In its recent decision in Conley v. First Nat'l Ins. Co. of America, 2012 U.S. App. LEXIS 20281 (9th Cir. Sept. 27, 2012), the United States Court of Appeals for the Ninth Circuit had occasion to consider whether under Montana law, a lawsuit alleging “anxiety” qualified as “bodily injury” for the purpose of triggering a duty to defend under a general liability policy.

The underlying matter giving rise to plaintiffs’ claim involved accounting and tax services provided by Silvertip Accounting, which was insured under a primary general liability policy issued by First National Insurance Company of America.  Plaintiffs, Dale and Karen Conley, alleged that as a result of bad advice from Silvertip, they suffered severe tax penalties and disruption of their gifting and estate plan.  The Conleys filed suit against Silvertip in Montana state court, alleging breach of fiduciary duty, fraud, negligence, false advertising and deceptive trade practices. First National denied coverage to Silvertip on the grounds that the Conleys’ lawsuit did not allege an “occurrence” or “bodily injury.” The Conleys subsequently entered into a consent judgment with Silvertip in the amount of $3.6 million as well as an assignment of rights under the First National policy.  The Conleys later filed a declaratory judgment against First National in Montana federal court.

In a June 2011 decision, the United States District Court for the District of Montana, on competing motions for summary judgment, held that the underlying suit did, in fact, allege an “occurrence.”  It further held, however, that the complaint filed by the Conleys in their state court action against Silvertip did not allege any specific physical injuries qualifying as “bodily injury,” but instead merely alleged anxiety resulting from their financial loss.  The Conleys nevertheless relied to a letter their attorney had written to First National immediately after First National denied coverage to Silvertip, which stated that the Conleys’ financial loss had “taken a serious toll on their health” and that their financial loss also had an “emotional cost.”   The lower court acknowledged that under Montana law, facts extrinsic to a complaint can give rise to a coverage obligation.   Notwithstanding, the court concluded that the Conleys’ letter failed to “make even a generalized reference to physical injury” that could be considered “bodily injury.”  Further, the court concluded that:

An injury to a person’s “health” can take many forms, and will not necessarily include physical harm.  It is not the Defendants’ responsibility to affirmatively disprove a bodily injury where none has been alleged.  An insurer is not required to seek out information that could give rise to a duty to defend.

On appeal, the Ninth Circuit began its decision by observing that in Allstate Ins. Co. v. Wagner-Ellsworth, 188 P.3d 1042 (Mont. 2008), Montana’s Supreme Court articulated the rule that for the purpose of a general liability policy, “bodily injury” includes “mental or psychological injury that is accompanied by physical manifestations.”  This necessarily includes “conditions that are susceptible to medical diagnosis and treatment in a manner which distinguishes them from mental injuries.”  In other words, under Montana law, mental injuries unaccompanied by a physical manifestation do not constitute “bodily injury.”

The Conleys argued that for the purpose of a duty to defend, anxiety, unlike a claim of emotional distress or mental anguish, is typically understood to include physical manifestations.  The Conleys further argued that their letter to the insurers explicitly stated that their “dread of tax liability” had taken a serious toll on their health.  Notwithstanding, the Ninth Circuit held that this allegation, in and of itself, did not trigger a defense obligation:

Even if anxiety "typically includes such things as headaches, sleeplessness, muscle tension, [and] nausea," an insurer need not assume physical manifestations rising to the level of "bodily injury" whenever "anxiety" is alleged.

Rather, continued the court, there must be an actual allegation of a physical manifestation supported by “sufficient documented evidence” for coverage to be triggered.  In this regard, the Ninth Circuit agreed with the lower court that the Conleys’ letter to First National failed to make even a generalized reference to physical injury that could constitute “bodily injury.”

The Ninth Circuit also rejected the Conleys’ argument that their pre-suit letter at the very least triggered a duty for First National to investigate whether the Conleys had actually suffered “bodily injury.”  In addition to agreeing with the lower courts statement of Montana law that insurers do not have an affirmative obligation to disprove bodily injury where none has been alleged, the court concluded that First National did, in fact, sufficiently investigate by reviewing the complaint and accompanying materials and by requesting additional information pertinent to its investigation.