ir,-6ts•—if 

DA 22-0073

IN THE SUPREME COURT OF THE STATE OF MONTANA

2022 MT 173N

21st CENTURY NORTH AMERICA INSURANCE COMPANY

AND FARMERS INSURANCE EXCHANGE,

 Plaintiffs and Appellees,

v.

KEVIN R. FROST,

 Defendant and Appellant,

and SHERRI FROST,

 Defendant.

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

In and For the County of Ravalli, Cause No. DV-20-298

Honorable Jason T. Marks, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Kevin R. Frost, Self-Represented, Corvallis, Montana

For Appellees:

Dale R. Cockrell, Eric M. Brooks, Moore, Cockrell, Goicoechea & 

Johnson, P.C., Kalispell, Montana

Submitted on Briefs: August 3, 2022

 Decided: September 6, 2022

Filed:

__________________________________________

Clerk

09/06/2022

Case Number: DA 22-0073
2

Justice Beth Baker delivered the Opinion of the Court.

¶1 Pursuant to Section I, Paragraph 3(c), Montana Supreme Court Internal Operating 

Rules, we decide this case by memorandum opinion. It shall not be cited and does not 

serve as precedent. Its case title, cause number, and disposition shall be included in this 

Court’s quarterly list of noncitable cases published in the Pacific Reporter and Montana 

Reports. 

¶2 21st Century North America Insurance Company (21st Century) and Farmers 

Insurance Exchange (FIE) filed a declaratory judgment action in the Twenty-First Judicial 

District Court, Ravalli County, to determine whether they must defend or indemnify Kevin 

Frost in a civil lawsuit brought by his estranged wife after he kidnapped and assaulted her. 

The District Court granted summary judgment to 21st Century and FIE. Frost argues that 

the District Court erred by ruling on the Plaintiffs’ motion without holding a hearing and 

by granting them summary judgment. We affirm.

¶3 Amid a contested dissolution of their marriage, and after they had separated, Frost 

kidnapped, physically assaulted, threatened, and restrained his wife, Sherri Frost. Frost 

twisted Sherri’s arm and forced her into her vehicle, a Hyundai Elantra. Frost also 

threatened her with a stun gun. Frost drove Sherri to another location and switched vehicles 

to a GMC Yukon. Frost threatened Sherri and refused to let her leave. Frost drove Sherri

to his friend’s unoccupied property where he coerced Sherri to drink alcohol. Eventually, 

Frost took Sherri to the emergency room and turned himself in to the Sheriff’s Department. 

Resulting from this incident, Frost pleaded guilty to Aggravated Kidnapping, § 45-5-303, 

MCA, and Partner or Family Member Assault, § 45-5-206, MCA. Sherri brought a civil 
3

action, alleging both intentional tort claims and theories of negligence against Frost and 

seeking punitive damages. 

¶4 Frost has an automobile policy, which includes liability coverage, through 21st

Century and a personal umbrella policy, based on his automobile coverage, through FIE. 

He requested that 21st Century and FIE defend him against Sherri’s action. Both insurers 

undertook Frost’s defense subject to a reservation of rights. 21

st Century and FIE then 

sought a declaratory judgment that they had neither a duty to defend nor a duty to indemnify 

Frost in the civil action. 21st Century and FIE joined Sherri to the action to adjudicate her 

interests in whether the insurers had a duty to defend or indemnify Frost. 

¶5 21st Century and FIE moved for summary judgment. They argued that 21st

Century’s policy did not provide coverage because Frost used a vehicle, the GMC Yukon, 

that had not been added to his policy and that the incident was not an “accident” as defined 

in the policy. They also argued, in addition to lack of coverage for the GMC Yukon, that

FIE’s policy could not apply because Sherri was a named insured on the policy, the 

underlying incident was not an “occurrence,” and the underlying incident occurred on 

property controlled by Frost. They argued that neither policy provided coverage for the 

alleged punitive damages. 

