INSURANCE: Only “false conflict” between Utah and Montana law as to “arising out of” in context of duty to defend, Montana law applied to CGL/umbrella policies covering Utah entity that provided services to Montana residential youth program… complaint drew causal connection between services provided from Utah and suffering/suicide of teen in Montana, insurer breached duty to defend, liable for $3 million consent judgment… Christensen.

Karlye Newman, 16, committed suicide 10/4/04 at Spring Creek Lodge in Sanders Co., a “tough love” behavior modification residential program for youth. Her mother Judith sued multiple defendants including National Contract Services in State Court for, inter alia, wrongful death/survivorship, alleging that National was one of a large web of interlocking companies run by Robert Lichfield. She alleged that National purported to provide services to Spring Creek including marketing, promotion, admissions, support, academic course routine, curriculum, manuals, and training outlines. She alleged that many of National’s services including misleading marketing, wrongful admission, poor educational services, and negligent training contributed to Karlye’s suffering and death. National was an insured under United Fire & Casualty CGL and Commercial Umbrella policies. United asserted that under the CGL Designated Premises Endorsement there was no coverage and no duty to defend. It declined to attend a mediation where National settled with Newman. The settlement awarded judgment for $3 million policy limits and assigned all of National’s 1st-party claims it might have against United to Newman. Newman, as 3rd-party beneficiary — a 1st-party insured under the assignments — sued United for breach of contract for refusing to defend and for declaratory judgment. The parties request summary judgment.

United contends that under Tucker (Mont. 2009), Utah law applies for determining liability as to breach of the duty to defend. Newman counters that the applicable general principles of insurance law are the same in Montana and therefore the Court should apply the law of the forum state. Modroo (Mont. 2008). If the laws and interests of the concerned states are not in conflict, there is a “false conflict” or no conflict at all. 15A CJS Conflict of Laws. If the laws of both states are the same or would produce the same decision, there is no real conflict. Shutts (US 1985). A false conflict exists where application of either state’s law is substantially the same. Mowrer (Mont. 1999); Modroo. United’s sole basis for asserting that there is conflict of law relates to “arising out of” in both policies. Newman contends that, absent a policy definition, the phrase is inherently ambiguous in an insurance contract under Montana law. Pablo (Mont. 2000). United contends that it is unambiguous in the insurance context under Utah law, NFU (Utah 1978). The problem is that even under United’s preferred Utah version, “arising out of” has a “very broad, general and comprehensive” meaning. Id. It is “commonly understood to mean originating from, growing out of, or flowing from,” and sufficient to show that something arises out of something else if one thing is in any way “linked to” another. Id. Under both Utah and Montana law, the exclusion must be strictly construed and in favor of the insured. The Court concludes under either interpretation of “arising out of,” the result is the same. There is only a false conflict, and the Court will apply Montana law.

United based its decision to decline to defend or indemnify National on the CGL endorsement which limited coverage to “bodily injury, property damage, and advertising injury arising out of the ownership, maintenance or use of the premises [at 158 W. 1600 S. #15, St. George, UT 84770] and operations necessary or incidental to those premises.” It provided no analysis in its letter declining a defense as to why National was not entitled to a defense under the umbrella. It continues to base its defense on the endorsement. It contends that the endorsement — “Limitation of Coverage to Designated Premises” — is not an exclusion, but “pertains to coverage.” It provides no citation for this, and the Court rejects it. It clearly serves to limit coverage, and thus constitutes an exclusion that must be strictly construed against the insurer. Leibrand (Mont. 1995). The Court must decide whether United has unequivocally demonstrated that the claim against National did not fall within the policy’s coverage, when liberally construing the allegations so that all doubt about the meaning of the allegations are resolved in favor of finding that the obligation to defend was activated, Staples (Mont. 2004), and when strictly construing all exclusions and words of limitations against the insurer regardless of whether they are ambiguous, Leibrand.

