05-054 

 IN THE SUPREME COURT OF THE STATE OF MONTANA 

 

2007 MT 202 

ESSEX INSURANCE COMPANY, 

a Virginia Corporation, 

 Plaintiff and Appellant, 

 v. 

MOOSE'S SALOON, INC., a Montana Corporation, 

CLARK VOGT, and JOHN DOE, 

 Defendants and Respondents. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and For the County of Flathead, Cause No. DV 1996-261(A) 

Honorable Ted O. Lympus, Presiding Judge 

COUNSEL OF RECORD: 

For Appellant: 

Steven R. Milch, Crowley, Haughey, Toole & Dietrich, PLLP, 

Billings, Montana 

For Respondent: 

Stephen C. Berg, Johnson, Berg, McEvoy & Bostock, PLLP, 

Kalispell, Montana 

Submitted on Briefs: August 17, 2005 

 Decided: August 15, 2007 

Filed: 

__________________________________________ 

Clerk 
Justice James C. Nelson delivered the Opinion of the Court. 

¶1 This is an appeal by Essex Insurance Company (“Essex”) from two orders and the 

final judgment of the District Court for the Eleventh Judicial District, Flathead County. 

We reverse. 

¶2 The dispositive issue on appeal is whether the District Court abused its discretion 

in granting the M. R. Civ. P. 60(b)(6) motion filed by Moose’s Saloon (“Moose’s”) and 

Clark Vogt (“Vogt”). We therefore do not address the other two issues raised by Essex, 

which pertain to rulings by the District Court after it granted the Rule 60(b)(6) motion. 

FACTUAL AND PROCEDURAL BACKGROUND

¶3 On June 17, 1994, an altercation occurred between Mark Yarde (“Yarde”), Vogt, 

and Dana Severy (“Severy”) at Moose’s. According to Yarde’s version of the events, 

Vogt (an employee of Moose’s) was removing him from the bar on the night in question. 

On their way out, Vogt grabbed Yarde around the neck, shoved Yarde against the wall, 

and then both men fell onto the ground. Vogt stood up and then proceeded to break 

Yarde’s leg by stomping on it. According to Vogt, however, as he escorted Yarde out of 

the bar, Yarde got into a fight with Severy (a bar patron of Moose’s), who was standing 

nearby. When Vogt separated the two, Yarde grabbed for Vogt’s throat, at which point 

Vogt pushed Yarde down onto the ground. 

¶4 On April 11, 1995, Yarde filed a personal injury lawsuit against Moose’s, Vogt, 

and Severy. In his complaint, Yarde alleged that Severy and Vogt, while in the scope and 

course of his employment with Moose’s, “negligently injured” Yarde in the bar fight. He 

also alleged that Moose’s was negligent in its hiring and supervision of Vogt. Pursuant to 

2
Moose’s insurance policy, Essex agreed to investigate and provide Moose’s and Vogt 

with a defense in Yarde’s suit; however, Essex reserved its right to deny coverage if any 

exclusions in the policy applied. During the course of its investigation, Essex learned 

that Yarde had given a witness statement to the Kalispell Police Department stating that 

Vogt had committed assault and battery on him. 

¶5 On May 21, 1996, Essex filed a complaint for a declaratory judgment in the 

District Court, naming Moose’s, Vogt, and John Doe (who was later identified as Severy) 

as defendants. Essex sought a declaration that, pursuant to the insurance policy, Essex 

had neither a duty to defend nor a duty to indemnify Moose’s and Vogt with regard to the 

claims asserted by Yarde in the personal injury lawsuit. The basis for Essex’s complaint 

was that the insurance policy contained a number of applicable exclusions. First, 

according to Essex, the incident involving Yarde, Vogt, and Severy was not an “accident” 

or “occurrence” as those terms were defined in the policy. Second, the policy contained 

an express exclusion of coverage for damages resulting from an assault and battery or for 

any act or omission in connection with the prevention or suppression of an assault and 

battery, whether instigated or caused by Moose’s, an employee of Moose’s, or a patron. 

Lastly, the policy contained an express exclusion for coverage of any claims arising out 

of charges or allegations of negligent hiring, placement, training, or supervision. 

