No. 95-207 IN THESUPREME

COURTOFTHESTATEOFMONTANA 1995

STATEFARMFIREAND

Plaintiff CASUALTYCOMPANY,

andAppellant,
v. DARRELLPOWELL,and JACKSMITH, as guardian ad litem for NATASHASMITH, and as Personal Representative of the Estate of CHRISTINA SMITH, deceased, <<.,/..~sm;& ~~~~~~~~~~~~~~~~~

_/,._

__ _,.,Lrrib"r .Y Defendants and Respondents.

APPEALFROM: District Court of the Eighth Judicial District,

In and for the County of Cascade, TheHonorable ThomasM.McKittrick, Judgepresiding.

COUNSELOFRECORD:

For Appellant: LymanH. Bennett, III, Morrow, Sedivy &Bennett, Bozeman, Montana For Respondent: Anne Biby, Bottomly LawOffices, Kalispell, Montana (for Smith)

Filed: Submitted onBriefs: August 31, 1995 Decided: November 21, 1995Justice'Terry N. Trieweiler delivered the opinion of the Court.

Theplaintiff, State FarmFire and Casualty Company, filed a complaint in the District Court for the Eighth Judicial District in Cascade County in which it sought a declaratory judgment to the effect that the insurance policy it issued to Darrell Powell did not provide liability coverage for his collision with Christina Smith onAugust 8, 1994. State Farm moved for summary judgment. Jack Smith, who represented Christina Smith's estate and her daughter, also movedfor summaryjudgment. State Farm's motion was denied and Smith's motion was granted. State Farm appeals the District Court's disposition of the summary judgment motions. We affirm the judgment of the District Court. The issue on appeal is whether the District Court correctly concluded that the vehicle operated by Darrell Powell at the time of his collision with Christina Smith was an "insured vehicle" according to the terms of State Farm's policy issued to Powell. FACTUALBACKGROUND In December 1993, Darrell Powell entered into an oral agreement to buy a 1971 Ford truck from his brother and sister-in-law, Walter andAmandaPowell. Walter andDarrell agreed that Darrell would makepayments for the Ford whenable andthat he would become the owner of the truck after he had paid the full $1200 purchase price. Until the full purchase price was paid on July 10, 1994, Walter continued to insure the Ford with his owncarrier: On one occasion, Darrell paid the premium amount to

Walter, whothen sent the premium to his carrier. During the seven month period that Darrell madepayments to Walter, Walter andAmandakept the truck at their homeandused it
as their own. Fromtime to time, Darrell would notify Walter and Amandathat hewanted to use the truck, and hewould do so if it
was available at the time he needed it. Walter and Amanda, however, continued to usethe truck in exactly the samemanner they had used it prior to their oral purchase agreement with Darrell. In.January 1994, while Darrell wasmaking payments to Walter, the truck's registration expired. Walter andDarrell agreed that Darrell should register the truck in his namesothat hewould not have to re-register the vehicle later that year. In order to register the truck, Darrell's name had to appear on the title. Walter transferred the title, andDarrell registered the Ford truck in his name on January 28, 1994. A new title was issued in Darrell's nameon March 11, 1994. OnJuly 10, 1994, Darrell madethe final payment for the Ford truck. .Onthat date, Walter andAmandacancelled their insurance policy which covered the truck and executed a bill of sale which stated:We,the undersigned, hereby sell to Darrell L. Powell, a 1971 3/4 Ton2Wheel Drive Ford Pickup - green andwhite in color. Debt is paid in full onthis date. DATEDthis 10th day of July, 1994.

3Although Darrell continued to leave the truck at Walter's

house after July 10, Darrell then used the truck at will, whereas Walter asked Darrell's permission to borrow it. According to their affidavits, Walter andAmandaintended that ownership of the truck pass to Darrell on the date he finished paying for it. After July 10; 1994, Walter andAmandano longer considered themselves the owners of the Ford truck. On August 8, 1994, while attempting to walk across U.S. Highway 2near Havre, Christina Smith wasstruck bythe Ford truck which was being operated by Darrell. Christina died seven hours later as aresult of injuries caused by the collision. Jack Smith, as personal representative of Christina's estate and guardian ad litem of her five-year-old daughter, filed an action against Darrell Powell in the District Court of the Twelfth Judicial District in Hill County. That action is still pending. Powell's insurance provider, State Farm, then filed this declaratory judgment action to avoid coverage for Powell's potential liability. State Farminsured Powell's 1986Mazdapickup truck at the time of the collision, but maintained that the Ford truck hewas operating was not an insured vehicle. On April 4, 1995, the District Court granted Smith's cross-motion for summaryjudgment, based onits determination that the Ford truck was insured as a "newly acquired vehicle" according to the terms of Powell's insurance policy. OnApril 20, the court entered adeclaratory judgment in favor of Smith.