United has failed to show that it did not have a duty to defend and that it breached its duty. The complaint drew a causal connection between National’s services to Spring Creek and the damages suffered by Karlye. Even under United’s favored interpretation of “arising out of,” the complaint clearly alleged that her injuries were causally related to its “ownership, maintenance or use” of the St. George premises or “any operations necessary or incidental to” its use of the premises. For instance, its admission and promotional services provided at St. George conceivably resulted in Karlye’s admission, and its negligent training provided at St. George conceivably and indeed allegedly led to her suffering and death. Any factual disputes as to what services National actually provided to Spring Creek are immaterial at this point and at any rate must be resolved in favor of coverage. United’s contention that the policy clearly limited coverage and the duty to defend to incidents that occurred directly on the St. George premises is meritless. If, as alleged, National and Spring Creek were acting in concert for the purpose of facilitating a scheme to defraud parents and “operated, in effect, as a single business enterprise,” NFU, the allegedly tortious operations at Spring Creek were at least “incidental to” the operations in St. George. Its duty to defend under the CGL policy was triggered when the complaint alleged facts which if proven would result in coverage. When it refused to provide a defense, it breached its duty to defend. The Court need not address whether it breached its duty to defend under the umbrella, but notes that its arguments as to the umbrella are merely the same as set forth as to the CGL policy and that it fails to adequately address how its duty to defend was not triggered when the umbrella clearly provides that it had “a duty to defend any claims or suits not covered by any underlying insurance.”

Under both Utah and Montana law, the consequences of failure to defend are the same: the insurer is responsible for any judgments entered below. Speros (Utah 2004); Staples. Thus Newman is entitled to judgment in the amount of the $3 million judgment entered by the Sanders Co. Court. She is also entitled to post-judgment interest pursuant to §§ 25-9-205 & 27-1-211. (Although not raised by the parties, the Court concludes that there is no actual conflict of law as to interest, even though the post-judgment interest rate is different in Utah and Montana. Utah does not have a materially greater interest than Montana in seeking its post-judgment interest rate applied to a Montana Federal Court judgment against an Iowa corporation in favor of a Montana citizen who was injured in Montana.) Newman may file her motion for attorney fees & costs pursuant to Rule 54(d)(2).

(Newman (Mont. 2013) similarly affirmed Judge Christopher’s ruling that related entity Teen Help’s insurers Scottsdale (CGL) and National Union Fire (excess) wrongfully refused to defend Teen Help and were severally liable for the $3 million consent judgment plus $568,767 interest and attorney fees, but that she improperly awarded $1,188,399 fees based on a contingency in the underlying case since the contingency in the bad faith part did not transfer to the declaratory part, and remanded for recalculation of fees based on what Newman, as Teen Help’s assignee, would have been able to recover for her attorneys’ time & expenses in pursuing coverage. That case settled following remand. Newman does have a contingency in this case.)

Newman v. United Fire & Casualty, 41 MFR 263, 1/15/ 14.

Ann Moderie (Moderie Law Firm), Polson, Elizabeth Best (Best Law Offices), Great Falls, Lawrence Anderson, Great Falls, and Thomas Beers (Beers Law Offices), Missoula, for Newman; Dennis Clarke & Stephanie Hollar (Smith, Walsh, Clarke & Gregoire), Great Falls, for United.

INSURANCE: Reserve information relevant to bad faith claim, insurer not entitled to protective order excluding all information related to reserves in discovery, may seek to ameliorate any prejudice by in limine motion or cautionary instruction… Christensen.

Barnard Pipeline tendered a claim to Travelers for losses associated with construction of a pipeline in Utah. It allegedly tendered the claim 12/6/11. Travelers allegedly had 1 year to complete its investigation, but had not provided a decision when Barnard filed its complaint 1/2/13. Barnard alleges that Travelers acted in bad faith in its investigation and adjustments. It requested the entire claim file. Parts of the file concerning reserves placed on the claim were redacted. It also requested deposition of a Travelers rep about “establishment and maintenance of reserves prior to suit” regarding its claim and its “policies and procedures for establishing and maintaining reserves on property insurance claims.” Travelers objected that information as to reserves is irrelevant and not reasonably calculated to lead to discoverable information. The parties conferred and failed to resolve the issue. Travelers requests a protective order.

Travelers contends that its reserve information is simply a number arrived at pursuant to its statutory duty and has no bearing on its assessment or evaluation of coverage, and that Barnard would use it in a manner that will unfairly prejudice it. Barnard asserts that the reserve information is central to its bad faith claims and provides circumstantial evidence of Travelers’ internal investigation process and whether that and its claim handling was in good faith, and that Travelers cannot show any specific harm without a protective order. It suggests that Travelers’ claim of prejudice is more appropriately in an in limine motion or jury instruction.