¶6 Essex moved for summary judgment on September 10, 1996, on the grounds that 

“there is no coverage, no duty to defend and no indemnity obligation because of the 

occurrence language of the policy, because of the assault and battery exclusion of the 

policy and because of the hiring/supervision exclusion of the policy.” Although Yarde 

3
had alleged negligence in the personal injury lawsuit, Essex maintained that Yarde was 

“factually claiming assault and battery.” Additionally, Essex maintained that, for the 

purposes of its motion for summary judgment, it did not matter whose version of the 

incident (Yarde’s or Vogt’s) was true. According to Essex, “[i]n either version of the 

facts, there was an assault.” 

¶7 Moose’s argued in response that the depositions of Yarde and Vogt created 

material issues of fact regarding the altercation between the two of them. Moose’s 

maintained that it was unclear whether there was an “intentional act” by Vogt or simply 

an accidental fall during the course of the altercation between Yarde and Severy. 

Therefore, according to Moose’s, summary judgment was not appropriate. 

¶8 The District Court disagreed and, on April 23, 1997, granted Essex’s motion. The 

court determined that there were no issues of material fact as to the acts in question, 

noting that “either Vogt assaulted Yarde, Yarde assaulted Vogt, or Severy and Yarde 

assaulted each other and Vogt tried to suppress it, or some combination of all three events 

occurred.” The court further determined that the assault and battery exclusion “excludes 

the types of acts at issue in the underlying matter of Yarde v. Moose’s Saloon, Inc., et al.” 

Finally, the court concluded that the “accident” and “occurrence” exclusion and the 

negligent hiring and supervision exclusion also applied. Thus, the court declared that 

“Essex Insurance Company has neither a duty to defend nor a duty to indemnify Moose’s 

Saloon, Inc., or any of its employees, including Vogt, or any unnamed John Doe, with 

regard to any of the claims asserted by Mark Yarde.” Significantly, Moose’s, Vogt, and 

4
Severy did not appeal from the District Court’s order granting summary judgment in 

favor of Essex. 

¶9 Yarde’s personal injury lawsuit ultimately went to trial and, on February 12, 1999, 

the jury returned a verdict against Moose’s, Vogt, and Severy. On the special verdict 

form, the jury determined that Moose’s, Vogt, and Severy were all negligent and that 

they were each a cause of Yarde’s injury. The jury also determined that Vogt had 

assaulted or battered Yarde and that Vogt had acted with malice. The District Court 

thereafter entered judgment in favor of Yarde in the sum of $159,500. 

¶10 On January 12, 2000—nine months after the District Court had entered judgment 

in favor of Yarde in the personal injury lawsuit and approaching three years after the 

District Court had granted Essex’s motion for summary judgment in the declaratory 

judgment action—Moose’s and Vogt filed a motion pursuant to M. R. Civ. P. 60(b)(6) for 

relief from the District Court’s judgment in the declaratory judgment action.1

 They noted 

that in that action, the District Court had “held that Vogt’s acts were intentional and that 

the facts surrounding his altercation with Yarde did not support a theory of negligence”; 

yet, in the personal injury lawsuit, the District Court had “entered judgment on the verdict 

finding [Moose’s and Vogt] negligent.” According to Moose’s and Vogt, this created “an 

inconsistency or irregularity in the proceedings” which “prevented an accurate 

determination on the merits thereby prejudicing [them].” Specifically, they explained 

that “despite having been found ‘negligent’ by a 12-person jury, [Moose’s and Vogt] are 

 

1

 Severy did not join in Moose’s and Vogt’s Rule 60(b)(6) motion and is not a party to 

this appeal. 

5
not entitled to indemnification by Essex for Vogt’s negligent acts because those same 

acts were deemed ‘intentional’ in the declaratory judgment action.” Therefore, they 

asked the District Court to reopen the declaratory judgment action and “re-determine the 

issue of insurance policy coverage.” 

¶11 In response, Essex argued, among other things, that Moose’s and Vogt’s motion 

must fail on the merits because Moose’s and Vogt had failed to establish that the 

circumstances of the case were so extraordinary as to warrant relief under Rule 60(b)(6). 

In this regard, Essex noted that Moose’s and Vogt had not appealed the District Court’s 

order granting summary judgment in the declaratory judgment action and that Rule 

60(b)(6) is not to be used as a substitute for appeal. 

