DA 15-0574

IN THE SUPREME COURT OF THE STATE OF MONTANA

2016 MT 113

FIRE INSURANCE EXCHANGE, a

Reciprocal or inter-insurance exchange,

 Petitioner and Appellant,

 v.

JAKE WEITZEL, and KEVIN GROFF,

as Personal Representative of the Estate of 

Ronny S. Groff, Deceased,

 Respondents and Appellees.

APPEAL FROM: District Court of the Twenty-First Judicial District,

In and For the County of Ravalli, Cause No. DV 14-279

Honorable James A. Haynes, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Nicholas J. Pagnotta, Amanda Z. Duman, Williams Law Firm, P.C.,

Missoula, Montana

For Appellee Jake Weitzel:

Bryan L. Spoon, Spoon Gordon Ballew P.C., Missoula, Montana

For Appellee Estate of Ronny Groff:

Terrance P. Perry, Datsopoulos MacDonald & Lind, P.C., 

Missoula, Montana 

Submitted on Briefs: March 16, 2016

 Decided: May 17, 2016

Filed:

__________________________________________

Clerk

May 17 2016

Case Number: DA 15-0574
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Justice Laurie McKinnon delivered the Opinion of the Court. 

¶1 Fire Insurance Exchange (FIE) appeals from an order issued by the Twenty-First 

Judicial District Court, Ravalli County, granting summary judgment in favor of Jake 

Weitzel (Weitzel). This case arises out of a declaratory judgment action to determine 

whether there is coverage for claims brought in an underlying action against Weitzel by 

the Estate of Ronny Groff (Estate). The underlying complaint alleges that Weitzel gained 

the trust of Ronny Groff (Ronny), an elderly man, as his home care services provider and 

then wrongfully absconded with his property and assets over the course of a number of 

years, ultimately causing economic loss to the Estate. Weitzel tendered this litigation to 

FIE under a homeowner’s insurance policy covering claims for personal injury, bodily 

injury, and property damage. FIE accepted responsibility for the litigation under a 

reservation of rights. 

¶2 Shortly thereafter, FIE filed suit in Ravalli County District Court seeking 

declaratory relief. FIE claimed that it owed no duty to defend Weitzel against the Estate 

under the terms of the homeowner’s policy. On cross-motions for summary judgment, 

the District Court denied FIE’s motion and granted Weitzel’s motion. We reverse. FIE 

had no duty to defend Weitzel because the complaint cannot be construed to give rise to a 

claim under the terms of the policy. 

¶3 We address the following issue on appeal: whether the District Court erred by 

concluding that FIE had a duty to defend Weitzel under the terms of the insurance policy. 
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FACTUAL AND PROCEDURAL BACKGROUND

¶4 The Estate filed a complaint against Weitzel in the underlying litigation on 

October 22, 2013. The complaint alleged that Weitzel was hired by Ronny’s children to 

provide in-home care services to Ronny and his ailing wife beginning in 2010 and that 

Weitzel provided these services to Ronny until Ronny’s death in July 2013. The Estate 

alleged that shortly after Ronny’s wife passed away in January 2011, Weitzel “began to 

wrongfully exert such degree of control over Ronny in his feeble state that she was able 

to exploit, manipulate and coerce Ronny to her financial gain.” The complaint alleged 

purely economic loss as a result of Weitzel’s conduct, including stealing personal 

property, unlawfully transferring vehicle titles, and taking personal trips using Ronny’s 

funds. The complaint alleged that

During the final years of his life and while suffering from dementia, 

Defendant, Jake Weitzel, induced Ronny to make large cash withdrawals 

from his bank accounts and from a trust under which he was a beneficiary 

for her use and benefit. These and other financial benefits arising prior to 

the death of Ronny, Defendant, Jake Weitzel, secured for herself by 

exercising fraud, deceit, undue influence, and coercion over Ronny who, at 

the age of 76, was ill, incompetent, suffering from dementia, suffering 

emotionally, from the January 2011 death of his wife of fifty-four (54) 

years, and clearly mentally incapacitated.

¶5 The complaint contains nineteen separate causes of action: I. Deceit; II. 

