author: BEVAN, Justice

text:
    Matthew ATKINSON, Claimant-Respondent, v. 2M COMPANY, INC., Employer, and Employers Assurance Company, Surety, Defendants-Appellants.
    Docket No. 45918
    Supreme Court of Idaho, Boise, December 2018 Term.
    Filed: January 29, 2019
    Gardner Law Office, Boise, attorneys for Appellant. Michael G. McPeek argued.
    Bradford S. Eidam, PLLC, Boise, attorney for Respondent. Bradford S. Eidam argued.
   BEVAN, Justice

I. NATURE OF THE CASE

2M Company Inc. ("2M") appeals an Industrial Commission ("Commission") decision that determined Matthew Atkinson was entitled to reasonable medical benefits for injuries he sustained in an accident on his way to work. The Commission found that an exception to the "going and coming" rule applied based on 2M's intent to compensate Atkinson for his travel time while going to or coming from work. 2M and its surety, Employer Assurance Company, timely appealed. We affirm on different grounds.

II. FACTUAL AND PROCEDURAL BACKGROUND

At the time of his accident, Atkinson was a salaried employee of 2M, a wholesaler of well drilling and irrigation supplies. Atkinson was a territorial sales person for 2M and was responsible for providing 2M's hallmark "Legendary Service" to customers by supplying technical assistance at the customer's place of business, running parts to them, and assisting in the installation of those parts. 2M provided Atkinson with a pickup truck owned by the company so that he had the ability to call on potential and existing customers. Atkinson would respond to an average of two or three emergency customer calls per week, often late in the evening. Atkinson was issued a company credit card to purchase fuel for the pickup truck, and 2M paid for any necessary vehicle servicing and maintenance. 2M also required Atkinson to work one Saturday every five weeks staffing 2M's Meridian office from approximately 8:00 a.m. to 12:00 p.m. Atkinson was scheduled to work on March 11, 2017, after switching Saturday shifts with a coworker.

On March 10, 2017, Atkinson drove his personal vehicle to the Whitewater Saloon for a date night with his wife. Neither felt comfortable driving afterwards so they left the car there and took a taxi home. The following morning Atkinson's wife needed to retrieve her car to pick up their children who had spent the night at their grandparent's house. Atkinson planned to drop his wife off at Whitewater Saloon and go on to work for his shift; as such, Atkinson and his wife left their home together in his company pickup truck the morning of March 11, 2017. Whitewater Saloon is on Atkinson's usual route to 2M's office.

However, as the couple was leaving their subdivision, Atkinson noticed he could not see clearly out of the front windshield due to frost, so he pulled over to the side of the road to scrape the windshield with a credit card. As he was scraping the windshield he was struck by another vehicle and sustained significant injuries to his right leg and shoulder.

On May 24, 2017, Atkinson filed a complaint with the Commission. A hearing was conducted on September 13, 2017, to determine the compensability of Atkinson's claim. The Referee found that Atkinson was entitled to benefits because he was injured in the course of his employment as he was traveling to work in employer-provided transportation when the accident occurred. Specifically, the Referee held that Hansen v. Estate of Harvey , 119 Idaho 333, 806 P.2d 426 (1991) (" Hansen "), was controlling and dispositive.

The Commission confirmed that Atkinson was entitled to reasonable medical benefits for injuries sustained in the March 11, 2017, accident, but it rejected the Referee's reliance upon Hansen . The Commission issued its own findings of fact and conclusions of law that found Case of Barker , 105 Idaho 108, 666 P.2d 635 (1983) (" Barker I ") to be dispositive. 2M and its surety, Employer Assurance Company, timely appealed to this Court.

III. ISSUES ON APPEAL

1. Whether the Commission applied the correct legal standards in determining that Atkinson's accident occurred in the course of his employment with 2M.

2. Whether the Commission erred by failing to make a specific factual finding concerning whether Atkinson's accident arose out of his employment with 2M.

3. Whether Atkinson is entitled to attorney fees on appeal.

IV. STANDARD OF REVIEW

"When reviewing a decision of the Industrial Commission, this Court exercises free review over questions of law." Sundquist v. Precision Steel & Gypsum, Inc ., 141 Idaho 450, 453, 111 P.3d 135, 138 (2005) (citing Uhl v. Ballard Medical Products, Inc ., 138 Idaho 653, 657, 67 P.3d 1265, 1269 (2003) ). However, this Court will uphold the Commission's factual findings so long as they are supported by substantial and competent evidence. Id ."Substantial and competent evidence is relevant evidence that a reasonable mind might accept to support a conclusion." Id ."To determine whether an accident occurred arising out of and in the course of [a] Claimant's employment, the Court determines whether the Commission correctly applied the law of the worker's compensation to the facts determined by the Commission." Combes v. State, Indus. Special Indem. Fund , 130 Idaho 430, 432, 942 P.2d 554, 556 (1997) (internal citation omitted).

The Court "views all facts and inferences in the light most favorable to the party who prevailed before the Commission," Dinius v. Loving Care & More, Inc ., 133 Idaho 572, 574, 990 P.2d 738, 740 (1999), and "liberally construe[s] the provisions of the worker's compensation law in favor of the employee, in order to serve the humane purpose for which the law was promulgated." Murray-Donahue v. Nat'l Car Rental Licensee Ass'n , 127 Idaho 337, 340, 900 P.2d 1348, 1351 (1995).

Hamilton v. Alpha Servs., LLC , 158 Idaho 683, 688, 351 P.3d 611, 616 (2015) (alteration in original).

V. ANALYSIS

A. The Commission applied the correct legal standards in determining that Atkinson's accident occurred in the course of his employment with 2M.

The crux of 2M's argument is that the Commission impermissibly expanded the Court's payment-for-travel-time doctrine to hold that Atkinson's accident arose out of and in the course of his employment with 2M.

"The applicable standard for determining whether an employee is entitled to compensation under the Worker's Compensation Act requires that the injury must have been caused by an accident 'arising out of and in the course of any employment.' " Dinius , 133 Idaho at 574, 990 P.2d at 740 ; I.C. § 72-102(18)(a). "The words 'out of' have been held to refer to the origin and cause of the accident and the words 'in the course of' refer to the time, place, and the circumstances under which the accident occurred." Spivey v. Novartis Seed Inc. , 137 Idaho 29, 33, 43 P.3d 788, 792 (2002) (quoting Dinius , 133 Idaho at 574, 990 P.2d at 740 ).

The "going and coming" rule states that an employee is not within the course and scope of his employment on his way to and from work. Finholt v. Cresto , 143 Idaho 894, 898, 155 P.3d 695, 699 (2007) (citing Ridgway v. Combined Ins. Companies of America , 98 Idaho 410, 411, 565 P.2d 1367, 1368 (1977) ). As a result, an employee traveling to and from work is usually not covered by worker's compensation protection unless an exception applies. Clark v. Daniel Morine Const. Co ., 98 Idaho 114, 115, 559 P.2d 293, 294 (1977). The reason an employee is generally not awarded compensation for injuries that occur while traveling to and from work is that the employment relationship is considered suspended from the time the employee leaves his work to go home until he resumes his work the next day. Barker I , 105 Idaho at 109, 666 P.2d at 636. That said, this Court has identified several exceptions to the going and coming rule, "including: (1) the special errand; (2) the traveling employee; (3) peculiar risk, and; [4 the] dual purpose doctrine." Kelly v. Blue Ribbon Linen Supply, Inc. , 159 Idaho 324, 328, 360 P.3d 333, 337 (2015) (internal citation omitted).

This Court articulated an additional exception in Barker I that expands an employee's course of employment to include instances where the employee can demonstrate that the employer regards the employee's travel as part of his job. In Barker I , a decedent's wife filed a claim for death benefits after the decedent was involved in an accident while driving from a work site to a dentist appointment. 105 Idaho at 109, 666 P.2d at 636. Per his union contract, the decedent was paid $90 per week as a travel allowance. Id . The Commission denied benefits after concluding that the decedent was not engaged in employment for the employer at the time of the accident and that payment of travel expenses was irrelevant to whether an exception to the going and coming rule should apply. Id .

