United States District Court, D. North Dakota
AMENDED ORDER GRANTING BNSF AND COACH AMERICA'S
MOTION FOR SUMMARY JUDGMENT AND DENYING QBE INSURANCE'S
MOTION FOR SUMMARY JUDGMENT.
L. Hovland, Chief Judge United States District Court.
the Court are cross-motions for summary judgment filed by the
Plaintiff and Counter-Defendant QBE Insurance Corporation
(“QBE Insurance”) and Defendants and
Counter-Claimants BNSF Railway Company (“BNSF”)
and CUSA ES, LLC d/b/a Coach America Crew Transport
(“Coach America”) on June 15, 2016. See
Docket Nos. 104 and 110. QBE Insurance and BNSF/Coach America
contemporaneously filed responses to the opposing party's
motion on July 22, 2016. See Docket Nos. 114 and
115. For the reasons set forth below, BNSF and Coach
America's motion for summary judgment is granted and QBE
Insurance's motion for summary judgment is denied.
case arises out of an underlying action in which Corrie
Burckhard, as Personal Representative for the Estate of Todd
Burckhard, and Maria Mack, as Personal Representative for the
Estate of Blaine H. Mack filed suit against BNSF and Coach
America to recover for the wrongful deaths of their husbands.
See Case No. 4:13-cv-038 (D.N.D. March 28, 2013). On
August 19, 2011, Timothy P. Rennick was driving a motor
vehicle and transporting the decedents, Todd Burckhard and
Blaine Mack, both employees of BNSF, to Glasgow, Montana.
While traveling west on Highway 2, a vehicle driven by Ronald
Keiser collided with the vehicle Rennick was driving. As a
result of the collision, both Burckhard and Mack were killed.
At the time of the accident, Keiser had an insurance policy
with QBE Insurance Corporation (“QBE Insurance”).
November 1, 2013, QBE Insurance Corporation filed this
interpleader action in an effort to resolve any claims
against it arising from the underlying action. See
Docket No. 3. Coach America and BNSF filed a counterclaim
against QBE Insurance on April 11, 2014. See Docket
No. 13. In their counterclaim, BNSF and Coach America sought
a declaration as to the allocation of the QBE Insurance
policy proceeds (count 1) and alleged claims against QBE
Insurance for violations of unfair trade practices under
Montana law, common law bad faith, indemnification, and
attorney's fees (counts 2 through 5). On October 17,
2014, the Court dismissed without prejudice counts 2 through
5 of Coach America and BNSF's counterclaim against QBE
Insurance. See Docket No. 46.
underlying action proceeded to trial on December 11, 2014.
See Docket No. 167 (Case No. 4:13-cv-038). At the
conclusion of eight days of trial, the jury returned a
verdict and found BNSF was negligent under FELA and such
negligence caused the deaths of Todd Burckhard and Blaine
Mack. The jury awarded damages in the amount of $2, 668,
943.00 to Corrie Burckhard and damages in the amount of $987,
690.00 to Maria Mack. The jury further found Coach America
and/or its employee, Timothy Rennick, were negligent, but
such negligence did not play a substantial role in causing
the deaths of Todd Burckhard and Blaine Mack. After
conclusion of the jury trial in the underlying action, Coach
America and BNSF then filed a renewed counterclaim against
QBE Insurance on February 18, 2015. See Docket No.
49. In this second counterclaim, Coach America and BNSF
allege QBE Insurance's policy is subject to stacking in
count 1, and asserted claims against QBE Insurance for unfair
trade practices (count 2), common law bad faith (count 3),
tort of another doctrine (count 4), and attorney's fees
(count 5) .
November 9, 2015, the Court dismissed count 4 (“tort of
another doctrine”) and count 5 (attorney's fees) of
Coach America and BNSF's renewed counterclaim.
See Docket No. 83. However, the Court declined QBE
Insurance's request to dismiss count 1 (declaratory
relief) of the renewed counterclaim. See Docket No.
85. QBE Insurance then requested the Court reconsider the
portion of its November 9, 2015, order that did not dismiss
count 2 and count 3 of Coach America/BNSF's renewed
counterclaim. See Docket No. 88. Alternatively, QBE
Insurance asked the Court to bifurcate Coach
America/BNSF's claims against QBE Insurance for unfair
trade practices and common law bad faith from Coach America
and BNSF's claim the policy QBE Insurance issued to
Keiser is subject to stacking of liability coverages. The
Court denied reconsideration. See Docket No. 101. In
its order denying QBE Insurance's motion to reconsider,
the Court, recognizing the need to resolve the stacking of
liability coverages, ordered the parties to “file
simultaneous briefs addressing the stacking of liability
coverages on or before June 15, 2016, that set forth their
positions and arguments for the same.” See
Docket No. 101, p. 6. The parties' cross motions for
summary judgment are now before the Court.
