United States District Court, D. Montana, Missoula Division
BREANNE WALDEN, DANIELLE DESCHENES AZURE, JESSICA BLACKWEASEL, SABRINA REMUS COYNE, BRITTANY DEAN, JENNIFER DEMENT, DANIELLE DUNCAN, JACKIE GREAVU, BETH HAYES, JANA HEILIG, KEALLIE LIETZ, JACKIE MULLENNAX, SARA ONSAGER, ANNA RADFORD, BARBARA SLOAN, MOLLY STILSON, and KYRA TILSON, Individually and as Assignees of DB&D, LLC d/b/a DAHL'S COLLEGE OF BEAUTY, Plaintiffs,
MARYLAND CASUALTY COMPANY, and DOES 1-5, inclusive, Defendants.
L. Christensen, Chief Judge.
the Court is Defendant Maryland Casualty Company
("Maryland")'s Motion for Partial Summary
Judgment. (Doc. 155.) Because the claims for which Maryland
seeks summary judgment are covered by the operative insurance
policy's School Liability Endorsement, the motion is
AND PROCEDURAL HISTORY
discussed more fully in this Court's Order of May 4,
2018, denying Maryland's motion for summary judgment,
this case is a declaratory judgment action regarding whether
the commercial general liability policy issued by Maryland
provides coverage to Plaintiffs for tort claims against
Dahl's College of Beauty and its member-owners
(collectively, "Dahl's"). (Doc. 153.) The only
remaining issue in this case concerns coverage for bodily
injury claims arising from the unintended and unexpected
results of Dahl's intentional conduct. (See
Docs. 97 at 5; 101 at 2; 131 at 15-18 & n.2).
is entitled to summary judgment if it can demonstrate that
"there is no genuine dispute as to any material fact and
the movant is entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(a). Summary judgment is warranted where the
documentary evidence produced by the parties permits only one
conclusion. Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 251 (1986). In ruling on a motion for summary
judgment, a court must view the evidence "in the light
most favorable to the opposing party." Adickes v.
S.H. Kress & Co., 398 U.S. 144, 157 (1970).
"[T]he judge's function is not himself to weigh the
evidence and determine the truth of the matter but to
determine whether there is a genuine issue for trial."
Anderson, 477 U.S. at 249.
law governs insurance coverage disputes. Stanford Univ.
Hosp. v. Fed. Ins. Co., 174 F.3d 1077, 1083 (9th Cir.
1999). The interpretation of an insurance contract is a
question of law. Babcock v. Farmers Ins. Exch., 999
P.2d 347, 348 (Mont. 2000). "If the language of a policy
is clear and explicit, the policy must be enforced as
written." Nat'l Farmers Union
Prop. & Cas. Co. v. George, 963 P.2d 1259, 1261
(Mont. 1998). "Ambiguities are construed against the
insurer and exclusions are construed narrowly because they
are contrary to the fundamental protective purpose of
insurance policies." Id.
asks the Court to grant it judgment on claims for bodily
injury arising from: (1) a bad pedicure given to Kyra Tilson
by another student during the course of that student's
cosmetological instruction; (2) Sara Onsager's loss of
hair as a result of hair coloring and bleaching procedures
performed by instructor Morgan Heikkila; and (3) Breanne
(Walden) Grubb's loss of hair following a highlighting
procedure performed by another student under the direction of
Heikkila. Initially, Maryland argued that partial summary
judgment is appropriate because the policy excludes coverage
for professional services and instruction.
reply to Plaintiffs' response brief, however, Maryland
concedes that two endorsements, the "School Liability
Extension Endorsement" and the "Barbers and
Beauticians Professional Liability Endorsement,"
override the professional services and instruction exclusion.
(Doc. 161 at 2-3.) In spite of its concession, Maryland
continues to advocate for partial summary judgment. Maryland
contends that "the professional services exclusion
eliminated by the School Liability Extension Endorsement is
replaced by the Barbers and Beauticians Professional
Liability Endorsement." (Doc. 161 at 3.) The latter
endorsement covers only negligent, rather than intentional,
conduct, and-as this Court and the Ninth Circuit have
noted-Plaintiffs' underlying claims are brought only
under intentional tort theories. (See, e.g., Docs.
97 at 5; 101 at 2; 131 at 15-18 & n.2.) Maryland argues
that Plaintiffs cannot find coverage for their claims in the
policy because they do not fall under the Barbers and
Beauticians Professional Liability Endorsement.
Court disagrees. The two endorsements do not operate to
replace the exclusion. Rather, the School Liability
Extension Endorsement renders the exclusion inapplicable as
to the instruction or supervision of students, and the
Barbers and Beauticians Professional Liability Endorsement
adds an additional, separate grant of coverage. As Maryland
recognizes, the School Liability Extension Endorsement
eliminates the exclusion that Maryland initially relied upon.
This endorsement provides that the professional services
exclusion "does not apply to instruction or supervision
of students by [Dahl's] 'employees.'" (Doc.
50-3 at 4.)
whether coverage exists under the Barbers and Beauticians
Professional Liability Endorsement is beside the point. There
is coverage under the policy for "occurrences"
arising from the instruction or supervision of students by
Dahl's employees under the School Liability Endorsement,
regardless of whether such instruction and supervision fall
within the scope of the Barbers and Beauticians Professional
Liability Endorsement. All of the claims for which Maryland
seeks partial summary judgment fall under the School
Liability Endorsement. Construing the facts in favor of the
non-moving party, Tilson lost her toenails as a result of the
school's failure to adequately teach her classmate how to
perform a pedicure. Onsager's hair loss resulted, at
least in part, from her instructor using her as a model in
order to teach the class how to lighten hair without bleach.
And, for her part, Grubb lost her hair because of her
instructor's failure to instruct and supervise her
classmate during a hair bleaching procedure. Plaintiffs do
not need the Barbers and Beauticians Professional Liability
Endorsement to find coverage for their claims.
more, the conduct discussed in Maryland's brief-two bad
dye jobs and a bad pedicure-would, in fact, give rise to a
cause of action based on negligence and would therefore fall
under the Barbers and Beauticians Professional Liability
Endorsement. However, this determination necessarily raises a
separate issue, that of the relevance of injuries caused by
negligent rather than intentional conduct. Because it is not
properly before the Court, the Court will not grant partial
summary judgment on this (or any) ground, but-in the interest
of judicial economy-the Court takes advantage of this
opportunity to remind the parties that Plaintiffs did not
bring a claim for negligence against Dahl's, and the
Court will not allow evidence or argument regarding
negligence at trial. (See Docs. 97 at 5 ("There
is no material factual dispute that the Dahl's
defendants' conduct was intentional[ and]
volitional."); 101 at 2 (decision by Ninth Circuit
noting that "plaintiffs complained of only intentional
acts"); 131 at 15-18 (granting motion in limine to
exclude evidence and argument of negligence).) The
only remaining issue, as Plaintiffs note in their
brief, is whether and to what extent Plaintiffs suffered
bodily injury as a result of the conduct alleged in Count I
of the underlying complaint. (Doc. 159 at 3; see
also Doc. 131 at 15-18 & n.2.)
IT IS ORDERED that Defendant Maryland's Motion for