The decedent's wife appealed, arguing that when the employer pays for travel expenses the journey should be considered in the course of employment. Id . at 110, 666 P.2d at 637. This Court reversed and remanded the Commission's decision, holding that "payment of travel expenses along with other evidence indicating the employer intended to compensate the employee for travel time, will justify expanding the course of employment to include going to and from work." Id . at 110-11, 666 P.2d at 637-38 (emphasis in original). The Court cited favorably to two factors that could aid in determining whether an employer intended to compensate an employee for travel to and from work: (1) extended cross-country travel to reach the employment site; and (2) size of the travel allowance paid. Id . at 110, 666 P.2d at 637. The Court then instructed the Commission to consider any potential "other evidence" on remand.

The parties submitted no additional evidence on remand. The Commission denied benefits again, concluding that it "could find no evidence other than the actual payment itself, to indicate that the employer intended to compensate the employee for travel time or travel expense."

Matter of Barker , 110 Idaho 871, 872, 719 P.2d 1131, 1132 (1986) ( Barker II ). On appeal, this Court concluded that the Commission correctly applied the standard announced in Barker I and affirmed the Commission's denial of coverage. Id .

Relying on the exception identified in Barker I , the Commission here recognized that 2M's providing Atkinson with a pickup truck and "the gas and maintenance necessary to operate the same" was insufficient by itself for Atkinson's accident to be considered in the course of employment. Thus, for the Barker I exception to apply, the Commission determined that Atkinson had to adduce additional evidence showing that 2M intended to compensate him for his travel time. The Commission found the following "additional evidence" was sufficient to bring Atkinson's accident within the scope of employment:

25. First, Claimant is a 24/7 "on-call" employee. Claimant may be called upon to respond to an emergency any time of day, and therefore, it is necessary to his work to have immediate access to a company vehicle at all times. Because Claimant must have a company vehicle at his home to respond to the needs of a customer, it follows that he must use Employer's vehicle going-to and coming-from the workplace. Because of the demands of his employment, Claimant is effectively denied the option of choosing to use his own vehicle in coming/going journeys.
26. Second, even though the provision of a company vehicle to Claimant may be regarded as an inducement to Claimant, it is also clear that the provision of a company vehicle to Claimant serves the Employer's interest by ensuring that Claimant will always have the means available to immediately respond to emergency calls.

Whether the Commission's findings are legally sufficient to satisfy the "additional evidence" requirement of Barker I is a question of law over which we exercise free review. Sundquist , 141 Idaho at 453, 111 P.3d at 138. 2M advances several arguments in support of its position that the Commission erred in concluding 2M intended to compensate Atkinson for his travel time while going to and from work.

Initially, 2M argues that because Atkinson was a salaried employee, there is no evidence that 2M intended to pay Atkinson for the time he incurred in traveling to and from work. Even so, the Commission did not use Atkinson's status as a salaried employee in reaching its ultimate conclusion on the compensability of Atkinson's claim. The Commission did not consider whether an employee's status as a salaried employee had any bearing on whether an employer intended to compensate the employee for travel time with respect to the going and coming rule. Accordingly, this argument fails. See Izaguirre v. R & L Carriers Shared Servs., LLC , 155 Idaho 229, 233, 308 P.3d 929, 933 (2013) (quoting Krempasky v. Nez Perce Cnty. Planning & Zoning , 150 Idaho 231, 236, 245 P.3d 983, 988 (2010) ("[i]t is well established that in order for an issue to be raised on appeal, the record must reveal an adverse ruling which forms the basis for an assignment of error.") ).

2M also contends that there is no precedent to support the idea that an employer derives a benefit from an employee's on-time arrival at work, even if they are commuting to work in a company vehicle. 2M cites a Utah Court of Appeals case in support of its argument that "mere arrival at work is not considered a substantial benefit to the employer." See VanLeeuwen v. Indus. Comm'n of Utah , 901 P.2d 281 (Utah Ct. App. 1995). As with Atkinson's status as a salaried employee, Atkinson's "on-time arrival" was not identified by the Commission as a basis for coverage; thus, it will not be considered on appeal. See Izaguirre , 155 Idaho at 233, 308 P.3d at 933.

2M's remaining arguments stress that the Commission's findings were improper because they are rooted in speculation rather than the actual circumstances of Atkinson's March 11, 2017, accident. We agree. Finding 25 is flawed because whether Atkinson had the company vehicle so he could respond to a customer's call outside his normal work hours is not relevant when Atkinson was injured on his way to 2M's office for a regularly scheduled workday. In this regard, 2M argues that the Commission improperly conflated the focus of Barker I with the special errand exception of the going and coming rule. The fact that Atkinson may have been on call to respond to a customer's needs outside normal working hours would have only been relevant under the special errand exception if Atkinson's accident occurred while he was on a special errand, traveling from his home to attend to the customer. We find this argument to be persuasive. The record contains no discussion of the parties' expectations about Atkinson's availability, whether he had to remain in any particular place during this on-call time, or whether he could engage in his own activities during such time. The record is thus insufficient to support the Commission's conclusion in this regard. Indeed, at the time of the accident, Atkinson and his wife were driving to retrieve their personal vehicle left at the Whitewater Saloon from a date night the prior evening after he did not feel comfortable driving it home. This would seem to conflict with the Commission's finding that Atkinson was a 24/7 on-call employee.

Finding 26 is equally problematic. Whether 2M's interest may have been served because use of the company pickup truck meant Atkinson would "have the means to immediately respond to emergency calls" was disconnected from Atkinson's accident, which occurred while he was commuting to a regularly scheduled workday at 2M's office. If we were to accept the Commission's finding, it could be interpreted as transforming all driving activities into work-related activities simply because the employer provides the employee with a vehicle. The Commission's conclusion does not correlate with the fact that Atkinson's accident occurred while he was on his way to a regularly scheduled day of work at 2M's office.

Ultimately, while the Commission acted reasonably in trying to deduce what "additional evidence" would be sufficient under Barker I to justify expanding the course of employment to include Atkinson's going to and from work, we decline to adopt such a broad approach, particularly when Findings 25 and 26 stem from supposition rather than the facts surrounding Atkinson's accident. That said, we agree with the Commission's ultimate conclusion that Atkinson has a right to medical benefits. We find that the approach under Hansen is more straightforward and applicable to the facts here.

In Hansen , the decedent was driving a company truck to work with two other employees, Hansen and Lehman, when the decedent fell asleep at the wheel. Hansen v. Estate of Harvey , 119 Idaho 357, 357-58, 806 P.2d 450, 450-51 (Ct. App. 1990). The truck ran off the road, killing the decedent and injuring the other two employees. Id . The accident occurred in Washington; thus, the employees received Washington worker's compensation benefits, based on the determination that their injuries arose out of the course of their employment. Id . The employees then sued their employer in Idaho, alleging the decedent's negligence caused their injuries. Id . The Idaho district court dismissed the claim after finding their injuries arose out of the course of their employment. Id . Relying on Eriksen v. Nez Perce County , 72 Idaho 1, 4, 235 P.2d 736, 737 (1951), the Idaho Court of Appeals affirmed, recognizing

it is undisputed that Hansen and Lehman were passengers in a vehicle furnished by their employer, as they traveled to work in Spokane. It is also undisputed that the vehicle was kept and maintained for use in the roofing business. Hansen and Lehman have asserted that they were not paid for commuting and that they did not always ride in the Harvey vehicle. However, these assertions, even if true, do not alter what we deem to be the sole material fact -that they were riding in employer-provided transportation when the accident occurred. At that time, the employer had extended the risks of employment to include transportation, and the course of employment had been extended commensurately .

Hansen , 119 Idaho at 359, 806 P.2d at 452 (emphasis added). This Court granted a petition for review. After affirming based on collateral estoppel, this Court stated:

We also affirm the district court's dismissal for the additional reason set out in the Court of Appeals' opinion which adopted the exception to the going and coming rule, described in Eriksen v. Nez Perce County , 72 Idaho 1, 235 P.2d 736 (1951), where this Court stated that "where going [to work] or returning [from work] in some transportation facility furnished by the employer ," an employee is deemed to be within the course of employment. 72 Idaho at 4, 235 P.2d 736 (emphasis added). This rule has also been described in Larson's treatise on worker's compensation law as follows:
If the trip to and from work is made in a truck, bus, van, car, or other vehicle under the control of the employer, an injury during that trip is incurred in the course of employment.... The reason for the rule in this section depends upon the extension of risks under the employer's control.