STANDARD OF REVIEW
judgment is appropriate when the evidence, viewed in a light
most favorable to the non-moving party, indicates no genuine
issues of material fact exist and the moving party is
entitled to judgment as a matter of law. Davison v. City
of Minneapolis, Minn., 490 F.3d 648, 654 (8th Cir.
2007); Fed.R.Civ.P. 56(a). Summary judgment is not
appropriate if there are factual disputes that may affect the
outcome of the case under the applicable substantive law.
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986). An issue of material fact is genuine if the evidence
would allow a reasonable jury to return a verdict for the
non-moving party. Id.
Court must inquire into whether the evidence presents
sufficient disagreement to require the submission of the case
to a jury or if it is so one-sided that one party must
prevail as a matter of law. Diesel Mach., Inc. v. B.R.
Lee Indus., Inc., 418 F.3d 820, 832 (8th Cir. 2005). The
moving party bears the burden of demonstrating an absence of
a genuine issue of material fact. Forrest v. Kraft Foods,
Inc., 285 F.3d 688, 691 (8th Cir. 2002). The non-moving
party may not rely merely on allegations or denials; rather,
it must set out specific facts showing a genuine issue for
motion, QBE Insurance contends that BNSF, Coach America,
Mack, and Burckhard lack ‘standing' to seek the
stacking of liability coverages of the policy QBE Insurance
issued to Keiser. Alternatively, QBE Insurance argues the
policy issued to Keiser is not subject to stacking of
liability coverages and has a limit of $300, 000 because
Montana courts have rejected the stacking of liability
coverages. Coach America and BNSF disagree and contend the
policy is subject to stacking of liability coverages.
According to Coach America and BNSF, the stacked policy limit
is $1.5 million, the aggregate of $300, 000 liability
coverage limits for each of the five vehicles insured under
the policy. In support of their contention that liability
coverages for the separate vehicles stack, BNSF and Coach
America cite to several recent Montana state district court
decisions in which claimants were permitted to stack
liability coverages. See Gunderson v. Safeco Ins. Co. of
Ill., No. BDV-16-133 (Mont. 8th Judicial Dist. Sep. 1,
2016); Safeco Ins. Co. of Ill. v. Petersen, No.
DV-29-14-70 (Mont. 5th Judicial Dist. Oct. 5, 2015);
Great Northwest Ins. Co. v. Erickson, No. DV-13-32
(Mont. 22nd Judicial Dist. Jan. 15, 2014). However, QBE
Insurance contends this court should instead follow the
Montana Supreme Court's decision of Christensen v.
Mountain West Farm Bureau, 22 P.3d 624 (Mont. 2000) as
it is the binding precedent on stacking liability coverages
undisputed that at the time of the collision, Keiser was
insured by a policy issued to him by QBE Insurance. The
policy covered four separate vehicles. See
Docket Nos. 108-1, pp. 18-20 and 148-1. For each of the four
vehicles, the policy provides liability limits of
“$300, 000 each accident.” Id. The
policy also lists separate premiums for liability coverage
for each vehicle covered by the policy. Id. In
“Section II - Liability Coverage, ” QBE Insurance
agreed to “pay all sums an ‘insured' legally
must pay as damages because of ‘bodily injury' or
‘property damage' to which this insurance applies,
caused by an “accident” and resulting from the
ownership, maintenance, or use of a covered
‘auto.'” Id. at 34. A covered
“auto” included the auto which Kesier was driving
at the time of the collision. The Court is tasked with
determining whether the liability limits of the policy issued
by QBE Insurance to Keiser is subject to stacking under
Montana Law. In other words, whether the policy limit for the
collision is $300, 000 or $1.2 million, the aggregate of
$300, 000 liability coverage limits for each of the four
vehicles insured under the policy.
Court begins its analysis by considering Montana's
‘anti-stacking' statute, including its legislative
history. Prior to 2007, Section 33-23-203 of the Montana Code
Annotated, commonly referred to as an
‘anti-stacking' statute, prescribed the limitations
of liability in insurance policies as follows:
(1) Unless a motor vehicle liability policy specifically
provides otherwise, the limits of insurance coverage
available under each part of the policy must be determined as
follows, regardless of the number of motor vehicles insured
under the policy, the number of policies issued by the same