Fraudulent Inducement; III. Breach of Fiduciary Duty; IV. Actual Fraud; V. Constructive 

Fraud; VI. Conversion; VII. Economic Duress; VIII. Intentional Infliction of Emotional 

Distress; IX. Negligent Infliction of Emotional Distress; X. Undue Influence; XI. Unjust 

Enrichment; XII. Restitution; XIII. Negligent Misrepresentation; XIV. Intentional 

Misrepresentation; XV. Constructive Trust; XVI. Injunctive Relief; XVII. Negligence per 
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se based on the Montana Elder and Persons with Developmental Disabilities Abuse 

Prevention Act; XVIII. Punitive damages; and XIX. Negligence. These claims are 

supported by 113 paragraphs of alleged facts. The complaint does not include a count of 

false imprisonment. Nor does the complaint specifically allege bodily injury to Ronny.

¶6 During the time periods germane to the allegations, FIE insured Weitzel under 

successive protector plus homeowner’s insurance policies. The terms of each renewed 

policy were substantially the same, providing coverage under three endorsements: 

“personal injury,” “bodily injury,” and “property damage.” The most recent version 

(hereinafter, the policy) provides a specific definition for each of the three terms:

“Personal injury” means any injury arising from: (1) false arrest, 

imprisonment, malicious prosecution and detention. (2) wrongful eviction, 

entry, invasion of rights of privacy. (3) libel, slander, defamation of 

character. (4) discrimination because of race, color, religion or national 

origin. 

“Bodily injury” means bodily harm, sickness or disease, including care, 

loss of services and death resulting from that injury.

“Property Damage” means physical injury to or destruction of tangible 

property covered by this policy and resulting loss of use.

¶7 After receiving a tender of the complaint from Weitzel, FIE undertook the defense 

of Weitzel under a reservation of rights. FIE subsequently initiated a declaratory 

judgment action seeking a declaration that there was no coverage for the claims alleged in 

the underlying complaint and thus no duty to defend or indemnify Weitzel. The parties 

each moved for summary judgment. 

¶8 On May 28, 2015, the District Court issued its order granting summary judgment 

in favor of Weitzel, holding that FIE owed a duty to defend Weitzel. The District Court 
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concluded that factual allegations contained within the underlying complaint triggered 

coverage under the “personal injury” endorsement. The court reasoned that, while the 

underlying complaint did not expressly contain a cause of action or seek damages for 

false imprisonment, the allegations could be construed to potentially state a claim for 

false imprisonment. The District Court did not expressly rule on whether the complaint 

triggered coverage under either the “bodily injury” or “property damage” endorsements. 

However, the court did provide guidance to “assist the parties” in future briefing on the 

other two endorsements. The court explained that Weitzel appeared to have conceded 

during oral argument that the complaint did not give rise to coverage under the property 

damage endorsement, but the complaint may have alleged bodily injury because the 

complaint alleged elder abuse. 

¶9 FIE appeals. 

STANDARD OF REVIEW

¶10 We review a district court’s decision to grant summary judgment de novo, 

applying the same criteria of M. R. Civ. P. 56 as did the district court. Labair v. Carey, 

2012 MT 312, ¶ 15, 367 Mont. 453, 291 P.3d 1160. Summary judgment “should be 

rendered if the pleadings, the discovery and disclosure materials on file, and any 

affidavits show that there is no genuine issue as to any material fact and that the movant 

is entitled to judgment as a matter of law.” Labair, ¶ 15.
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DISCUSSION

¶11 Whether the District Court erred by concluding that FIE had a duty to defend 

Weitzel under the terms of the insurance policy. 

¶12 Under Montana law, an insurer has a duty to defend “when a complaint against an 

insured alleges facts which, if proved, would result in coverage.” Tidyman’s Mgmt. 

Servs. v. Davis, 2014 MT 205, ¶ 22, 376 Mont. 80, 330 P.3d 1139. In determining 

whether a duty exists, an insurer must look to the allegations contained within the 

complaint. Farmers Union Mut. Ins. Co. v. Staples, 2004 MT 108, ¶ 20, 321 Mont. 99, 

90 P.3d 381. Where the insurer has no knowledge of facts outside of the complaint that 

may potentially trigger coverage, the complaint and the policy constitute the universe 

with regard to the insurer’s duty to defend. Staples, ¶ 20. “If there is no coverage under 

the terms of the policy based on the facts contained in the complaint, there is no duty to 

defend.” Grimsrud v. Hagel, 2005 MT 194, ¶ 34, 328 Mont. 142, 119 P.3d 47. Factual 

disputes between the parties relevant to coverage “must be resolved in favor of 

coverage.” Staples, ¶ 24. 

