ALPS PROPERTY & CASUALTY INSURANCE COMPANY, d/b/a Attorneys Liability Protection Society, A Risk Retention Group, Plaintiff and Appellee,
McLEAN & McLEAN, PLLP; DAVID McLEAN; MICHAEL McLEAN and MIANTAE McCONNELL, Defendants and Appellants. McLEAN & McLEAN, PLLP and MICHAEL McLEAN, Counter Plaintiffs and Appellants,
ALPS PROPERTY & CASUALTY INSURANCE COMPANY, Counter Defendant and Appellee. JOSEPH E. MICHELETTI, PERSONAL REPRESENTATIVE OF THE ESTATE OF JOSEPH F. MICHELETTI, Deceased, and MARILYN C. MICHELETTI, Intervenors and Appellants.
August 7, 2018, we issued an opinion in the above-entitled
action, reversing the District Court's Order granting
summary judgment to ALPS Property & Casualty Insurance
Company (ALPS). On August 22, 2018, ALPS filed a Petition for
Rehearing. M. R. App. P. 20(1)(a) provides that a petition
for rehearing will be considered only when the Court
"overlooked some fact material to the decision,"
when "it overlooked some question presented by counsel
that would have proven decisive to the case," or when
"its decision conflicts with a statute or controlling
decision not addressed" by the Court. ALPS fails to
demonstrate any of these grounds for rehearing.
ALPS asks this Court for a rehearing on the following
determination: that Michael McLean (Michael) had a reasonable
expectation he was entitled to purchase Extended Reporting
Endorsement (ERE) coverage. ALPS argues that the ability to
purchase ERE coverage is only available to a "Named
Insured" (in this case, the law firm entity, McLean
& McLean) under policy provisions §§ 4.4.1,
4.4.5, and because Michael is an "Individual
Insured," and not a "Named Insured," he is not
entitled to such coverage. Therefore, ALPS contends he had no
reasonable expectation of coverage under a provision
applicable only to McLean & McLean. ALPS also asserts
that the Opinion did not consider ALPS's separate,
distinct basis for denying coverage: the policy was canceled
for non-payment of premiums, which resulted in an exclusion
of ERE coverage under § 4.4.5(a). Finally, ALPS asserts
that Michael is not an innocent insured because it contends
that Michael violated provision §4.14.1 of the policy
when he "misrepresented that ALPS could rely on the
veracity of the applications" and that ALPS should be
afforded the opportunity to present arguments regarding
Michael's culpability. ALPS contends that because this
Court overlooked material facts and controlling law we should
amend or withdraw Opinion ¶¶ 32-38 and remand to
the District Court to determine Michael's reasonable
ALPS's contention that Michael was not entitled to, nor
could he reasonably expect to, purchase ERE coverage under
contractual provisions §§ 4.4.1, 4.4.5, this
argument is waived because it was never before this Court on
direct appeal. It is axiomatic that for this Court to have
"overlooked some fact material to the decision,"
that fact must have been brought to the Court's
contention that Michael had no reasonable expectation of ERE
coverage because the policy was cancelled due to
"non-payment of premiums" is without merit. This
Court conducted a de novo review of the policy provisions,
including § 4.4.5. Moreover, after ALPS sent a letter
initially cancelling the policy for "non-payment of
premiums," ALPS subsequently purported to rescind the
policy and, in a paradoxical move, refunded McLean &
McLean a surplus premium, which Michael rejected.
direct appeal, ALPS's argument regarding Michael's
culpability hinges on Michael's failure to detect or to
make reasonable efforts to discover David McLean's
(David) violations. ALPS argues that Michael is not an
"innocent insured" under the definition of the
policy because he violated provision § 4.14.1 when he
unknowingly attested to the veracity of David's
misrepresentations. ALPS does not contend Michael
participated in David's misdeeds nor did anything
illegal. ALPS's arguments do not point to any facts or
circumstances which this Court did not already consider, and
we are not convinced rehearing is warranted. See State ex
rel. Bullock v. Philip Morris, Inc., 2009 Mont. LEXIS
443, at *2, 217 P.3d 475, 486 ("[a] petition for
rehearing is not a forum in which to rehash arguments made in
the briefs and considered by the Court....") (citing M.
R. App. P. 20(1)(a)).
ALPS asks this Court to clarify its "implied finding
that the remedy of common law rescission is not available on
remand" and to allow ALPS to pursue common law
rescission on remand. "Clarification" is not a
basis to consider a petition for rehearing. See M.
R. App. P. 20(1)(a). As noted in the Opinion, nothing in the
Opinion either sanctioned or foreclosed the availability of
common law rescission. Opinion, ¶30n. 5. We explicitly
did not rule on this point because it was not before the
Court. See Opinion, ¶ 30 n. 5. Rather than
clarification, what ALPS is really seeking is an advisory
opinion as to the availability of common law rescission.
See Mont. Dep't of Nat. Res. & Conserv. v. Intake
Water Co., 171 Mont. 416, 440, 558 P.2d 1110, 1123
(1976) ("[t]he courts have no jurisdiction to determine
matters purely speculative, enter anticipatory judgments .. .
deal with theoretical problems, give advisory opinions .. .
provide for contingencies which may hereafter arise, or give
opinions....") (internal citations omitted); see
also Sternhagen v. Dow Co., 282 Mont. 168, 170-71, 935
P.2d 1139, 1140-41(1997). We decline to do so.
fully considered ALPS's positions, we conclude that
rehearing is not warranted under the standards of M. R. App.
20(1)(a). ALPS has not shown this Court overlooked some fact
material to its decision or some question presented by
counsel that would have proven decisive to the case, or that
our decision conflicts with a statute or controlling decision
not addressed by this Court. Accordingly, IT IS HEREBY
ORDERED that the petition for rehearing is DENIED.
Clerk of Court is directed to mail copies of this Order to
all counsel of record.
Justices Rice, Baker and District Court Judge Michael Moses
(sitting for Justice Michael E Wheat) would grant the
Petition for Rehearing.
 Further, besides a recitation of the
policy language, the only mention of § 4.4.5 in
ALPS's appellate brief states that "ALPS would not
issue an [ERE] to any member of a firm whose policy
was rescinded ... ." (Emphasis added). ALPS's
contention that an individual member of a firm could never
purchase ERE coverage because he or she is not a ...