McNeil v. Currie

No. 90-436

IN THE SUPREME COURT OF THE STATE OF MONTANA
1992

LINDA McNEIL,
Plaintiff and Appellant .wy;E 7.7
.
,' r,,w.
- -
"i
v.
THOMAS CURRIE and FARMERS INSURANCE
GROUP, FARMERS INSURANCE GROUP OF
COMPANIES, and THE TRUCK INSURANCE
-
APR 9 1992
EXCHANGE,
CiiRk ap ~ U p a r p E
COURT
Defendants and Respondents. hl~ji'l'TAMA

APPEAL FROM: District Court of the Third Judicial District,
In and for the County of Deer Lodge,
The Honorable Ted L. Mizner, Judge presiding.

COUNSEL OF RECORD:
For Appellant:
Michael J. McKeon, Attorney at Law,
Anaconda, Montana
For Respondents:
Steven S. Carey, Garlington, Lohn & Robinson,
Missoula, Montana; Robert C. Brown, Poore,
Roth & Robinson, Butte, Montana

Submitted on Briefs: September 24, 1991
Decided: April 9, 1992
Filed:

f
s"
Clerk
Justice R. C. McDonough delivered the Opinion of the Court.

Linda McNeil appeals from an order of summary judgment granted
by the District Court of the Third Judicial District, Deer Lodge
County, in favor of defendants Thomas Currie, Farmers Insurance
Group, Farmers Insurance Group of Companies and The Truck Insurance
Exchange. The District Court held that there were no genuine
issues of material fact and the applicable law supported
defendants' motions for summary judgment. We affirm in part and

reverse in part.
The issues on appeal are:
1. Whether the District Court erred in determining that
McNeil did not have a claim for a breach of the implied covenant of
good faith and fair dealing.
2. Whether the District Court erred in determining that
McNeil did not have a claim for fraud.
3. Whether the District Court erred in finding that McNeil
did not have a claim under the Unfair Claim Settlement Practices
Act.
4. Whether the District Court erred in determining McNeil did
not have a claim for intentional infliction of emotional
distress.
A review of the somewhat complex factual background is
necessary. Appellant Linda McNeil (McNeil) has owned a clothing
store, Calico & Company, in Anaconda, Montana, since 1983.
Respondent, Thomas Currie (Currie), was an independent insurance
agent during the time in question. Currie sold products of both
Farmers Insurance Group (Farmers) and Truck Insurance Exchange
(TIE), a member of Farmers Insurance Group. curriel s business,
"Thomas Currie Insurancett was located next door to McNeilts
clothing store in Anaconda.
In June of 1984, McNeil approached Currie about purchasing
insurance coverage for her business. Currie filled out an
application for a special Sentinel package policy from TIE. McNeil
signed the application and gave Currie a check for $113.00 as a
down payment. The balance of $113.00 was due within 60 days if TIE
accepted the risk of insuring McNeilts store.
On June 28, 1984, Currie submitted the application along with
the check to TIE. TIE sent Currie a notice on July 9, 1984,
stating that Calico & Company was ineligible for a special Sentinel
policy, but that TIE would consider the business for a regular
Sentinel policy, and that a completed application should be sent.
Currie testified he mistakenly thought TIE would consider Calico &