¶12 The District Court, however, disagreed and, on February 18, 2000, granted the 

Rule 60(b)(6) motion. The court opined that “the grounds for appealing the declaratory 

judgment action did not arise until judgment was rendered in the personal injury action. 

Thus, it cannot be said that [Moose’s and Vogt] had an opportunity to appeal the 

declaratory judgment action but voluntarily chose to forego an appeal.” The District 

Court also stated that Moose’s and Vogt had “demonstrated that an inconsistency or 

irregularity in the proceedings prevented an accurate determination on the merits thereby 

prejudicing them.” Therefore, the court concluded that it was “only fair and equitable to 

allow [Moose’s and Vogt] to reopen the declaratory judgment action and seek a 

redetermination of insurance coverage.” Essex filed a motion for reconsideration, which 

the District Court denied. 

6
¶13 The parties thereafter filed cross-motions for summary judgment. Moose’s and 

Vogt argued that none of the policy exclusions applied and that Essex, therefore, had a 

duty to defend and indemnify them “for damages paid and expenses incurred in 

connection with the personal injury action brought by Yarde.” They requested that the 

District Court order Essex to do so. For its part, Essex argued that “under every 

conceivable theory upon which the jury could hold Moose’s Saloon liable in the 

underlying action, no coverage exists under the Essex policy.” They noted that although 

the jury had found Moose’s, Vogt, and Severy negligent, the jury had also found that 

Vogt assaulted and battered Yarde. 

¶14 On March 17, 2004, the District Court granted Moose’s and Vogt’s motion for 

summary judgment and denied Essex’s motion for summary judgment. The court 

determined that the events which gave rise to Yarde’s lawsuit against Moose’s and Vogt 

“meet the definition of ‘occurrence’ for purposes of insurance coverage” and that “the 

results [of Vogt’s actions toward Yarde] were not expected nor planned.” Thus, the court 

concluded that the “accident” and “occurrence” exclusion did not apply. The District 

Court also addressed the assault and battery exclusion, concluding that the exclusion was 

“ambiguous” in light of the jury’s findings that Vogt had been negligent on the one hand 

and had committed an assault and battery on the other hand. The court concluded that it 

must therefore “reverse its prior ruling and hold that the policy must be interpreted to 

provide insurance coverage.” The court accordingly held that “Essex is required to 

indemnify its insured.” 

7
¶15 The District Court entered final judgment on October 20, 2004, awarding Moose’s 

reimbursement for the judgment it had paid out to Yarde, as well as attorney’s fees and 

costs incurred in defending itself in Yarde’s personal injury lawsuit and in the 

redetermination of insurance coverage. Essex now appeals from the Order and Rationale 

on Motion for Relief from Judgment, the Order and Rationale on Cross-Motions for 

Summary Judgment, and the final Judgment and Rationale. 

STANDARD OF REVIEW

¶16 Our standard of review of a district court’s ruling on a motion pursuant to 

M. R. Civ. P. 60(b) depends on the nature of the final judgment, order, or proceeding 

from which relief is sought and the specific basis of the Rule 60(b) motion. See In re 

Marriage of Barnes, 251 Mont. 334, 336, 825 P.2d 201, 203 (1992) (“The scope of our 

review of a decision to grant or deny a Rule 60(b) motion depends on the issues 

involved.”). As a general rule, the district court’s ruling is reviewed for abuse of 

discretion. See Heller v. Gremaux, 2002 MT 199, ¶ 7, 311 Mont. 178, ¶ 7, 53 P.3d 1259, 

¶ 7; Hall v. Heckerman, 2000 MT 300, ¶ 12, 302 Mont. 345, ¶ 12, 15 P.3d 869, ¶ 12; see 

also Export Group v. Reef Industries, Inc., 54 F.3d 1466, 1469 (9th Cir. 1995) 

(“Ordinarily, motions for relief from judgment pursuant to Federal Rules of Civil 

Procedure 60(b) are addressed to the sound discretion of the district court and will not be 

reversed absent some abuse of discretion.”). But where, for instance, the movant sought 

relief under subsection (2) of Rule 60(b) based on newly discovered evidence, we have 

stated that we will review the district court’s ruling for manifest abuse of discretion. See 

