No. 12636 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1974 

ARTHUR J. ATCHESON, 

Plaintiff and Respondent, 

SAFECO INSURANCE COMPANY and 

GENERAL INSURANCE COMPANY OF AMERICA, 

Defendant and Appellant. 

Appeal from: District Court of the Second Judicial District, 

Honorable John B. McClernan, Judge presiding. 

Counsel of Record: 

For Appellant : 

Loble, Picotte, Loble, Pauly & Sternhagen, Helena, Montana 

Gene Picotte argued and Carter Picotte argued, 

Helena, Montana 

Henningsen, Purcell and Genzberger, Butte, Montana. 

For Respondent : 

Corette, Smith and Dean, Butte, Montana 

R. D. Corette, Jr argued and Gerald R. Allen argued, 

Butte, Montana 

)Ie*sen, Pil- a-FiB Gea+zBerger, 3lHxb, WowSubmitted: September 10, 1974 

Decided:. OCT 2 2 1974 

Filed: QCT 2 2 1974 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an appeal by the two appellant insurance companies 

from a partial summary judgment ordering the two insurance companies to provide a defense for respondent Atcheson in an action 

pending in the United States District Court for the District of 

Alaska. 

The two insurance companies, hereinafter referred to as 

Safeco, are the insurer of respondent Atcheson on policies issued 

on his business of being a taxidermist. The respondent's place 

of business is located in Butte, Montana. His business operations 

are worldwide. His deposition indicates that animals are sent 

to him from hunters from various parts of the world because of his 

reputation and expertise as a taxidermist built up over a period of 

more than 15 years. He has traveled widely particularly in Africa, 

and he has established business connections and friendships with 

various Safari Companies on that continent and particularly in the 

country of Zambia. 

As a result of these business connections in Zambia, a 

hunter from Alaska, Murray Clark, was referred to him as a taxidermist. It would appear from the deposition that one of Clark's 

lifetime dreams was to go to a warmer climate to hunt and kill, 

among other animals, a prime, old, heavy-maned trophy lion. In 

1970 Clark fulfilled his lifelong ambition and went to Zambia 

where he killed what is described in his complaint, "a prime, old, 

heavy-maned, trophy lion". In addition he shot a buffalo, an 

eland, an oribi, a waterbuck, a leche, a sable, and a warthog. 

All of these trophy animals were sent to the respondent to be 

mounted or processed by his taxidermy business. 

What happened thereafter is described by the appellants 

as "bizarre". The various trophy animals were shipped to this 

country in several shipments, all of which were opened and handled 
by customs before being forwarded to the respondent. Few of the 

items appeared to have been labekd as Clark's but were assumed 

to be, by the respondent, due to the fact they came from Zambia 

and were the type of animals claimed by Clark. By the time some 

of them were mounted and forwarded to Clark in Alaska, a dispute 

arose with Clark who claimed, among other things, that he got the 

wrong lion. He alleged it was smaller, less well maned than the 

one he shot. Too, that the eland horns were the wrong horns. The 

dispute resulted in the filing of a cause of action in Alaska 

against the respondent and upon being served with a summons and 

complaint in Butte, the respondent immediately turned to his insurance companies for a defense. Among other allegations of the complaint it was alleged that the respondent did not comply with his 

agreement to mount nine trophy animals, that they were improperly 

shipped by him, that some of the trophys were not his and that the 

respondent has improperly handled, lost or destroyed some of the 

trophys. 

The respondent did business with appellants through their 

agents in Butte. The deposition indicated that prior to the 

difficulty above referred to the respondent had the appellants' 

agent come to his place of business where he showed them through 

the business, explained its operations and that these agents put 

together a voluminous policy covering what they thought was what 

was needed to cover the operations of the business. The respondent in his deposition stated that he told them: "Don't tell me 

what I have, tell me what I don't have and I'll buy it." The 

policy sold was a "liability policy" and it contained a "Bailees 

Customers Laundries and Dry Cleaners Form". We direct our attention to Section I1 of the Policy, which is the liability portion of the policy, and to the above "Bailees Customers Laundries 

and Dry Cleaners Form" to ascertain whether or not there was a 
duty of Safeco under the blanket policy to defend the respondent. The provisions of same are hereinafter set forth: 

Section 11, the Blanket Liability portion of the policy 

begins its first paragraph as follows: 

"The company will pay on behalf of the insured 

all sums which the insured shall become legally 

obligated to pay as damages because of bodily 

injury or property damage to which this insuranc 

chal 1 haxrn thn rirrht and diii-tr tn iinfand any suit against the insured seekinq damages on 

account of such bodily injury or property damaqe 

even if any of the allegations of the suit are 

qroundless, false or fraudulent, and may make su 

Investisation and settlement of any claim or sui 

as it deems expedient. The cornpan$ shall not be 

obligated to pay any claim or judgment or to defend any suit after the applicable limit of the 

company's liability has been exhausted by payment 

of judgments or settlements." 