Hansen v. Estate of Harvey , 119 Idaho 333, 338, 806 P.2d 426, 431 (1991) (quoting 1 Larson, Workmen's Compensation Law, § 17.11, reprinted in 2 Larson's Worker's Compensation Law, § 15.01). The Court went on to say under this approach:

[A]ny time an employee is injured while going to or coming from work in transportation provided by his employer, he is considered to be within the course of employment. The rationale underlying this rule is that "the risks of the employment continue throughout the journey" and since the employer is in control of those risks by providing the transportation, the employee is considered to be within the course of his employment . 1 Larson at § 17.00, reprinted in 2 Larson's Worker's Compensation Law, § 15.00. As Larson points out, "the distinction between transportation provided by contract and transportation provided without agreement or as a courtesy is being increasingly questioned, since the fundamental reason for extension of liability-the extension of the actual employer-controlled risks of employment-is not affected by the question whether the transportation was furnished because of obligation or out of courtesy." 1 Larson at § 17.30, reprinted in 2 Larson's Worker's Compensation Law, § 15.03. Furthermore, application of this rule avoids repeated litigation as to whether transportation provided by an employer to an employee was in fact a customary or contractual incident to employment. The Larson rule also promotes a basic policy underlying the concept of worker's compensation that the worker's compensation act is to be construed liberally in favor of worker's compensation coverage of claimants. See Miller v. Amalgamated Sugar Co. , 105 Idaho 725, 672 P.2d 1055 (1983) ; Jones v. Morrison-Knudsen Co ., 98 Idaho 458, 567 P.2d 3 (1977) ; Hattenburg v. Blanks , 98 Idaho 485, 567 P.2d 829 (1977).

Id . (emphasis added).

These principles are directly applicable to the case before us. Here, the Commission distinguished Hansen , finding that the employer must furnish both the vehicle used and an agent to operate such a vehicle for this exception to apply:

The rationale for extending the course of employment to travel to and from the work site in Hansen is that by providing a transportation facility to the injured worker, employer extended the risks under the employer's control. This rationale necessarily depends on the fact that employer provided not only the vehicle used to accomplish the journey, but also an agent of the employer to operate the same.

The Commission erred by limiting Hansen 's application in this way. There is nothing in the Hansen holding that restricts it to employee-passengers. Limiting Hansen as the Commission did would create inequities by providing workers compensation coverage for passengers, but not providing such coverage for drivers, even though all employees are exposed to the same risks while traveling to work. Whether a driver or a passenger, such risks are employer-associated risks of employment that must be borne by the employer.

See Hansen , 119 Idaho at 338, 806 P.2d at 431.

We see the more appropriate focus to be whether the vehicle was incidental to Atkinson's duties of employment, or whether it was mandatory as part of his job. 2M not only authorized, but required Atkinson to drive the company pickup truck to and from 2M's office to ensure he could provide "Legendary Service" to 2M's customers. Applying the principles set forth in Hansen , and construing them liberally "in order to ensure certain recovery for injured workers, regardless of fault," Kelly , 159 Idaho at 328, 360 P.3d at 337, 2M extended the risks of Atkinson's employment to include transportation, and the course of employment was extended to match.

We therefore affirm the Commission's holding that Atkinson's March 11, 2017, accident occurred within the course of employment by applying Hansen rather than Barker I . In doing so, we recognize that we have moved to a bright-line rule in these going and coming cases. When an employee, while going or coming from work, is injured while operating or riding in an employer-provided vehicle, such an accident arises in the course of employment. This rule provides ease of application and it adheres to the "basic policy underlying the concept of worker's compensation that the worker's compensation act is to be construed liberally in favor of worker's compensation coverage of claimants." Hansen , 119 Idaho at 338, 806 P.2d at 431.

B. The Commission did not err by failing to make a specific finding of fact about whether Atkinson's accident arose out of his employment.

The proceedings before the Commission were solely related to whether Atkinson's accident arose "in the course of" his employment with 2M. For the first time on appeal 2M now argues that (1) the Commission committed reversible error by failing to make a specific factual finding about whether Atkinson's accident arose out of his employment; and (2) that Atkinson's accident did not arise out of his employment because the risk that caused his accident was one common to the traveling public.

An injury is only compensable under worker's compensation law if it is caused by an accident 1) arising out of and 2) in the course of any employment. I.C. § 72-102(18)(a). This Court has held that "[t]he words 'out of' ... refer to the origin and cause of the accident and the words 'in the course of' refer to the time, place, and the circumstances under which the accident occurred." Spivey v. Novartis Seed Inc. , 137 Idaho 29, 33, 43 P.3d 788, 792 (2002) (quoting Dinius v. Loving Care & More, Inc. , 133 Idaho 572, 574, 990 P.2d 738, 740 (1999) ). An injury is considered to "arise out of the employment when a causal connection is found to exist between the circumstances under which the work must be performed and the injury of which the claimant complains." Dinius , 133 Idaho at 575, 990 P.2d at 741. "This prong of the compensability test examines the origin and cause of the accident." Gage v. Express Personnel , 135 Idaho 250, 254, 16 P.3d 926, 930 (2000).

The Commission concluded as a matter of law that Atkinson's March 11, 2017, accident arose out of and in the course of his employment with 2M; however, the Commission never made a specific factual finding about whether Atkinson's accident "arose out of" his employment with 2M. We hold that the Commission's failure to make a specific factual finding that Atkinson's accident arose out of his employment does not hamper its ultimate conclusion. "The Industrial Commission does not need to 'make detailed findings on every fragment of evidence presented to it.' ... [but only] findings sufficient to enable meaningful appellate review." Stoddard v. Hagadone Corp ., 147 Idaho 186, 190, 207 P.3d 162, 166 (2009) (quoting Davaz v. Priest River Glass Co ., 125 Idaho 333, 338, 870 P.2d 1292, 1297 (1994) ). Thus, "[i]t is not required to make a specific finding with regard to every fact; rather, a finding is only necessary for those facts which support the award." Zapata v. J.R. Simplot Co ., 132 Idaho 513, 515, 975 P.2d 1178, 1180 (1999).

The Commission made several findings that pertain to the connection between Atkinson's employment and the accident that caused his injuries. Findings 6-9 describe that Atkinson had to staff 2M's Meridian office once every five Saturdays from 8:00 a.m. to 12:00 p.m.; that Atkinson was working on March 11, 2017; and that Atkinson was traveling to 2M's office at the time of the accident that caused his injuries. We hold that this is sufficient evidence the Commission appropriately relied on to conclude that Atkinson's March 11, 2017, accident arose out of his employment with 2M. See id .

2M also contends that Atkinson's accident did not arise out of his employment because "the risk that caused his accident was one common to the traveling public...." However, this Court has specifically overruled the need to prove that a claimant's employment exposed him to a greater risk of injury. See Vawter v. United Parcel Service, Inc ., 155 Idaho 903, 908, 318 P.3d 893, 898 (2014). Further, 2M's argument analyzes the "arose out of employment" requirement in the context of this Court's application of the peculiar risk exception to the going and coming rule. The Commission did not address the peculiar risk exception, and there is no requirement that some heightened risk be linked to an employee's work for the injury to arise out of his employment. Instead, for Atkinson's injury to arise out of his employment with 2M, there must be a causal connection between him going to work, and being hit by another vehicle while on his way to work. We find that such a connection exists here and the Commission correctly concluded that Atkinson's accident arose out of and in the course of his employment with 2M.

C. We decline to award Atkinson attorney fees on appeal.

Atkinson requests attorney fees under Idaho Code section 72-804, arguing that 2M has merely asked this Court to reweigh the evidence considered by the Commission. Idaho Code section 72-804 allows a party to recover attorney fees if "the employer or his surety contested a claim for compensation made by an injured employee ... without reasonable ground...." I.C. § 72-804. Although Atkinson is the prevailing party, 2M has provided a reasonable argument on appeal. While we have affirmed the Commission's ultimate decision, we have agreed with 2M's arguments on the speculative nature of the Commission's reasoning in its application of Barker I . Accordingly, we decline to award Atkinson attorney fees on appeal.