Fjelstad v. State, Through Dept. of Highways, 267 Mont. 211, 220, 883 P.2d 106, 111 

8
(1994). By contrast, where the movant sought relief under subsection (4) of Rule 60(b) 

on the ground that the judgment is void, the standard of review is de novo, since the 

determination that a judgment is or is not void is a conclusion of law. Export Group, 54 

F.3d at 1469 (“We review de novo . . . a district court’s ruling upon a Rule 60(b)(4) 

motion to set aside a judgment as void, because the question of the validity of a judgment 

is a legal one.”); see also Hicklin v. CSC Logic, Inc., 283 Mont. 298, 301, 940 P.2d 447, 

449 (1997).2

¶17 Another exception to the general rule applies in cases where the movant sought 

relief from a default judgment. In Lords v. Newman, 212 Mont. 359, 688 P.2d 290 

(1984), we set forth two standards of review with respect to such motions. We noted that 

while “courts are vested with a certain amount of discretion when they are considering a 

motion to set aside a default,” “every litigated case should be tried on the merits” and, 

thus, “judgments by default are not favored.” Lords, 212 Mont. at 363, 688 P.2d at 293. 

Accordingly, we held that when a trial court has granted a motion to set aside the default 

and opened up the action for a trial on the merits, the court’s ruling “will only be set aside 

upon a showing of manifest abuse”; but when the trial court has denied a motion to set 

aside the default, “no great abuse of discretion need be shown to warrant reversal” (i.e., 

 

2

 In In re Marriage of Zacher, 2004 MT 249, 323 Mont. 54, 98 P.3d 309, the appellant 

had filed a motion under Rule 60(b)(4), which was deemed denied by operation of law. 

Zacher, ¶ 5. We stated that our standard of review under these circumstances was abuse 

of discretion. See Zacher, ¶ 7; see also Bragg v. McLaughlin, 1999 MT 320, ¶¶ 11, 17, 

24, 297 Mont. 282, ¶¶ 11, 17, 24, 993 P.2d 662, ¶¶ 11, 17, 24; Butler v. Colwell, 1998 

MT 241, ¶¶ 13, 16, 291 Mont. 134, ¶¶ 13, 16, 967 P.2d 779, ¶¶ 13, 16. For the reasons 

discussed above, however, our review of a district court’s decision to set aside a void 

judgment is de novo. We therefore overrule ¶ 7 of Zacher, as well as ¶ 11 of Bragg and 

¶ 13 of Butler, to the extent they suggest otherwise. 

9
“only ‘slight abuse’ is sufficient to reverse an order refusing to set aside a default”). 

Lords, 212 Mont. at 363-64, 688 P.2d at 293; accord Matthews v. Don K Chevrolet, 2005 

MT 164, ¶ 9, 327 Mont. 456, ¶ 9, 115 P.3d 201, ¶ 9; Empire Lath & Plaster v. American 

Cas., 256 Mont. 413, 416, 847 P.2d 276, 278 (1993); Blume v. Metropolitan Life Ins. Co., 

242 Mont. 465, 467, 791 P.2d 784, 785 (1990); cf. Skogen v. Murray, 2007 MT 104, ¶ 11, 

337 Mont. 139, ¶ 11, 157 P.3d 1143, ¶ 11; Karlen v. Evans, 276 Mont. 181, 185, 915 

P.2d 232, 235 (1996).3

¶18 In the case at hand, Moose’s and Vogt’s Rule 60(b)(6) motion was directed at the 

District Court’s order in the declaratory judgment action granting summary judgment in 

favor of Essex, from which Moose’s and Vogt did not appeal. They did not contend that 

the order is void; thus, de novo review is not implicated here. Furthermore, the decision 

to reopen or not to reopen an unchallenged final order granting a motion for summary 

judgment does not implicate the policy considerations identified in Lords with respect to 

default judgments. Accordingly, we will review the District Court’s ruling on Moose’s 

and Vogt’s Rule 60(b)(6) motion for abuse of discretion. 

