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Associated Dermatology and Skin Cancer Clinic of Helena, P.C. v. Mountain West Farm Bureau Mutual Insurance Co.

Supreme Court of Montana

February 21, 2017

ASSOCIATED DERMATOLOGY AND SKIN CANCER CLINIC OF HELENA, P.C. PROFIT SHARING PLAN AND TRUST FOR THE BENEFIT OF STEPHEN D. BEHLMER, M.D., Plaintiff and Appellant,
v.
MOUNTAIN WEST FARM BUREAU MUTUAL INSURANCE COMPANY, Defendant, Appellee, and Cross-Appellant.

          Submitted on Briefs: December 21, 2016

         District Court of the First Judicial District, In and For the County of Lewis and Clark, Cause No. ADV 13-690 Honorable Mike Menahan, Presiding Judge

          For Appellant Erik B. Thueson, Thueson Law Ofice, Helena, Montana, Scott Peterson, Morrison, Sherwood, Wilson and Deola, PLLP, Helena, Montana

          For Appellee Randall G. Nelson, Nelson & Dahle, P.C., Billings, Montana, Martha Sheehy, Sheehy Law Firm, Billings, Montana

          Jim Rice Justice

         ¶1 Appellant Associated Dermatology and Skin Cancer Clinic of Helena, P.C. Profit Sharing Plan and Trust for the Benefit of Stephen D. Behlmer, M.D. (Behlmer), appeals from the order of the First Judicial District Court, Lewis and Clark County, partially granting summary judgment to Appellee Mountain West Farm Bureau Mutual Insurance Company (Mountain West), holding that certain insurance proceeds must be deposited into the District Court, denying Behlmer's motion for attorneys' fees and costs, and not ruling on the availability of post-judgment interest. Mountain West cross-appeals the District Court's summary judgment ruling that determined the subject insurance policy provided coverage for Behlmer's claim. We address only the cross-appeal and reverse the District Court's coverage determination. We do not reach Behlmer's appellate issues.

         ¶2 We restate the issue as follows:

         Did the District Court err by holding there was coverage for the Corral Fire damage under Mountain West's commercial automobile policy?

         FACTUAL AND PROCEDURAL BACKGROUND

         ¶3 Robert S. Fitte (Fitte) is a property owner in the Scratchgravel Hills in Lewis and Clark County, who runs a construction business out of his home. Fitte's property contained pine trees that had been killed by beetles. In June 2012, Fitte, concerned about potential damage that could occur if a tree fell, decided to cut down two beetle-killed pine trees on his property. Fitte was concerned that the trees might fall on his work vehicles, ladders, and scaffolding. He testified in his deposition:

The tops of the trees had already blown over and damaged the fence in two spots. I was worried because that's where I park my work vehicles if the tree itself blew over it would take out my work vehicles, and I keep ladders and scaffolds there from time to time when they're not on the job site.

         ¶4 On June 21, 2012, Fitte cut down the second tree, after felling the first tree earlier. Fitte trimmed the branches off the trees and cut the trunks into eight-foot logs, stacking them on his property with the intention of either selling or giving them away. Pursuant to a burn permit, Fitte started a fire to burn the branches from the trees so that the branches would not take up space on his property. He agreed in his deposition that, once he had felled both trees, there "was no longer a risk of those trees falling on [my] business vehicles or [my] scaffold or [my] ladders."

         ¶5 Two days later, a fire rose from the ashes of Fitte's burn and erupted into a wildfire that became known as the Corral Fire, as we have previously noted. See Associated Dermatology & Skin Cancer Clinic of Helena, P.C. Profit Sharing Plan and Trust for the Benefit of Stephen D. Behlmer, M.D. v. Fitte, 2016 MT 349, ¶ 3, 386 Mont. 150, __ P.3d __ [hereinafter Associated Dermatology I]. The Corral Fire burned over 1, 800 acres owned by approximately 35 landowners, including Behlmer's 224-acre parcel, and consumed four dwellings, timber, and other personal property.

         ¶6 At the time of the fire, Fitte carried two insurance policies issued by Mountain West that provided three coverages: a $300, 000 homeowners policy; and a commercial policy that provided $1, 000, 000 in coverage for commercial general liability (CGL) and $500, 000 in coverage for commercial ...


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