NO. 82-279 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1983 

ST. PAUL FIRE and MARINE INSURANCE 

COMPANY, a corporation, 

Plaintiff and Respondent, 

vs. 

KEVIN E. CUMISKEY, JOHN E. CUMISKEY, 

STEPHANIE S. CUMISKEY, and K.S.J., INC., 

a Montana corporation, 

Defendants and Appellants, 

and 

ELIZABETH M. BRADLEY, 

Defendant and Cross Appellant. 

Appeal from: District Court of the Eighteenth Judicial District, 

In and for the County of Gallatin 

Honorable Joseph B. Gary, Judge presiding. 

Counsel of Record: 

For Appellant: 

Larry W. Moran argued, Bozeman, Montana 

For Cross-Appellant: 

Landoe, Brown, Planalp, Kommers & Lineberger, 

Bozeman, Montana 

Randy K. Dix, argued, Bozeman, Montana 

For Respondents: 

Anderson, Brown, Gerbase, Cebull & Jones, Billings, 

Montana 

James L. Jones argued, Billings, Montana 

Submitted: March 1, 1983 

Decided: June 10, 1983 

~iled: JUN 1 0 1983 

Clerk 
Mr. Chief Justice Frank I. Haswell delivered the Opinion of 

the Court. 

Cumiskeys and Bradley appeal a judgment upon a 

Gallatin County jury verdict which set the cost of repairs 

of fire damaged property, which determined the parties' 

liabilities to one another and which awarded and set 

attorney fees. We affirm in part and reverse in part. 

In early 1978, Kevin Cumiskey contacted Elizabeth 

Bradley in order to lease West Yellowstone property owned by 

Bradley as the site of a Mexican restaurant. They entered 

into a lease agreement prepared by Cumiskey's attorney which 

required that Cumiskey insure the property to protect 

Bradley's interest and which specified that fixtures and 

alterations added by Cumiskey would remain his property. 

Kevin opened the restaurant, "Chiripa's," for a short 1978 

tourist season, closed it for the winter, and then reopened 

it for summer 1979. From September 1978 to September 1979, 

the property was insured in the name of Kevin Cumiskey, 

d/b/a "Chiripa's." During that period, Kevin improved the 

premises with funds borrowed from his father, John Cumiskey. 

At no time was Bradley's interest insured. From September 

1979 to June 1980, the property was not insured at all. 

In 1979 the restaurant business was incorporated as 

K.S.J., Inc. (for Kevin, Stephanie, and John Cumiskey), and 

the lease was assigned to the corporation. Kevin and his 

mother, Stephanie, each owned 49 percent of the stock. John 

owned 2 percent. Kevin is president, John is vice president 

and Stephanie is secretary. 

Kevin decided to stay in New York to work for the summer of 1980, so John and Stephanie Cumiskey agreed to spend 

the summer in West Yellowstone operating the restaurant. 
Upon their arrival, the Cumiskeys contacted a Bozeman 

insurance agency to arrange for reissuance of the prior 

insurance coverage. Again, the insured on the policy was 

listed as Kevin Cumiskey, d/b/a "Chiripass." John and 

Stephanie ran the restaurant, which had consistently lost 

money since its opening, until, on August 10, 1980, a series 

of explosions accompanied by fire damaged the premises. 

The fire investigation revealed that the blazes had 

been intentionally set. Extensive circumstantial evidence 

focused on John Curniskey as the alleged arsonist. That 

evidence included serious burns sustained by Cumiskey, a 

series of inconsistent and uncorroborated stories told by 

Cumiskey to explain his burns and his actions after the 

fire, and the fact that his keys to the restaurant and other 

objects owned by Cumiskey were found in the street outside 

Chiripass after the explosions. 

Once the investigation established that the fire had 

been intentionally set, St. Paul requested that Cumiskeys 

produce the financial records of the business. John 

Cumiskey refused to do so for some sixteen months af ter the 

August 1980 fire. In October 1980, Kevin Cumiskey filed a 

claim with St. Paul seeking recovery under the policy. St. 

Paul was told both that the destroyed property belonged to 

Kevin Cumiskey and that it was the property of K.S. J., Inc. 

St. Paul also became aware of the Bradley lease, which 

required that Bradley's interest be insured. 

John Cumiskey was charged with arson and criminal 

mischief in connection with the fire and was tried in 

November 1980. The business records were not a part of the 

criminal trial. Cumiskey's defense was that he was a 
wealthy man, that the business was profitable, and that he 

had no motives for arson. He was acquitted of both charges. 