¶13 The insured bears the initial burden to establish that the claim falls within the basic 

scope of coverage. Travelers Cas. & Sur. Co. v. Ribi Immunochem Research, 2005 MT 

50, ¶ 29, 326 Mont. 174, 108 P.3d 469. If the insured demonstrates that the claim falls 

within the scope of coverage, the burden shifts to the insurer to show that the claim is 

unequivocally excluded under an exception to the basic scope of coverage. Ribi 

Immunochem Research, ¶ 29. “This allocation appropriately aligns the burden with the 
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benefit as the party seeking the benefit of a particular policy provision bears the burden 

of proving its application.” Ribi Immunochem Research, ¶ 30.

¶14 If a complaint states multiple claims, some of which are covered by the insurance 

policy and some of which are not, it is a mixed action. In these cases, Montana follows 

what is known as the mixed-action rule, which requires an insurer to defend all counts in 

a complaint so long as one count triggers coverage, even if the remaining counts do not 

trigger coverage. State Farm Fire & Cas. Co. v. Schwan, 2013 MT 216, ¶ 16, 371 Mont. 

192, 308 P.3d 48.

¶15 FIE argues that the District Court erred by concluding that the facts alleged in the 

complaint, if proven, trigger coverage under the policy. FIE maintains that the complaint 

does not allege sufficient facts to give rise to coverage under any of three 

endorsements—“personal injury,” “bodily injury,” and “property damage”—provided in 

the policy. Weitzel does not dispute on appeal that the complaint fails to allege sufficient 

facts to trigger coverage under the property damage endorsement, but does maintain that 

the complaint triggers coverage under the other two endorsements. Because Weitzel does 

not provide argument regarding property damages, we address only whether the 

complaint alleges sufficient facts to give rise to coverage under the “personal injury” and 

“bodily injury” endorsements. We do so in turn. 

“Personal Injury” 

¶16 FIE argues that the complaint does not plead facts sufficient to give rise to a claim 

for personal injury. Contrary to the District Court’s conclusion, FIE reasons that the 

complaint fails to allege any factual allegations amounting to a claim of false 
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imprisonment. FIE notes that the complaint is lengthy and very detailed, containing 

nineteen separate causes of action and 113 paragraphs of preliminary facts supporting 

those allegations, but does not contain a specific count of false imprisonment or expressly 

allege an essential element of false imprisonment—that Weitzel restrained Ronny against 

his will. Weitzel counters that the underlying complaint does not need to expressly plead 

a claim of false imprisonment or the elements so long as the facts in the complaint can be 

inferred to give rise to a cause of action for false imprisonment, and that there are 

sufficient facts contained within the underlying complaint to infer a cause of action for 

false imprisonment.

¶17 We agree with FIE that the complaint does not trigger coverage under the personal 

injury endorsement. Because both parties agree that FIE’s knowledge of facts giving rise 

to a potential duty to defend are limited to the complaint, we must compare the language 

of the policy with the facts alleged in the complaint. Staples, ¶ 20. We accept the 

allegations contained in the complaint as true, Staples, ¶ 24, but place the burden of proof

on Weitzel to show the claim falls within the basic scope of coverage. Ribi Immunochem 

Research, ¶ 29. The personal injury endorsement provides coverage for damages due to 

personal injury arising out of ten tortious causes of action, including false imprisonment. 

False imprisonment requires a showing of two key elements: “restraint of an individual 

against his will and the unlawfulness of such restraint.” Hughes v. Pullman, 2001 MT 

216, ¶ 21, 306 Mont. 420, 36 P.3d 339. While an individual may be restrained by acts or 

merely by words which he fears to disregard, there is no imprisonment if the plaintiff 

does not allege that he was restrained against his will. Hughes, ¶ 21.
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¶18 Weitzel has failed to show the complaint alleges sufficient facts to trigger 

coverage for a claim of false imprisonment. First, it is undisputed that the complaint does 

not expressly plead a claim of false imprisonment or expressly incorporate the essential 

elements of false imprisonment. Despite enumerating nineteen causes of action and 

setting forth 113 paragraphs supporting those allegations, the complaint fails to list a 

cause of action for false imprisonment or specifically allege that Weitzel restrained 

Ronny against his will. Second, we cannot agree with Weitzel that it is a fair reading of 

the complaint to infer from the allegations contained therein that Weitzel at any time 

restrained Ronny against his will. There are no allegations that Weitzel ever threatened 

Ronny by force or by words to stay in his home. In fact, the complaint does not allege 

that Weitzel ever threated Ronny at all. Even under the most liberal standards, the 

allegations contained within the complaint are insufficient to state a claim for false 

imprisonment. Without alleging, involuntarily restraint, an essential element of false 

imprisonment, Weitzel cannot show the complaint alleges facts that, if proven, would 

result in coverage under the personal injury endorsement. 