VI. CONCLUSION

We affirm the Commission's determination that Atkinson's March 11, 2017, accident arose out of and in the course of his employment with 2M applying Hansen rather than Barker I . Costs on appeal to Atkinson.

Chief Justice BURDICK and Justices BRODY, STEGNER and HORTON concur.

      "The special errand exception is premised on the idea that an employee leaving his normal place of work to perform a special job for an employer is, nevertheless, still performing part of his normal job." Kelly , 159 Idaho at 328, 360 P.3d at 337 (quoting Finholt v. Cresto , 143 Idaho 894, 898, 155 P.3d 695, 699 (2007) ). The special errand exception has been held to apply when the employee demonstrates that, while not at his regular place of employment, he is performing some special service or errand incidental to the nature of his employment or under the direction of his employer. Id .

      The peculiar risk doctrine extends the course of employment where travel to and from work involves a "special exposure to a hazard or risk peculiarly associated with the employment" which is the cause of the injury. Trapp v.Sagle Volunteer Fire Dep't, 122 Idaho 655, 658, 837 P.2d 781, 784 (1992) (citing Clark v. Daniel Morine Const. Co. , 98 Idaho 114, 559 P.2d 293 (1977) ).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    IN RE: PREFILING ORDER DECLARING VEXATIOUS LITIGANT, PURSUANT TO I.C.A.R. 59.
    Ronald L. Van Hook, Vexatious Litigant-Appellant.
    Docket No. 45459
    Supreme Court of Idaho, Boise, December 2018 Term.
    Filed: January 29, 2019
    Ronald Van Hook, Payette, appellant pro se argued.
    Hon. Lawrence G. Wasden, Attorney General, Boise, for respondent. Nicholas A. Warden argued.
   PER CURIAM.

This appeal arises from an administrative order declaring Ronald Van Hook a vexatious litigant under Idaho Court Administrative Rule 59. Van Hook appealed. We now affirm, holding that there was no abuse of discretion when the administrative district judge found Van Hook to be a vexatious litigant.

I. FACTUAL AND PROCEDURAL BACKGROUND

This case began as a highly contentious divorce proceeding between Van Hook and his then-wife Dawn Cannon, in which Van Hook lost custody of his children (hereinafter the Canyon County divorce case). Van Hook was represented by legal counsel only for portions of the divorce proceeding as each of his attorneys withdrew from the case. Following each attorney's departure, Van Hook filed a new series of pro se motions and objections before the court. These motions were similar and repetitive. Van Hook filed numerous motions to amend the magistrate court's temporary custody and visitation orders, disqualify the magistrate judge assigned to the case, change venue, and find Cannon in criminal contempt. He also filed multiple petitions for a writ of habeas corpus. His pro se motions and petitions were continuously denied and largely found to be frivolous. When Van Hook appealed the Canyon County divorce case, the district court found Van Hook's motion to recuse the magistrate judge frivolous, and that his appeal was also without foundation.

In addition to the divorce proceeding, Van Hook commenced several other lawsuits against Cannon, or for custody between 2014 and 2017: five in Canyon County, one in Owyhee County, and one in Adams County. Ultimately, five of these cases resulted in dismissal or were denied outright-two of them on the same day they were filed. Another case granted Van Hook's petition seeking a writ of habeas corpus in Adam's County, and was later dismissed there. The seventh case was pending at the time of this appeal, and has since been dismissed.

On April 27, 2017, the magistrate court, acting in response to a motion filed by Cannon's attorney in the Canyon County divorce case, issued a written Order for Referral requesting that the administrative district judge of Idaho's Third Judicial District determine whether Van Hook should be declared a vexatious litigant pursuant to Idaho Court Administrative Rule 59. The administrative district judge then entered an order to open a new file concerning the matter.

On June 2, 2017, the administrative district judge filed a proposed prefiling order, to which Van Hook filed a response and opposition. Following a hearing, the administrative district judge issued an order on September 20, 2017, declaring that Van Hook was a vexatious litigant under multiple prongs of Idaho Court Administrative Rule 59(d) and requiring him to seek court permission prior to filing any new litigation in the courts pro se without first obtaining leave of a judge where the litigation is proposed to be filed. Van Hook appealed the order to this Court. We affirm the administrative district judge's determination.

II. STANDARD OF REVIEW

"A prefiling order entered by an administrative district judge designating a person as a vexatious litigant may be appealed to the Supreme Court by such person as a matter of right." I.C.A.R. 59(f). On review of the prefiling order, this Court applies an abuse of discretion standard. Telford v. Nye , 154 Idaho 606, 610, 301 P.3d 264, 268 (2013). The Court reviews an alleged abuse of discretion by determining whether the trial court "(1) perceived the issue as one of discretion, (2) acted within the outer boundaries of that discretion, (3) acted consistently with the legal standards applicable to the specific choices available to it, and (4) reached its decision by an exercise of reason." Lunneborg v. My Fun Life , 163 Idaho 856, 863, 421 P.3d 187, 195 (2018). In addition, this Court will not set aside factual findings unless clearly erroneous. Telford , 154 Idaho at 609, 301 P.3d at 267. Findings of fact are not clearly erroneous if they are supported by substantial and competent evidence. Hull v. Giesler , 163 Idaho 247, 409 P.3d 827, 830 (2018).

III. ANALYSIS

A. The administrative district judge did not abuse his discretion when he declared Van Hook a vexatious litigant pursuant to Idaho Court Administrative Rule 59(d).

While Van Hook's briefing can be difficult to follow, it appears that he is attacking the administrate district judge's analysis and final determination that Van Hook satisfied the criteria of a vexatious litigant under Idaho Court Administrative Rule 59. Essentially, Van Hook contends that the judge failed to act consistently with applicable legal standards. We affirm the prefiling order because the administrative district judge correctly applied the Rule 59 criteria in finding Van Hook a vexatious litigant. There was no abuse of discretion.

In order to determine whether a party is a vexatious litigant, a district judge or magistrate judge must refer the matter to an administrative district judge for consideration. I.C.A.R. 59(c). Idaho Court Administrative Rule 59(d) provides four separate bases upon which a person can be declared a vexatious litigant.

• First, a judge may find a person is a vexatious litigant where "the person has commenced, prosecuted or maintained pro se at least three litigations ... that have been finally determined adversely to that person" within the last seven years. I.C.A.R. 59(d)(1).
• Second, where "the person has repeatedly relitigated or attempted to relitigate, pro se," either the validity of the final determinations or "the cause of action, claim, controversy, or any of the issues of fact or law, determined or concluded by the final determination against the same defendant ... as to whom the litigation was finally determined." I.C.A.R. 59(d)(2).
• Third, where, "[i]n any litigation while acting pro se, [he] repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay." I.C.A.R. 59(d)(3).
• Fourth, where he has "previously been declared to be a vexatious litigant by any state or federal court of record in any action or proceeding." I.C.A.R. 59(d)(4).

If a pro se litigant meets one of these criteria, the administrative district judge has the discretion to find him a vexatious litigant. I.C.A.R. 59(d). Upon that finding, the administrative district judge may issue a prefiling order, which "prohibit[s] a vexatious litigant from filing any new litigation in the courts of this state pro se without first obtaining leave of a judge of the court where the litigation is proposed to be filed." I.C.A.R. 59(c).

1. Van Hook meets I.C.A.R. 59(d)(1) because he commenced more than three pro se litigations that were adversely determined against him.

The administrative district judge determined Van Hook met Rule 59(d)(1) because he filed more than three separate pro se lawsuits within the last seven years, each of which the courts dismissed and several of which Van Hook did not appeal. This number, the administrative district judge noted, was met even without considering the Canyon County divorce case which was pending at the time of the vexatious litigant decision because of its appeal to this Court. Van Hook contends that this determination was in error, arguing the lawsuits he filed were not final because the courts failed to meet the requirements of due process and equal protection. These constitutional violations occurred, he argues, because the judges assigned to the cases failed to grant his motions for the issuance of civil protection orders.