Two months after John Cumiskey's acquittal, St. Paul 

filed this action for declaratory judgment. In its complaint, St. Paul asked the court to declare Kevin Cumiskey 

the proper recipient of any policy proceeds, to determine 

the rights and other legal relationships of the parties, to 

determine the specific amount of recovery to which Kevin 

Cumiskey was entitled, and to require that John E. Cumiskey 

subrogate any claim paid by St. Paul. K.S.J., Inc., was 

later added to the action by stipulation of the parties. 

Bradley cross-claimed against Kevin Cumiskey and 

M.S.J., Inc., for failure to insure her interest in the 

building. She also brought a tort claim against John 

Cumiskey for deliberate destruction of the property. 

Cumiskeys and K.S.J., Inc., brought counterclaims against 

St. Paul for the company's breach of both statutory and 

common-law duties to settle the insurance claims in good 

faith and for libel and slander. 

A number of issues raised were disposed of before the 

case was given to the jury. Before trial, the District 

Court entered summary judgment in favor of Bradley on the 

issue of Kevin Cumiskey's failure to insure Bradley's 

interest in the premises. K.S.J., Inc., dropped its claim 

to the insurance proceeds on the day before trial. At the 

outset of trial, the District Court dismissed Cumiskeys' 

statutory counterclaim for failure to state a proper claim. 

It also dismissed Cumiskeys' claim of libel and slander, 

which was based upon St. Paul's filing of this action for 

declaratory judgment. At the close of evidence, the trial 
court entered a directed verdict in favor of St. Paul on 

Cumiskeys' common-law counterclaim for bad faith. 

The jury returned a special. verdict which determined: 

(1) St. Paul and Bradley had proved by a preponderance of 

the evidence that John E. Cumiskey caused the fire; (2) the 

cost to repair the main building of the restaurant was set 

at $12,300.00; (3) that Kevin Cumiskey was entitled to 

recover $19,910.00 under the policy; and, (4) that Bradley 

was entitled to recover $25,000.00 in punitive damages from 

John E. Cumiskey. The parties stipulated in the pretrial 

order that the fire had been set intentionally. The jury 

was so informed and was instructed that if it found that 

John E. Cumiskey set the fire, St. Paul was entitled to 

recover from him the amount it must pay to Kevin Cumiskey 

under the policy. 

Cumiskeys and K.S.J., Inc., moved for a judgment notwithstanding the verdict or in the alternative for a new 

trial. The motions were denied. Cumiskeys now appeal and 

Bradley cross-appeals. 

Appellants, in their shotgun approach, barrage this 

Court with issues. We will address only two of those 

issues. We will also address cross-appellant's claim. We 

have considered the other errors advanced by appellants and 

find them to be without merit. We will not concern ourselves 

with these arguments since they will not change the outcome 

of this appeal. We also note in passing that appellants' 

briefs, which contain more vitriol than substance, fail to 

substantiate their claims with references to the record 

pursuant to Rule 23(a) and (e), f4.R.App.Civ.P. 

The issues we address are: 
I. Whether the District Court properly directed a 

verdict on Cumiskeys' counterclaims for bad faith; 

2. Whether the District Court properly granted 

summary judgment in favor of Bradley; and, 

3. Whether the District Court correctly calculated 

the attorney fees awarded to Bradley. 

Kevin Cumiskey first challenges dismissal of his bad 

faith counterclaims against St. Paul. He contends that St. 

Paul violated both statutory and common-law duties to settle 

the insurance claims in good faith. The statutory claim is 

based upon section 33-18-201(6) and (13), MCA, of the Unfair 

Trade Practice Chapter of the Insurance Code. It provides: 

"Unfair claim settlement practices prohi- 

- bited. No person may, with such frequency 

as to indicate a general business practice, do any of the following: 

"(6) neglect to attempt in good faith to 

effectuate prompt, fair, and equitable 

settlements of claims in which liability 

has become reasonably clear; 

"(13) fail to promptly settle claims, if 

liability has become reasonably clear, 

under one portion of the insurance policy 

coverage in order to influence settlements under other portions of the insurance policy coverage;" (Emphasis added.) 

The statutory claim was struck by the District Court 

prior to trial on the basis that Kevin Cumiskey had not 

pleaded and was not going to present evidence that St. Paul 

failed to settle claims "with such frequency to indicate a 

general business practice." Dismissal of the statutory 

claim on that basis was proper. Klaudt v. Flink (1983), 

Mont . , 658 P.2d 1065, 40 St.Rep. 64; Harris v. 

