No. 05-448
IN THE SUPREME COURT OF THE STATE OF MONTANA
2007 MT 83
____________________________________
STATE OF MONTANA,
Plaintiff and Appellant,
v.
ALLENDALE MUTUAL INSURANCE COMPANY and
AFFILIATED FM INSURANCE CO.,
Defendants and Respondents.
____________________________________
APPEAL FROM: District Court of the First Judicial District,
In and for the County of Lewis and Clark, Cause No. BDV-2000-785,
The Honorable Jeffrey M. Sherlock, Presiding Judge.
COUNSEL OF RECORD:
For Appellant:
Liesel Shoquist and Dale R. Cockrell, Christensen, Moore, Cockrell,
Cummings & Axelberg, P.C., Kalispell, Montana
For Respondents:
Peter F. Habein and David Wagner, Crowley, Haughey, Hanson, Toole &
Dietrich, Billings, Montana
Scott M. Stickney, Jerret E. Sale and Deborah L. Carstens, Bullivant
Houser Bailey, PC, Seattle, Washington
____________________________________
Submitted on Briefs: June 1, 2006
Decided: March 27, 2007
Filed:
_____________________________________________
Clerk
Justice John Warner delivered the Opinion of the Court.
¶1 The State of Montana appeals from an order of the First Judicial District Court,
Lewis and Clark County, granting Defendants’ motions for summary judgment and
dismissing the State’s claims. We affirm.
¶2 The State filed suit against Defendants, Allendale Mutual Insurance Company
(Allendale) and Affiliated FM Insurance Company (Affiliated), seeking coverage and
reimbursement for expenses incurred in preparing for anticipated computer problems
associated with the new millennium beginning January 1, 2000 (Y2K).
¶3 Allendale and Affiliated issued insurance policies to the State covering the periods
between July 1, 1993, and July 1, 2000. These policies insured against “all risks of
physical loss or damage” and “all risks of direct physical loss or damage,” respectively.
However, the policies excluded coverage for damage caused by “inherent vice” or “faulty
design.”
¶4 Between 1996 and 2000 the State took steps to address the anticipated Y2K issues
with its computers. On March 23, 2000, the State wrote to Allendale and Affiliated,
indicating it intended to submit claims for its related expenses. The State claimed to have
spent over $6 million to “prevent loss and property damage which could have resulted
from ‘Y2K’ related problems.” 1
¶5 Allendale and Affiliated responded to the State’s letter on March 31, 2000,
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The State alleged these costs to include: loss of staff; loss of use and access to hardware,
software and systems; hiring of contractors; buying computer hardware and software; appointing
task forces; having staff and contractors inventory, test and assess the State’s various hardware
and software systems; buying and rewriting software; replacing hardware and software; loss of
staff time; and loss of use of access to hardware, software and computer systems.
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claiming their policies did not cover “remediation of date or time recognition problems.”
The State filed this suit against both insurers on January 3, 2001.
¶6 The parties filed cross-motions for summary judgment on the coverage issue. The
District Court granted the insurers’ motion and denied the State’s motion, concluding: (1)
the “inherent vice” and “faulty design” exclusions in the insurance policies applied to
preclude coverage; (2) the State was not entitled to coverage under the policies’
protection and preservation of property provisions; (3) the policies were not ambiguous;
and (4) the alleged failure of the insurers to deliver copies of two insurance policies did
not entitle the State to coverage.
¶7 This Court reviews a district court’s grant of summary judgment de novo. Watson
v. Dundas, 2006 MT 104, ¶ 16, 332 Mont. 164, ¶ 16, 136 P.3d 973, ¶ 16. The moving
party must establish both the absence of a genuine issue of material fact and entitlement
to judgment as a matter of law. M. R. Civ. P. 56. The burden then shifts to the non-
moving party to prove, by more than mere denial and speculation, that a genuine issue
does exist. Watson, ¶ 16. If the court determines that no genuine issues of fact exist, it
must then determine whether the moving party is entitled to judgment as a matter of law.
Watson, ¶ 16. We review legal determinations made by a district court to establish
whether the conclusions are correct. Watson, ¶ 16.