The "Bailees Customers Laundries and Dry Cleaners Form" 

reads : 

"1. COVERAGE: This form covers on all goods or 

articles accepted by the insured for cleaning, 

renovating, pressing, dyeing, repairing or 

laundering, the property of his customers, while 

contained on the premises occupied by the insured, 

or in the custody of his agents or branch stores, 

provided these locations are scheduled or endorsed 

hereon, and while being transported to and from 

the premises of his customers or branch stores 

or agents. 

"2. ADJUSTMENT AND PAYMENT OF PREMIUMS. The premiums for insurance under this form shall be 

computed by applying the rates shown in the 

declarations. Premiums so computed shall be 

due and payable on or before the tenth day of 

each month for the preceding month. 

"3. THIS FORM INSURES, except as hereinafter provided, 

against direct loss or damage caused by: 

"(a) Fire, arising from any cause whatsoever, 

including lightning; 

"(b) Explosion, whether or not fire ensues; 

"(c) Accidental collision of the vehicle on which 

the property is carried, with any other 

vehicle or object, including the overturning of the vehicle, or collapse of bridges; 

"(d) Tornado, cyclone or windstorm, including 
any loss or damage that may occur from 

hail, rain, sleet, or snow, whether or 

not driven by wind; 

" (e) Earthquake; 

" (f) Sprinkler leakage; 

"(g) Flood, meaning thereby the rising of 

navigable waters; 

"(h) Theft, burglary and hold-up; 

"(i) Strikes, riots and civil commotion; 

(j) Water damage (meaning the accidental 

discharge, leakage or overflow of water 

or stream from the plumbing system, 

overhead tanks, steam or hot water 

heating pipes, including radiators, 

standpipes for fire hose, sprinkler 

system or by bursting steam or water 

pipes, boilers or tanks within the 

premises) ; 

"(k) Smoke damage directly caused by the 

breakdown or faulty operation of the 

fuel burning equipment used in connection with steam boilers, hot water 

boilers, or heating apparatus; 

"(1) Transportation risks by public carriers 

or mail service; 

I' (m) Aircraft or vehicles; 

"(n) Confusion of goods resulting from any 

of the foregoing perils. 

G.R. 

THIS FORM DOES NOT INSURE NON MONEY 

By (Signature not legible) 

''(a) Accounts, bills, deeds, currency, evidences 

of debt, money, notes, securities; 

"(b) Theft by any person in the service or 

employment of the insured, whether or 

not occurring during the hours of such 

service or employment; 

"(c) Theft of goods or packages left on 

delivery vehicles overnight, unless 

locked in insured's private garage or 

building occupied by insured; 

"(d) Loss or damage to goods while in the 

custody of other dyers, cleaners and 

pressers, or laundries unless specifically endorsed hereon; 

"(e) Loss, if at the time of loss or damage 

there be any other insurance covering 
against risks assumed by this form 

which would attach if this insurance 

had not been effected; 

"(f) Loss of or damage resulting from misdelivery or careless destruction of goods 

or other unaccountable loss where there 

is no evidence that the loss or damage 

was occasioned by the perils specifically insured against; 

"The policy or supplemental endorsement exclusions 

apply in addition to those listed above. 

"SPECIAL CONDITIONS: 

'I (a) Goods accepted for storage on which a 

cleaning charge has been or is to be made 

are insured only while in process of 

cleaning or laundering or while in transportation by the insured between its plant 

or branch stores or its agencies or 

customers. 

"(b) The company shall be liable and shall pay 

to the insured the customary charges that 

have been earned on any lost or damaged 

goods. 

"(c) The insured agrees that all thefts for 

which claims are made under this form 

will be reported promptly to the police 

department. 

"EFFECTIVE: 4-7-7 0" 

The appellant denied liability asserting that neither of 

the two counts of respondent's complaint states a claim upon 

which relief could be granted, denied the respondent a defense 

in the Alaska cause of action and plead six affirmative defenses 

in its answer. 

TLe issue before the Court is whether or not the lower 

court erred in granting a partial summary judgment against the 

appellants ordering them to defend the respondent in the Alaska 

suit. 

The appellant relies on several contentions stressing two 

in particular. One, that the insurance companies are entitled 

to fair consideration and should not be prejudiced because they 

are insurance companies. As to this contention we findn&erit 

and will not further discuss same. Two, while they concede that 
the Alaska complaint indicates that certain goods (trophys) 

were accepted by respondent for taxidermy purposes, and some were 

transported by public transportation to Clark in Alaska, that 

nevertheless the coverage is strictly limited by paragraph 3 

and that the only risk insured against is some direct loss or 

damage caused by one of the enumerated perils (a) through (n) , 

and that there was no allegation in the complaint of any direct 

loss or damage caused by any of the enumerated perils or risks. 