American General Life Insurance Company of Delaware (1983), 
The common-law bad faith claim was disposed of with a 

directed verdict at the close of evidence. We first recognized that an insurance company has a duty independent of 

statute or of insurance contract to settle claims in good 

faith with its insureds in Lipinksi v. The Title Insurance 

Company (1982), Mon t . , 655 P.2d 970, 39 St.Rep. 

2283. The District Court here properly allowed Kevin 

Cumiskey to present evidence in support of his claim that 

St. Paul acted in bad faith and breached that duty. Conflicting evidence was introduced on whether agents of St. 

Paul had represented that the insurer would settle the 

claim. Kevin primarily based his claim on the assertion 

that the filing of the declaratory judgment action was in 

bad faith since the claim should have been paid and since 

the action served to destroy the business relationship 

between Cumiskeys and Bradley. At the close of the 

evidence, however, the court dismissed that claim with the 

following statement: 

"I'm going to reverse myself. I am going 

to grant the motion for a directed verdict on the question of punitive damages 

to the insurance company on their counterclaim and let you go on your actual 

damages . . . There was a legitimate 

question in this case on the basis of who 

set the fire, how the fire was set, who 

the claim was in, and the insurance company came in and asked for a declaratory 

judgment, and the only alternative is to 

make the insurance company pay in any 

respect, and then attempt to get it back, 

and they used the process of the courts 

and within reasonable time, and so you 

are, however, entitled to go on your 

actual damages on your claim." 

The District Court properly granted a directed verdict 

in favor of St. Paul on those grounds. The court should 
vlew a motion for a directed verdict in the light most 

favorable to the party against whom the motion is directed. 

Dleruf v. Gollaher (1971), 156 Mont. 440, 481 P.2d 322. 

Here, even viewed in the light most favorable to Kevin 

Cumiskey, the court found that St. Paul's decision to bring 

this action for declaratory judgment was appropriate. We 

agree. 

An action for declaratory judgment may be brought for 

the purpose of settling and affording "relief from uncertainty and insecurity with respect to rights, status, and 

other legal relations." Section 27-8-101 et seq., MCA. The 

action, in order to terminate the controversy as to all 

parties, should include as parties all persons who have or 

claim any interest that would be affected by the declaration. Empire Fire & Marine Ins. Co. v. Goodman (1966), 147 

Mont. 396, 412 P.2d 569. 

If otherwise appropriate, an action for declaratory 

judgment is not precluded by the existence of another adequate remedy. Rule 57, I4.R.Civ.P. In a proper case, an 

insurer may use this procedural device in order to obtain a 

determination of the validity, continuance, or coverage of 

an insurance policy; a determination of the extent of 

liability; or a determination of the insurer's duties under 

the policy. 6A Moore's Federal Practice, l(57.19 at 57-195 

through 57-198. We hold that in this case, St. Paul 

properly filed an action for declaratory judgment. 

While Kevin Cumiskey filed a claim for proceeds as the 

named insured, a potential for liability to other parties 

also existed. Bradley's interest should have been insured 

pursuant to the lease agreement and was not. There was the 
possibility that she would attempt to claim all or part of 

the insurance proceeds. 

K.S.J., Inc., insisted throughout most of the lawsuit 

that it was the named insured since St. Paul's agents had 

been informed of the incorporation of the business. Not 

until the day before trial was that claim dropped. John 

Cumiskey's possible culpability in regard to the fire also 

raised questions on the insurer's liability. Where an 

officer , director, stockholder, and managing agent of a 

corporation is responsible for intentionally setting a fire, 

the insurer has a valid defense to the claim. 18 Couch on 

Insurance, 2d, S 74:671; 5 Appleman Insurance Law and 

Practice, S 3113 (1970). St. Paul had a sufficient basis 

before the filing of this action to raise that defense. 

John Cumiskey argues that section 33-24-102, MCA, 

requires payment of the policy limit where the property is 

considered a total loss and where no criminal fault is 

established on the part of the insured or his assigns. 

Therefore, he contends that his acquittal on the arson and 

criminal mischief charges required the insurer to pay the 

policy limits rather than bringing this action. He ignores 

the complete contradiction in his stance on the issue of the 

amount of the loss. 