Company for the regular Sentinel policy from the original
application already submitted. Thus, no application for a regular
Sentinel policy was submitted by Currie. Consequently, TIE did not
issue McNeil a policy. TIE provided binder coverage to McNeil from
July 1, 1984 through September 4, 1984. Currie testified he led
McNeil to believe she was going to receive a policy.
TIE did not accept the application for the special Sentinel
policy because Calico & Company did not meet the policy
requirements of being in business for at least three years and did
not have the requisite Dun & Bradstreet (D & B) Credit Rating. On
July 31, 1984, TIE sent a notice of cancellation, along with a
refund, to Linda McNeil s correct address at her store in Anaconda.
On August 1, 1984, McNeil unaware of the cancellation, sent in the
balance of $113.00 for the premium. McNeil testified she did not
receive the notice of cancellation, but recalled seeing it in her
files.
The refund check of $74.10 less $38.90 from the first $113.00
installment, covered the amount for the binder coverage provided
between July 31, 1984 and September 4, 1984. TIE refunded the
second check in September of 1984. This check went to Curriels
office payable to McNeil. McNeil testified that no discussions
between herself and Currie regarding the insurance occurred again
until after the first of the year. However, Currie testified he
told McNeil to ignore a cancellation notice if she received one.
On December 24, 1984, William Jarvi, who is not a party to
this lawsuit, drove his automobile into the building which housed
Calico & Company and Thomas Currie Insurance, causing damage to
both businesses. Jarvi was, coincidentally insured by Farmers.
John Gillespie, a Farmers claim adjuster, adjusted and settled
McNeil Is claim under Jarvi Is policy. McNeil did not submit a claim
under her policy.
During the time the claim was being adjusted under Jarvils
insurance, attorney Greg Skakles represented McNeil. Skakles
settled the claim with Farmers on behalf of McNeil for $5,006.95 on
April 19, 1985. The settlement included payment for emotional
distress and lost profits for the two days the store was closed
after Christmas.
McNeil testified she found out she didn't have a policy
sometime in February of 1985. McNeil testified on deposition that
she repeatedly requested a copy of her insurance policy from
Currie. Attorney Skakles also requested a copy of the policy from
Currie. Currie testified that when he realized his mistake that an
application for the regular Sentinel policy was necessary, he
informed Skakles. Skakles demanded Currie obtain immediate
insurance coverage for McNeills store.
Subsequently, on May 3, 1985, Currie sent an application with
McNeills file signature, to TIE, this time for a regular Sentinel
policy along with the two refund checks TIE had returned in August
and September of 1984. Currie testified that he obtained the
refund checks from McNeil. McNeil testified she was unaware of
this second May 1985 application, even though her attorney demanded
Currie obtain coverage for her. Representatives of TIE testified
that McNeil received binder coverage from March 14, 1985 to
September 1, 1985, and if McNeil had sustained a loss during that
period, she would have been covered.
This second policy application was denied by TIE on May 24,
1985. Currie notified Skakles of the denial. Farmers applied the
two refund checks to the binder coverage for McNeil Is store from
March 14, 1985 until September 1, 1985. However, McNeil still owed
$242.00 for the binder coverage. TIE sent notices for the premium
to McNeil on July 1, 1985, and July 25, 1985. These documents
advised McNeil to inform TIE if she had obtained other coverage for
the same time period, and if so, the premium charge would be
dropped. McNeil testified she did not receive these notices.
McNeil applied for business insurance with Yeoman Insurance of
Anaconda and received a policy effective June 3, 1985. Neither
McNeil or Skakles informed TIE she obtained this coverage. After
two more premium notices were sent to ~ c ~ e i lTIE turned the
,
account over to D & B for collection. ~cNeilreceived a collection
notice from D & B to which she replied on August 22, 1985,
informing TIE that she never received a policy and did not owe them
any money. After D & B failed to collect the amount from McNeil,
they sent the account back to Farmers. Farmers halted any efforts
to collect the amount.
McNeil filed a lawsuit alleging that the defendants breached
the covenant of good faith and fair dealing, committed fraud,
violated the Unfair Trade Practices Act, and the defendants1
conduct constituted an intentional infliction of emotional
distress. The District Court granted summary judgment in favor of
TIE. McNeil appeals.
The scope of review is the same as the trial court. Summary
judgment under Rule 56(c), M.R.Civ.P., is proper only if the record
discloses no genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. Beaverhead Bar Supply v.
Harrington (1991), 247 Mont. 117, 120, 805 P.2d 560, 562.
I
Whether the District Court erred in determining that McNeil
did not have a claim for breach of the implied covenant of good
faith and fair dealing.
McNeil maintains that the District Court erred when it held
that she failed to claim a breach of contract, and therefore, could
not sustain a recovery under the breach of the implied covenant of
good faith and fair dealing. However, a precedent breach of the
underlying contract is no longer a requirement. Recently, we said:
"In order to recover . . . on a theory of breach of the implied
covenant, there must be an enforceable contract to which the
covenant attends. Beaverhead Bar Supply v. Harrington, (1991),
247 Mont. 117, 124, 805 P.2d at 564, citing Story v. City of
Bozeman (1990), 242 Mont. 436, 450, 791 P.2d 767, 775.
Story was decided on May 3, 1990. The District Court rendered
its opinion and order on June 27, 1990. The general rule is that
"A change in the law between a nisi prius (here the ruling in the
district court) and an appellate decision requires the appellate
court to apply the changed law." Thorpe v. Housing Authority of
the city of Durham (1969), 393 U.S. 268, 281, citing ~iffrin,Inc.
v. United States (1943), 318 U.S. 73, 78. This Court, citing
Thorpe, has provided that "generally an appellate court must apply
the law in effect at the time it renders its decision." Lee v.
Flathead County (1985), 217 Mont. 370, 373, 704 P.2d 1060, 1063.
Story says in applying the covenant to a contract, the honesty in
fact standard applies. Story v. City of Bozeman (1990), 242 Mont.

