United States District Court, D. Montana, Billings Division
CAROLYN S. OSTBY, Magistrate Judge.
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)  at 3.
Now pending is Jarecke's Motion for Partial Summary Judgment. ECF 7. For the reasons explained below, the Motion will be denied.
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 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 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.
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 ...