While Travelers has been able to find 2 cases from other jurisdictions that support its position, the better case law supports Barnard. Almost all the cases Travelers cites in which discovery into reserve information was denied involved only a declaratory action rather and are inapposite as to what evidence is relevant or reasonably calculated to lead to admissible evidence in a bad faith case. Barnard alleges that Travelers acted in bad faith by repeatedly seeking unnecessary information as to its claim in an effort to delay payment and coerce Barnard into settling for less than Barnard believed the claim to be worth. It is clear that Barnard’s claim may implicate one or more of MCA 33-18-201 provisions. It brought its claim for declaratory judgment and bad faith in response to its perception that Travelers was unduly delaying resolution, treating the claims process in an adversarial manner, and unjustifiably seeking information in a bad faith attempt to coerce a low settlement contrary to Travelers’ actual view of the value. While maintaining reserve information is required by MCA 33-2-518, reserve information is not entirely divorced from the insurer’s view of the value of a claim. Indeed, “the reserves for all outstanding losses and loss expenses must include the estimated liability on any notice received by the insurer of the occurrence of any event that may result in a loss.” §33-2-518(2)(a) click to investigate. Thus the reserve reflects at least in part the insurer’s estimation of potential liability. This internal assessment is relevant because it sheds light on the insurer’s state of mind as it went about investigating and processing the claim. To the extent that reserve information reveals what Travelers thought or knew about Barnard’s claim at various stages of its investigation, it is relevant and at least reasonably calculated to lead to admissible evidence. Bernstein v. Travelers (ND Cal. 2006).

A protective order is denied. Travelers remains free to attack the weight & probative value of any evidence as to reserves at other stages. It may seek to exclude it through a motion in limine or a cautionary instruction. However, to assess its claim of prejudice, the reserve information must first be subject to discovery.

Barnard Pipeline v. Travelers Property Casualty, 41 MFR 253, 1/10/14.

Christian Nygren & Patrick Brown (Barnard Pipeline), Bozeman, and Richard Beal (Ashbaugh Beal), Seattle, for Barnard; Marshal Mickelson & Annie Harris (Corette Black Carlson & Mickelson), Butte, and Daniel Bentson, Seattle, and Ronald Clark, Portland (Bullivant Houser Bailey), for Travelers.

INSURANCE: Whether accident vehicle was “temporary substitute” for insured vehicle in shop irrelevant to whether insured was occupying covered auto as defined by UIM in light of disputed claim that he told agent to add the accident vehicle to the policy… Christensen.

Calvin Stucky was a named insured under a North Pacific commercial auto policy which included UIM. On 2/20/09 he took his primary ranch vehicle, a red Chevy truck, to Deer Lodge for repairs. It is not clear whether this truck was insured under the policy. It remained in the shop throughout the summer. On 5/27 he purchased a 1980 Ford truck “to fill a need that was previously met by the red truck.” Stuckys claim that he told North Pacific’s agent Pat Greany to add the Ford to the policy; North Pacific disputes this. On 8/12/09, while driving the Ford, he was in a head-on with Seth Schmautz and suffered a severe traumatic brain injury. His damages allegedly exceeded the limits of Schmautz’s State Farm policy. Stucky made a claim for UIM under the North Pacific policy. North Pacific seeks a declaration that there is no coverage for his claim for UIM. Stucky’s wife and 2 daughters were added as UIM claimants in 9/12. Stuckys raised as an affirmative defense in their answer and counterclaim in this declaratory action that the Ford was a “temporary replacement vehicle” for the Chevy that was being repaired. North Pacific asserts that whether or not the Ford is a temporary substitute is irrelevant to whether it must provide UIM to Stuckys. Stuckys contend that the policy is ambiguous as to whether a Named Insured is entitled to UIM if he is in a temporary substitute vehicle at the time damages are incurred by an underinsured motorist, and that this ambiguity must be construed in favor of coverage. North Pacific requests summary judgment on Stuckys’ temporary replacement vehicle defenses.

A Named Insured or any family member need not worry whether he was occupying a covered auto, a temporary substitute auto, or no auto at all when he incurred the damages. If all other requirements are met, the Named Insured must only concern himself with whether or not he was occupying or struck by an owned vehicle that was not a covered auto at the time the damages were incurred. The policy unambiguously provides UIM for a Named Insured or any family member who is occupying or struck by any vehicle, except a vehicle that the Named Insured or family member owned without coverage.

