No. 81-383 INTHE SUPREME COURT OF THE STATE OF MONTANA 1981

GENERAL INSURANCE COMPANY OF AMERICA, Plaintiff and Respondent,

TOWN PUMP, INC., and BOZEMAN TOWN PUMP, INC. Defendant and Appellant.

Appeal from: DistrictCourt of theEighteenthJudicialDistrict, Inand fortheCounty of Gallatin, The Honorable JosephB. Gary, Judge presidng.
Counsel of Record: For Appellant: Holland and Brown, Butte, Montana
For Respondent: PageWellcome, Bozeman, Montana

Submittedon Briefs: November 6, 1981 Decided: 

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ClerkMr. Justice John Conway Harrison delivered the Opinion of the Court. This action concerns the question of venue in a declaratory judgment action filed in the District Court of the Eighteenth Judicial District, Gallatin County. Respondent, General Insurance Company of America, sued appellant, Town Pump, Inc., in Gallatin County seeking declaratory judgment with respect to rights and duties of the parties under an insurance policy. Town Pump filed a timely motion for change of venue to Silver Bow County, its county of residence. General Insurance Company resisted, arguing the place of performance of the insurance contract
was Gallatin County. The District Court denied the change of venue, and Town Pump appeals. In 1973 Town Pump, Inc., purchased a comprehensive liability policy from General Insurance Company ofAmerica. Thepolicywas negotiated in Silver Bow County and accepted by the General at its headquarters in Seattle, Washington. Premiums were paid to General at its Seattle offices. The face sheet of the insurance policy designating the additional "named insured" includes the Bozeman Town Pump, Inc. During the term of the policy, Town Pumpwas sued in Gallatin County by persons whose water was contaminated by gasoline seeping from the appellant's underground tanks. General defended Town Pump in these actions and ultimately paid a portion of the judgment against Town Pump. See, Ferguson v. Town Pump, Inc. (1978),177Mont. 122, 580 P.2d 915;Town Pump, Inc. 

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## - , 622 P.2d 212, 38 St.Rep. 54. General is now suing Town Pump in Gallatin County seeking a declaratory judgment that the insurance policy did not cover the risks sued upon andpraying for reimbursement of monies paid to satisfy the judgment against Town Pump. The sole issue before us is whether the District Court erred in denying Town Pump's motion for a change of
venue. We hold that theplace ofperformance of the contract controls venue in this case. Section 25-2-101, MCA, provides: "Actions upon contracts may be tried in the county in which the contract was to be performed, subject, however, to the power of the court to change the place of trial as provided in this code." The trial judge noted in his memorandum attached to the opinion: 

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# . . that the insurer covered business throughout the entire State and that in case of a lossbeing suffered thepaymentwould be made for the losses in Gallatin County or Broadwater County if the loss was to the Town Pump in Townsend, etc. Therefore, it is my feeling that Section 25-2-101, MCA, is controll-ingand that the contract would be performed inGallatin County when the insured in this casewasBozeman Town Pump

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We find no error. Affirmed.

We concur: 

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