NO. 85-71 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

NEAL HEGGEN, 

Plaintiff and Appellant, 

MOUNTAIN WEST FARM RUREAU MUTUAL 

INSURANCE COMPANY, 

Defendant and Respondent. 

APPEAL FROM: District Court of the Sixteenth Judicial District, 

In and for the County of Fallon, 

The Honorable A. B. Martin, Judge presiding. 

COUNSEL OF RECOPJ): 

For Appellant: 

Huntley & Eakin; Gene Huntley argued, Baker, Monta-na 

For Respondent: 

Crowley, Haughey, Banson, Toole & Dietrich; Herbert 

I. Pierce argued, Billings, Montana 

L. R. Cazzens, Billings, Montana 

Submitted: ~ovember 14, 1985 

18 Decided: march 4&, 1986 

&" 1 8 ;$& 

Filed: --- 

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Clerk 

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Mr. Justice Fred J. Weber delivered the Opinion of the Court. 

Neal Heggen appeals a judgment of the Fallon County 

District Court which granted Mountain West Farm Bureau Mutual 

Insurance Co. (Mountain West) a summary judgment. The District Court ruled that George Eichhornls steer-roping contests were a business pursuit, and as such, were excluded 

from coverage under a policy of insurance relating to farm 

operations. We affirm. 

While Mr. Heggen raises three issues on appeal, we find 

the following issue dispositive: 

Did the District Court err in ruling that the jackpot 

steer-roping contests held by Mr. Eichhorn were a "business 

pursuit" excluded from insurance coverage, rather than a 

spare time recreational activity within the insurance 

coverage? 

George Eichhorn, a Baker, Montana resident, had worked 

for the State of Montana as a brand inspector since 1962. In 

July 1973, he purchased a policy of insurance for his small 

ranch from Mountain West. The policy provided coverage for 

accidental bodily injury to persons on the premises with the 

permission of the insured. However, it specifically excluded 

from coverage all "business pursuits." The policy also 

provided that written notice of an accident was to be given 

by the insured to Mountain West as soon as practicable, but 

in no event to exceed 60 days. 

In 1975, Mr. Eichhorn constructed a roping arena on his 

land. He began holding jackpot steer-roping contests. He 

held three or four steer-roping contests in each of the years 

1975, 1976 and 1977. Nonprofessional cowboys and ranchers 

participated in the contests and paid a $48 to $50 fee to 

rope a certain number of cattle. Mr. Eichhorn reserved 
approximately $300 to $400 from each contest, and the balance 

of the fees were distributed to the winning ropers as prizes. 

After Mr. Heimbuch, the local agent for Mountain West, 

had observed that Mr. Eichhorn was constructing a roping 

arena in 1975, he advised Mr. Eichhorn that the roping arena 

and roping contests were not covered under the Mountain West 

insurance policy. Mr. Eichhorn testified that the agent made 

it plain to him that he should have another policy to cover 

the ropers. He did not take any steps to get such a policy, 

because of the cost. 

On July 23, 1977, Neal Heggen was permanently injured 

when his horse tripped and fell on him during one of 

Mr. Eichhorn's contests. Mr. Eichhorn was present on the day 

of the accident and was aware that Mr. Heggen's injuries were 

serious. Mr. Eichhorn did not immediately notify Mountain 

West of the accident, based in part on his belief that Mr. 

Heggen would not sue him. Mr. Heggen's attorney contacted 

Mr. Eichhorn in the spring of 1980, and in July 1980, filed a 

complaint against him. Mr. Eichhorn notified Mountain West 

and delivered a copy of the complaint to Mountain West. In 

turn, Mountain West advised Mr. Eichhorn they were not going 

to defend him in the action, because the jackpot steer-roping 

was a "business pursuit" and excluded from coverage, and 

because Eichhorn failed to timely notify Mountain West pursuant to the policy provisions. Mr. Eichhorn allowed a default 

judgment to be taken against him in the action brought by 

Mr. Heggen. On October 1, 1980, Mr. Heggen signed a covenant 

not to execute on the judgment against Mr. Eichhorn, in 

exchange for an assignment to Mr. Heggen of all of Mr. 