¶8 The State argues that the Allendale and Affiliated policies are ambiguous and,
thus, their language must be interpreted against the insurers to include the State’s Y2K
readiness expenses. See Jacobsen v. Farmers Union Mut. Ins. Co., 2004 MT 72, ¶ 19,
320 Mont. 375, ¶ 19, 87 P.3d 995, ¶ 19 (“Any ambiguities in the language of a policy will
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be construed against the insurer.”). The State also argues that Allendale and Affiliated
failed to provide copies of the insurance policies for 1996-1999 and 1997-1998,
respectively, and are therefore barred from relying upon the terms of those policies.
¶9 The Allendale policies generally provided coverage as follows: “This policy
covers property . . . against all risks of physical loss or damage except as hereinafter
excluded[.]” Similarly, the Affiliated polices provided: “This policy insures against all
risks of direct physical loss or damage to the insured property except as excluded under
this policy.” The State argues that this language is ambiguous. However, it is not
necessary to determine whether the language providing coverage is ambiguous because
we conclude that Y2K-readiness expenses are excluded from the relevant policies, and
the policy exclusions are not ambiguous.
¶10 All policies issued on or after July 1, 1999, from both Allendale and Affiliated
expressly exclude coverage for Y2K-readiness expenses. 2 Thus, the expenses incurred
by the State in this case are clearly excluded from these policies. At issue are policies
that were in effect prior to July 1, 1999.
¶11 All policies issued prior to July 1, 1999, from both Allendale and Affiliated
expressly exclude from coverage any loss of property resulting from an “inherent vice” or
2
The policies state:
The policy does not pay for remediation, change, correction, repair or assessment
of any Y2K or similar date or time recognition problem in any electronic data
processing equipment or media, whether preventative or remedial, and whether
before or after a loss[, including temporary protection and preservation of
property]. The policy does not pay for any time element loss resulting from the
foregoing remediation, change, correction, repair or assessment.
(The bracketed language is not included in the Affiliated policy).
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“faulty design.” Although, these terms are not defined in the policies, other courts have
interpreted the same language and its applicability to Y2K prevention costs. See e.g.,
GTE Corp. v. Allendale Mutual Ins. Co., 372 F.3d 598 (3rd. Cir. 2004); Port of Seattle v.
Lexington Ins. Co., 48 P.3d 334 (Wash. App. 2002).
¶12 An “inherent vice” has been defined as “any existing defects, diseases, decay or
the inherent nature of the commodity which will cause it to deteriorate with a lapse of
time.” Port of Seattle, 48 P.3d at 338 (quoting Mo. Pac. R.R. Co. v. Elmore & Stahl, 377
U.S. 134, 136, 84 S. Ct. 1142, 1143 (1964)). Inherent vice is also defined as a “loss not
covered by the policy . . . not relat[ing] to an extraneous cause but to a loss entirely from
internal decomposition or some quality which brings about its own injury or destruction.
The vice must be inherent in the property for which recovery is sought.” Port of Seattle,
48 P.3d at 339 (citation omitted). Essentially, the analysis focuses on whether the
insured’s problem or loss was caused by an internal or external factor or defect. See Port
of Seattle, 48 P.3d at 339. If caused by an internal defect, the problem should be
excluded from coverage as an inherent vice.
¶13 In Port of Seattle, the insured argued that the problem was external because absent
an external event, the Y2K transition, there would have been no loss. However, the court
concluded that the insured’s Y2K problem was an excluded inherent vice because the
date field is an internal quality that brought about its own problem: “but for the two-digit
date field code programmed into the [insured’s] software, the arrival of January 1, 2000,
would not result in loss.” Port of Seattle, 48 P.3d at 339.
¶14 Similarly, in GTE, the insured party filed an action against its insurers, seeking
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coverage under “all risk” property insurance policies for costs and expenses it incurred in
the remediation of its computer systems to avoid Y2K-related problems. GTE, 372 F.3d
598. The court concluded that design defect and inherent vice exclusions barred the
insured from recovering its costs. GTE, 372 F.3d at 609-611. GTE, the insured party,
argued that the two-digit designation system could not be excluded as a defective design
because, at the time of its implementation, such a design conformed to industry standards,
government regulations, and was required for GTE’s systems to interface with other
systems. The court found this argument unpersuasive, stating:
The fact that GTE may have utilized the best available system, and
subsequently faced the need to remedy a problem with that system, does
not save GTE from the defective design exclusion. Taken to its logical
conclusion, GTE’s argument would render virtually every business upgrade
an insurable risk. For example, GTE could argue that upgrades to its
software or computers undertaken in the name of mitigating an insurable
risk would be insurable as long as it used the best system at the time of
initial installation.