The honesty in fact standard, therefore, must be met for a
breach of the covenant of good faith and fair dealing, which
results in the breach of the contract itself. That is,
Each party to the contract has a justified expectation
that the other will act in a reasonable manner in its
performance or efficient breach. When one party uses
discretion conferred by the contract to act dishonestly
or to act outside of accepted commercial practices to
deprive the other party of the benefit of the contract,
the contract is breached.
Story at 450, 791 P.2d 775.
 Evidence existed that Currie received information from TIE in
July of 1984 that they would not underwrite McNeills store. While
Currie testified he made a mistake in interpreting the underwriting
action, there is testimony of misinformation from Currie to McNeil
and therefore the determination as to his credibility and honesty
lies with the trier of fact. Thus, McNeil is entitled to prove
that Currie acted dishonestly in handling her application. If
McNeil can prove Currie acted dishonestly, thus sustaining a breach
of contract under the implied covenant, only contract damages are
due. McNeil has already been reimbursed for the cost of the policy
plus interest. McNeil also pled costs as damages which may be
awarded after the outcome of the proceedings.
Damages are sometimes available for the contract related tort
of good faith and fair dealing. However, McNeil does not satisfy
the requirements to sustain an action for tortious breach of the
implied covenant as set forth in Story. In order for the tort of
bad faith to apply, all the essential elements of the special
relationship must be present. Story at 451, 791 P.2d at 776.
(1) the contract must be such that the parties are in
inherently unequal bargaining positions; [and] (2) the
motivation for entering the contract must be a non-profit
motivation, i.e., to secure peace of mind, security,
future protection; [and] (3) ordinary contract damages
are not adequate because (a) they do not require the
party in superior position to account for its actions,
and (b) they do not make the inferior party llwholelt;
[and] (4) one party is especially vulnerable because of
the type of harm it may suffer and of necessity places
trust in the other party to perform; [and] (5) the other
party is aware of this vulnerability.
Story at 451, 791 P.2d at 776.
Cases determining that a special relationship exists between
insured and insurer usually analyze fact situations in which
insurance companies have the upper hand in settling claims, denying
coverage and paying claims. See State Farm Fire & Cas. Co. v.
Nichols (Alak. 1989), 777 P.2d 1152, 1155-57; Alaska Pacific Assur.
Co. v. Collins ( Alak. 1990), 794 P.2d 936. However, under the
undisputed facts of this case, the parties are not in inherently
unequal bargaining positions. McNeil, a businesswoman, approached
Currie about obtaining insurance. The purchase of insurance was a
business deal which she could have entered into with any other
insurance agent. McNeil fails to satisfy an element of a special
relationship and does not have a bad faith claim in tort.
We therefore reverse the District Court as to the contract
action, and affirm as to the bad faith action in tort.