There is no dispute that Stucky sustained damages as a result of “bodily injury” caused by an “accident” arising from Schmautz’s use of an “underinsured motor vehicle,” that Stucky was the only one “occupying” the Ford at the time, and that he was an “insured.” Indeed, he was a “Named Insured.” Thus he is entitled to UIM so long as he was not occupying “any vehicle owned by [Stucky] that [was] not a covered `auto’ for Underinsured Motorists Coverage.” Under this broad coverage, and as a Named Insured, it makes no difference whether he was occupying a temporary substitute vehicle when he incurred damages 8/12/09. The only relevant question as to the vehicle he was occupying at the time of the collision is whether it was an auto that he owned that was not covered. There are disputed facts as to whether the Ford should have been covered per his alleged instructions to Greany. However, any dispute as to whether it was a temporary substitute vehicle is irrelevant and will not affect the outcome of the suit.

Summary judgment for North Pacific as to Stuckys’ temporary substitute vehicle defenses.

North Pacific Ins. v. Stucky, 41 MFR 200, 12/5/13.

John Bohyer & Jesse Beaudette (Bohyer, Erickson, Beaudette & Tranel), Missoula, for North Pacific; Lori Harshbarger (JD Law Firm), Whitehall, for Stuckys.

EXCESSIVE FORCE: Fact issues preclude summary judgment for officers as to whether tasering intoxicated naked man in welfare check was reasonable, whether he was unlawfully restrained… bankruptcy trustee substituted as Plaintiff…Anderson/Christensen.

Magistrate Anderson’s sanctions order.

On 8/12/07 a friend of Soheil Verdi called 911 because he had sent a text which said “I’m done” and he was not answering his phone. Bozeman PD dispatched Sgt. Greg Megargel and Officer Marek Ziegler at 10 p.m. to check on Verdi. They knocked for some time before he opened his door. He appeared intoxicated and was not wearing any clothes. Recordings from a mike worn by Ziegler revealed that either Ziegler or Megargel told Verdi to have a seat and they just wanted to make sure he was OK. Ziegler contends that Verdi lunged at Megargel, prompting Ziegler to tase Verdi. Verdi fell to the deck outside his home, sustained injuries, and was unresponsive. He was handcuffed and told to roll over. Because he was not responsive, an officer asked dispatch to “roll medical.” The 2nd part of the audio begins with an officer asking if they have “got gloves” and the other saying “getting them dude.” They told Verdi, “talk to us,“ “talk to us man,” “talk to us bro.” They then remove the taser darts from Verdi and state that they will “clean them up later.” Ziegler then says, “hey man, he came after to you,” to which Megargel replies, “I shoved him but you got him.” They proceed to cuff Verdi “a little bit better” and there is the sound of a diesel engine and an officer saying Verdi is “breathing but not responsive, he was tased.” Someone then asks the officers to remove Verdi’s handcuffs, at which point the 2nd part of the audio ends. The 3rd recording begins when ambulance personnel are loading Verdi and he starts to mumble and cry. They tell him to calm down. After the ambulance left, Ziegler’s body mike recorded:

Megargel: Now what the fuck?

Ziegler: Yeah, what am I going to clear this as? Fuck, public assistance with a tasing?

Megargel: Fuckin-a-baby, 10-8 medical.

Ziegler: 10-8 what?

Megargel: Medical.

Ziegler: He didn’t commit a crime.

Megargel: No, but he could’ve.

Ziegler: Well, I was afraid for you, dude.

(inaudible segment)

Ziegler: What are we going to, so we’re going to clear it as…

Megargel: 10-8 medical.

Ziegler: Medical.

Megargel: And then we’re going to put it as a medical call.

