Co. v. Continental Resources, Inc. , 501 F. App'x 626 ( 2012 )

FILED
NOT FOR PUBLICATION DEC 18 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
LIBERTY MUTUAL INSURANCE CO., No. 11-35687
Plaintiff - Appellant, D.C. No. 1:10-cv-00035-RFC
v.
MEMORANDUM *
CONTINENTAL RESOURCES, INC.,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Montana
Richard F. Cebull, Chief District Judge, Presiding
Argued and Submitted November 8, 2012
Seattle, Washington
Before: W. FLETCHER and FISHER, Circuit Judges, and TUCKER, District
Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Josephine Staton Tucker, United States District Judge
for the Central District of California, sitting by designation.
Liberty Mutual Insurance Company (“Liberty Mutual”) appeals the district
court’s decision granting summary judgment in favor of Continental Resources, Inc.
(“Continental”) and declaring that Liberty Mutual has a duty to protect, defend, and
indemnify Continental as an additional insured against a wrongful death claim
brought in Montana state court by an employee of Liberty Mutual’s insured,
Pioneer Drilling Services (“Pioneer”). Liberty Mutual also appeals the denial of its
cross-motion for summary judgment. We affirm.
We review de novo the grant or denial of summary judgment. Padfield v.
AIG Life Ins. Co., 290 F.3d 1121, 1124 (9th Cir. 2002). We also review de novo the
insurance policy and the underlying contract between Pioneer and Continental, and
we apply Montana law to the substantive issues of the case. See Fed. Ins. Co. v.
Scarsella Bros., 931 F.2d 599, 602 (9th Cir. 1991); Aceves v. Allstate Ins. Co., 68
F.3d 1160, 1163 (9th Cir. 1995).
Although Montana’s Workers’ Compensation Act (the “Act”) prohibits
indemnity agreements by employers, we conclude that it does not prohibit an
employer’s agreement to provide liability insurance that will protect, defend, and
indemnify a third party. Compare Raisler v. Burlington N. R.R. Co., 717 P.2d 535,
544 (Mont. 1985) (holding that the Act bars enforcement of express contractual
indemnity by a third party against an employer), with United Nat’l Ins. Co. v. St.
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Paul Fire & Marine Ins. Co., 214 P.3d 1260, 1266-67, 1269 (Mont. 2009)
(enforcing an insurance policy incorporating a contractual indemnity obligation
between a subcontractor and a contractor that would be unenforceable as a direct
indemnity obligation under the Montana Scaffolding Act). Accordingly, the district
court correctly concluded that Pioneer’s agreement to insure Continental is not
invalidated by the Act, and the wrongful death claim is covered by the policy.
Liberty Mutual further contends that Pioneer did not clearly agree to
indemnify Continental for Continental’s negligence under the terms of the contract.
The contract requires Pioneer to provide liability insurance for Continental “without
limit and without regard to . . . the negligence of any party or parties.” Clear and
unequivocal contract language that indemnifies a party for its negligence is
enforceable under Montana law. See Slater v. Cent. Plumbing & Heating Co., 912
P.2d 780, 782 (Mont. 1996). The district court correctly concluded that the
agreement was clear. See Ryan Mercantile Co. v. Great N. Ry. Co., 294 F.2d 629,
633 (9th Cir. 1961) (holding that, under Montana law, a contract indemnifying a
third party for “any and all personal injuries . . . of every name and nature which
may in any manner arise . . . whether due or not due to the negligence of [the third
party]” unambiguously indemnified the third party for the third party’s negligence
(internal quotation marks omitted)); Sweet v. Colborn Sch. Supply, 639 P.2d 521,
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523 (Mont. 1982) (distinguishing an ambiguous contract from the clear and
unequivocal language in Ryan Mercantile Co.). Accordingly, the district court
properly granted Continental’s motion for summary judgment and denied Liberty
Mutual’s motion for summary judgment.
AFFIRMED.
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