No. 89-420

INTHE SUPREMECOURTOF THE STATE OF MONTANA 1989

LINDA TREUTEL and TERRY TREUTEL, plaintiffs and Appellants,-VSFRANCES JACOBS, Defendant and Respondent.

,' 1 c;s 7: 0 0 C CT, XJ APPEAL FROM: District Court of the Fourth Judicial~istrst, In and for the County 

### of Ravalli, The Honorable Douglas ~arki~, Judgepresiding. COUNSEL OF RECORD: ForAppellant: 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.

~indaand 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'sparents. 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 thepropertywhich remained in effect from April 

### 3, 1987 toApril 3, 1988. On ~pril 5,1987,Linda and her husband were repairinga 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,Jacobswas living inAlaska 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 lookforward 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 resultof the accident that occurred on the trust property. The Treutels alleged damages for Linda's future medical expenses,pain and suffering, loss of customaryway of life, cost of suit and other relief deemed just and proper and for Terry's loss of consortium. The complaint did not allege negligencenorwrongdoing on the part of Jacobs. ~indafiled 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 judgmentonMarch 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 inpart: A pleading which sets forth a claim for relief,



# ... shall contain (1)a shortand 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.

(Emphasisadded.) 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 Courthas 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.2d324, 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 plaintiffshave a right to relief. Liberality does not go so far as to excuse omission of that which ismaterial and necessary in order to entitle relief. Jacobs'policy reads inpertinent part: We shall pay all damages from an occurrence which an insured is legally liable to 

### pay because of 

### - bodily injury'-or property damagycovered by this policy. (Emphasisadded.) 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 nowbond by the admission. while it is true that during a telephone conversation, Gougler told ~inda'sattorney that Linda's accident was covered and then sent a memo confirming the conversation, the statement and memo were not admissible as evidence toprove 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 incompromise 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 inadmissibleas amatter 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-udgmentmust 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 ~istrictCo.urtproperly granted Jacobs' summary judgment. Affirmed. /