Verdi sued Bozeman, the PD, Megargel, Ziegler, former Chief Tymrak, and Dep. Chief Kent. He filed Ch. 7 in Utah in 5/10 but failed to list the suit. He received a discharge in 9/10. In 1/11 he moved to reopen to list the claims asserted herein and to claim an exemption under Utah law. His bankruptcy was reopened in 2/11 and Roger Segal was reappointed trustee. Defendants moved for summary judgment that he was judicially estopped from pursuing this action after failing to disclose the suit in his schedules. Segal objected to Verdi’s claim of exemption in any award resulting from this suit, and Verdi withdrew the claim. This Court recommended that Segal be substituted for Verdi as the plaintiff in this case and that Defendants’ summary judgment motion be denied on grounds that their judicial estoppel argument did not extend to Segal. Judge Cebull adopted the recommendations 7/24/12. On 8/16 Segal moved for sanctions for spoliation as to the missing 3-4 minute audio segment between when the ambulance arrived and left. Ziegler hypothesizes that he probably deleted it immediately after making it, but has no recollection of deleting any files that night. He confirmed that he did not delete it by accident because deletion requires a distinct 3-step process. He testified that he would turn his mike off when “there was nothing worthy to record.” He has never had another missing segment. Segal requests a sanction, primarily in the form of a default judgment as to liability, against all Defendants. The Court finds it appropriate to instruct the jury that the missing segment, if it existed, would be damaging to Defendants and relevant & favorable to some or all of Segal’s claims of excessive force. The instruction should explain that the law does not condone intentional destruction of evidence by officers. Defendants should also be precluded from offering any explanation as to how or why the segment was deleted beyond Ziegler’s belief that he likely erased it at the scene.

 

– – – 

Judge Christensen’s rulings on Anderson’s summary judgment findings & recommendations.

Segal objects to Judge Anderson’s finding that Kent and Tymrak investigated the incident. Although it was not as detailed or thorough as Segal would have preferred, the facts show that a satisfactory investigation did occur.

Segal objects to Anderson’s conclusion that “Plaintiff simply fails to offer any plausible explanation as to how the investigation that was completed by Sergeant Benz, Kent and Tymrak is ratification of any excessive force that may have been inflicted when Ziegler used his taser on Verdi.” He argues that the actions of Kent, Tymrak, and BPD amounted to ratification of excessive force because, inter alia, there was lack of documentation as to Ziegler’s taser training and Kent misrepresented his taser qualifications to become a taser instructor. However, Segal does not dispute that Ziegler and Megargel both received over 26 hours of training, including in use of force, and the Court fails to see how a misrepresentation of taser qualifications amounts to “deliberate indifference to the rights of persons with whom the police come into contact.” Canton (US 1989).

Megargel and Ziegler object to Anderson’s conclusion that summary judgment as to excessive force should be denied. They assert that he applied a legal standard which did not exist at the time of the incident, Bryan (9th Cir. 2010), when he should have applied Graham (US 1989). Bryan declared use of a taser as “an intermediate, significant level of force that must be justified by the governmental interest involved.” Following Jackson, an officer who used a taser was entitled to qualified immunity if an objective officer would have believed that use of intermediate force, as opposed to a lesser degree, was reasonable. This is inconsistent withGraham, which found that an officer who used a taser was entitled to qualified immunity if an objective officer believed that some degree of force was reasonable. It is unclear which standard Anderson applied. He did mention that a taser was an intermediate level and concluded that “the fact that use of force by taser, under these circumstances, may not have been objectively reasonable, precludes entry of summary judgment in favor of Ziegler and Megargel on Count I.” In any event, he was correct that summary judgment for the officers should be denied. If force is not needed, any force is constitutionally unreasonable. HFD (9th Cir. 2000). The critical disputed fact is whether Verdi lunged at the officers after opening his door. Adopting Plaintiff’s version — that Verdi was too intoxicated to lunge and did not pose a threat — any force would be unreasonable. From the perspective of a reasonable officer, tasing a naked & intoxicated man who does not pose a threat would not be objectively reasonable. Thus the Court agrees with Anderson that, taking the facts in a light most favorable to Plaintiff, use of force by Megargel and Ziegler was not objectively reasonable.

Megargel and Ziegler contend that Anderson erred by applying a standard that asked if force was justified instead of a standard that asks if an objective officer at the scene could find that force was reasonable under the totality of circumstances. Graham. Although Anderson did state that “a finder of fact could conceivably find that the use of a taser in this case was not justified,” Megargel and Ziegler ignore his multiple references to the objectively reasonable standard. Nor is his use of “reasonable person” rather than “reasonable officer” fatal to his overall conclusion. Adopting Plaintiff’s version — Verdi was too intoxicated to lunge and did not pose a threat — an objective officer at the scene could find that the officers’ conduct was not reasonable.