Cumiskeys testified at trial that St. Paul's agents 

had stated that the building was a total loss and the claim 

would be paid in full. The agent denied making that statement. No other evidence indicated that the building was a 

total loss. In fact, while Bradley's estimate on repairs to 

the building set the cost at approximately $12,500, CumisKeys presented the affidavit of their contractor and a brief 
in opposition to Bradley's motion for summary judgment that 

set the repair costs at $8,500. At no time throughout the 

course of this action did Cumiskeys agree to settle 

Bradley's claim in an amount that would repay her for total 

loss of the building. 

Nor did Cumiskeys introduce evidence to demonstrate 

the loss to the business itself. The jury relied upon 

evldence introduced by St. Paul: the business income tax 

returns and expert testimony by the business's accountant. 

No evidence was presented that suggested the business was a 

total loss other than John Cumiskey's statement that an 

adjustor had stated: "Well, as far as I can see, it's a 

total loss." 

St. Paul also faced a question on the extent it was 

liable to Kevin Cumiskey as the named insured since the 

property insured in his name had been assigned to K.S.J., 

Inc. This creates an issue on the extent of Kevin's right 

to recover as stockholder. See, 3 Couch on Insurance, S 

24:92; Annot., 39 ALR2d 714; 4 Appleman on Insurance, S 

2145. The facts of this case presented a justiciable controversy, existing and genuine. The action for declaratory 

judgment was appropriately brought to determine the legal 

rights and relationships of the parties. The District Court 

properly directed a verdict on the issue of bad faith. 

Cumiskeys next argue that the District Court erred in 

grantlng summary judgment in favor of Bradley on the issue 

ot breach of the lease agreement. They contend that the 

provisions of the lease allowed Cumiskeys and K.S.J., Inc., 

to retain any fixtures or other improvements added to the 

property. Therefore, Bradley was not entitled to summary 
judgment on the issue of liability for failure to insure 

because Bradley's loss was unclear. We disagree. 

Bradley's motion for partial summary judgment 

requested the District Court to find liability for Bradley's 

damages or loss on the basis of the failure to insure. The 

amount of damages were undetermined and were to be included 

as an issue at trial. Cumiskeys and K.S.J., Inc., argued 

that they had made extensive improvements to the property 

which, under the terms of the contract, remained their 

property. Therefore, their contract liability to Bradley 

under the terms of the agreement was unclear and should be 

left for a jury determination. This argument is without 

merit. 

The lease agreement clearly required that Kevin 

Cumiskey or his assigns insure Bradley's interest. They did 

not. The District Court properly found that the terms on 

improvements were ambiguous and used an appropriate rule of 

construction to interpret those clauses. 

The lease provided that "ALTERATIONS" were to remain 

the property of the lessees: 

"The Lessees will be entitled to make, or 

will suffer to be made, any alterations 

which they in their sole discretion deem 

necessary. Any additions to, or alterations of, attached to the said leased 

property shall not become part of the 

realty but will remain the sole and 

separate property of the Lessees. The 

Lessees agree to advise Lessors in writing of the date upon which such alterations will commence in order to permit 

the Lessors to post notice of nonresponsibility. The Lessees shall keep the 

demised premises free from any and all 

liens arising out of any work performed, 

materials furnished, or other obligations 

incurred by the Lessees." 

It also provided that "FIXTURES1' were to remain the 
property of the lessees: 

"It is hereby expressly agreed between 

the parties to this Lease that any 

counters, tables, chairs, stoves, ovens, 

grills, ice machines, sinks, or any other 

personal property belonging to the Lessees which is brought upon the demised 

premises and attached thereto, shall not 

become a fixture and part of the realty. 

The Lessor hereby expressly grants permission to the Lessees to remove any and 

all personal property which they bring 

upon said demised premises. Lessees agree 

to repair any damage to the premises 

which is caused by removal of said personal property. " 

The District Court found that the provision on alterations was unclear in that it did not specify what type of 

a1 terations were included. The court therefore found that 

the specific "FIXTURES" clause controlled the general 

"ALTERATIONS" clause and that such an interpretation was in 

conformance with the general practice of Montana landlords 

and tenants and with Montana statutes. We agree. 

Where additions are built or affixed to property by a 

tenant without an agreement to allow him to remove those 

additions or fixtures, they may not be removed if their 

removal will damage the premises. Section 70-18-102, MCA; 

Sanders v. Butte Motor Co. (1963), 142 Mont. 524, 385 P.2d 

263. Here, an agreement exists to allow removal of fixtures 

and alterations. It is unclear what was contemplated by its 

terms, however. The contract was prepared by an attorney on 

behalf of Kevin Cumiskey. Kevin presented it to Bradley for 

signature. She did not take part in preparation of the 

terms. The record also demonstrates Kevin Cumiskey's intention to use these clauses to coerce Bradley into renewing 

the lease or selling her property. 

