FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

VIRGINIA WARD, 

Plaintiff-Appellant,

 v. 

SAFECO INSURANCE COMPANY 

OF AMERICA, 

Defendant-Appellee.

No. 21-35757 

D.C. No. 1:19-cv00133-SPW 

ORDER 

CERTIFYING 

QUESTIONS TO 

THE SUPREME 

COURT OF 

MONTANA

Filed February 3, 2023

Before: Richard A. Paez and Bridget S. Bade, Circuit 

Judges, and Haywood S. Gilliam, Jr.,* District Judge.

* The Honorable Haywood S. Gilliam, Jr., United States District Judge 

for the Northern District of California, sitting by designation.
2 WARD V. SAFECO INSURANCE CO. OF AMERICA

SUMMARY**

Certification Order / Montana Law

The panel certified the following questions to the 

Montana Supreme Court: 

1) Whether an anti-concurrent cause 

(“ACC”) clause in an insurance policy 

applies to defeat insurance coverage 

despite Montana’s recognition of the 

efficient proximate cause (“EPC”)

doctrine; and 

2) Whether the relevant language in the 

general exclusions section on page 8 of 

the insurance policy in this case is an 

ACC clause that circumvents the 

application of the EPC doctrine. 

** This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
WARD V. SAFECO INSURANCE CO. OF AMERICA 3

ORDER

I. Questions Certified

Pursuant to Rule 15 of the Montana Rules of Appellate 

Procedure, we respectfully request that the Supreme Court 

of Montana decide the certified questions presented below. 

The answers to these questions of state law will be 

determinative of a central issue pending in this appeal, and 

there is no controlling precedent in the decisions of the 

Montana Supreme Court. See Mont. R. App. 15(3). We 

acknowledge that, as the receiving court, the Montana 

Supreme Court may reformulate the certified questions, 

Mont. R. App. P. 15(6)(a)(iii), and we will accept the 

decision of the Montana Supreme Court. 

We respectfully certify the following questions to the 

Montana Supreme Court: 

1) Whether an anti-concurrent cause (“ACC”) clause in 

an insurance policy applies to defeat insurance 

coverage despite Montana’s recognition of the 

efficient proximate cause (“EPC”) doctrine; and

2) Whether the relevant language in the general 

exclusions section on page 8 of the Policy in this case 

is an ACC clause that circumvents the application of 

the EPC doctrine.

1

1 That language reads “We do not insure for loss caused by any of the 

following [listed excluded perils]. Such loss is excluded regardless of 

any other cause or event contributing concurrently or in any sequence to 

the loss. These exclusions apply whether or not the loss event results in 

widespread damage or affects a substantial area.”
4 WARD V. SAFECO INSURANCE CO. OF AMERICA

II. Statement of Facts

Appellant is Virginia Ward (“Ms. Ward”), the owner of 

a rental house and property in Livingston, Montana 

(“Property”). Ms. Ward purchased a Landlord Protection 

Policy (“Policy”) from Safeco Insurance Company 

(“Safeco”) to insure the Property. In 2017, a water main line 

leading into the house broke, saturating the area around and 

under the property with water. A few months later, soft spots 

developed on the floor of the house. Investigation 

determined that the soil under the foundation had contracted 

as a result of the water damage, causing the foundation slab 

to sag. 

Safeco informed Ms. Ward that the damage to the 

Property was not covered under the Policy based on its Earth 

Movement and Water Damage exclusions, which are listed 

as excluded perils in the Policy’s ACC clause.2

The District Court granted summary judgment in favor 

of Safeco, finding that 1) the ACC clause barred coverage, 

2) the Policy was not illusory or ambiguous, and 3) Safeco 

did not violate Montana’s Unfair Trade Practices Act when 

it denied Ms. Ward coverage. Ms. Ward appealed. 

III. The Need for Certification

Under Montana’s EPC doctrine, “where covered and 

noncovered perils contribute to a loss, the peril that set in 

motion the chain of events leading to the loss or the 

predominating cause is deemed 

the efficient proximate cause or legal cause of loss.” Kaul v. 

State Farm Mut. Auto. Ins. Co., 2021 MT 67, ¶ 35, 403 Mont. 

387, 482 P.3d 1196 (McKinnon, J., dissenting) (quotation 

2 The ACC clause language is set out in footnote 1. 
WARD V. SAFECO INSURANCE CO. OF AMERICA 5

omitted). See also Park Saddle Horse Co. v. Royal Indem. 

Co., 261 P. 880, 884 (Mont. 1927) (stating that “[i]n 

determining the cause of a loss for the purpose of fixing the 

insurance liability, when concurring causes of the damage 

appear, the proximate cause to which the loss is to be 

attributed is the dominant, the efficient one that sets the other 

causes in operation; and causes which are incidental are not 

proximate, though they may be nearer in time and place to 

the loss” (quotation omitted)). 

In this case, Safeco argues that the ACC clause in the 

Policy overrides the normal operation of the EPC doctrine, 

such that there is no coverage where any excluded peril 

caused the loss to any extent (even if a covered peril was the 

efficient proximate cause of the loss). Ms. Ward, on the 

other hand, contends that the EPC doctrine applies 

notwithstanding the ACC clause in the Policy, such that 

coverage exists if a covered peril is the efficient proximate 

cause of the loss, even if other excluded perils also 

contributed to the cause of the loss. 