Idaho Court Administrative Rule 59(d)(2) permits the administrative district judge to find a person is a vexatious litigant where, "[i]n the immediately preceding seven-year period the person has commenced, prosecuted or maintained pro se at least three litigations, other than in the small claims department of the magistrate division, that have been finally determined adversely to that person." Rule 59 defines the term "litigation" as: "any civil action or proceeding, and includes any appeal from an administrative agency, any appeal from the small claims department of the magistrate division, any appeal from the magistrate division to the district court, and any appeal to the Supreme Court." I.C.A.R. 59(b).

In addition to the Canyon County divorce case against Cannon, Van Hook commenced seven other pro se lawsuits in the last four years across three counties. Each case was either a proceeding against Cannon or concerned custody of their children. As determined by the administrative district judge, at least five cases were determined adversely to Van Hook within the last four years because they were dismissed or denied outright. Three Canyon County cases were filed and dismissed in 2014, an Owyhee County case was filed and denied in 2015, and the 2017 Adams County case was also dismissed. Van Hook did not appeal these decisions, so they were final, adverse determinations against him. Van Hook's contentions over constitutional violations do not alter this conclusion. Rather, Van Hook should have raised his due process and equal protection concerns in the litigations where he alleges the violations occurred. Raising these issues for the first time on appeal in a vexatious litigant case bars them from consideration. Telford v. Nye , 154 Idaho 606, 611-12, 301 P.3d 264, 269-70 (2013) (citation omitted). Accordingly, the administrative district judge correctly applied the law when he determined that Van Hook commenced "at least three litigations ... that have been finally determined adversely to [him]" within the statutory timeframe. I.C.A.R. 59(d)(1).

2. Van Hook meets I.C.A.R. 59(d)(2) because he repeatedly attempted to relitigate the final divorce and custody determinations by the magistrate court.

Van Hook next contends that he was "persistent," but had reasonable grounds for each of his arguments. The administrative district judge disagreed, and found that most of Van Hook's motions and filings constituted collateral attacks on the magistrate court's final custody and divorce determinations in the Canyon County divorce case.

Idaho Court Administrative Rule 59(d)(2) permits the administrative district judge to find a vexatious litigant where:

After a litigation has been finally determined against the person, the person has repeatedly relitigated or attempted to relitigate, pro se, either (A) the validity of the determination against the same defendant or defendants as to whom the litigation was finally determined or (B) the cause of action, claim, controversy, or any of the issues of fact or law, determined or concluded by the final determination against the same defendant or defendants as to whom the litigation was finally determined.

Van Hook's separate lawsuits effectively sought to re-litigate the magistrate court's final orders by seeking to change the custody arrangements. Every motion or complaint filed by Van Hook concerned the custody of his children and divorce from Cannon, with Van Hook consistently trying to reacquire the custody rights he lost. For example, Van Hook repeatedly filed motions to amend the custody and restraining orders to gain access to his children. Similarly, a writ of habeas corpus, or a writ of mandamus, would have reversed the magistrate court's final orders by ordering Cannon to surrender the children to Van Hook's custody. Essentially, Van Hook sought the same relief before multiple courts and through a variety of legal avenues, as attempts to repeatedly re-litigate the final custody decree. Therefore, the administrative district judge correctly applied the law when he determined that Van Hook qualifies as a vexatious litigant under Idaho Court Administrative Rule 59(d)(2) as well.

3. Van Hook meets I.C.A.R. 59(d)(3) because he repeatedly filed frivolous motions and pleadings.

Van Hook next contends he had reasonable grounds for his arguments, even though the administrative district judge found Van Hook's pro se motions unmeritorious and frivolous. Idaho Court Administrative Rule 59(d)(3) permits the administrative district judge to find a vexatious litigant where the petitioner, "In any litigation while acting pro se, repeatedly files unmeritorious motions, pleadings, or other papers, conducts unnecessary discovery, or engages in other tactics that are frivolous or solely intended to cause unnecessary delay."

Van Hook's defense of reasonable grounds contrasts starkly with his numerous similar filings, as well as his use of repetitive, unfounded arguments. For example, in the Canyon County divorce case Van Hook filed four motions to recuse, disqualify, or dismiss the magistrate judge, each filed soon after the previous motion failed. He also filed a new series of pro se motions after each of his attorneys withdrew from the case, in an attempt to change the venue, amend the custody orders, and find Cannon in criminal contempt. These were all dismissed and found frivolous. Likewise, Van Hook's appeal to recuse the magistrate judge was also held to be frivolous. These continuous, similar motions and filings indicate Van Hook wanted to repeatedly pursue each issue until he won. Moreover, these numerous unmeritorious filings caused unnecessary delay to the court and parties. Therefore, the administrative district judge correctly applied the law when he determined that Van Hook also qualifies as a vexatious litigant under Idaho Court Administrative Rule 59(d)(3).

B. The magistrate court had jurisdiction to refer the consideration of whether Van Hook was a vexatious litigant to an administrative district judge.

Van Hook argues that the magistrate court lacked jurisdiction to refer the vexatious litigant consideration to an administrative district judge because Van Hook appealed the magistrate's custody determinations in the Canyon County divorce case to the Idaho Supreme Court. He filed a notice of appeal to the Supreme Court on April 3, 2017, while the magistrate issued the Order for Referral on April 27, 2017-24 days later. Because Idaho Appellate Rule 13 automatically stays civil actions upon the filing of a notice of appeal, Van Hook argues the magistrate lacked jurisdiction to make the referral while his appeal was pending. We disagree.

In determining whether a party is a vexatious litigant, a district judge or magistrate judge first refers the matter to an administrative district judge for consideration. I.C.A.R. 59(c). Rule 59 requires the administrative district judge to do a thorough examination of all the pro se litigant's litigations and conduct within those litigations. See generally I.C.A.R. 59.

Van Hook's appeal did not prevent the magistrate court from referring the matter to the administrative district judge, because a new case needed to be opened. Telford , 154 Idaho at 610, 301 P.3d at 268. When he received the referral in this case, the administrative district judge created a separate case, designated as CV-2017-3444. While the referral initially arose out of the Canyon County divorce case, Rule 59 required the administrative district judge to examine Van Hook's multiple litigations filed across several counties and his conduct as a pro se litigant within those litigations to find Van Hook was a vexatious litigant. The administrative district judge's decision to separate the vexatious litigant issues from the Canyon County divorce case not only aided administrative efficiency by eliminating confusion with other pleadings, it protected Van Hook by keeping the vexatious litigant consideration from prejudicing his domestic relations proceedings. By sending the query to an administrative district judge, a new, neutral decision maker examined Van Hook's record and litigation history as a whole. Rule 59(f) even gave Van Hook the right to appeal directly to this Court from the administrative district judge's determination, to ensure his case received appellate review.

Ultimately, Rule 59(c) gave the magistrate court the authority to refer the vexatious litigant matter to the administrative district judge, so that this process could be separated from other proceedings. Van Hook's appeal of issues relating to a separate case file did not stay the Rule 59 proceedings. To hold otherwise would permit a vexatious litigant to dodge Rule 59 proceedings simply by filing frivolous appeals.

C. Van Hook's remaining arguments were not preserved for appeal, nor did they meet the requirements of Idaho Appellate Rule 35(a)(6).

Van Hook next proceeds to invoke the due process clauses of the Fifth and Fourteenth Amendments, the Fourteenth Amendment's Equal Protection Clause, and the Seventh Amendment of the U.S. Constitution because he did not receive a jury trial. He also argues that the District Court failed to speedily administer justice in February 2017, that the Idaho Court Administrative Rules are not laws and should not have been applied by the District Court, that the administrative district judge's statement of facts section constituted libel, and the final divorce and custody decrees were arbitrary and capricious. However, this Court "will not consider issues raised for the first time on appeal." Telford , 154 Idaho at 611-12, 301 P.3d at 269-70 (citation omitted). Having not raised these arguments with the administrative district judge, Van Hook cannot raise them for the first time on appeal before this Court. Likewise, the divorce decree and custody orders remain in a separate case file and are not before us. Therefore, we will not consider Van Hook's new arguments brought on appeal.

