Kohler v. Keller

January 12 2016
DA 12-0600
Case Number: DA 12-0600
IN THE SUPREME COURT OF THE STATE OF MONTANA
2016 MT 11N
RONALD L. KOHLER and BARBARA J. KOHLER,
husband and wife; THOMAS F. JONES and
RITA A. JONES, husband and wife; DENNIS A. ARNOLD
and GERALDINE N. ARNOLD, husband and wife;
and DEBRA L. SYKES,
Plaintiffs and Appellees,
v.
KELLER TRANSPORT, INC.;
WAGNER ENTERPRISES, LLC;
AND DOES 1-10,
Defendants.
WESTCHESTER SURPLUS
LINES INSURANCE COMPANY,
Appellants.
APPEAL FROM: District Court of the Twentieth Judicial District,
In and For the County of Lake, Cause No. DV 09-1
Honorable Jeffrey H. Langton, Presiding Judge
COUNSEL OF RECORD:
For Appellants:
Jonathan D. Hacker (argued), O’Melveny & Myers LLP; Washington,
District of Columbia
Allan H. Baris, Moore, O’Connell & Refling, P.C.; Bozeman, Montana
Robert J. Slavik, Cozen O’Connor; Seattle, Washington
For Appellee Debra L Sykes:
Trent N. Baker, Datsopoulos, MacDonald, & Lind, PC; Missoula,
Montana
For Appellees Tom and Rita Jones, Ronald and Barbara Kohler, and
Dennis and Geraldine Arnold:
Roger M. Sullivan (argued), McGarvey, Heberling, Sullivan & McGarvey,
PC; Kalispell, Montana
Timothy M. Bechtold, Beachtold Law Firm PLLC; Missoula, Montana
Alan J. Lerner, Lerner Law Firm; Kalispell, Montana
For Amici Montana Trial Lawyers Association:
John L. Amsden, Beck & Amsden, PLLC; Bozeman, Montana
Argued: September 11, 2015
Submitted: September 16, 2015
Decided: January 12, 2016
Filed:
__________________________________________
Clerk
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Justice Jim Rice delivered the Opinion of the Court.
¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating
Rules, this case is decided by memorandum opinion and shall not be cited and does not
serve as precedent. Its case title, cause number, and disposition shall be included in this
Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana
Reports.
¶2 Westchester Surplus Lines Insurance Company (Westchester) appeals from an
order by the Twentieth Judicial District Court, Lake County, which denied Westchester’s
motion to intervene to contest the reasonableness of a stipulated judgment entered
between its insureds, Defendants Keller Transport, Inc. (Keller) and Wagner Enterprises,
LLC (Wagner), and the Plaintiffs (Homeowners). We affirm.
¶3 The factual and procedural background of this matter is fully set forth in our
opinion in Westchester Surplus Lines Insurance Company v. Keller Transport, Inc., 2015
MT 6, ___ Mont.___, ___ P.3d ___. 1 Briefly, in April 2008, Keller leased a tanker truck
from Wagner to transport gasoline to Kalispell, Montana. On Highway 35, adjacent to
Flathead Lake, the truck’s trailer traveled off the road, overturned, and spilled 6,380
gallons of gasoline. The gasoline flowed underneath the highway and beneath
Homeowners’ properties. Homeowners initiated a tort action against Keller and Wagner
in Lake County.
1
These two cases were consolidated for purposes of oral argument only. See Order, July 22,
2015.
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¶4 Keller and Wagner were insured by Carolina Casualty Insurance Company (CCIC)
under the same Commercial Transportation Policy. Keller and Wagner also had an
excess insurance policy issued by Westchester. In late 2008, CCIC exhausted what it
believed to be the limits of its policy and referred the defense of the matter to
Westchester. Westchester undertook the defense until it exhausted what it believed to be
the limits of its excess policy, at which point it referred the case back to CCIC. CCIC
agreed to resume the defense. There was a brief delay before defense payments were
re-initiated by CCIC. Months later, CCIC filed a declaratory action in Missoula County
seeking a determination of the duties of CCIC and Westchester to Keller and Wagner.
Homeowners then made claims that asserted there was additional coverage under both of
the policies. CCIC and Westchester pled this coverage question in the declaratory action.
Later, months after payments for defense of Keller and Wagner in this action were
re-initiated, Homeowners entered stipulated judgments with Keller and Wagner in the
amount of $13,066,474, in which Homeowners agreed to “limit collection by any legal
means only upon and against” Keller’s and Wagner’s insurers.
¶5 CCIC and Westchester then moved to intervene in this action, arguing they had a
right to a reasonableness determination of any damage award. The District Court issued
an order stating it would not rule on the insurers’ motion to intervene until the coverage
issue had been determined in the Missoula County declaratory judgment action. The
District Court in the declaratory judgment action held that both policies provided
additional coverage, and that Westchester had breached its duty to defend. The District
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Court in this action then dismissed CCIC’s and Westchester’s motion to intervene,
holding they were liable for the entire confessed judgment. Westchester timely appealed
that order. CCIC has since settled all of its claims with Homeowners.
¶6 An issue is moot if the issue presented at the outset of the action has ceased to
exist. Progressive Direct Ins. Co. v. Stuivenga, 2012 MT 75, ¶ 17, 364 Mont. 390, 276
P.3d 867. “Mootness is a threshold issue which we must resolve before we may address
the substantive merits of a dispute.” Stuivenga, ¶ 17 (citation omitted).
¶7 Whether the District Court abused its discretion in denying Westchester’s motion
to intervene has been mooted by our decision in Westchester. There, we held that
Westchester did not breach the duty to defend and was not liable for the stipulated
judgment. Westchester, ¶ 33. Therefore, Westchester no longer has an interest in
intervening in this action to determine the reasonableness of a judgment for damages to
which it is not bound.
¶8 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of
our Internal Operating Rules, which provides for unpublished opinions. This appeal
presents no constitutional issues, no issues of first impression, and does not establish new
precedent or modify existing precedent.
¶9 Affirmed.
/S/ JIM RICE
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We concur:
/S/ MIKE McGRATH
/S/ JAMES JEREMIAH SHEA
/S/ PATRICIA COTTER
/S/ LAURIE McKINNON
/S/ MICHAEL E WHEAT
/S/ BETH BAKER
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