 

3

 One or both of Lords’s dual standards have appeared in a number of cases not involving 

a motion for relief from a default judgment. See e.g. Wombold v. Assoc. Financial 

Services Co., 2004 MT 397, ¶ 31, 325 Mont. 290, ¶ 31, 104 P.3d 1080, ¶ 31; In re 

Marriage of Zacher, 2004 MT 249, ¶ 7, 323 Mont. 54, ¶ 7, 98 P.3d 309, ¶ 7; Calcaterra 

v. Montana Resources, 2001 MT 193, ¶ 7, 306 Mont. 249, ¶ 7, 32 P.3d 764, ¶ 7; Wright 

Oil & Tire Co. v. Goodrich, 284 Mont. 6, 10, 942 P.2d 128, 130 (1997). The Lords

standards, however, are based on the policy considerations identified in that case with 

respect to default judgments and should not be applied universally. See Lords, 212 Mont. 

at 365-66, 688 P.2d at 294 (noting that there is no one set standard of review to be 

applied in all cases). We therefore overrule Wombold, ¶ 31, Zacher, ¶ 7, Calcaterra, ¶ 7, 

and Wright Oil & Tire, 284 Mont. at 10, 942 P.2d at 130, to the extent they state or 

suggest that the Lords standards apply to all Rule 60(b) motions. 

10
¶19 A district court abuses its discretion if it “act[s] arbitrarily without employment of 

conscientious judgment or exceed[s] the bounds of reason resulting in substantial 

injustice.” Jarvenpaa v. Glacier Elec. Co-op., Inc., 1998 MT 306, ¶ 13, 292 Mont. 118, 

¶ 13, 970 P.2d 84, ¶ 13 (citing C. Haydon Ltd. v. MT Min. Properties, Inc., 286 Mont. 

138, 146, 951 P.2d 46, 51 (1997)). 

DISCUSSION

¶20 Did the District Court abuse its discretion in granting Moose’s and Vogt’s 

M. R. Civ. P. 60(b)(6) motion?

¶21 M. R. Civ. P. 60(b) provides: 

 On motion and upon such terms as are just, the court may relieve a 

party or a party’s legal representative from a final judgment, order, or 

proceeding for the following reasons: (1) mistake, inadvertence, surprise, or 

excusable neglect; (2) newly discovered evidence which by due diligence 

could not have been discovered in time to move for a new trial under Rule 

59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), 

misrepresentation, or other misconduct of an adverse party; (4) the 

judgment is void; (5) the judgment has been satisfied, released, or 

discharged, or a prior judgment upon which it is based has been reversed or 

otherwise vacated, or it is no longer equitable that the judgment should 

have prospective application; or (6) any other reason justifying relief from 

the operation of the judgment. 

Moose’s and Vogt’s motion was based on subsection (6) of Rule 60(b). Relief under this 

provision is appropriate only in extraordinary circumstances which go beyond those 

covered by the first five subsections of the rule. See e.g. Skogen v. Murray, 2007 MT 

104, ¶ 13, 337 Mont. 139, ¶ 13, 157 P.3d 1143, ¶ 13; Falcon v. Faulkner, 273 Mont. 327, 

333, 903 P.2d 197, 201 (1995). “Thus, before a party will be allowed to modify a final 

judgment under Rule 60(b)(6), he must first show that none of the other five reasons in 

11
Rule 60(b) apply.” In re Marriage of Waters, 223 Mont. 183, 187, 724 P.2d 726, 729 

(1986). 

¶22 Additionally, “[i]t is not the intent of Rule 60(b)(6) to be a substitute for appeal.” 

Lussy v. Dye, 215 Mont. 91, 93, 695 P.2d 465, 466 (1985). Furthermore, a motion for 

relief pursuant to Rule 60(b)(6) must contain “more than a request for rehearing or a 

request that the District Court change its mind.” Lussy, 215 Mont. at 93, 695 P.2d at 466. 

“It must be shown that something prevented a full presentation of the cause or an 

accurate determination on the merits and that for reasons of fairness and equity redress is 

justified.” Lussy, 215 Mont. at 93, 695 P.2d at 466; accord In re Marriage of Markegard, 

2006 MT 111, ¶ 16, 332 Mont. 187, ¶ 16, 136 P.3d 532, ¶ 16. 

¶23 Given these requirements, we conclude that the District Court abused its discretion 

in granting Moose’s and Vogt’s motion to reopen the declaratory judgment action. As 

stated in Waters, “before a party will be allowed to modify a final judgment under Rule 

60(b)(6), he must first show that none of the other five reasons in Rule 60(b) apply.” 