IV. CONCLUSION

In light of the foregoing, we affirm the prefiling order declaring Van Hook a vexatious litigant.


author: BRODY, Justice.

text:
    SCOUT, LLC, an Idaho Limited Liability Company, dba Double Tap Pub, Plaintiff-Appellant, v. TRUCK INSURANCE EXCHANGE, an Inter-Insurance Exchange Organized Under the Laws of the State of California, Defendant-Respondent, and Farmers Group, Inc., a California Corporation, Defendant.
    Docket No. 45349
    Supreme Court of Idaho, Boise, November 2018 Term.
    Filed: January 29, 2019
    Simmons Townsend, PLLC, Boise, for appellant. Chynna C. Simmons argued.
    Elam & Burke, P.A., Boise, for respondent. Jeffrey A. Thomson argued.
   BRODY, Justice.

This case stems from Truck Insurance's refusal to defend its insured, Scout, LLC, in a trademark infringement action brought over Scout's use of the trademark ROGUE in the advertisement of its restaurant, Gone Rogue Pub. Scout claims that its use of ROGUE constituted an advertising injury that was covered by the insurance it purchased from Truck Insurance. Truck Insurance does not dispute that ordinarily Scout's advertising injury would be covered and it would accordingly have a duty to defend, but contends that in this situation coverage was properly declined based on a prior publication exclusion found in the policy. The district court granted summary judgment to Truck Insurance after determining that a Facebook post of Scout's Gone Rogue Pub logo before insurance coverage began triggered the prior publication exclusion, thereby relieving Truck Insurance of the duty to defend Scout. Scout appeals the district court's decision granting Truck Insurance summary judgment. We affirm the judgment of the district court.

I. FACTUAL AND PROCEDURAL BACKGROUND

On October 1, 2012, Scout, an Idaho limited liability company, purchased Casa Del Sol , a downtown restaurant in Boise. The members of Scout decided to renovate the restaurant into a pub and brand it as Gone Rogue Pub . On October 10, Scout posted a public picture of the Gone Rogue logo on Facebook, accompanied by the words, "Here is our new logo! Signs are going up today and tomorrow! Hope everyone likes it! Let us know what you guys think!" In the same month, Scout registered Gone Rogue Pub as an assumed business name with the Idaho Secretary of State. No other advertising or logos were displayed until after November 7, 2012.

On November 7, 2012, Scout requested a commercial business insurance policy through Truck Insurance and a policy was issued by Farmers Insurance. Scout then began the process of opening Gone Rogue Pub: obtaining an alcohol license, hanging signs, and ordering merchandise and glassware emblazoned with the Gone Rogue Pub logo. Gone Rogue Pub officially opened sometime around November 21, 2012.

All was well with Gone Rogue Pub until the Oregon Brewing Company (OBC) noticed Gone Rogue's similarity to its federally registered ROGUE trademarks. In January 2013, OBC informed Gone Rogue that it believed Gone Rogue was infringing on five of its registered ROGUE trademarks, including use of the mark in connection with: (1) beer and ale; (2) restaurant, pub and catering services; (3) beverage glassware; (4) beer; and, (5) clothing. All registrations predated Gone Rogue's use by at least two years. For a year-and-a-half OBC attempted to negotiate a deal with Gone Rogue, but to no avail.

In October 2014, OBC filed suit against Scout, alleging in part that "[i]n October 2012, long after OBC's first use and registration of the mark ROGUE, [Gone Rogue Pub] commenced use of the mark ROGUE as the name of their restaurant and bar." OBC asserted six different claims against Scout: (1) trademark counterfeiting under the Lanham Act; (2) trademark infringement; (3) unfair competition and false designation of origin under the Lanham Act; (4) cyber-squatting under the Lanham Act; (5) unfair business practices under Idaho law; and, (5) common law trademark infringement. Exhibits were attached to the complaint featuring a host of screenshots from Scout's Facebook page showing Gone Rogue's marks. OBC sought injunctive relief, attorney fees and costs, and treble damages.

On December 3, 2013, Scout informed Truck Insurance of the OBC lawsuit and requested coordination for legal representation. Scout's liability policy included coverage for any " 'advertising injury' ... caused by an offense committed in the course of advertising your goods, products or services; but only if the offense was committed in the 'coverage territory' during the policy period." An advertising injury was defined as "[m]isappropriation of advertising ideas or style of doing business; or [i]nfringment of copyright, title or slogan." However, the policy was clear that Truck Insurance would "have no duty to defend the insured against any 'suit' seeking damages for ... 'advertising injury' " to which the insurance did not apply.

Truck Insurance took the position that Scout's claim was not covered under the liability policy because of an exclusionary provision in the policy that denied coverage for any " 'advertising injury' [a]rising out of oral or written publication of material whose first publication took place before the beginning of the policy period." The OBC complaint stated that the infringing activity began in October 2012-a month before Scout's liability coverage commenced-when Scout posted the Gone Rogue Pub logo on its Facebook page.

Not wanting to scuffle with OBC without assistance from Truck Insurance, Scout settled with OBC, agreeing to cease using ROGUE as a mark. Scout then rebranded "Gone Rogue Pub" as "Double-Tap Pub." A suit was thereafter brought by Scout against Truck Insurance alleging breach of contract, breach of the covenant of good faith and fair dealing, and bad faith failure to defend. After the parties conducted written discovery, Truck Insurance moved for summary judgment, arguing that there was no duty to defend, ergo no breach of contract. Scout countered with its own motion for summary judgment, contending that the prior publication exclusion was inapplicable to the OBC complaint, thus Truck Insurance breached its duty to defend Scout in the OBC suit.

The district court concluded that there was no duty to defend on Truck Insurance's part. A judgment was then entered dismissing Scout's claims with prejudice. Scout timely appealed the judgment. We affirm the judgment of the district court.

II. ISSUES ON APPEAL

A. Whether the district court properly granted summary judgment dismissing the breach of contract claims on its determination that no duty to defend existed because of the insurance contract's prior publication exclusion.
B. Whether the district court properly granted summary judgment dismissing the breach of implied covenant of good faith and fair dealing and bad faith claims on the grounds that there was no breach of contract.
C. Whether Scout is entitled to attorney fees on appeal under Idaho Code section 41-1839.

III. STANDARD OF REVIEW

When reviewing a grant of a motion for summary judgment, this Court applies the same standard used by the district court in ruling on the motion. Farm Bureau Inc. Co. of Idaho v. Kinsey , 149 Idaho 415, 418, 234 P.3d 739, 742 (2010). "Summary judgment is properly granted when 'the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.' " Id. ; see Idaho R. Civ. P. 56. This Court liberally construes all disputed facts and draws all reasonable inferences from the record in favor of the nonmoving party. Nettleton v. Canyon Outdoor Media, LLC , 163 Idaho 70, 72-73, 408 P.3d 68, 70-71 (2017). "The moving party carries the burden of proving the absence of a genuine issue of material fact." Id. at 73, 408 P.3d at 71. Each party's motion for summary judgment is evaluated on its own merits; the filing of cross-motions for summary judgment does not establish the absence of genuine issues of material fact, nor does it transform the trial court that hears the motions into the trier of fact. Id.

IV. ANALYSIS

A. A duty to defend was not triggered because the prior publication exclusion removed any liability from Truck Insurance.

