Unpublished Disposition, 907 F.2d 155 (9th Cir. 1990)

No. 89-35510.

United States Court of Appeals, Ninth Circuit.

Before SCHROEDER, WILLIAM A. NORRIS and WIGGINS, Circuit Judges

MEMORANDUM^* 

Gary Graveley and Herman Allenbach appeal the district court's order granting Mountain West Farm Bureau's motion for a directed verdict and the court's subsequent declaratory judgment in favor of Mountain West. We reverse.

Under Montana case law, when an insured's act is one that is certain to cause injury, the court may determine as a matter of law that the insured intended the resulting harm. See Mutual Service Casualty Ins. Co. v. McGehee, 219 Mont. 304, 711 P.2d 826, 828 (1985). Here we cannot say as a matter of law that Graveley's conduct was certain to cause injury to Allenbach. The evidence shows that Graveley grabbed and shook Allenbach with some force during their altercation. Unlike the insured's repeated blows to the victim's face in McGehee, however, Graveley's actions were not so certain to cause harm as to justify the district court's directed verdict.

To the contrary, although Graveley clearly intended to grab Allenbach, it was not unreasonable for the jury to conclude that Graveley did not intend to injure Allenbach. Because the jury's verdict was reasonable and supported by substantial evidence, the district court erred in directing the verdict. See Meehan v. County of Los Angeles, 856 F.2d 102, 106 (9th Cir. 1988).

REVERSED.