Waters, 223 Mont. at 187, 724 P.2d at 729 (emphasis added). Moose’s and Vogt, 

however, have never argued at any point during the course of this case that none of the 

first five subsections of Rule 60(b) apply. For this reason alone, their Rule 60(b)(6) 

motion should have been denied. 

¶24 Inexplicably, however, neither Essex nor the District Court addressed Moose’s and 

Vogt’s oversight. Rather, in responding to Moose’s and Vogt’s motion, Essex proceeded 

directly with an analysis of the merits of the motion, and the District Court followed suit. 

Therefore, notwithstanding the fact that Moose’s and Vogt were required by well12
established caselaw to show, first, that that none of the other five reasons in Rule 60(b) 

apply, Waters, 223 Mont. at 187, 724 P.2d at 729, we will address the merits of their 

motion under subsection (6). 

¶25 A successful Rule 60(b)(6) motion requires that the movant demonstrate each of 

the following elements: (1) extraordinary circumstances; (2) the movant acted to set 

aside the judgment within a reasonable period of time; and (3) the movant was blameless. 

In re Paternity of C.T.E.-H., 2004 MT 307, ¶ 45, 323 Mont. 498, ¶ 45, 101 P.3d 254, ¶ 45 

(citing Bahm v. Southworth, 2000 MT 244, ¶ 14, 301 Mont. 434, ¶ 14, 10 P.3d 99, ¶ 14).4

¶26 With respect to element (1), Essex argues that Moose’s and Vogt failed to 

establish that the circumstances of this case were so extraordinary as to warrant relief 

under Rule 60(b)(6). According to Essex, Moose’s and Vogt “had the opportunity, and 

were clearly entitled, to appeal the summary judgment determination which the district 

court rendered to Essex”; however, they did not do so. Thus, Moose’s and Vogt’s 

“ ‘voluntary, deliberate, free, [and] untrammeled choice’ ” not to appeal the District 

Court’s summary judgment determination establishes that the requisite extraordinary 

circumstances do not exist in this case (alteration in original) (quoting Ackermann v. 

United States, 340 U.S. 193, 200, 71 S. Ct. 209, 212 (1950)). 

 

4

 In Peak Development, LLP v. Juntunen, 2005 MT 82, 326 Mont. 409, 110 P.3d 13, we 

stated that Rule 60(b)(6) was “inapplicable” because “gross neglect or actual misconduct 

by Juntunen’s attorney are not issues here, as required under Rule 60(b)(6).” Peak 

Development, ¶ 17. Rule 60(b)(6), however, does not require gross neglect or actual 

misconduct on the part of the movant’s attorney in all cases. Rather, this requirement 

applies only in cases where the basis of the Rule 60(b)(6) motion is an alleged error by 

the movant’s attorney. See e.g. Skogen, ¶ 13; Bahm, ¶ 14. Thus, for clarification, we 

overrule ¶ 17 of Peak Development to the extent it suggests otherwise. 

13
¶27 In response, Moose’s and Vogt reiterate that the District Court held in the 

declaratory judgment action that Essex had no duty to defend or indemnify them because 

Yarde’s injury occurred as the result of a non-accidental assault and battery, but the jury 

found in Yarde’s lawsuit that Moose’s, Vogt, and Severy were negligent. Moose’s and 

Vogt argue that these are “inconsistent judgments” that establish extraordinary 

circumstances for purposes of a Rule 60(b)(6) motion. Moose’s and Vogt also maintain 

that the “actual controversy” between them and Essex in the declaratory judgment action 

was whether the exclusions in the policy precluded coverage for assault and battery, 

whereas the controversy after the jury verdict in the Yarde lawsuit “was whether there 

was coverage for negligence.” They argue that this distinction, in addition, “presented 

the requisite extraordinary circumstances to the trial court to reopen the declaratory 

judgment action under Rule 60(b)(6).” 