¶6 Sherri opposed summary judgment. She alleged that her injuries arose out of the 

use of vehicles covered by the policy: (1) the Hyundai Elantra; and (2) an F-350 that Frost 

drove to purchase the GMC Yukon and that he used when he retrieved the GMC Yukon 

on the date of the incident. She also argued that the phrase “arising out of” under 21st

Century’s policy was ambiguous. Further, she argued that there was a factual issue whether 
4

Frost’s intentional or negligent conduct caused “some or all” of her injuries. She argued 

that if some of Frost’s actions were negligent, rather than intentional, then coverage would 

apply. Sherri did not contest that she was a named insured on FIE’s policy or that this fact 

precluded coverage by that policy.

¶7 Frost also opposed summary judgment. He argued that the GMC Yukon was 

covered by the plain language of his policy as a newly acquired vehicle. He also argued 

that because Sherri alleged negligence, her injuries were covered “accidents” under his 21st

Century policy. He supported this argument by claiming that he did not intend to cause 

her injuries. He argued that any unintended consequences fit under the definitions of 

“occurrence” or “accident.” He further argued that FIE failed to define “occurrence” and 

“accident.” Frost argued that his FIE policy should apply because he reasonably believed 

that Sherri would cease to be a named insured when they lived in separate households. 

¶8 Sherri requested a hearing on the motions, and the District Court set oral argument 

for December 22, 2021. Sherri waived argument on December 9, and the District Court 

vacated it a week later. Frost did not object. The District Court entered summary judgment 

in favor of 21st Century and FIE. Frost appealed.

¶9 We first consider the failure to hold oral argument, a claim Frost makes for the first 

time on appeal. “Generally, this Court will not address an issue raised for the first time on 

appeal.” Hansen Trust v. Ward, 2015 MT 131, ¶ 19, 379 Mont. 161, 349 P.3d 500 (citations 

omitted). Frost argues the District Court was required to hold oral argument because he 

did not waive it. But Frost did not request oral argument even after Sherri waived it. Nor 
5

did Frost object to the District Court vacating oral argument at any time before its ruling 

three weeks later. We decline to review Frost’s unpreserved claim. 

¶10 We review summary judgment rulings de novo. Sokoloski v. American West Ins. 

Co., 1999 MT 93, ¶ 7, 294 Mont. 210, 980 P.2d 1043. “Summary judgment is proper only 

when no genuine issues of material fact exist and the moving party is entitled to judgment 

as a matter of law.” Emp’rs Mut. Cas. Co. v. Estate of Buckles, 2019 MT 136, ¶ 6, 

396 Mont. 153, 443 P.3d 534 (citations omitted). The initial burden rests on the moving 

party to show a complete absence of any genuine issue of material fact. Emp’rs Mut., ¶ 6. 

The opposing party then must demonstrate either the existence of a genuine issue of fact 

or that the undisputed facts do not favor the moving party as a matter of law. Emp’rs Mut., 

¶ 6. When reviewing an appeal from summary judgment, we view the record in the light 

most favorable to the nonmoving party. Emp’rs Mut., ¶ 6. A nonmoving party cannot 

establish a genuine issue of fact if it offers “mere[ ] denials, speculation, or conclusory 

statements.” Lorang v. Fortis Ins. Co., 2008 MT 252, ¶ 39, 345 Mont. 12, 192 P.3d 186. 

If there are no genuine issues of material fact, we then decide whether the moving party is 

entitled to judgment as a matter of law. Hansen Trust, ¶ 16. “The interpretation of an 

insurance policy presents a question of law, and we will review the District Court’s legal 

conclusion for correctness.” Emp’rs Mut. Cas. Co. v. Fisher Builders, Inc., 

2016 MT 91, ¶ 9, 383 Mont. 187, 371 P.3d 375 (citations omitted).

¶11 An insurer must defend an insured unless there is an unequivocal demonstration that 

coverage does not apply. Farmers Union Mut. Ins. Co. v. Rumph, 2007 MT 249, ¶ 14, 

339 Mont. 251, 170 P.3d 934. The duty to defend arises “when a complaint against an 
6

insured alleges facts which, if proved, would result in coverage.” Farmers Ins. Exch. v. 

Wessel, 2020 MT 319, ¶ 14, 402 Mont. 348, 477 P.3d 1101. The duty to indemnify an 

insured is narrower; it arises “only if coverage under the policy is actually established.” 

Wessel, ¶ 23.

