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Schleusner v. Continental Casualty Co.

United States District Court, D. Montana, Missoula Division

April 10, 2015

LARRY SCHLEUSNER and PATRICIA SCHLEUSNER, husband and wife; and LARRY PAUL SCHLEUSNER and PATRICIA GLORIA SCHLEUSNER, as Trustees of the Larry and Patricia Schleusner Family Trust dated November 14, 2004, Plaintiffs,
v.
CONTINENTAL CASUALTY COMPANY, Defendant

For Larry Schleusner, husband, Patricia Schleusner, wife, Larry Paul Schleusner, as Trustee of The Larry and Patricia Schleusner Family Trust dated November 10, 2004, Patricia Gloria Schleusner, as Trustee of The Larry and Patricia Schleusner Family Trust dated November 10, 2004, Plaintiffs: David B. Cotner, Trent N. Baker, LEAD ATTORNEYS, DATSOPOULOS MacDONALD & LIND, Missoula, MT.

For Continental Casualty Company, an Illinois corporation, Defendant: Jeffry M. Foster, Maxon R. Davis, LEAD ATTORNEYS, DAVIS HATLEY HAFFEMAN & TIGHE, Great Falls, MT; Steven M. Crane, LEAD ATTORNEY, PRO HAC VICE, BERKES CRANE ROBINSON & SEAL, Los Angeles, CA.

ORDER

DOHALD W. MOLLOY, UNITED STATES DISTRICT JUDGE.

Pending before the Court are cross motions for summary judgment (Docs. 9, 21).[1] The company, Continental Casualty Company (" Continental" ) seeks summary judgment arguing tat it is not obligated to provide insurance coverage in an underlying state case because notice was not timely given by the insured. Plaintiffs Larry and Patricia Schleusner (" Schleusners" ) filed a cross-motion for partial summary judgment seeking a declaration that Continental breached its duty to defend. For the reasons discussed below, Continental's motion is granted. The Schleusners' motion is denied.

Background

I. The Policy

Continental issued a claims-made-and-reported Real Estate Professional Errors and Omissions Policy (the " Policy" ) to RE/MAX Realty Consultants, LLC (" Re/Max" ) for the period September 6, 2007, to September 6, 2008. (Doc. 2-4.) The Policy's insuring agreement states, inter alia, " [a] claim must be first made during the policy period and must be promptly reported to [Continental] in accordance with Section VI, Conditions, paragraph B." ( Id. at 13.) The Policy defines " claim" as

an oral or written demand received by the Insured for money or services, including a demand alleging personal injury, arising out of an act or omission in the rendering of professional real estate services. The service of suit or the institution of an arbitration proceeding against the Insured will be considered a demand.

(Id. at 16.) And regarding notice of claims to the insurer, the relevant portion of the Policy states:

[t]he Insured, as a condition precedent to our obligations, must promptly give written notice to us during the policy period or any renewal policy period:
a. of any claim made against the Insured during the policy period;
b. of any notice, advice or threat, whether written or verbal, that any person or organization intends to hold the Insured responsible for any alleged breach of duty or other act or omission.
. . .
This condition will not be a barrier to coverage for those Insureds who do not have personal knowledge of a claim or potential claim. However all Insureds must promptly comply with ...

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