¶28 We disagree. The circumstances of this case are not so extraordinary as to warrant 

relief from judgment under Rule 60(b)(6). The thrust of Moose’s and Vogt’s argument is 

that the District Court made an erroneous factual determination in the original declaratory 

judgment action—namely, that the altercation between Yarde, Vogt, and Severy involved 

an assault (“either Vogt assaulted Yarde, Yarde assaulted Vogt, or Severy and Yarde 

assaulted each other and Vogt tried to suppress it, or some combination of all three events 

occurred”). Moose’s and Vogt seek to challenge that factual determination by way of a 

Rule 60(b)(6) motion; in other words, it appears that they have invoked Rule 60(b)(6) 

either as a substitute for an appeal they wish they had taken from the District Court’s 

order granting summary judgment in favor of Essex in the original declaratory judgment 

14
action or as a request to the District Court that it simply make a different factual 

determination. These are improper uses of a Rule 60(b)(6) motion. 

¶29 “Generally, failure to appeal for almost any reason is fatal to a motion to reopen 

judgment under Rule 60(b). If allowed, it would in essence make a Rule 60(b) motion a 

substitute for appeal, which is an improper use of the motion.” Koch v. Billings School 

Dist. No. 2, 253 Mont. 261, 271, 833 P.2d 181, 187 (1992) (citing Donovan v. Graff, 248 

Mont. 21, 25, 808 P.2d 491, 494 (1991)). In addition, as stated above, a Rule 60(b)(6) 

motion must contain “more than a request for rehearing or a request that the District 

Court change its mind. It must be shown that something prevented a full presentation of 

the cause or an accurate determination on the merits and that for reasons of fairness and 

equity redress is justified.” Lussy, 215 Mont. at 93, 695 P.2d at 466. 

¶30 Moose’s and Vogt have not made such a showing. To the contrary, the record 

establishes that they had the opportunity to argue, and did argue, during the original 

declaratory judgment action that there were issues of fact as to whether the altercation 

between Yarde, Vogt, and Severy involved an assault and battery. Moose’s and Vogt 

have not shown that something prevented them from making a full presentation on this 

issue. Next, the District Court rejected Moose’s and Vogt’s argument. The court 

determined that there was, in fact, an assault, and, based on its interpretation of the 

insurance policy, the court determined that the assault and battery exclusion applied. 

Moose’s and Vogt have not shown that something prevented the court from making these 

determinations accurately. Moose’s and Vogt then had the opportunity to appeal the 

District Court’s determinations; they did not do so, and their suggestion that this 

15
opportunity did not arise until the jury found negligence on the part of Moose’s, Vogt, 

and Severy is without merit. Simply stated, they did not appeal the District Court’s 

determinations, and they may not use Rule 60(b)(6) to remedy a decision which they 

now, apparently, regret. 

¶31 As for Moose’s and Vogt’s contention that, following the jury’s verdict in Yarde’s 

lawsuit, the controversy “was whether there was coverage for negligence,” we note that 

they were fully aware that negligence was one of Yarde’s theories of recovery. Indeed, 

in their brief in opposition to Essex’s motion for summary judgment in the original 

declaratory judgment action, Moose’s and Vogt acknowledged that “[t]he factual 

situation resulting in the claim against Moose’s could in the final analysis of all factual 

matters involve either negligence and/or some other intentional act falling short of an 

assault and battery.” Thus, their claim that the controversy between them and Essex 

changed following the jury’s verdict is also without merit. 

¶32 For the foregoing reasons, we conclude that Moose’s and Vogt have failed to 

satisfy the extraordinary circumstances requirement (element (1)) for a successful Rule 

60(b)(6) motion. And the same is true of elements (2) and (3). Pursuant to element (2), 

the movant must demonstrate that he or she “acted to set aside the judgment within a 

reasonable period of time.” In re Paternity of C.T.E.-H., ¶ 45. “What is a reasonable 

time will depend on the particular facts of the individual case.” In re Marriage of 

Waters, 223 Mont. at 189, 724 P.2d at 730. Pursuant to element (3), the movant must 

demonstrate that it was blameless. In re Paternity of C.T.E.-H., ¶ 45. 