GTE, 372 F.3d at 610. Further, the GTE court adopted the analysis set forth in Port of
Seattle to exclude recovery under the inherent vice exclusion. GTE, 372 F.3d at 611.
¶15 We agree with the reasoning in GTE and Port of Seattle. The District Court was
correct that coverage for the State’s remediation measures is excluded by the plain
language of both the faulty design and inherent vice exclusions.
¶16 The State also argues that by changing their post-July 1, 1999, policies to
expressly exclude all damages related to Y2K, Allendale and Affiliated impliedly
admitted that the terms of their earlier policies are ambiguous, and thus the insurers
cannot rely on the exclusions in the earlier policies. Considering the policies in question,
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we are not persuaded by this argument. We conclude that the faulty design and inherent
vice exclusions in the policies in question are not ambiguous and clearly exclude the
claimed losses.
¶17 The State next argues that its loss falls under the “Protection and Prevention of
Property” clause in Allendale’s policy. 3 This clause provides:
In case of actual or imminent physical loss or damage of the type insured
against by this Policy, the expenses incurred by the Insured in taking
reasonable and necessary actions for the temporary protections and
preservation of property insured hereunder shall be added to the total
physical loss or damage otherwise recoverable under this Policy[.]
¶18 This clause only applies to “physical loss or damage of the type insured against by
[the] Policy[.]” (Emphasis added). Thus, measures taken to prevent a risk that has been
excluded from the policy are not covered under this clause. As the Y2K damages are
excluded from the Allendale policies, the protection and prevention clause does not cover
the State’s claimed losses.
¶19 Although Affiliated did not include a protection and prevention clause in its
relevant policies, the State argues that it impliedly included such coverage because its
policies did require that the insured, “use all reasonable means to save and preserve [its]
property.” Even if we were to construe Affiliated’s policies to provide the type of
coverage the State requests, the claimed loss would still be excluded for the same reason
Allendale’s Protection and Prevention clause was ineffective, that is, the policies did not
cover the prevention of uninsured risk. GTE, 372 F.3d at 618 (“If the insured acts to
prevent a loss that is not covered by the policy, there is no duty or benefit to insurer;
3
Affiliated did not include this type of clause in its policies prior to July 1, 1999.
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‘[t]he obligation only exists when the action taken is to prevent a loss for which the
underwriter would be liable.’” (quoting GTE Corp. v. Allendale Mut. Ins. Co., 258
F.Supp.2d 364, 373 (D.N.J. 2003) (quoting Port of Seattle, 48 P.3d at 340)).
¶20 Finally, the State claims that Allendale and Affiliated failed to provide copies of
their insurance policies for 1996-1999 and 1997-1998, respectively, and goes on to argue
that if an insurer does not timely deliver a policy to the insured, it may not rely on
exclusions within the undisclosed policy.
¶21 The exclusions in the policies in question were communicated to the State. The
policies the State claims were not delivered were renewals of existing policies and
contained identical coverage provisions and exclusions. It is undisputed that the State
received a renewal binder from each insurer that listed all applicable coverage forms, or
otherwise expressly stated the exclusions. 4 The State cannot reasonably claim that it was
unaware of the relevant terms and exclusions. Even if a policy is not delivered to an
insured, insurers may rely upon valid exclusions in their policies when the insured has
notice of those exclusions. Williams v. Fallaize Ins. Agency, Inc., 469 S.E.2d 752, 755-
756 (Ga. App. 1996).
¶22 Affirmed.
/S/ JOHN WARNER
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The State received a twenty-page Renewal Insurance Binder regarding the Allendale policy on July 3, 1996. In
addition, Affiliated faxed a copy of its eleven-page Insurance Change Binder to the State’s insurance broker on June
27, 1997. Both binders specifically listed all included policy forms and endorsements. Further, the relevant policy
forms were identical to those in the previous policies that the State admittedly received.
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We Concur:
/S/ KARLA M. GRAY
/S/ JIM RICE
/S/ PATRICIA COTTER
/S/ JAMES C. NELSON
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