Eichhorn's policy rights against Mountain West. Mr. Heggen 

then filed suit against Mountain West, alleging that the 

insurance company wrongfully refused to defend Mr. Eichhorn 
in the suit brought by Mr. Heggen and wrongfully refused to 

pay Mr. Heggen any damages for personal injuries. 

Mountain West moved for summary judgment. The District 

Court entered summary judgment for Mountain West, holding 

that " [t] he totality of the circumstances strongly indicate 

that Eichhorn was engaged in a business pursuit excluded by 

the policy." Mr. Heggen argues that summary judgment was not 

appropriate because there is a genuine issue of fact as to 

whether the jackpot steer-roping contests were a busirress 

pursuit. 

Eichhorn's insurance policy provides that " [t] his 

policy does not apply . . . to any business pursuits of an 

Insured . . . " The policy defines "busi.n.ess" as follows: 

"Business" means trade, profession or 

occupation, other than: 

(a) farming 

(b) the operation of roadside stands 

maintained on the farm premises principally for the sale of the produce raised 

thereon, or 

(c) newspaper delivery, babysitting, 

caddying, lawn care, and similar activities ordinarily performed by minors, when 

the activity is not the principal occupation of the Named Insured, and is not a 

full-time occupation of any insured. 

Montana has not specifically adopted criteria for determining what is a "business pursuit" for purposes of insurance 

policy excl.usionary clauses. Other jurisdictions, in their 

definitions of "business pursuit," have addressed the idea. of 

profit or profit motive, and most have required some 1-eve1 of 

continuity or regularity of the activity. See Annot., 48 

A.L.R.3d 1096 (1973). 

The Supreme Court of Oklahoma has elaborated upon the 

profit or profit motive element of a business pursuit as 

follows: 
In a business pursuit the profit motive, 

or purpose of a profit, is important. 

Whether there is or is not actual profit 

is immaterial. Does a pursuit have to be 

successful from a profit standpoint 

before it is a business pursuit? If a 

business suffers a loss, was it not a 

business? The answers are obvious. 

Profit motive, not actual profit, makes a 

pursuit a business pursuit. 

Wiley v. Travelers Insurance Company (1974 Okla.) , 534 P.2d 

1.293, 1295. That court found that a man who bred, raised, 

and sold St. Bernard puppies part-time at his residence, in 

addition to holding another full-time job, was engaged in a 

business pursuit because of the presence of a profit motive. 

There was testimony that he intended to retire and raise St. 

Bernard puppies. Wiley, 534 P.2d at 1295. The part-time 

aspect of the dog operation did not prevent it from involving 

a profit motive, and it was not necessary that the activity 

result in actual net profits to possess a profit motive. We 

agree with the reasoning of the Oklahoma court and hold that 

the presence of a profit motive is one characteristic of a 

"business pursuit." 

The exclusionary provision in the insurance policy in 

the Wiley case defined business, as does the present policy, 

as "a trade, profession, or occupation." Yet, the part-time 

nature of Mr. Wiley's dog operation did not prevent it from 

being a "business pursuit." The Oklahoma Court distinguished 

Mr. Wiley's business of raising, breeding, and selling St. 

Bernard puppies from simply holding a family pet litter sale. 

It pointed out the continuing nature of Mr. Wiley's 

venture--he had extensively renovated a barn to serve as a 

kennel and had done extensive fencing in his back yard. 

FJiley, 534 P.2d at 1295. In contrast, some jurisdictions 

require an activity to be the sole or primary occupation of 

the insured, in order to be a "continually or 
regularly-conducted activity." See Brown v. Peninsular Fire 

Ins. Co. (Ga. 1984), 320 S.E.2d 208, 209. We reject that 

view. The more expansive interpretation of regularity or 

continuity in a. "business pursuit" is consistent with the 

provision in Mr. Eichhorn's insurance policy that "business 

pursuits - of an insured" (emphasis added) are not covered. 

We, as have others, hold that an activity which is continually or regularly conducted may be a business pursuit even 

though it is not the primary occupation of the insured. See 

citations at Krings v. Safeco Ins. Co. of America (Kan. 

1981) , 628 P.2d 1.071, 1075. 

