exclusion clause in Montana

1994The applicability of an exclusion clause for intentional acts is analyzed by using a two-pronged test in New Hampshire Insurance *133 Group v. Strecker (1990), 244 Mont. 478, 481 , 798 P.2d 130, 132 .

1994The applicability of an exclusion clause for intentional acts is analyzed by using a two-pronged test in New Hampshire Insurance *133 Group v. Strecker (1990), 244 Mont. 478, 481 , 798 P.2d 130, 132 .

2023State v. George, 2020 MT 56, ¶¶ 4-5 , 399 Mont. 173 , 459 P.3d 854 . ¶14 The constitutional right to present a defense closely tracks the evidentiary standard discussed above, as it is subject to “reasonable restrictions” and has only “rarely” been held to have been “violated by the exclusion of defense evidence under a state rule of evidence.” Hauer, ¶ 24; Nevada v. Jackson, 569 U.S. 505, 509 , 133 S. Ct. 1990, 1992 (2013); Holmes v. South Carolina, 547 U.S. 319, 326 , 126 S. Ct. 1727, 1732 (2006); United States v. Scheffer, 523 U.S. 303, 308 , 118 S. Ct. 1261, 1264 (1998).

2023State v. George, 2020 MT 56, ¶¶ 4-5 , 399 Mont. 173 , 459 P.3d 854 . ¶14 The constitutional right to present a defense closely tracks the evidentiary standard discussed above, as it is subject to “reasonable restrictions” and has only “rarely” been held to have been “violated by the exclusion of defense evidence under a state rule of evidence.” Hauer, ¶ 24; Nevada v. Jackson, 569 U.S. 505, 509 , 133 S. Ct. 1990, 1992 (2013); Holmes v. South Carolina, 547 U.S. 319, 326 , 126 S. Ct. 1727, 1732 (2006); United States v. Scheffer, 523 U.S. 303, 308 , 118 S. Ct. 1261, 1264 (1998).

2023State v. George, 2020 MT 56, ¶¶ 4-5 , 399 Mont. 173 , 459 P.3d 854 . ¶14 The constitutional right to present a defense closely tracks the evidentiary standard discussed above, as it is subject to “reasonable restrictions” and has only “rarely” been held to have been “violated by the exclusion of defense evidence under a state rule of evidence.” Hauer, ¶ 24; Nevada v. Jackson, 569 U.S. 505, 509 , 133 S. Ct. 1990, 1992 (2013); Holmes v. South Carolina, 547 U.S. 319, 326 , 126 S. Ct. 1727, 1732 (2006); United States v. Scheffer, 523 U.S. 303, 308 , 118 S. Ct. 1261, 1264 (1998).

1993In Philadelphia Fire & Marine Insurance Company v. City of Grandview (Wash. 1953), 255 P.2d 540 , the Washington Supreme Court defined “handled” contained in a similar exclusion clause as: To handle or to distribute, within the meaning of the insurance policy, implies a conscious control over and a conscious intent to parcel out whatever is to be distributed.

1993Grandview, 255 P.2d at 545 .

1990“The key factor is whether the policy provision barring recovery by an innocent co-insured is clear and unambiguous.” Farmers cites the exclusion clause contained in the policy noted in Spezialetti v. Pacific Employers Insurance Co. (3rd Cir. 1985), 759 F.2d 1139 , which reads: “[The] insurance shall not apply to loss or damage . . . [resulting from] any dishonest act or omission by any insured . . . .” The court in Spezialetti denied the innocent spouse’s claim for insurance proceeds, based on the exclusionary language.

1990Finally, Farmers takes issue with the District Court’s reliance on Kulubis v. Texas Farm Bureau Underwriters Insurance Co. (Tex. 1986), 706 S.W.2d 953 , for the proposition that an insurer’s obligations under such insurance policies are “several and not joint, the wrongful acts of one coinsured cannot be imputed to another as a basis for denying coverage.” This, Farmers states, unfairly places the burden of proving the innocence of the non-acting spouse on the insurer.

1982Co. v. Raynes (1977), 88 Wash.2d 439 , 563 P.2d 815 , when discussing an exclusion clause similar to that presented here, stated: “. . .

1982Co. v. Raynes (1977), 88 Wash.2d 439 , 563 P.2d 815 , when discussing an exclusion clause similar to that presented here, stated: “. . .

1979(Emphasis added.) The Illinois court, in Medina , relying on the New Jersey case of Lyons v. Hartford Insurance Group (1973), 125 N.J.Super. 239 , 310 A.2d 485 , decided that the general rule is that coverage exists under an exclusion clause identical or similar to this one for the unintended results of an intentional act but not for damages assessed because of an injury which was intended to be inflicted. 329 N.E.2d at 433 .

1979(Emphasis added.) The Illinois court, in Medina , relying on the New Jersey case of Lyons v. Hartford Insurance Group (1973), 125 N.J.Super. 239 , 310 A.2d 485 , decided that the general rule is that coverage exists under an exclusion clause identical or similar to this one for the unintended results of an intentional act but not for damages assessed because of an injury which was intended to be inflicted. 329 N.E.2d at 433 .

1979(Emphasis added.) The Illinois court, in Medina , relying on the New Jersey case of Lyons v. Hartford Insurance Group (1973), 125 N.J.Super. 239 , 310 A.2d 485 , decided that the general rule is that coverage exists under an exclusion clause identical or similar to this one for the unintended results of an intentional act but not for damages assessed because of an injury which was intended to be inflicted. 329 N.E.2d at 433 .

1970In a recent Oregon case, Schaffer v. Mill Owners Mutual Insurance Co., 242 Or. 150 , 407 P.2d 614 (1965), the Oregon Supreme Court upheld an exclusion clause which provided that the policy did not apply to claims arising from accidents which occurred while the automobile was operated by any “male operator under 25 years of age”.

1970In a recent Oregon case, Schaffer v. Mill Owners Mutual Insurance Co., 242 Or. 150 , 407 P.2d 614 (1965), the Oregon Supreme Court upheld an exclusion clause which provided that the policy did not apply to claims arising from accidents which occurred while the automobile was operated by any “male operator under 25 years of age”.

1968Hart v. National Indemnity Co., 422 P.2d 1015 (Alaska 1967).

1967This principle was supported in State v. McLeod, 131 Mont. 478 , 311 P.2d 400, 409 .

1967This principle was supported in State v. McLeod, 131 Mont. 478 , 311 P.2d 400, 409 .

1967If *404 either party requires it, the judge may exclude from the courtroom any witness of the adverse party, not at the time under examination, so that he may not hear the testimony of other witnesses.” In State v. Walsh, 72 Mont. 110 , 232 P. 194, 196 , the court held that two members of the sheriff’s force, who were witnesses, were exempt from the exclusion rule.

1967If *404 either party requires it, the judge may exclude from the courtroom any witness of the adverse party, not at the time under examination, so that he may not hear the testimony of other witnesses.” In State v. Walsh, 72 Mont. 110 , 232 P. 194, 196 , the court held that two members of the sheriff’s force, who were witnesses, were exempt from the exclusion rule.