The district court held that the prior publication exclusion in Truck Insurance's liability policy clearly and unambiguously excluded coverage for the allegations found in the OBC complaint when read broadly. The parties do not dispute that the allegations in the OBC complaint are advertising injuries covered by the business liability policy, but only dispute whether the prior publication exclusion allowed Truck Insurance to deny the duty to defend. The relevant portions of the insurance policy pertaining to coverage are as follows:

A. Coverages
1. Business Liability
a. We will pay those sums that the insured becomes legally obligated to pay as damages because of ... "advertising injury" to which this insurance applies. We have the right and duty to defend the insured against any "suit" seeking those damages. However, we will have no duty to defend the insured against any "suit" seeking damages for ... "advertising injury" to which this insurance does not apply.
...
b. This insurance applies:
(2) To:
(b) "Advertising injury" caused by an offense committed in the course of advertising your goods, products or services; but only if the offense was committed in the "coverage territory" during the policy period.
...
B. Exclusions
1. Applicable To Business Liability Coverage
This insurance does not apply to:
...
p. Personal Or Advertising Injury
"Personal injury" or "advertising injury":
...
(2) Arising out of oral or written publication of material whose first publication took place before the beginning of the policy period;
...
F. Liability And Medical Expenses Definitions
1. "Advertising injury" means injury arising out of one or more of the following offenses:
a. Oral or written publication of material that slanders or libels a person or organization or disparages a person's or organization's goods, products or services;
b. Oral or written publication of material that violates a person's right of privacy;
c. Misappropriation of advertising ideas or style of doing business; or
d. Infringement of copyright, title or slogan.

Scout raises multiple contentions regarding the applicability of the prior publication exclusion found in Truck Insurance's business liability policy. First, Scout argues that an insurer is not allowed to merely look to the four corners of a complaint to determine coverage, but must also look to facts known to it. Second, Scout argues that the prior publication exclusion was not applicable because it is an ambiguous provision. And third, Scout contends that even if the prior publication exclusion does apply, fresh wrongs alleged in the OBC complaint that do not arise out of the supposed pre-coverage advertisement trigger Truck Insurance's duty to defend. None of these three theories is correct.

i. The Four Corners Rule relieved Truck Insurance's duty to defend.

This district court determined that when reading the OBC complaint broadly, in conjunction with the business liability policy, there was no duty on the part of Truck Insurance to defend Scout. The district court limited its review to the allegations found in the OBC complaint. However, Scout contends that the duty to defend requires an insurer to also use the facts known to it in making a determination rather than relying solely on a third party complaint. However, even if we adopted Scout's interpretation of the Four Corners Rule, the district court also found that extrinsic facts, if considered, would still trigger the prior publication exclusion and relieve Truck Insurance's duty to defend.

"The duty to defend and duty to indemnify are separate, independent duties." Deluna v. State Farm Fire and Cas. Co. , 149 Idaho 81, 85, 233 P.3d 12, 16 (2008). The duty of an insurer to defend its insured is much broader than its duty to indemnify and "arises upon the filing of a complaint whose allegations, in whole or in part, read broadly, reveal a potential for liability that would be covered by the insured's policy." Hoyle v. Utica Mut. Ins. Co. , 137 Idaho 367, 371-72, 48 P.3d 1256, 1260-61 (2002). "Where there is doubt as to whether a theory of recovery within the policy coverage has been pled in the underlying complaint, the insurer must defend regardless of possible defenses arising under the policy or potential defenses arising under substantive law governing the claim against the insured." Construction Mgmt. Sys., Inc. v. Assurance Co. of America , 135 Idaho 680, 682-83, 23 P.3d 142, 144-45 (2001). So long as there exists a genuine dispute over facts bearing on coverage under the policy or over the application of the policy's language to the facts, the insurer has a duty to defend. Id. at 683, 23 P.3d at 145.

An insurer that believes it has no duty to defend an insured in a matter may seek declaratory relief, or it may "evaluate the claims and determine whether an arguable potential exists for a claim covered by the policy." Kootenai Cnty. v. Western Cas. and Sur. Co. , 113 Idaho 908, 910-11, 750 P.2d 87, 99-100 (1988) (citing State of Idaho v. Bunker Hill Co. , 647 F.Supp. 1064, 1068 (D. Idaho 1986) ). If a complaint discloses no possibility of coverage, the insurer may properly decline to defend against it. Cnty. of Boise v. Idaho Cntys. Risk Mgmt. Program, Underwriters , 151 Idaho 901, 904, 265 P.3d 514, 517 (2011). In making a determination of coverage, "an insurer does not have to look beyond the words of the complaint to determine if a possibility of coverage exists." AMCO Ins. Co. v. Tri-Spur Inv. Co. , 140 Idaho 733, 738, 101 P.3d 226, 231 (2004) (citing Hoyle , 137 Idaho at 373-74, 48 P.3d at 1256 ). If an exclusion in a business liability policy clearly and unambiguously excludes certain injuries, an insurer's duty to defend is not triggered. Construction Mgmt. , 135 Idaho at 682, 23 P.3d at 146. However, an insurer "acts at its own peril if it chooses not to defend a case and it is later determined that the insurance company did, in fact, have such a responsibility." Hoyle , 137 Idaho at 371, 48 P.3d at 1260.

In this case, the district court held that "the duty to defend is framed solely by the allegations of the underlying complaint." Truck Insurance denied coverage after reviewing the four corners of the OBC complaint. Because the OBC complaint alleged that "[i]n October 2012" Scout began using the ROGUE mark and included exhibits showing such use, any injury arising from that use would properly be excluded from coverage. Scout, however, disputes that use of ROGUE in connection with a restaurant and bar began in October 2012, but rather began only after the coverage period began because it was not yet in business in October. Truck Insurance is alleged to have known these facts because of the documents it had in its possession regarding business permits Scout provided it. This dispute in the facts of the complaint, Scout argues, creates a genuine dispute over the facts bearing on coverage, thereby creating a duty to defend. We disagree.

This Court has consistently held that insurers need only look at the complaint and read it broadly in order to determine if coverage exists. See, e.g., Cnty. of Boise , 151 Idaho at 904, 265 P.3d at 517 ; Deluna , 149 Idaho at 84, 233 P.3d at 15 ; AMCO , 140 Idaho at 738, 101 P.3d at 231 ; Kootenai Cnty. , 113 Idaho at 911, 750 P.2d at 90. The safeguard of requiring an insurer to defend when faced with genuine disputes of facts relating to coverage negates any need to adopt additional broad rules for initial determinations of a duty to defend. Simply put, under existing Idaho case law, if there is any question as to coverage when broadly reading the four corners of a complaint, an insurer must defend. However, if there is no possibility of coverage, an insurer has no duty to defend.

In this case, when reading the OBC complaint broadly, it is clear that there is no coverage and thus no duty to defend exists. The OBC complaint alleged that the use of the mark ROGUE began in October 2012, a month before Truck Insurance began providing insurance coverage. The applicable provision in the insurance policy excludes any advertising injury that arose out of any written material first published prior to the beginning of the policy period. Because OBC alleged that the mark ROGUE was first published before Truck Insurance's policy was issued and it was supported by an exhibit showing said use, the prior publication exclusion excluded coverage and Truck Insurance had no duty to defend. Additionally, even if evidence that Scout was not in business at the time of the first publication is considered, Truck Insurance would still be relieved of its duty to defend because of the prior publication exception, as will be explained below.

ii. The prior publication exclusion is not ambiguous.

The district court held that the prior publication exclusion was not ambiguous, rejecting Scout's argument that a prior publication must be independently "injurious." Scout argues that the district court erred because the prior publication exclusion is ambiguous as evidenced by an absence of settled legal meaning and because it is not clear whether the October Facebook post of the ROGUE mark was a "prior publication." Truck Insurance responds that a split of authority does not necessarily create an ambiguity, and the Facebook post was a prior publication under the policy because use of the ROGUE mark was a continuing infringement throughout pre- and post-insurance coverage.

"Whether an insurance policy is ambiguous is a question of law over which this Court exercises free review." Armstrong v. Farmers Ins. Co. of Idaho , 147 Idaho 67, 69, 205 P.3d 1203, 1205 (2009). To determine if an insurance policy is ambiguous, the general rules of contract law are applied subject to certain special canons of construction. Id. These rules include looking at the plain language of the policy and reading the provisions within the context in which they occur in the policy. Purvis v. Progressive Cas. Ins. Co. , 142 Idaho 213, 216, 127 P.3d 116, 119 (2005). Additionally, "[u]nless contrary intent is shown, common, non-technical words are given the meaning applied by laymen in daily usage-as opposed to the meaning derived from legal usage-in order to effectuate the intent of the parties." Howard v. Oregon Mut. Ins. Co. , 137 Idaho 214, 218, 46 P.3d 510, 514 (2002). "Where policy language is found to be unambiguous, the Court is to construe the policy as written, and the Court by construction cannot create a liability not assumed by the insurer nor make a new contract for the parties, or one different from that plainly intended, nor add words to the contract of insurance to either create or avoid liability." Purvis , 142 Idaho at 216, 127 P.3d at 119.