Bradley testified that she had told Kevin Cumiskey on 
several occasions that she was not interested in selling the 

property and had no intention of doing so. He testified at 

his deposition that Bradley had agreed to allow him to build 

additions on skids so that he could "pick them up and carry 

them away." He was then asked about things that could not 

be carried away: 

"Q. Those things you could not pick up 

and carry away I assume you were going to 

leave on the premises. A. No, I was not. 

"Q. What were you going to do with the 

things you couldn't pick up and move 

away? A. I was going to use them as a 

lever for a new lease. 

"Q. Could you explain what you mean by 

that? A. Well, in my lease, all the 

improvements are mine, and if Mrs. 

Bradley didn't want to issue me a new 

lease or give me a fixtures fee, then I 

would take them out." 

It was clear from Kevin's deposition testimony that if 

Kevin "could build in a 'manner where we could pick it up 

and carry it away, ' it was fine with [Bradley] . " 

The District Court found ambiguity and conflict in the 

lease provisions and ruled that those items specifically 

nained in the "FIXTURES" clause (the counters, tables, 

chairs, etc. ) belonged to Cumiskeys and everything else 

belonged to Bradley. Kevin Cumiskey argued that any 

improvements or alterations, including wiring in the roof, 

should belong to him under the "ALTERATIONS" clause. He has 

failed to demonstrate that the parties intended such an 

interpretation of the clauses or that an agreement actually 

existed that would allow damage to the property to remove 

those alterations. The specific "FIXTURES" clause clearly 

indicated that any damage to the premises caused by removal 

of fixtures would be repaired. There is no indication that 
the parrles concernplated allowing a removal of a1 terations 

that might result in damage to the premises. 

Where an ambiguous term is used, the parties' intent 

will govern its construction and extrinsic evidence can be 

used to discover that intent. Adams v. Chilcott (1979), 182 

Mont. 511, 517, 597 P.2d 1140, 1144. A court should look to 

the whole contract and its purpose in determining intent 

and is not bound by any single provision or expression. 

Gropp v. Lotton (1972), 160 Mont. 415, 421, 503 P.2d 661, 

664-665. Repugnant provisions should be interpreted in a 

way to give them some effect, subordinate to the general 

intent and purpose of the entire contract. Riis v. Day 

(1980) I Mon t . , 613 P.2d 696, 698, 37 St.Rep. 1093, 

1096. Where uncertainty in a written instrument exists, the 

provisions should properly be construed against the party 

causing the uncertainty. Parkhill v. Fuselier (1981), 

Mon t . , 632 P.2d 1132, 1135, 38 St.Rep. 1424, 1427. 

Here, the parties' intent was unclear. It is not 

certain that Bradley intended to allow Kevin Cumiskey to 

damage the premises in removing alterations. Cumiskey 

prepared the lease agreement and was responsibile for the 

ambiguity that existed. The District Court properly interpreted the provisions to give some effect to each and to 

conform with general landlord tenant practices. 

Cumiskeys then had the opportunity to present evidence 

ot their loss of business fixtures and to dispute Bradley's 

claim for the cost of repairs. They failed to do so. They 

may not now argue that the jury may have limited an award to 

Kevin Cumiskey to the amount of Bradley's cost of repairs. 

It is apparent that the jury did not. Kevin Cumiskey was 
awarded 519,910, while the cost to repair the building was 

set at only $12,300. 

Further, the lease agreement remained in effect until 

the end of its term in April 1983. At that time, the building was to be returned to Bradley in its original condition. 

The effect of the District Court's ruling was simply to 

remove from the jury an issue not properly before it at that 

time. 

Attorney fees were awarded pursuant to the terms of 

the lease agreement. Cross-appellant challenges the calculation of those fees. 

Bradley's attorneys filed affidavits in support of 

awarding attorney fees that computed time expended: (1) 

solely relating to pretrial matters concerning Bradley's 

claims against Kevin Cumiskey and K.S.J., Inc., and 

excluding all time spent in preparation of the tort claim 

against John Cumiskey (39.4 hours at $60 = $2,364); (2) for 

the entire six days of trial time actually expended (6 days 

at $750 per day = $4,500); and, (3) for services rendered in 

connection with the preparation, briefing and attendance at 

the hearing on the claim for attorney fees ($348). The 

aggregate amount requested was $7,212. 

