No. 81-383 

IN THE 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: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin, The Honorable 

Joseph B. Gary, Judge presidng. 

Counsel of Record: 

For Appellant: 

Holland and Brown, Butte, Montana 

For Respondent: 

Page Wellcome, Bozeman, Montana 

Submitted on Briefs: November 6, 1981 

Decided: Fa8 1 1 l@Z 

Filed: FEB 11 1982 

Clerk 
Mr. 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 of America. 

The policy was 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 Pump was 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), 177 Mont. 122, 580 P.2d 

915; Town Pump, Inc. v. Diteman (1981), - Mont. - , 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 and 
praying 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 the place of performance 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: 

". . . that the insurer covered business 

throughout the entire State and that in case 

of a loss being suffered the payment would 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-ing and that the contract would be 

performed in Gallatin County when the insured 

in this case was Bozeman Town Pump . . ." 

We find no error. Affirmed. 

We concur: 

3&94 aief Justice 9&bdq