The Montana Supreme Court has held that parties to an 

insurance contract are free to agree to exclusions that are not 

statutorily prohibited. See Stutzman v. Safeco Ins. Co. of 

Am.945 P.2d 32, 37 (Mont. 1997) (“[T]here is no statutory 

mandate for underinsured motorist coverage in Montana . . . 

[t]herefore, the parties may freely contract to produce 

exclusions or limitations on underinsured motorist 

coverage.”). Safeco argues that Montana’s legislature has 

not declared that Montana’s public policy prohibits insurers 

from contracting around efficient proximate cause, and 

contends that Montana’s insurance code does not prohibit 

insurers from contracting around the EPC doctrine. 
6 WARD V. SAFECO INSURANCE CO. OF AMERICA

In interpreting the law of states with an EPC doctrine, 

some courts have found that parties are free to contract 

around its application. See, e.g., TNT Speed & Sport Ctr., 

Inc. v. Am. States Ins. Co., 114 F.3d 731, 733 (8th Cir. 1997) 

(affirming district court’s decision based on conclusion that 

“the most analogous and more persuasive cases from other 

states recognize that parties may contract out of application 

of the efficient proximate cause doctrine”). But other courts 

have held that parties may not do so. See, e.g., Safeco Ins. 

Co. of Am. v. Hirschmann, 773 P.2d 413, 416 (Wash. 1989) 

(explaining that Washington’s efficient proximate cause rule 

“may not be circumvented” by exclusionary clause 

language). Relatedly, in some instances, these courts seem 

to suggest that exclusionary language similar to the wording 

in the Policy does not preclude application of the EPC 

doctrine. See, e.g., id. at 416-17 (stating that “whenever the 

term ‘cause’ appears in an exclusionary clause it must be 

read as ‘efficient proximate cause,’” such that “[w]hen an 

insured risk sets into operation a chain of causation in which 

the last step may be an excluded risk, the exclusion will not 

defeat recovery”). The Montana courts have not addressed 

these two issues. 

The issues described in the certified questions appear to 

be recurring issues of law that implicate important public 

policy concerns under Montana law. See, e.g., Oltz v. Safeco 

Ins. Co. of Am., 306 F. Supp. 3d 1243, 1257 (D. Mont. 2018)

(holding that “Montana law does not prohibit anticoncurrent causes clauses,” but reasoning that “an anticoncurrent cause clause may not exclude the efficient 

proximate cause of the loss”); see also Kremen v. Cohen, 325 

F.3d 1035, 1037 (9th Cir. 2003) (“The certification 

procedure is reserved for state law questions that present 

significant issues, including those with important public 
WARD V. SAFECO INSURANCE CO. OF AMERICA 7

policy ramifications, and that have not yet been resolved by 

the state courts.”). 

Resolution of the certified questions will be 

determinative of a key issue in the pending appeal. If parties 

are not allowed to contract around the EPC doctrine, or if the 

ACC language in the Policy does not effectively do so, the

central basis for the district court’s reasoning in granting 

summary judgment in Safeco’s favor would be eliminated. 

On the other hand, if parties are allowed to contract around 

the EPC doctrine using the language in the Policy, the only 

issues remaining in the case would be whether the relevant 

parts of the Policy are ambiguous or illusory, and whether 

Safeco violated the Unfair Trade Practices Act when it 

denied Ms. Ward coverage. In sum, the certified questions 

could determine the outcome of this appeal, and implicate 

significant public policy questions that have not been 

addressed by the Montana courts.

IV. Counsel 

The names and addresses of counsel for the parties, as 

required by Mont. R. App. P. 15(6)(a)(iv), are as follows:

Attorneys for Virginia Ward: Rex Palmer and 

Lincoln Palmer, Attorneys Inc., P.C., 301 W Spruce

Missoula, MT 59802.

Attorneys for Safeco Insurance Company of 

America: John E. Bohyer, Bohyer, Erickson, 

Beaudette & Tranel, P.C., P.O. Box 7729, 283 Front 

Street, Missoula, MT 59807 and Brooke B. Murphy, 

MurphyMyers PLLC, 27 N. 27th Street, Ste. 21A, 

P.O. Box 1619, Billings, MT 59103. 
8 WARD V. SAFECO INSURANCE CO. OF AMERICA

V. Accompanying Materials

The Clerk shall forward a certified copy of this 

certification order, under official seal, to the Montana 

Supreme Court. The Clerk is also ordered to transmit to the 

Montana Supreme Court a copy of the Excerpts of Record 

filed in this appeal and, if requested by the Montana 

Supreme Court, provide all or part of the district court record 

not included in the Excerpts of Record. Mont. R. App. P. 

15(5). The Clerk is further directed to forward a copy of the 

briefs filed by the parties.

Submission of this appeal for decision is vacated and 

deferred pending the Montana Supreme Court’s final 

response to this certification order. The Clerk is directed to 

administratively close this docket, pending further order. 

The parties shall notify the Clerk of this court within 

fourteen days of the Montana Supreme Court’s acceptance 

or rejection of certification, and again, if certification is 

accepted, within fourteen days of the Montana Supreme 

Court’s issuance of a decision.

QUESTIONS CERTIFIED; PROCEEDINGS 

STAYED.