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City of Bozeman v. Aiu Insurance Co.12/14/1993
, the District Court was correct to grant the City's motion for summary judgment on that basis.
The problem with the City's argument is that it ignores the rules of procedure. When a party moves for summary judgment, it has the burden of establishing that there is no issue of fact. It cannot rely on its contentions in its pleadings, or the arguments of its counsel.
In this case, there was no evidence from which the District Court could conclude that AIU conducted no investigation prior to the termination of its representation of the City. Further, reason compels the opposite conclusion.
Prior to the time that it declined to represent the City on appeal, the attorney retained and paid by AIU had prepared for trial, participated in trial, successfully defended against Story's claim for defamation, and received the jury's verdict. Even if we were to assume (and we have no reason in the record to do so) that no investigation was conducted by AIU prior to trial, we certainly must conclude that by the time the trial was completed, AIU and the attorney that it retained were completely familiar with all of the factual bases for Story's claim. No further investigation could be required to comply with the representation made in AIU's November 12, 1987, letter. Therefore, we conclude that the District Court erred when it held that AIU breached the agreement to investigate before withdrawing its defense of the City of Bozeman.
We reverse the judgment of the District Court and remand this to the District Court with instructions to enter judgment in favor of defendant. Based on this decision, it is not necessary to consider those issues raised in the City's cross-appeal.
CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, HUNT, and GRAY concur.
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