Mr. Eichhorn's testimony, in a deposition which was 

before the District Court when it considered the motion for 

summary judgment, establishes a profit motive. From his 

testimony, it is clear that he received something in the 

vicinity of $1,200 to $1,500 each year from the fees paid on 

the steer-roping contests. He listed those amounts on his 

income tax returns. He listed a.s expenses on his income tax 

returns the steers which he purchased for the steer-roping 

and the hay which he fed the steers and the eight or ten 

horses which were used in the steer-roping. It is true that 

he testified that his income tax return showed no profit, but 

that appeared to be because he lost money on buying and 

selling the steers. We hold that Mr. Eichhorn's testimony on 

the income and expenses, and his treatment of them on his 

income tax returns, established a profit motive. 

Mr. Eichhorn testified that he held three or four 

steer-roping contests in each of the years 1975, 1976 and 

1977. Mr. Eichhorn also testified by deposition at length as 

to the roping arena which he built in 1975. It was a permanent arena, with catch pen, return alley, timer's box, chutes 

and bleachers. He described the fence around the outside of 
the arena as having posts which consist of railroad ties and 

woven wire on the posts with a plank around the top of the 

woven wire and a bumper pole in the middle, the fence being 

five feet high. The planks were 2" x 8". There were two 

sets of bleachers with three plank rows for each set. The 

total capacity of the bleachers was approximately forty 

persons. Mr. Eichhorn's testimony clearly establishes that 

these steer-roping contests were held on a regular basis in a 

permanently designed roping arena constructed expressly for 

that purpose. We hold that the evidence established that 

there was a regular and continuous level of activity which 

amounted to a business pursuit. 

A summary judgment is proper if the record discloses no 

genuine issue of material fact. Downs v. Smyck (1982), 200 

Mont. 334, 344, 651 P.2d 1238, 1243. There is no issue of 

material fact which has been shown. There is no contradiction in the facts. The question to be decided is whether the 

testimony on behalf of the plaintiff, uncontradicted in any 

aspect, is sufficient to establish that Mr. Eichhorn was 

engaged in a business pursuit. We hold that Mr. Eichhorn's 

own testimony establishes that there was a profit motive and 

that he conducted the steer-roping contests on a regular and 

continuing basis. We affirm the District Court in its conclusion that Mr. Eichhorn was engaged in a business pursuit. 

We therefore do not consider the other issues raised. 

Af f irmed . 
Justices 
Mr. Justice William E. Hunt, Sr., dissenting: 

The majority holds that as a matter of law jackpot 

steer-roping contests are a business pursuit. I cannot 

agree. A business pursuit is characterized by continuity and 

the existence of a profit motive. 

In the case at bar, the steer-roping contests were not 

hel-d on a regular basis. Three to four were held in the 

summer of 1976, for example, but only one in the summer of 

1980. Throughout this period, Eichhorn continued in his 

occupation as a State Brand Inspector. While Eichhorn 

participated. in the contests held at his ranch, he did not 

participate in all the contests held in the area. There is a 

genuine issue of fact whether this level of activity is 

"continuous" enough to amount to a business pursuit. 

A business pursuit is also characterized by the 

existence of a profit motive. As the majority correctly 

points out, it is the motive to realize a profit and not the 

actual realization of a profit that is the critical factor. 

All the money Eichhorn collected from the participants in the 

contests was awarded to the contest winners with the 

exception of a small amount retained by Eichhorn to cover the 

cost of feeding the stock. Bleachers were sometimes erected 

to accommodate spectators, but spectators were never charged 

admission. While Eichhorn listed the fees he collected and 

the expenses he incurred from the contests on his income tax 

returns, the majority's reliance on this fact is misplaced. 

Income tax returns are a device to determine the amount of 

tax owed to the governmert, and nothing more. They are not 

used to demonstrate financial worth or a profit motive. Had 

Eichhorn failed to report these items on his income tax 
return, he would have been in violation of the law. The fact 

that he did report these items as required by law does not 

evince a profit motive. 

Since this is an appeal from a summary judgment, all 

reasonable inferences that can be dra.wn must be drawn in 

favor of the losing party, Eichhorn. That being the case, 

there is a genuine question whether Eichhorn was engaged in a 

business pursuit, characterized by continuity and a profit 

motive. This question should have been decided by the jury, 

and not by the trial court upon a motion for summary 

j udqment . 

Mr. Justice John C. Sheehy and Mr. Justice Fra.nk R. 

hlorrison, Jr. join in the dissent of Mr. Justice William E. 

Hunt, Sr. 

.// Justices L/