¶12 At issue is whether Sherri’s alleged bodily injuries, results of Frost admittedly 

kidnapping and assaulting her, are covered by Frost’s policies through 21st Century and 

FIE. Frost’s policy with 21st Century covers damages caused by an “accident” arising from 

the ownership, maintenance, or use of an automobile covered by the policy. The policy 

defines “accident” to mean a “sudden, unexpected and unintended occurrence.” The policy 

specifically excludes coverage when an insured intentionally causes bodily injury or bodily 

injury was reasonably expected to result from an insured’s intentional or criminal acts. 

¶13 Under policy language similar to that at issue here, requiring that an “occurrence” 

be accidental, we have held that there may be coverage for an act that was intentional if the 

consequences of the act were not “intended or expected from the actor’s standpoint.” 

Fisher Builders, Inc., ¶ 15. There is no genuine dispute that Frost’s criminal act, when he 

kidnapped and assaulted Sherri, was not an accident; the summary judgment record 

demonstrates it was intentional and the consequences were expected. Frost pleaded guilty 

to Aggravated Kidnapping and Partner or Family Member Assault. The District Court 

conducted a thorough review of Frost’s acts giving rise to these charges to conclude that 

Frost’s acts were intentional and the consequences expected—we agree with the District 

Court’s analysis and conclude that it correctly interpreted the policies and applied the law. 

See Fisher Builders, Inc., ¶ 18. 
7

¶14 In opposition to summary judgment, Sherri argued that some of Frost’s acts may 

have been negligent, thus fitting under accident coverage.1 But she failed to provide a 

genuine factual dispute from which a fact-finder reasonably could determine that the 

underlying incident was not intentional. Frost argues that Sherri and the District Court 

“alleged ‘facts’ that are not true facts”; Frost provides no basis for this assertion. “The 

[insured] cannot create coverage where it does not exist simply by denying the claims when 

the claims themselves do not trigger coverage.” Wessel, ¶ 16. Frost did not provide 

evidence to support a finding that the incident could be considered an accident as defined 

in his policy. Because no genuine dispute exists that the kidnapping and assault of Sherri 

Frost were intentional acts with expected consequences, 21st Century has neither a duty to 

defend nor a duty to indemnify Frost in Sherri’s action against him—the incident 

unequivocally does not fall within Frost’s coverage.

¶15 Frost’s policy with FIE covers damages caused by an “occurrence.” The policy 

considers an occurrence to be an accident. Because the incident does not qualify as an 

accident under the auto policy, it also does not qualify as an “occurrence” under the FIE 

umbrella policy. What is more, the FIE policy clearly precludes coverage for damages 

payable to a named insured on the policy. Frost’s FIE policy named both Frost and Sherri

as insureds. 

¶16 “There is nothing unusual about a policy that requires the insured to read the 

exclusion section, the definition section, and the declaration page to determine the scope 

1 Sherri did not appeal and has not filed a brief before this Court.
8

of coverage.” Fisher v. State Farm Mut. Auto. Ins. Co., 2013 MT 208, ¶ 23, 371 Mont. 147, 

305 P.3d 861. The clear policy language provides that Sherri is a named insured, and this 

fact excludes coverage for damages payable to her. In opposition, Frost submits only his 

belief that he thought Sherri would be removed from the policy when they separated. That 

Sherri was a named insured on the FIE policy unequivocally precludes coverage. 

See Fisher, ¶ 23. 

¶17 Because there is no genuine dispute in the record that Frost’s conduct was not 

accidental and that Sherri was a named insured, the District Court correctly concluded that 

21st Century and FIE did not have a duty to defend or indemnify under either policy and, 

as a matter of law, were entitled to summary judgment. These conclusions being 

dispositive of the coverage issues, we do not reach the parties’ other arguments.

¶18 We have determined to decide this case pursuant to Section I, Paragraph 3(c) of our 

Internal Operating Rules, which provides for memorandum opinions. In the opinion of the 

Court, the case presents a question controlled by settled law or by the clear application of 

applicable standards of review. The District Court correctly granted summary judgment to 

Appellees. We affirm. 

/S/ BETH BAKER

We Concur: 

/S/ JAMES JEREMIAH SHEA

/S/ LAURIE McKINNON

/S/ INGRID GUSTAFSON

/S/ JIM RICE