THERESA JOSEPH and LEAH JOSEPH v. Walter Wilmerding, in his fiduciary capacity and in his individual capacity

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
THERESA JOSEPH and LEAH JOSEPH,
Plaintiffs - Appellants,
v.
WALTER WILMERDING, in his
fiduciary capacity and in his individual
capacity,
Defendant - Appellee.
No. 12-35659
D.C. No. 9:11-cv-00109-DWM-
JCL
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Donald W. Molloy, District Judge, Presiding
Submitted November 7, 2013**
Portland, Oregon
Before: M. SMITH and HURWITZ, Circuit Judges, and PRO, Senior District
Judge.***
FILED
NOV 12 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Philip M. Pro, Senior District Judge for the U.S.
District Court for the District of Nevada, sitting by designation.

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Plaintiffs-Appellants Theresa and Leah Joseph appeal from the district
court’s order granting Defendant-Appellee Walter Wilmerding’s motion for
summary judgment. The Josephs challenge the district court’s conclusions that (1)
Wilmerding did not have a duty under Montana law to purchase homeowner’s
insurance for the Josephs’ benefit; and (2) Wilmerding did not have a duty under
Montana law to repair the home after the fire for the Josephs’ benefit. Because the
parties are familiar with the facts and procedural history of this case, we repeat
only those facts necessary to resolve the issues raised on appeal. We affirm.
Under Montana law, “[t]o maintain an action in negligence, the plaintiff
must prove four essential elements: duty, breach, causation, and damages.” Fisher
v. Swift Transp. Co., 181 P.3d 601, 606 (Mont. 2008) (citing Eklund v. Trost, 151
P.3d 870, 878 (Mont. 2006)). In determining whether a duty exits, courts consider
“whether the imposition of that duty comports with public policy, and whether the
defendant could have foreseen that his conduct could have resulted in an injury to
the plaintiff.” Id. (citing Henricksen v. State, 84 P.3d 38, 45–46 (Mont. 2004)).
“The policy considerations weighed to determine whether to impose a duty
include: (1) the moral blame attached to the defendant’s conduct; (2) the desire to
prevent future harm; (3) the extent of the burden to the defendant and the
consequences to the community of imposing a duty to exercise care with resulting
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liability for breach; and (4) the availability, cost[,] and prevalence of insurance for
the involved.” Henricksen, 84 P.3d at 46 (quoting Estate of Strever v. Cline, 924
P.2d 666, 670 (Mont. 1996)).
Wilmerding was not negligent in failing to purchase homeowner’s insurance
because he had no duty to do so. The failure to purchase insurance creates
foreseeable risks for the homeowner, not for third parties. Wilmerding’s failure to
purchase insurance was not morally blameworthy, nor would it have prevented
future harm. Henricksen, 84 P.3d at 46. And imposing such a duty would impose
a costly burden on homeowners outweighing any benefits to third parties. Id.
Similarly, Wilmerding had no duty to repair the home. The Josephs have
waived any argument that Wilmerding’s power to evict them was limited by
principles of promissory estoppel or Montana landlord-tenant law. See United
States v. Wahchumwah, 710 F.3d 862, 868 n.2 (9th Cir. 2013). Because
Wilmerding could have evicted the Josephs at any time, his failure to make repairs
was not morally blameworthy. Nor would imposing a duty to repair the home
prevent future harm.
For the foregoing reasons, the district court properly granted Wilmerding’s
motion for summary judgment.
AFFIRMED.
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