General Insurance Co. of America v. Town Pump, Inc.

No. 81-383

I N T E SUPREME COURT O T E STATE O MONTANA
H F H F

1981

GENERAL INSURANCE C M A Y
O PN
O AMERICA,
F

P l a i n t i f f and Respondent,

TOWN PUMP, I N C . , and
BOZEMAN TOWN PUMP, I N C .

Defendant and A p p e l l a n t .

Appeal from: D i s t r i c t Court of t h e Eighteenth J u d i c i a l D i s t r i c t ,
I n and f o r t h e County o f G a l l a t i n , The Honorable
J o s e p h B. Gary, Judge p r e s i d n g .

Counsel o f Record:

For A p p e l l a n t :

H o l l a n d and Brown, B u t t e , Montana

For Respondent:

Page Wellcome, Bozeman, Montana

S u b m i t t e d on B r i e f s : November 6 , 1981

Decided: Fa8 1 1 l Z
@

Filed:
FEB 111982

Clerk
Mr. Justice John Conway Harrison delivered the Opinion of
the Court.
This action concerns the question of venue in a
declaratory judgment action filed in the District Court of
the Eighteenth Judicial District, Gallatin County.
Respondent, General Insurance Company of America, sued
appellant, Town Pump, Inc., in Gallatin County seeking
declaratory judgment with respect to rights and duties of
the parties under an insurance policy. Town Pump filed a
timely motion for change of venue to Silver Bow County, its
county of residence. General Insurance Company resisted,
arguing the place of performance of the insurance contract
was Gallatin County. The District Court denied the change
of venue, and Town Pump appeals.
In 1973 Town Pump, Inc., purchased a comprehensive
liability policy from General Insurance Company of America.
The policy was negotiated in Silver Bow County and accepted
by the General at its headquarters in Seattle, Washington.
Premiums were paid to General at its Seattle offices. The
face sheet of the insurance policy designating the
additional "named insured" includes the Bozeman Town Pump,
Inc.
During the term of the policy, Town Pump was sued in
Gallatin County by persons whose water was contaminated by
gasoline seeping from the appellant's underground tanks.
General defended Town Pump in these actions and ultimately
paid a portion of the judgment against Town Pump. See,
Ferguson v. Town Pump, Inc. (1978), 177 Mont. 122, 580 P.2d
915; Town Pump, Inc. v. Diteman (1981), - Mont. -, 622
P.2d 212, 38 St.Rep. 54. General is now suing Town Pump in
Gallatin County seeking a declaratory judgment that the
insurance policy did not cover the risks sued upon and
praying for reimbursement of monies paid to satisfy the
judgment against Town Pump.
The sole issue before us is whether the District
Court erred in denying Town Pump's motion for a change of
venue.
We hold that the place of performance of the contract
controls venue in this case. Section 25-2-101, MCA,
provides: "Actions upon contracts may be tried in the
county in which the contract was to be performed, subject,
however, to the power of the court to change the place of
trial as provided in this code." The trial judge noted in
his memorandum attached to the opinion:
". . . that the insurer covered business
throughout the entire State and that in case
of a loss being suffered the payment would be
made for the losses in Gallatin County or
Broadwater County if the loss was to the Town
Pump in Townsend, etc. Therefore, it is my
feeling that Section 25-2-101, MCA, is
controll-ing and that the contract would be
performed in Gallatin County when the insured
in this case was Bozeman Town Pump . . ."
We find no error. Affirmed.

We concur:

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&4a i e f Justice