# St. Paul Fire & Marine Insurance v. Thompson > Montana Supreme Court · October 27, 1967 · 150 Mont. 182 URL: https://www.frixlaw.com/law-library/cases/9623800 ## Case - **Full name:** ST. PAUL FIRE AND MARINE INSURANCE COMPANY, Plaintiff v. BRUCE THOMPSON, Defendant Third-Party Plaintiff and Respondent, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a Corporation, Third-Party Defendant and Appellant - **Court:** Montana Supreme Court - **Decided:** October 27, 1967 - **Citations:** 150 Mont. 182; 433 P.2d 795; 27 A.L.R. 3d 1048; 1967 Mont. LEXIS 282 - **Precedential status:** Published - **Opinion:** Concurring in part by Haswell - **Judges:** Castles, Haswell, Harrison, Adair - **Cited by:** 49 later opinions in the Frix Law Library ## Citator (automated) - No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases. - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9623800 ## Opinion text MR. JUSTICE HASWELL (specially concurring in part and dissenting in part) : I concur in the result reached by the majority finding a breach of duty to defend by State Farm and awarding Thompson the sum of $2,500 by reason thereof. I do not agree however, that the duty to defend arises from ambiguous policy provisions construed in favor of the insured, Thompson. In my opinion the policy provisions relating to the duty to defend are clear, definite, unambiguous, and impose no duty on State Farm to defend in the instant situation under any recognized principles of construction. Under the terms of the policy, State Farm has the duty “to defend any suit against the insured alleging such bodily injury or destruction and seeking *190 damages on account thereof, even if such suit is groundless, false oi1 'fraudulent.” (Emphasis supplied.) The instant action by St. Paul against Thompson does not allege bodily injury or destruction of property and seek damages on account thereof. On the contrary it is an action by one of two joint judgment debtors against the other to recover all sums paid by the one debtor on the judgment secured against both. It is based on the principle of indemnity and is in no sense an action seeking damages for bodily injury or destruction of property. In my view, to hold that the language of the policy requires State Farm to defend here is to strain the meaning of the English language. I would base the result reached here on the principle of estoppel. In the action resulting in the joint judgment, State Farm had control of Thompson’s defense under standard policy provisions. For tactical reasons, State Farm chose not to litigate the respective lights and liabilities existing between the two defendants (who later became the two judgment debtors), but instead elected to confine that action to the question of liability as between the plaintiff therein on the one hand, and the two defendants jointly on the other. The effect of this choice was twofold: (1) To remove the duty to defend from the ambit of the policy provisions, and (2) To necessitate the instant action to determine rights as between the two joint judgment debtors. As the rights involved in the instant case could have been litigated in the original suit and if so litigated then, there would have been a clear duty on the part of State Farm to represent and defend Thompson therein, I would estop State Farm from denying the duty to defend Thompson in the instant case. In my view, sound public policy requires this approach. I dissent from that paid of the majority opinion refusing recovery of damages to St. Paul from State Farm based on an unmeritoi’ious appeal. The only reason that St. Paul is involved in this appeal at all is because State Farm appealed *191 from the trial judge’s denial of summary judgment in favor of Thompson against St. Paul. A denial of a motion for summary judgment is not an appealable order. (Rule 1, M.R.App.Civ.P.; Barron and Iloltzoff, Federal Practice and Procedure, Yol. 3, § 1242; Moore’s Federal Practice, Yol. 6, § 56.21 [2] ; Jones v. St. Paul Fire and Marine Ins. Co., 5 Cir., 108 F.2d 123 ; John Hancock Mutual Life Ins. Co. v. Kraft, 2 Cir., 200 F.2d 952 ; Dutton v. Cities Service Defense Corp., 8 Cir., 197 F.2d 458 ; McGarth v. Hunt, 2 Cir., 194 F.2d 529 ; Atlantic Co. v. Citizens Ice & Cold Storage Co., 5 Cir., 178 F.2d 453 ; Marcus Breier Sons v. Marvlo Fabrics, Inc., 2 Cir., 173 F.2d 29 .) The reason it--is not appealable is that a denial of summary judgment is an interlocutory order, leaving the case pending for trial, and no- party’s rights are finally foreclosed. To my mind, this appeal insofar as St. Paul is concerned, is clearly without merit and obviously for the purpose of delaying St. Paul’s indemnity action against Thompson. It is true that upon oral argument, State Farm abandoned its appeal from the trial court’s denial of a motion for summary judgment in favor of Thompson against St. Paul, but by that time the damage was done; St. Paul had prepared its brief on appeal; St. Paul’s attorneys were before the court for the purpose of oral argument; and St. Paul’s attorneys proceeded with oral argument and supplemental briefs in much the same fashion as on any appeal. For the foregoing reasons I would award damages for an appeal without merit and for the purpose of delay in favor of St. Paul and against State Farm to the extent of a reasonable attorney’s fee for St. Paul’s attorneys on this appeal pursuant to Rule 32, M.R.App.Civ.P. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9623800. Public record. Not legal advice.