We find no merit to this contention. 

Considering the allegations of the Alaskan complaint and 

the relevant portions of the Safeco policy we find the trial court 

did not err in its conclusion ordering Safeco to defend in the 

Alaska litigation. 

It is to the allegations of the Alaskan complaint that we 

look to determine whether or not there is a duty to defend. The 

appellant has a duty to defend where the complaint sets forth 

facts which are a part of the covered risk. The rule on the duty 

to defend is set forth in 50 A.L.R.2d 506-7: 

"Where a complaint alleges facts which represent 

a risk outside the coverage of the policy but 

also avers facts which, if proved, represent a 

risk covered, the insurer is under a duty to 

defend. * * * (Cases cited. ) " 

Here, while the Alaskan complaint isn't a textbook model, it does 

allege that the respondent breached his agreement with Clark in 

that it alleges that respondent either misplaced, destroyed or 

otherwise mishandled Clark's trophys. 

Section I1 of the Safeco policy provides for liability 

insurance and must be considered in determining the duty to defend. 

This policy was sold covering a 3 year period and was effective 

as concerns the various acts complained of by Clark. Too, Section 

I1 includes an additional declaration dated April 17, 1970, and 

this declaration with the heading "Description and Location of 
Insured Property" has typed upon it the words, "Bailees Customer". 

The first page of the "Bailees Customers Endorsement" contains 

the following language with respect to the coverage. 

"1. COVERAGE: This form covers on all goods 

or articles accepted by the insured for cleanin 

renovating, p ressinq, dyeinq, repairinp --+I: or laun 

ering, the property of his customers, while contained on the premises occupied by the insured, 

or in the custody of his agents or branch stores, 

provided these locations are scheduled or endorsed 

hereon, and while being transported to and from 

the premises of his customers or branch stores 

or agents." (Emphasis supplied.) 

Clark's complaint alleging that the respondent misplaced, 

destroyed or mishandled the trophys either on the premises or in 

making improper shipments are risks contemplated in the coverage. 

In addition, it should be noted that the "Bailee Customers and 

Laundries and Drycleaners Form" sold to respondent after consultation with the appellants' agents provides: 

"3. THIS FORM INSURES, except as hereinafter 

provided, against direct loss or damages caused 

by : 

"(1) Transportation risks by public carriers or 

mail service; 

I' (m) Aircraft or vehicles; 

"(n) Confusion of goods resulting from any of 

the foregoing perils." 

Taking these words of the agreement and relating them to the subject matter about which the parties contracted it is obvious that 

they contracted with respect to respondent's business and not some 

unrelated business. See Park Saddle Horse Co. v. Royal Indem. Co., 

81 Mont. 99, 261 P. 880; Independent M. & C. Co. v. Aetna L. I. 

Co., 68 Mont. 152, 216 P. 1109. 

Despite appellants' argument to the contrary there are 

elements of ambiguity in the policy. The additional declaration 

and Bailee Customers Endorsement relate to the liability section 

of the policy, but the Bailee Customers Endorsement form relates 
to the Laundry and Dry Cleaning business not the taxidermy business. When an ambiguity arises as noted above the insured is 

entitled to the benefit of any doubt.  his Court in Eby v. 

Foremost Insurance Co. 141 Mont. 62, 66, 374 P.2d 857, provided 

the rule for the construction of an ambiguous insurance policy: 

" * * * But if the terms of the policy are 

ambiguous, obscure, or open to different construction, the construction most favorable to 

the insured or other beneficiary must prevail. 

That general rule applies with particular force 

to an ambiguous or doubtful provision of a 

policy or in an endorsement attached thereto 

which attempts to exclude from coverage liability 

in certain circumstances." 

See also Johnson v. Equitable Insurance Co., 142 Mont. 128, 381 

P.2d 778; St. Paul Fire & Marine Ins. Co. v. Thompson, 150 Mont. 

The appellant argues several affirmative defenses which 

we find are without merit. Despite Safeco's contention to the 

contrary the Alaska complaint does allege facts within the perils 

enumerated entitling the respondent to a defense by the appellants. 

We are not here concerned, nor was the trial judge with the outcome of the cause in Alaska for it may well be that Safeco is not 

liable for the alleged losses. The relevant consideration here 

is that on its face the complaint clearly alleges matters within 

Safeco's responsibility; and, the district court properly granted 

a partial summary judgment directing Safeco to defend. 

The judgment of the district court is affirmed. 

{\---,Cq-&& Justice 

We concur: 

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Chief ~ustice 

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Justices -9-