Streich & Associates, Inc. v. St. Paul Mercury Insurance

No. 85-490
IN THE SUPREME COURT OF THE STATE OF MONTANA
1986

STREICH & ASSOCIATES, INC.,
a corporation,
Plaintiff and Respondent,

ST. PAUL MERCURY INSURANCE COMPANY,
a corporation, and ROBERT C. MASTERS,
Defendants and Appellants.

APPEAL FROM: District Court of the Eleventh Judicial District,
In and for the County of Flathead,
The Honorable Nat Allen, Judge presiding.

COUNSEL OF RECORD:

For Appellant:
Alexander & Baucus; Neil Ugrin, Great Falls, Montana

For Respondent:
Terry N. Trieweiler, Whitefish, Montana

Submitted on Briefs: Jan. 16, 1986
Decided: April 29, 1986

Filed: APR. 2 9 1986,

Clerk
Mr. Chief Justice J. A. Turnage delivered the Opinion of the
Court.

This is an appeal from the Flathead County District
Court's denial of a motion for change of venue. We affirm.
We note at the outset that although the new venue
provisions in the Montana Code were not in effect when the
District Court handled this matter, they apply to this ap-
peal. See Weiss v. State (Mont. 1986), 712 P.2d 1315, 43
St.Rep. 82. The current § 25-2-122, MCA, provides that
proper venue for a tort action is where defendant resides, or
where the tort was committed.
In this case, we are asked to determine where an al-
leged insurer bad faith tort was committed. If the alleged
tort was not committed in Flathead County, then plaintiff
filed the action in an improper county under § 25-2-122, MCA,
and defendants are entitled to removal. See Bradley v.
Valmont Industries, Inc. (Mont. 1985), 701 P.2d 997, 42
St.Rep. 925.
Plaintiff filed its complaint in the District Court for
Flathead County, Montana, claiming the defendants violated
Montana's Unfair Trade Practices Act, § 33-18-201, M.CA. The
complaint alleges that plaintiff's potato crop was damaged by
potting soil purchased from Martin's Peat, Inc. Both the
plaintiff's farm and Martin's Peat, Inc., are in Flathead
County.
Martin's Peat is insured by defendant, St. Paul Mercury
Insurance Company. The insurance company has its principal
place of business in St. Paul, Minnesota. Defendant, Mas-
ters, is a claims representative for the insurance company.
Masters resides and maintains his office in Great Falls,
Cascade County, Montana. An affidavit of Masters was filed
at the District Court stating that all work and decisions on
plaintiff's claim were accomplished in Great Falls. The
affidavit also attests that Masters is quadriplegic and that
he performs nearly all of his work for the insurance company
in Great Falls.
Defendants filed a motion requesting that venue be
changed to Cascade County. The District Court denied that
motion and a subsequent motion by defendants to vacate,
amend, alter or revise the denial. Defendants now appeal the
District Court's refusal to change venue.
We note that the insurance company and its claims
representative are separate defendants. Section 25-2-117,
MCA is therefore applicable. That statute provides that "a
county that is a proper place of trial for any defendant is
proper for all defendants." In this case, venue in Flathead
County was proper for the insurance company.
The basis of plaintiff's complaint is that defendants
violated Montana's Unfair Trade Practices Act by:
(1) failing to act reasonably promptly with respect to
plaintiff's claim of damage to his potato crop; (2) failing
to adopt and implement reasonable standards for the prompt
investigation of plaintiff's claim; and (3) failing to
attempt in good faith to effectuate prompt, fair and equita-
ble settlement of plaintiff's claim even though liability was
reasonably clear. See S 33-18-201, MCA. Defendants allege
that these ommissions were committed, if at all, in Cascade
County where the claim was reviewed and decisions on handling
the claim were made. We disagree.
Plaintiff's action is founded on S 33-18-201, MCA. The
insurer's duties under that statute include investigation and
negotiation. These duties could only have realistically been
p e r f o r m e d i n F l a t h e a d County. Therefore, t h e duty could only

b e b r e a c h e d i n F l a t h e a d County.

"For t h e purposes o f venue, a t o r t i s committed where
t h e r e i s a c o n c u r r e n c e o f b r e a c h o f o b l i g a t i o n and t h e o c c a -

sion of damages." Whalen v . Snel.1 (Mont. 1 9 8 3 ) , 667 P . 2 d

436, 4 0 St.P.ep. 1283, 1 2 8 5 . Here, t h e b r e a c h , i f a n y , o f t h e

insurer's obligation and the damages occurred i n Flathead

County. Venue w a s , therefore, proper i n Flathead County.

W e affirm.
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W e concur:
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Chief J u s t i c e

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