16
¶33 Moose’s and Vogt have not explicitly addressed either of these elements at any 

point during the course of this case. Likewise, the District Court did not set forth an 

analysis of their motion with respect to elements (2) and (3). Rather, the court decided 

that Moose’s and Vogt had demonstrated that extraordinary circumstances exist in this 

case and, therefore, that “it is only fair and equitable to allow [them] to reopen the 

declaratory judgment action and seek a redetermination of insurance coverage.” This 

analysis, which omitted the requisite determinations that Moose’s and Vogt had acted to 

set aside the judgment within a reasonable period of time and were blameless, is 

insufficient. A party seeking relief from judgment pursuant to M. R. Civ. P. 60(b)(6) 

must demonstrate that its motion satisfies each of the three required elements; in other 

words, the elements are conjunctive, not disjunctive. Thus, a strong showing of 

extraordinary circumstances cannot supplant an analysis of timeliness and blamelessness. 

¶34 In sum, Moose’s and Vogt have failed to satisfy any of the three elements of a 

successful Rule 60(b)(6) motion. Their Rule 60(b)(6) motion for relief from the District 

Court’s judgment in the original declaratory judgment action, therefore, fails on the 

merits and the District Court, accordingly, abused its discretion in granting that motion.5

CONCLUSION 

¶35 Moose’s and Vogt have not established that they are entitled to relief under 

M. R. Civ. P. 60(b)(6). Not only have they failed to address the first five subsections of 

the rule, as required by our caselaw, but their motion also fails on the merits, since they 

 

5

 Given our holding here, it is unnecessary to address Essex’s alternative argument that 

the doctrine of res judicata bars Moose’s and Vogt from bringing their Rule 60(b)(6) 

motion. 

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have failed to establish the existence of extraordinary circumstances, that their motion 

was timely, and that they were blameless. Accordingly, we hold that the District Court 

abused its discretion in granting Moose’s and Vogt’s Rule 60(b)(6) motion for relief from 

the court’s order granting summary judgment in favor of Essex in the original declaratory 

judgment action. We therefore vacate all orders entered by the District Court after it 

granted said motion. 

¶36 Reversed.

/S/ JAMES C. NELSON 

W Concur: 

/S/ KARLA M. GRAY 

/S/ W. WILLIAM LEAPHART 

/S/ JOHN WARNER 

/S/ PATRICIA COTTER 

Justice Patricia O. Cotter concurs. 

¶37 I concur in the Court’s decision for the reasons stated therein, and also because of 

the manner in which the personal injury case was actually presented to the jury. While 

Moose’s and Vogt now argue that this was a case of negligence, the fact is that the case 

was presented to the jury by Yarde and his counsel as one of assault and battery. Yarde 

testified at trial that he was deliberately shoved and grabbed by Vogt and that his leg was 

intentionally broken. Yarde’s counsel portrayed the incident as one of jealous rage, 

telling the jury that the bartender stomped on Yarde’s leg and broke it on purpose 

because of an affair that had occurred between him and Yarde’s ex-wife. Moreover, the 

jury specifically found that Vogt had assaulted and battered Yarde and had acted with 

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malice, justifying an award of punitive damages. A punitive damages phase of the trial 

was then conducted. 

¶38 It is true that the jury also found Moose’s negligent. However, notably, the sole 

line on the verdict form providing for an award of compensatory damages was under a 

negligence caption. Had Essex been involved in the trial of the case as Moose’s insurer, 

as it may have been had Moose’s and Vogt appealed the adverse coverage decision, it 

would have been in a position to object to the manner in which the verdict form was 

presented to the jury. However, Essex was not in the case, having been long since 

relieved of the obligation to appear and defend, and the time for appeal having expired. 

Thus, the parties were free to fashion the verdict form as they saw fit, and then free to 

later allege that the finding of negligence had changed everything. Essex, on the other 

hand, stood to be bound to its detriment by a jury decision in which it took no part. 

¶39 As the Court notes, extraordinary circumstances must be demonstrated to justify 

the reopening of a matter under Rule 60(b)(6). It must be shown that something 

prevented the applicants from fully presenting their case, and that notions of fairness and 

equity call for redress. ¶ 29. Here, no extraordinary circumstances exist. This case was 

always about an assault and battery, and it was presented to the jury by Yarde and his 

counsel as such. Fairness does not now require the reopening of a coverage decision that 

was premised upon facts that were actually later proved at trial. 

¶40 I therefore concur. 

/S/ PATRICIA COTTER 

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