4STANDARD OFREVIEW This Court reviews asummary judgment order entered pursuant to Rule 56, M.R.Civ.P., based onthe samecriteria applied by the district court. BrinkmanandLenonv.Pc?DLandEnterprises (1994), 263Mont

. 238, 241, 867 P.2d 1112, 1114. Rule 56(c), M.R.Civ.P., provides that summary judgment is proper only when "there is no genuine issue as to any material fact and

. . the moving party is entitled to ajudgment as amatter of law." Because our review of summaryjudgment is plenary, wedecline to review two of State Farm's claims on appeal: first, that the trial court failed to consider State Farm's reply brief before issuing its order; and second, that the court did not state with sufficient particularity its reasons for granting Smith's summary judgment motion. Since we review the entire record, including State Farm's reply brief, denovo, wehold that the District Court's failure to consider that brief was, at best, a harmless error. Furthermore, there was nothing in State Farm's three-page reply brief which even addressed the issue onwhich the District Court's judgment was based. Therefore, State Farm's substantial rights could not have been affected by the District Court's failure to consider it. Wealso hold that the District Court's order granting summary judgment, though not exhaustive, was sufficient to apprise the parties'of the court's rationale for concluding that Powell's Ford

5truck was an insured vehicle according to the terms of State Farm's

policy. DISCUSSION Did the District Court correctly conclude that the vehicle operated by Darrell Powell at the time of his collision with Christina Smith was an "insured vehicle" according to the terms of State Farm's policy issued to Powell? State Farm contends that it did not insure Darrell's operation of his Ford truck on August 8, 1994, because on that date the truck
was not an "insured vehicle" as required by Powell's insurance policy. According to State Farm, Powell's truck was not an "insured vehicle" because it was neither (a) "your car," (b) a "newly acquired car," (c) a "temporary substitute car," or (d) a "non-owned car," as required by the terms of the policy. State Farm reasons that "your car" can only be the car described on the declarations page, in this case the 1986 Mazda truck. However, since Powell had purchased the 1971 Ford truck and the title had been transferred, neither was it a "non-owned car," and it was not a "temporary substitute car," which is also defined
as anon-owned vehicle. State Farm further maintains that the Ford
was not a "newly acquired car" because Powell did not notify the company of his acquisition of the vehicle within thirty days after the date on which he acquired an ownership interest. State Farm relies on our decision in Colonial Insurance Co. v.Blankenship (1988) , 231 Mont. 469, 753 P.Zd 880, to establish the proposition that Powell

6becamethe owner of the Ford whenhe acquired title to the vehicle

in January 1994, rather than whenWalter and Amandaexecuted the bill of sale onJuly 10, 1994. Although we agree that Colonial Insurancewould be the starting point for determining Powell's ownership of the vehicle, wehold that "delivery," and not "ownership," is the definitive date from which to determine coverage based on State Farm's policy. The plain language of State Farm's policy provides that: NewlyAcquiredCar -meansacarnewly ownedbyyouif it

. . . is anadded CCIY

and

. . [is] ownedbyyouonthe date of its delivery to you; but only if you
. . . tell us about it within 30davs after its deliverv to YOU

. . . (Underlining added.) Thepolicy clearly states that the thirty-day grace period is to run from the date of delivery, not from the time
an ownership interest is acquired. The sincerity of State Farm's argument in this case must be questioned in light of the inconsistent position it has taken in the past when it wasto its advantage to doso. In the past, State Farm has taken the position that the date of delivery is the crucial date from which to determine coverage for anewly acquired vehicle. In LYllier v.Turnaclzfl (N.M. 1988), 758 P.2d 796, Turnacliff took possession of a car on October 21, before the title was transferred or payment wasmade. After Turnacliff was involved in
an accident onNovember 28, State Farmargued that the dispositive date for coverage under its "newly acquired car" provision-- identical to the provision in Powell's policy--was the date of

7delivery. The L’Allier court agreed that according to the policy

language "the newly acquired car provision began to run when the newly acquired car was 'owned' and 'delivered' to Turnacliff." L’ANier, 758 P.2d at 797. Thecourt stated: The dispositive issue on appeal is whether, as amatter of law, the thirty-day notice period under the newly acquired car provision in Turnacliff's automobile insurance policy began to run when Turnacliff took delivery of the car. Wehold that delivery is acritical element of ownership of acar, andwhenthe circumstances indicate that the parties intended for ownership of the car to pass, delivery of the car is sufficient to trigger the running of the newly acquired car provision in an automobile insurance policy. L‘Allier, 758 P.2d at 797. Because "delivery" is not defined in State Farm's insurance policy, wechoose to give the term its ordinary meaning. Wehold that in the context of the newly acquired vehicle clause, the word "delivery" signifies a handing over of physical possession and control of an automobile. In this case, weconclude, based onuncontroverted facts, that delivery occurred onJuly 10, 1994, whenWalter andAmandaintended to transfer ownership of the truck to Darrell, andwhen Darrell's physical possession and control of the truck wasfinally possible. Therefore, we conclude that the Ford truck operated by Darrell Powell onAugust 8, 1994, when he collided with Christina Smith,
wasa"newly acquired vehicle," andtherefore, an"insured vehicle" according to the terms of State Farm's policy.

8For these reasons, weaffirm the District Court's order which

denied State Farm's motion for summary judgment and granted summary judgment to the defendants.

9