¶19 Weitzel persists that the underlying complaint could be construed to give rise to a 

reasonable inference of false imprisonment. Specifically, Weitzel notes that included 

within the 113 paragraphs of factual background are allegations that: (1) Ronny’s 

physician diagnosed him with dementia; (2) Weitzel changed the locks on Ronny’s house

at least two times; (3) Ronny was intimidated by Weitzel; and (4) Weitzel taped a note on 

the inside of the front door of Ronny’s house stating, “Keep door locked. Don’t open for 

anyone!!” 
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¶20 Even accepting these allegations as true, however, we are unable to conclude that 

they state a claim of false imprisonment by reasonable inference. There is no allegation 

within the complaint that can be reasonably construed as alleging Weitzel restrained 

Ronny from leaving his home against his will. The closest the complaint comes to 

making such an allegation is the note attached to Ronny’s door stating, “Keep door 

locked. Don’t open for anyone!!” This allegation, however, requires several assumptions 

be made to reach a conclusion that Weitzel unlawfully restrained Ronny from leaving his 

home. In short, the complaint fails to allege any facts or circumstances that would 

support an allegation that Ronny was involuntarily restrained. 

¶21 Weitzel also appears to suggest that we actually make a series of assumptions 

regarding the facts to establish coverage, contending that FIE owes a duty to defend him 

because hypothetical facts may exist outside the complaint that could theoretically give 

rise to liability. That, however, is not this Court’s standard. We have never held that an 

insurer’s duty to defend may be triggered by speculating about extrinsic facts and unpled 

claims regarding potential liability. Nor have we ever held that an insurer’s duty to 

defend is triggered where the potential for liability is tenuous and far removed from the 

actual facts pled. Our case law “makes clear that the threshold question, instead, is 

whether the complaint against the insured alleges facts that, if proven, would trigger 

policy coverage.” Tidymans, ¶ 26. The facts alleged in the complaint against Weitzel, if 

proven, fail to do so. 

¶22 The complaint does not expressly plead a claim of false imprisonment, does not 

expressly plead the essential elements of false imprisonment, and does not plead facts 
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that can be reasonably inferred to state a claim of false imprisonment. We conclude, 

therefore, that FIE owes no duty to defend Weitzel. We hold that the District Court erred 

by concluding otherwise. We reverse the judgment of the District Court regarding the 

personal injury endorsement. 

“Bodily Injury”

¶23 FIE argues that the underlying complaint does not trigger coverage under the 

bodily injury endorsement, reasoning that the complaint does not allege that Weitzel 

caused Ronny “bodily harm, sickness or disease.” Weitzel counters that the complaint 

could be construed to give rise to a claim of bodily injury because the complaint alleges 

violations of the Montana Elder and Persons with Developmental Disabilities Abuse 

Prevention Act, § 52-3-801, MCA, et seq., and the complaint also alleges that Ronny is 

now deceased. Combining these two allegations, Weitzel maintains that the complaint 

could be construed to mean that Weitzel caused Ronny’s death, which would constitute 

bodily harm under the policy. 

¶24 Here again, Weitzel’s argument is based entirely on speculation without a basis in 

the facts actually pled in the complaint. “Bodily injury” under the terms of the policy 

“means bodily harm, sickness or disease, including care, loss of services and death 

resulting from that injury.” The complaint does not allege Ronny died as a result of 

Weitzel’s actions. Nor does the complaint allege that the elder abuse alleged under 

§ 52-3-801, MCA, et seq., constituted physical abuse or that Weitzel ever actually 

physically abused Ronny. Rather, the allegations contained in the underlying complaint 

focus entirely on economic loss, and any extrapolation of a claim of physical abuse is 
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unreasonable. Weitzel fails to cite to any allegations in the complaint that can be 

reasonably construed to assert that Weitzel caused Ronny “bodily harm, sickness or 

disease.” The District Court erred by concluding the facts contained within the complaint 

give rise to coverage under the policy. Accordingly, the District Court erred by holding 

that FIE owed a duty to defend Weitzel. 

¶25 We reverse the District Court’s grant of summary judgment, and we remand for 

entry of summary judgment in favor of FIE. 

¶26 Reversed and remanded. 

/S/ LAURIE McKINNON

We Concur: 

/S/ MIKE McGRATH

/S/ PATRICIA COTTER

/S/ MICHAEL E WHEAT

/S/ JAMES JEREMIAH SHEA