Megargel and Ziegler argue that Anderson improperly considered Ziegler’s intent or motivation when he deployed his taser. They base this on Anderson’s discussion of the background facts where he discussed the missing audio file and sanctions by Judge Cebull, but Anderson makes no mention of the sanction order in his analysis of whether the conduct was objectively reasonable.

Megargel and Ziegler argue that Anderson improperly relied on inadmissible evidence. The Court does not agree. He cited admissible and undisputed facts in support of his conclusions that Verdi may have been too intoxicated to lunge at the officers and that their conduct could not be viewed by an objective officer as reasonable, including that Verdi had .291 BAC, lack of reasonable suspicion that he had committed or was about to commit a crime, he was never charged with a crime, he did not resist or attempt to evade arrest, and he was unarmed and naked. Although not stated in his analysis section, there are admissible and undisputed facts in the record that support Plaintiff’s argument that Verdi was too intoxicated to lunge, including Ziegler’s recorded comments that he was “stumbling around” when he came to the door; his comments that Verdi’s movements were “very slow, methodical movement at the beginning, kind of dragging his feet, and of course he was naked;” Ziegler’s report that Verdi “appeared to be very intoxicated;” the officers’ recorded comments immediately after the incident that Verdi “did not commit a crime;” Megargel’s deposition statement that in his 13 years with BPD he had never heard where someone allegedly attacked an officer but was not charged with a crime; and Ziegler’s report describing an “incident” rather than a “crime” and that Verdi was a “v” (victim) and not a “defendant.”

Megargel and Ziegler argue that Anderson failed to distinguish between denying summary judgment to Megargel and denying it to Ziegler. They contend that he should have evaluated the conduct of each officer and issued separate findings & recommendations. They failed to cite any law in support. An officer who fails to intervene to prevent another officer’s excessive force may be liable under §1983. Mick (10th Cir. 1996). Anderson’s findings & recommendations are adopted in full as they relate to his recommendation that summary judgment should be denied as to Megargel and Ziegler.

Plaintiff has not alleged sufficient material facts preventing summary judgment for Bozeman and BPD on the issue of negligent hiring & supervision. Anderson’s recommendation on this motion is rejected.

The Court agrees with Anderson that summary judgment for Bozeman should be denied as to the claim of false imprisonment. Bozeman asserts that restraint of Verdi was lawful under MCA 53-24-303, which allows an officer to assist or transport an intoxicated person to a hospital if he is in need of help and in a public place. Verdi was not in need of help or in a public place when he was tased. If force was not lawful, and Verdi was injured and in need of help because of the officers’ unlawful conduct, Bozeman could be held liable under respondeat superior. Adopting Plaintiff’s version of the disputed facts, an objective officer could find that the officers’ conduct was not reasonable.

Anderson found that Bozeman could be liable for punitives under respondeat superior. But applying the plain language of MCA 2-9-105 — “the state and other governmental entities are immune from exemplary and punitive damages” — the Court is compelled to agree with Bozeman that it is immune from punitives.

Segal v. Bozeman et al, Anderson’s order 41 MFR 169, 1/23/13, Christensen’s order 41 MFR 182, 11/18/13.

Todd Shea (Shea Law Firm), Bozeman, and Ryan Jackson (Jackson Law), Bozeman, for Segal; Michael Lilly (Berg, Lilly & Tollefsen), Bozeman, for the City; Michele Braukmann (Moulton Bellingham), Billings, for the chiefs; Brendon Rohan (Poore, Roth & Robinson), Butte, for Megargel and Ziegler.

SKI AREA OPERATOR LIABILITY: Failure to warn/negligence claims by skier injured in crash into boulder field obscured by unmarked cat track survive summary judgment notwithstanding statutory definition of “inherent dangers and risks of skiing”… Christensen.

The facts are derived from Brian Kopeikin’s complaint allegations.