Whether the District Court erred in determining that McNeil
did not have a claim for fraud.
A prima facie case of actual fraud must include the following
nine elements: 1) proof of a representation; 2) its falsity; 3)
its materiality; 4) the speaker's knowledge of its falsity or
ignorance of its truth; 5) the speaker's intent that it should be
acted upon by the person and in the manner reasonably contemplated;
6) the hearer's ignorance of its falsity; 7) the hearer's reliance
on its truth; 8) the right of the hearer to rely upon it; and 9)
the hearer's consequent and proximate injury or damage. Avco
Financial Services v. Foreman-Donovan (1989), 237 Mont. 260, 772
P.2d 862, 864. Although McNeil failed to plead the elements of
fraud with particularity as required by Rule 9(b) M.R.Civ.P.,
evidence of fraud was presented in deposition, waiving any defense
to the violation of Rule 9(b).
Here, McNeil admitted seeing the cancellation notice in her
office files. Currie testified he advised her to ignore a
cancellation notice if she received one, and also gave assurance of
coverage. McNeil testified she never spoke to Currie about it.
Thus, there is an issue here as to credibility and summary
judgment is not proper. In addition, in viewing all inferences
that may be drawn in favor of the non-moving party, there is
evidence of proof of the first eight elements. Damages (No. 9) are
a necessary element of fraud. The fraud damages McNeil claims are
difficult to ascertain. A plaintiff may only recover for damages
that are proximately caused by the defendant's misrepresentations.
5 27-1-317, MCA (1991) . Montana cases on the subject only require
a finding of damages. As we said in Miller v. Fox:
It is true, as plaintiff claims, that under 5 17-208,
R.C.M. 1947, * * * there can be no recovery of
exemplary or punitive damages unless the plaintiff is
entitled to actual damages." Smith v. Krutar (1969), 153
Mont. 325, 335, 457 P.2d 459, 464. Although the trier of
fact, as a prerequisite for awarding exemplary damages,
must find the claimant suffered actual damages, it is
unnecessary that the trier of fact place a monetary value
on the actual damages or make any award of actual
damages. Fauver v. Wilkoske (1949), 123 Mont. 228, 239,
211 P.2d 420.
Miller v. Fox (1977), 174 Mont. 504, 510, 571 P.2d 804, 808. If a
finding of damages is made, the trier of fact could make an award
for punitive damages if the requisite malice were proved. Miller
at 510-511, 571 P.2d at 808; Butcher v. Petranek (1979), 181 Mont.
358, 364, 593 P.2d 743. Therefore, we conclude that the ~istrict
Court erred in ruling McNeil failed to make a prima facie case for
fraud.
 Whether the District Court erred in finding that McNeil did
not have a claim under the Unfair Trade Practices Act.
McNeil argues that 5 5 33-18-201 and 33-18-212, MCA, apply to
the facts. Title 33, MCA, governs insurance and insurance
companies. Section 33-18-201, MCA, titled "Unfair claim settlement
and practices prohibitedvv,
governs situations in which claims have
been made to insurance companies. Under the facts of this case,
McNeil never submitted a claim to TIE. Accordingly, we hold that
§ 33-18-201, MCA, is not applicable.
Section 33-18-212, MCA, states in part:
Illegal dealing in premiums--improper charges for
insurance. (1) a person may not willfully collect any sum
as premium or charge for insurance, which insurance is
not then provided or is not in due course to be provided
(subject to acceptance of risk by the insurer) by an
insurance policy issued by an insurer as authorized by
this code.
Currie did collect a sum from McNeil as a premium which he
submitted to Farmers. While it is true that McNeil did not receive
a policy, she did receive binder coverage between July 1, 1984 and
September 4, 1984, and March 14, 1985 and September 1, 1985.
Farmers declined to accept the risk of insuring McNeilvs store
based on the amount of time McNeil had been in business, and her
low D & B rating. These facts do not support a violation of 5 33-
18-212, MCA.
We hold neither Currie nor Farmers violated 5 5 33-18-212 or
33-12-201, MCA, therefore the District Court did not err in
concluding that McNeil did not have a claim under the Unfair Trade
Practices Act.
 IV
Whether the District Court erred in determining McNeil did not
have a claim for intentional infliction of emotional distress.
McNeil maintains that Currie constantly badgered her to reopen
her business quickly after the Christmas Eve accident and that he
pressured her to accept settlement under Jarvi's policy. McNeil
testified that she was embarrassed and humiliated to open her store
while the windows were boarded with plywood. Further McNeil
worried that the D & B collection attempt would affect her credit
rating. As a result, McNeil contends she developed dermatological
problems requiring medical treatment. In support of her position,
McNeil relies on Niles v. Big Sky Eyewear (1989), 236 Mont. 455,
771 P.2d 114, for the proposition that Montana recognizes an
independent cause of action for intentional infliction of emotional
distress.
In Niles we affirmed the District Court's refusal to issue a
directed verdict in favor of the employer Big Sky Eyewear. Big Sky
Eyewear falsely accused Niles of stealing and had her arrested and
as a result she spent time in jail. In Niles we stated: "Where
there is evidence of substantial invasion of a legally protected
interest which causes a significant impact upon the person of the
plaintiff, emotional distress is compensable without showing of
physical or mental injury." Niles at 465, 771 P.2d at 119, citing
Johnson v. Supersave Markets, Inc. (1984), 211 Mont. 465, 475, 686
P.2d 209, 213. Under the facts, this Court held that Niles met
this standard and declined to overturn the District Court's denial
of defendant's directed verdict on the issue. In the case at bar
McNei1 can show no similar substantial invasion of a legally
protected interest.
In Day v. Montana Power Co. (1990), 242 Mont. 195, 789 P.2d
1224, we said, "We have adopted only comment j to Restatement
(Second) of Torts 5 46 (1965), defining severe emotional distress.
First Bank (N.A.) v. Clark (1989), 236 Mont. 195, 771 P.2d 84, 91.
Section 46 concerns the tort of intentional infliction of emotional
distress which we have not recognized as a cause of action."
at 200, 789 P.2d at 1227. See also Doohan v. Bigfork School Dist.
No. 38 (1991), 247 Mont. 125, 143, 144, 805 P.2d 1354, 1362, 1365,
in which this Court declined to find a prima facie case for
intentional infliction of emotional distress under the facts.
Moreover, 5 46 of the Restatement provides: "One who by
extreme and outrageous conduct intentionally or recklessly causes
severe emotional distress to another is subject to liability for
such emotional distress and if bodily harm to the other results
from it, such bodily harm.
Neither the conduct of Currie nor Farmers rises to the level
of extreme and outrageous. Further, the emotional distress
suffered by McNeil does not rise to the level of severity called
for in the Restatement. McNeil saw Dr. Neill, a dermatologist, on
two occasions for treatment of what Dr. Neill labeled moderate
acne. Dr. Neill testified that stress was one possible cause of
the acne. Commentators to the Restatement note: " ... The law
intervenes only where the distress inflicted is so severe that no
reasonable person could be expected to endure it. Restatement
(Second) of Torts 5 46 (1965), comment j. We find that a
reasonable person in our society should be expected to endure the
problems McNeil suffered.
Additionally, although McNeil was worried about her credit
rating, she testified that her credit rating was not affected by
the D & B collection attempt. She has not been turned down for a
loan, nor denied inventory credit for store purchases.
We conclude that the District Court did not err in granting
defendants1 motions for summary judgment on McNeills intentional
infliction of emotional distress claim.
Therefore, we affirm in part and reverse in part and remand to
District Court for proceedings not inconsistent with this opinion. /