The District Court granted attorney fees for the 

pretrial preparation, for the work in preparing for the 

hearing on attorney fees and for one-third of the trial 

time. In its supporting memorandum, the District Court 

noted that possibly less than one-third of trial time was 

actually occupled with Bradley's claim against Kevin 

Cumiskey and that most of her effort was against John 
Cumiskey for wrongful setting of the fire and destruction of 

the premises. We hold that the District Court erred in both 

the calculation of the attorney fees and in the reduction of 

fees for trial time to one-third of the request. 

In its order, the District Court awarded $2,636, 

"which represents one-third (1/3) of the attorneys' fees for 

the entire trial" and awarded $348 for presentation of the 

hearing on attorney fees plus an additional brief. The sum 

of $6,864 does not represent the fees for the entire trial. 

That figure is the total of both the pretrial preparation 

work directly relating to the claim against Kevin Cumiskey 

and the six full days of trial. The District Court erred in 

reducing both figures by two-thirds where the pretrial work 

all related specifically to the Kevin Cumiskey claim. At a 

minimum, the award should have included $2,364 for the pretrial work, $1,500 for two days of trial, and $348 for the 

attorney fees hearing, for a total of $4,212. We further 

hold, however, that it erred in reducing fees awarded for 

the trial time by two-thirds. 

Bradley was forced to pursue her claim against Kevin 

Cu~niskey through the trial. She attempted to resolve the 

damages issue stemming from Kevin's breach of the lease 

agreement through a motion for summary judgment. Kevin 

Cumiskey successfully resisted that motion on the basis of 

an affidavit provided by his contractor that disputed the 

Bradley repair estimates. Bradley and her counsel were 

therefore forced to attend a six-day trial. She presented 

damages testimony that went unchallenged. Kevin Cumiskey 

introduced no evidence whatsoever in dispute of her claim. 

Here, the record reveals that the trial schedule 
required that counsel for Bradley be present throughout the 

six days in order to pursue the claim against Kevin 

Cumiskey. The entire first day of trial was spent in jury 

selection. On the morning of the second day of trial, 

Bradley's counsel gave his opening statement. On the fourth 

day, a witness offered by Cumiskeys required extensive 

cross-examination on Bradley's behalf to establish that even 

Cumiskey's evidence supported the amount of damages she 

claimed. On the flfth day, counsel was required to object 

to Kevin Cumiskey's attempt to testify to the building's 

condition prior to acquisition of the lease. Kevin 

attempted to introduce this matter in spite of a pretrial 

ruling that the evidence was improper. Much of the last day 

of trial was spent in settlement of instructions, presentatlon of Bradley's case-in-chief, and closing arguments. 

In this instance it is not possible to clearly segregate the trial time during which Bradley pursued her claims 

against Kevin Cumiskey into one-third of the time expended. 

We reverse the District Court's order on attorney fees dated 

March 18, 1982, and hold that Bradley is entitled to 

attorney fees in the amount of $7,212 in connection with the 

proceedings below and an additional $1,500 for the efforts 

expended on appeal. We remand this matter to the District 

Court for further proceedings not inconsistent with this 

opinion. 

Affirmed in part and reversed in part. 

7444, c;bQe Chief Justice 
We concur: 
Mr. Justice John C. Sheehy, concurring in part and dissenting 

in part: 

I dissent from that portion of the foregoing opinion 

which affirms the District Court's dismissal of Kevin 

Cumiskey's bad-faith action against St. Paul Fire and Marine 

Insurance Company. 

Under our recent spate of decisions on the point of bad 

faith, Kevin's cause of action should have been submitted to 

the jury. See Klaudt v. Flink, 658 P.2d 1065 40 St.Rep. 64; 

Lipinski v. The Title Insurance Company (1982) Montana 

, 655 P.2d 970, 39 St.Rep. 2283. 

I am also of the opinion that the District Court should 

have submitted the question of total loss to the jury to 

determine if the valued policy law, Section 33-24-102, MCA, 

was applicable to Kevin's claim against St. Paul. The 

District Court's interpretation of the valued policy law was 

disadvantageous to Kevin, and would make no difference to St. 

Paul, since it, under the verdict, would be subrogated for 

anything it paid to Kevin from John Cumiskey. 

Otherwise, I concur in the judgment entered in the 

District Court.