On 2/5/12 Kopeikin, MD, of California, was skiing at Moonlight Basin in Madison Co. Conditions were excellent and he is a very experienced skier. After lunch he and a friend boarded the Six Shooter lift and began skiing the intermediate “Fast Lane” which accessed the slightly more difficult“Upper Elkhorn.” While skiing Upper Elkhorn he encountered an unmarked “cat track” cut into the mountain or groomed so as to “slope downward in the uphill direction.” It was lined with boulders to delineate its path. It prevented him from seeing a boulder field of “large, craggy, and sharp rocks” which stretched downhill for 50 and had been created by the construction and/or grading of the cat track. There was no warning of any kind. Kopeikin was skiing well under control and at medium speed. As he crossed the cat track he saw, with no time to take evasive action, the boulder field immediately below the cat track. He tucked his shoulder and rolled to avoid head injury. He landed on his back in the rocks, sustaining serious injuries. Moonlight requests Rule 12(b)(6) dismissal because the complaint alleges an injury resulting from “the inherent dangers and risks of skiing” as defined in MCA 23-2-702:

(2) “Inherent dangers and risks of skiing” means those dangers or conditions that are part of the sport of skiing, including:

…

(d) collisions with natural surface or subsurface conditions, such as bare spots, forest growth, rocks, stumps, streambeds, cliffs, trees, and other natural objects;

(e) collisions with lift towers, signs, posts, fences, enclosures, hydrants, water pipes, or other artificial structures and their components;

(f) variations in steepness or terrain, whether natural or the result of slope design, snowmaking, or snow grooming operations, including but not limited to roads, freestyle terrain, ski jumps, catwalks, and other terrain modifications;

…

(i) the failure of a skier to ski within that skier’s ability;

Moonlight contends that one or all of these are applicable. The Court finds that, at this stage at least, (d), (e), and (i) are inapplicable. Moonlight argues in its reply brief that Kopeikin’s claims are barred by §§ 23-2-736(1) & 736(2)(a). The Court will not address these arguments because they were not raised in its initial motion. Further, they raise obvious questions of fact about causation and comparative negligence.

Kopeikin’s complaint consistently alleges that the hazards were unnatural. Thus, even if the rocks he collided with are natural objects, the complaint alleges that the boulder field was not a “natural surface or subsurface condition” pursuant to (d). Even though the complaint alleges that it was not a natural condition, it also cannot be regarded as an “artificial structure” pursuant to (e). The vague term “other artificial structures” is to be interpreted by reference to the specific listed items, ejusdem generis, and thus “other artificial structures” should not encompass a boulder field resulting from construction of a cat track. (i) is inapplicable because the complaint alleges that Kopeikin was a very experienced skier who was skiing “well under control at a medium speed.” Pursuant to (f), a skier must “accept all legal responsibility for injury or damage of any kind” resulting from variations in steepness or terrain.

Moonlight contends that the Court should simply determine whether the complaint alleges injury from one of the listed items and dismiss because the case involves a catwalk, which is listed in (f). (The complaint refers to a “cat track” while the statute refers to a “catwalk;” the Court regards these terms as synonymous.) This has simplistic appeal, but the Court is not persuaded that such analysis is appropriate in light of Montana case law and federal decisions applying similar statutes in other states. Further, this issue is presented pursuant to a motion to dismiss as opposed to summary judgment following a fully developed record.

Mead (Mont. 1994) held that under the 1989 version of 23-2-733 a ski area operator’s duties were not limited to those listed in the statute but included any duties “consistent with the duty of reasonable care.” The Legislature amended skier responsibility statutes twice since Mead, but the operative provisions remain largely unchanged. §733 still provides a non-exclusive list of duties for operators which, as underscored in Mead, are to be performed “consistent with the duty of reasonable care owed by a ski area operator to a skier.” While the definition of “risks inherent in the sport of skiing” has been modified, the changes are generally minimal and do not affect the analysis here. For instance, what was earlier referred to as “risks inherent in the sport of skiing” has been amended slightly more broadly to “inherent dangers and risks of skiing.” Also, under the current version “inherent dangers and risks” need not be “integral” to the sport of skiing, but only “part of the sport of skiing,” and “ski” no longer modifies “terrain in “variations in steepness or terrain.” These changes make no difference here because the Court concludes, particularly as to the last modification, that the cat track and boulder field are clearly part of the “ski terrain.” Regardless, some of Kopeikin’s contentions can be resolved by applying the plain language of the statute. For instance, his insistence that inherent risks include only “a list of natural conditions over which a ski-area operator has no control” is clearly mistaken. The current definition of inherent dangers and risks of skiing includes a variety of “unnatural” and potentially hazardous conditions on ski mountains, including roads, cat walks, ski jumps, and “other terrain modifications.” The current definition also includes collisions with lift towers, signs, posts, fences, water pipes, and “other artificial structures.” Thus it does not follow that because the cat track and boulder field were “man-made” the conditions are per se beyond the scope of “inherent dangers and risks of skiing.” Also, the principles in Mead and Brewer (Mont. 1988) remain binding to the extent that the cases are applicable. However, they involved different factual situations and legal contentions are therefore do not fully resolve the issues here. Finally, the Court rejects Kopeikin’s contention that Mead stands for the proposition that all hazards on a ski mountain present questions of fact not suitable for summary disposition. Kumar (10th Cir. 2011) (applying similar Colorado skier responsibility statutes and granting summary judgment to the resort for a claim by a plaintiff who fell off an unmarked natural cornice).