We Concur: ,A

Justices
Justice Terry N. Trieweiler specially concurring in part and
dissenting in part.
I concur with those parts of the majority opinion which affirm
the District Court's order dismissing plaintiff's claims for
violation of 5 33-18-201, MCA, and for intentional infliction of
emotional distress. I also concur with that part of the majority
opinion which reverses the District Court's dismissal of
plaintiff's claim which was based on fraud.

I dissent from that part of the majority opinion which affirms
the District Court's order dismissing plaintiff's claim for tort
damages based upon breach of the implied covenant of good faith and
fair dealing.
As I stated in Haines Pipeline v. Montana Power Company (Mont. 1991) ,

48 St.Rep. 1102, 1109, I would not follow Storyv. C i ~ ~ o f B o z e m a(1990),
n

242 Mont. 436, 791 P.2d 767.
Story represents a sorry chapter in Montana jurisprudence, which

for all practical purposes eliminated the tort of bad faith. In
doing so, this Supreme Court did no favor to the citizens of this
State.
The tort law of bad faith evolved through careful
reasoning and long experience to take the profit out of
dishonest and oppressive business practices. Stoly
returned that profit for those in superior bargaining
positions.
Every consumer and small businessman and woman in
Montana are worse off because of Story.

J., dissenting) .
Haines Pipeline, 4 8 St.Rep. at 1109 (~rieweiler,
 The worst part of the Story decision is that the legal principle

for which it stands was not even an issue raised and briefed by the
parties on appeal. As pointed out by Justice Sheehy in his
dissenting opinion:
When we read the second portion of the majority
opinion, a light dawns as to the reason for the reversal
on this thin record. The majority have a higher agenda,
one beyond the appeal in this case: the implied reversal
.
of Nicholson v. United Pacific Ins. Co. ( 198 5 ) , 219 ~ o n t 32 , 710
P.2d 1342. They use the vehicle of this case, weak as it
is, to work their purpose.
There is no issue raised in this case from the
parties or the record as to the concept of implied
covenant of good and fair dealing in contracts. The law
applying to this subject used by the District Court was
thatsupplied by the defendants. That application by the District
Court has become the law of the case. Without briefs on
the issues, and without notice to the Bar in general, the
majority accomplishes the following results:

3. Where no special relationship
exists, the only available damages are
contract damages, regardless of how egregious
the conduct of the wrongdoing party is and
regardless of the tort involved.

