FILED
NOT FOR PUBLICATION
JUN 15 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BREANNE WALDEN; et al., No. 15-35870
Plaintiffs-Appellants, D.C. No. 9:13-cv-00222-DLC
v.
MEMORANDUM*
MARYLAND CASUALTY COMPANY,
Defendant-Appellee.
Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, Chief Judge, Presiding
Submitted June 13, 2017**
Seattle, Washington
Before: D.W. NELSON, M. SMITH, and CHRISTEN, Circuit Judges.
Plaintiffs appeal from the district court’s grant of summary judgment in
favor of Maryland Casualty Company. We have jurisdiction under 28 U.S.C.
§ 1291, and we affirm in part, reverse in part, and remand for further proceedings.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
We affirm the district court’s determination that Maryland Casualty did not
breach its duty to defend Dahl’s College of Beauty against plaintiffs’ complaint
and First Amended Complaint under Coverage B of the policy. As relevant,
Coverage B covered “personal and advertising injury” arising out of “[t]he
wrongful eviction from, wrongful entry into, or invasion of the right of private
occupancy of a room, dwelling or premises that a person occupies, committed by
or on behalf of its owner, landlord or lessor.” We see no error in the district
court’s application of the ordinary, common understanding that “eviction” involves
denying a possessory interest in real property, nor in its conclusion that Maryland
Casualty did not breach its duty to defend by failing to equate expulsions with
Coverage B “evictions.”
In light of Employers Mutual Casualty Co. v. Fisher Builders, Inc., 371 P.3d
375 (Mont. 2016), the district court erred by concluding that the policy excluded
coverage for bodily injuries that were the unintended or unexpected consequences
of intentional acts. Although plaintiffs complained of only intentional acts, the
district court concluded: “Though Plaintiffs’ collective emotional distress, and the
physical manifestations accompanying it, was likely unforeseen and unintended by
the Dahl’s defendants, that is simply not the focus of the coverage analysis.”
Contrary to this ruling, Fisher explained that, under Montana law, an “occurrence”
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is excluded from coverage if: “1) the act itself was intentional, and 2) . . . the
consequence or resulting harm stemming from the act was intended or expected
from the actor’s standpoint.” Id. at 378 (emphasis added). In light of Fisher, we
reverse the district court’s October 7, 2015 order and remand for further
proceedings.
AFFIRMED in part, REVERSED in part, and REMANDED.
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