The Court has looked for guidance to decisions from other States with similar skier responsibility statutes. For example, White (Utah 1994) held that “the unmarked cat track on the blind side of a ridge” was the type of risk that a skier would not wish to confront, and that fact questions existed as to whether the resort exercised reasonable care in eliminating or alleviating the hazard. It noted:

It is undisputed that cat tracks are a common and necessary feature at ski resorts. They allow novice skiers an easier route down the mountain and provide access to upper portions of the mountain for grooming machines and other maintenance equipment. Because cat tracks are so pervasive and important to the sport, it is unlikely that ski resorts could alleviate all of the possible harms that may result from them. Thus, in most cases they would constitute an inherent risk of skiing.

In light of the case law and Montana’s statutory scheme, the Court adopts the following framework in resolving Moonlight’s motion to dismiss. 1st, Montana’s skier responsibility statutes do not immunize operators from their own negligence. The statute provides a non-exclusive list of duties which an operator must perform “consistent with the duty of reasonable care owed by a ski area operator to a skier.” §23-2-733(1). Mead underscores this. 2nd, Montana’s statutory definition of “inherent dangers and risks of skiing” must be read in conjunction with the operator’s statutory duty of reasonable care. A mechanical application of the statute focused solely on the object with which the plaintiff collided would produce results that are “entirely arbitrary,” Clover (Utah 1991), and undermine Brewer‘s holding that an operator is not immune from liability for its own negligence. The statutes should be read in a manner that avoids constitutional violations and gives meaning to all provisions. Mead. 3rd, the duty of reasonable care required of an operator must be viewed in the unique context of skiing as made clear by §§ 23-2-702(2) & 736(1)-(2). Notwithstanding an operator’s efforts to tame it, skiing takes place on essentially wild terrain, on “a mighty mountain, with fluctuation in weather and snow conditions that constantly change.” Wright (D.Vt. 1951). It is engaged in by thrill-seeking experts and novices alike. It is impossible and undesirable to eliminate all hazards. In many cases an operator eliminates natural hazards at the risk of compromising appeal to skiers who embrace the thrill and challenge of more challenging conditions. Skiing demands that a skier exercise appropriate caution and good judgment or be responsible for the consequences. Some inherent hazards like cat tracks exist as a necessary result of accommodating and managing the infrastructure and moving skiers from one part of the mountain to another. Thus not all inherent risks result from “natural” conditions. To remain economically viable, courts cannot hold operators to the same safety standards generally demanded of owners of simpler business premises. The Legislature requires restraint when assessing that which, as a matter of law, constitutes reasonable care by an operator, mindful of the economic impact on ski areas of lengthy and expensive litigation. Indeed, it is the stated purpose of the Montana skier responsibility statutes to maintain economic viability of the industry “by discouraging claims based on damages resulting from the inherent dangers and risks of skiing.” §23-2-731.

Moonlight’s motion to dismiss is denied. At this very early stage all alleged facts must be treated as true and construed in the light most favorable to the plaintiff. According to the complaint allegations, the hazard which Kopeikin encountered was of a type that no skier wishes to confront: an unmarked and arguably ill-designed and boulder-lined cat track that hid a 50 boulder field in the middle of a groomed run. He alleges that the hazards were unnecessary and could have been eliminated or alleviated through ordinary care. Moonlight presents no facts to contradict Kopeikin’s allegations that its failure to warn and negligence in constructing and maintaining the cat track and boulder field caused his injuries.

Kopeikin v. Moonlight Basin, 41 MFR 146, 11/7/13.

Edward Moriarity (Moriarity, Badaruddin & Booke), Missoula, for Kopeikin; Ian McIntosh (Crowley Fleck), Bozeman, for Moonlight Basin.