No. 89-420 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1989 

LINDA TREUTEL and TERRY TREUTEL, 

plaintiffs and Appellants, 

-VSFRANCES JACOBS, 

Defendant and Respondent. 

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APPEAL FROM: District Court of the Fourth Judicial ~istrst, 

In and for the County of Ravalli, 

The Honorable Douglas ~arki~, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Kim L. Ritter; Milodragovich, Dale & Dye, Missoula, 

Montana 

For Respondent: 

Shelton C. ~illiams; ~illiams Law ~irm, is sou la, 

Montana 

Filed: 

Submitted on ~riefs: Nov. 21, 1989 

Decided: December 28, 1989 
~ustice William E. Hunt, Sr., delivered the opinion of the 

Court. 

~inda and Terry Treutel, plaintiffs and appellants, 

appeal from a summary judgment entered by the District Court 

of the Fourth Judicial District, Ravalli County, in favor of 

Frances Jacobs, defendant and respondent. We affirm. 

The sole issue raised on appeal is whether the District 

Court properly granted defendant's motion for summary 

judgment based on plaintiff's failure to state a claim on a 

legally recognizable theory upon which relief could be 

granted. 

In 1987, Linda Treutel and her family resided on 

property in ~avalli County held in trust. The property was 

formerly owed by Treutel's parents. The beneficiaries of the 

trust were Linda, her two siblings and her mother, Frances 

Jacobs. Mr. Jacobs, as trustee, procured a comprehensive 

personal liability insurance policy issued by Farmers 

Insurance Group on the property which remained in effect from 

April 3, 1987 to April 3, 1988. 

On ~pril 5, 1987, Linda and her husband were repairing a 

fence on the property with a pair of pliers. A piece of 

metal chipped off the pliers injuring Linda's right eye. At 

the time of the accident, Jacobs was living in Alaska and was 

unaware that the fence was broken or that the Treutels 

intended to fix it. 

Linda submitted a claim to Farmers for her medical 

expenses and lost income. Farmers paid out $7,024.30 on her 

claim. Linda's attorney contacted Farmers' claims adjuster, 

Gougler, who informed the attorney that coverage existed for 

the accident. Gougler then sent Linda's attorney a memc? 

confirming the conversation and stating, "We will look 
forward to discussing settlement possibilities at your 

earliest convenience." 

Settlement negotiations subsequently failed, and on 

October 22, 1988, ~inda filed a complaint alleging injury as 

a result of the accident that occurred on the trust property. 

The Treutels alleged damages for Linda's future medical 

expenses, pain and suffering, loss of customary way of life, 

cost of suit and other relief deemed just and proper and for 

Terry's loss of consortium. The complaint did not allege 

negligence nor wrongdoing on the part of Jacobs. 

~inda filed a motion for partial summary judgment on 

February 24, 1989. Jacobs then filed a brief in opposition 

to plaintiff's motion for summary judgment and a motion for 

summary judgment on March 20, 1989. A hearing on the motions 

was held on June 7, 1989. On June 19, 1989, the District 

Court entered its order and judgment denying ~inda ' s motion 

and granting Jacobs' motion. From the order, ~inda appeals. 

The court granted Jacobs' motion for summary judgment 

based on its finding that Linda failed to state a legally 

recognizable claim upon which relief could be granted. Rule 

8(a), M.R.Civ.P., provides in part: 

A pleading which sets forth a claim for relief, . . . shall contain (1) a short and plain statement 

of the claim showing that the pleader is entitled 

- to relief; and (2) a demand for judgmeyt for the 

relief to which he deems himself entitled. 

(Emphasis added. ) 

While Linda's complaint sets forth the facts pertaining 

to the day of the accident and demands relief therefore, it 

does not allege that Jacobs was negligent in any manner nor 

does it allege that Jacobs breached any legal duty owed to 

~inda. While this Court has long recognized that a complaint 

is to be construed in the light most favorable to the 

plaintiff, Fraunhofer v. price (1979), 182 Mont. 7, 594 P.2d 
324, we cannot say that Linda's complaint, even when viewed 

favorably to her position, set forth a claim upon which 

relief can be granted. As we stated in Rambur v. ~iehl 

Lumber Co. (1963), 142 Mont. 175, 179, 382 P.2d 552, 554: 

. . . a complaint must state something more than 

facts which, at most, would breed only a suspicion 

that plaintiffs have a right to relief. Liberality 

does not go so far as to excuse omission of that 

which is material and necessary in order to entitle 

relief. 

Jacobs' policy reads in pertinent part: 

We shall pay all damages from an occurrence which 

- an insured is legally liable to pay because of 

bodily injury'- or property damagy covered by this 

policy. (Emphasis added. ) 

Here, Linda does not claim that Jacobs breached any 

legal duty owed to her nor was negligent in any manner. 

Thus, under the terms of the policy, Jacobs is not legally 

liable for her accident. Jacobs' insurance company is under 

no obligation to pay for that which she, herself, is not 

liable. 

Nonetheless, Linda claims that Farmers, through its 

adjuster, Gougler, admitted liability and are now bond by the 

admission. while it is true that during a telephone 

conversation, Gougler told ~inda's attorney that Linda's 

accident was covered and then sent a memo confirming the 

conversation, the statement and memo were not admissible as 

evidence to prove liability. 

It is clear from the language of the memo that the 

statements were made as part of a settlement negotiation 

process. It read in part, "We will look forward to 

discussing settlement possibilities - at your earliest 

convenience." (Emphasis added.) Rule 408, M.R.Evid., 

provides in that, "~vidence of conduct or statements made in 
compromise negotiations is . . . not admissible." Further, 

under B 33-15-504 (3), MCA, an insurer does not waive policy 

provisions nor defenses by engaging in settlement 

negotiations. 

As evidence, the statement and memo are inadmissible as 

a matter of law. As we stated in Cereck v. Albertson's, Inc. 

(1981), 195 Mont. 409, 637 P.2d 509, a party moving for 

summary j-udgment must prove that he is entitled to summary 

judgment as a matter of law by demonstrating an absence of 

any genuine issue of material fact. Discarding the 

inadmissible evidence, there remains no genuine issue of 

material fact in this case. The ~istrict Co.urt properly 

granted Jacobs' summary judgment. 

Affirmed. /