What the majority have done in this case is to
abrogate any remedy for arbitrary, capricious or
egregious conduct by a contracting party, upon issues not
raised in this file nor on the record and without notice
to the Bar in general. The reversal of the hard-won
verdict obtained by Mark Story in this case is a joke.
Under the limitations of the majority opinion, he will
never again be justly compensated by any jury.
Story, 791 P.2d at 780, 782 (Sheehy, J., dissenting).
 I believe that the sounder public policy was articulated in
Nicholson v. U i e States Pacific Insurance ( 1985) , 219 Mont . 32 , 710 P .2d
ntd

1342, where we stated that:
The nature and extent of an implied covenant of good
faith and fair dealing is measured in a particular
contract by the justifiable expectations of the parties.
Where one party acts arbitrarily, capriciously, or
unreasonably, that conduct exceeds the justifiable
expectations of the second party. The second party then
should be compensated for damages resulting from the
other's culpable conduct.
Nicholson, 710 P.2d at 1348.

I believe there was evidence in this case that Currie, and
possibly his employer, acted arbitrarily and unreasonably. His
conduct was certainly contrary to the justifiable expectations of
the plaintiff . Under the Nicholson criteria, there was sufficient

evidence of bad faith to overcome a motion for summary judgment by
the defendant. I would allow the plaintiff to pursue her bad faith
claim in tort and let a jury decide whether she is entitled to
damages for that claim.

Even under this Court's decision in Stoy, there was sufficient

evidence of bad faith to require submission of this case to a jury.
I conclude that the plaintiff satisfied all of the elements in S o y
tr

which this Court held are necessary to support tort damages for bad
faith. Specifically, I believe that: (1) a lay-person who is
unsophisticated in the technicalities of insurance coverage who
goes to a professional licensed agent and relies on representations
made by that agent is in an inherently unequal bargaining position;
(2) plaintiff had no basis for questioning any representation that
was made to her by someone she presumed to have special knowledge
and qualifications for the representations that he made; (3) her
purpose for entering into the contract was certainly nonprofit; it
was to obtain peace of mind by acquiring business property
insurance; (4) ordinary contract damages in this case are not
adequate to compensate plaintiff for the experience that has
resulted from the defendants' conduct and will not make plaintiff
whole for the disruption to her life that has resulted in this
case. (Contract damages will not even cover the legal expense that
a person in plaintiff's position would normally have incurred just
to protect her credit rating); and (5) she was especially
vulnerable when she placed her trust in Currie, and he certainly
was aware of her vulnerability by the fact that she accepted every
one of his misrepresentations at face value.
For these reasons I dissent from the majority's disposition of
plaintiff's claim based on the tort of bad faith.
11. UNFAIR TRADE PRACTICES ACT

I also dissent from that part the majority opinion which
affirms the dismissal of plaintiff's claim under 5 33-18-212, MCA,
of the Unfair Trade Practices Act.
Section 33-18-212, MCA, provides that:
(1) A person may not willfully collect any sum as
premium or charge for insurance, which insurance is not
then provided or is not in due course to be provided
(subject to acceptance of risk by the insurer) by an
insurance policy issued by an insurer as authorized by
this code.
 In this case, plaintiff paid Currie $226 for insurance
coverage from July 1, 1984, until June 31, 1985. She did not
receive insurance coverage during that period of time. The
majority disposed of this claim by observing that according to
Currie she was covered during portions of that time based on his
authority to bind the company. However, providing her with
coverage during a portion of the time that she paid for is not the
same as providing her with the coverage that she paid for.
Furthermore, there was no written policy ever issued upon which
plaintiff could have relied to assert a claim for coverage, had one
been necessary. All the record reflects is that in retrospect
after a dispute arose regarding an additional premium which Truck
Insurance Exchange claimed was due, it asserted that it was bound
from July 1, 1984, through September 4, 1984, and again from
March 14, 1984, through September 1, 1985.
I conclude that the facts proven in this case would support a
cause of action based on a violation of § 33-18-212, MCA.
Therefore, I would reverse the District Court's order which
dismissed plaintiff's claim under that statute by summary judgment.

I concur in the foregoing concurrence and dissent of Justice
Trieweiler.
/