In contrast, a provision may be found to be ambiguous when it is reasonably subject to conflicting interpretations. Id. The burden is properly on the insurer to use clear and precise language if it desires to restrict the scope of its coverage. Moss v. Mid-America Fire and MarineInc. Co. , 103 Idaho 298, 300, 647 P.2d 754, 756 (1982). If a policy term or provision is ambiguous, this Court construes it liberally in favor of recovery, with all ambiguities being resolved against the insurer. AMCO , 140 Idaho at 739, 101 P.3d at 232. Ambiguities are resolved against the insurer because "insurance policies are contracts of adhesion, not subject to negotiation between the parties." Moss , 103 Idaho at 300, 647 P.2d at 756.

Scout argues that the prior publication exclusion's use of the term "arising out of" is ambiguous because some courts have interpreted this term to mean that a prior publication must cause an injury when initially published and/or cause the same or substantially similar injury as any later injuries. Truck Insurance disagrees and proposes that the prior publication exclusion only requires that similar material be published before coverage and does not need to be independently actionable or injurious.

The contractual provision excluding coverage for advertising injuries "[a]rising out of oral or written publication of material whose first publication took place before the beginning of the policy period," is unambiguous. "Arise" is defined as to "come into being; originate," or to "occur as a result of." Arise , MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY (11th ed. 2003). Use of the phrase "arising out of" generally "does not require a direct proximate causal connection but instead merely requires some causal relation or connection." 7 COUCH ON INS. § 101:52 (3rd ed. 2018). Plainly read, the exclusion clearly indicates that if an injury arises after coverage is purchased, it will not be covered if the material was published prior to coverage. The "arising out of" language necessitates a causal connection with the later advertising injury, but so long as that connection exists the prior publication exclusion excludes coverage. Thus, there is no prima facie ambiguity in the policy's provision.

Yet, Scout argues that the material first published needs to not only be causally connected, but that it must also be actionable in its own right to trigger the exclusion. The Seventh Circuit's interpretation of the prior publication exclusion in Capitol Indemnity Corporation v. Elston Self Service Wholesale Groceries, Inc. , is cited as authority for this proposition. 559 F.3d 616 (7th Cir. 2009) (applying Illinois law). In Capitol Indemnity , a distributor of wholesale merchandise sold genuine Newport cigarettes, among other things. Id. at 617. After purchasing a business liability policy, the distributor began selling counterfeit cigarettes in legitimate Newport cigarette packaging. Id. The distributor's insurer declined to provide coverage for a trademark infringement claim brought by the owners of Newport, because the insurer determined that the previous use of the Newport label triggered the prior publication exclusion. Id. at 619-20. The appellate court disagreed that the prior publication exclusion was triggered in this instance, holding that the prior use was not wrongful and therefore was not a 'material' publication:

We understand the term "material" in the exclusion to refer to "injurious" material. By its terms, the prior publication exclusion abrogates the insurer's duty to defend only where it can prove that the insured's prior publication of the same actionable, injurious material alleged in the underlying complaint occurred prior to the beginning of its policy. This interpretation is logical because the exclusion exists to prevent an insured from purchasing an insurance policy to cover liability for illegal acts which it had undertaken prior to purchasing the policy. Put another way, the purpose of the exclusion is to prevent an individual who has caused an injury from buying insurance so that he can continue his injurious behavior.
We do not see any ambiguity in the meaning of the exclusion; it seems clear that the exclusion only abrogates the duty to defend where the insured's first publication of actionable material occurred prior to the beginning of its policy.

Id. at 620. Thus, Scout urges this Court adopt the view that the prior publication exclusion is triggered only when prior published material is independently actionable or injurious. See also Street Surfing, LLC v. Great Am. E & S Ins. Co. , 776 F.3d 603, 610 (9th Cir. 2014) (applying California law) ("In the context of advertising injury coverage, an allegedly wrongful advertisement published before the coverage period triggers application of the prior publication doctrine.").

Rather than the "actionable or injurious" theory, Truck Insurance urges this court to adopt the "landmark" approach to the prior publication doctrine. Under the landmark view, "[t]he relevant question for the exclusion ... is not when the claim first became actionable, but when the material giving rise to the claims was first published." Matagorda Ventures, Inc. v. Travelers Lloyds Ins. Co. , 203 F.Supp.2d 704 (S.D. Tex. 2000) (applying Texas law). The Matagorda court was faced with the applicability of a similar prior publication exclusion for a wristwatch website that was allegedly infringing on a watchmaker's copyright. Id. at 715-16. In holding that the prior publication exclusion excluded coverage, the court stated that "[o]ne purpose of the exclusion is to prevent all insured from obtaining coverage for risks already known to the insured ... 'An insured cannot insure against something that has already begun and which is known to have begun.' " Id . at 716. Thus, under the landmark view, "the 'first publication' date is a landmark: if the injurious advertisement was 'first published' before the policy began, then coverage for the 'advertising injury' is excluded." Applied Bolting Tech. Prod., Inc. v. U.S. Fid. & Guar. Co. , 942 F.Supp. 1029 (E.D. PA 1996).

We agree with the district court that the landmark view ought to be utilized in this case. The independently actionable theory used in Capitol Indemnity is confined to the unique facts in that case. There, the court understood the term "material" to mean "injurious material" so that the insurer could not use the pre-coverage sale of genuine Newport cigarettes as a basis for an exclusion of post-coverage sales of counterfeit cigarettes in the same genuine packaging. Capitol Indemnity , 559 F.3d at 620. The Capitol Indemnity court recognized the lack of a causal connection between the pre- and post-coverage activities of the wholesale cigarette distributer. However, no such facts exist in the present case that requires use of the unique independently actionable theory. Therefore, the landmark view will be employed.

In this case, Scout published a Gone Rogue logo on its Facebook page a month before purchasing business liability coverage. The screenshot, found in the exhibits of the OBC complaint, features the Facebook page "Gone Rogue Pub." However, Scout claims that the page was entitled Casa del Sol until it was changed to Gone Rogue Pub after purchasing liability insurance. The logo in the October-posting only features the words GONE ROGUE, and does not contain the additional word PUB as all Scout's other logos feature after purchasing insurance. The posting is accompanied by Scout stating that it is "our new logo," and a user comment states, "all you need is your very own 'Gone Rogue' house brew."

The October-posting of the logo was similar in every way to the later logos but for the PUB addition. It was apparent that the logo was for a new restaurant because Casa del Sol , the prior place of business, was a restaurant in downtown Boise, and because Gone Rogue was featured in an online article as a pub. Additionally, at least one commenter on the Facebook page understood the posting to be for a bar, as evidenced by his suggestion of Gone Rogue creating its own house brew. The owner of the trademark, OBC, even considered the October posting injurious when it alleged that the infringement of its registered trademark ROGUE began in October 2012. The October posting was the landmark for Scout's continuing acts that ultimately resulted in an infringement suit. Because of this landmark, Truck Insurance had no duty to defend Scout because any advertising injury that occurred after the October publication was excluded from coverage due to the prior publication exclusion.

iii. The post-coverage advertisements were not fresh wrongs.

Scout argues that even if the October posting is considered a prior publication under the policy, Truck Insurance nevertheless had a duty to defend Scout in the OBC action because certain allegations in the complaint-namely cybersquatting under the Lanham Act and trademark infringement for glassware, clothing, beer and ale-constitute distinct, fresh wrongs that are covered by the policy and not excluded under the prior publication exclusion. The district court determined that Scout's post-insurance uses of the ROGUE mark were not fresh wrongs that triggered Truck Insurance's duty to defend because use of the mark originated with the October posting and was continuous therefrom.

Various courts have held that post-coverage advertisements that are sufficiently distinct from pre-coverage advertisements constitute "fresh wrongs" that trigger an insurer's duty to defend, regardless of other advertisements excluded under a prior publication exclusion. An example of an application of the fresh wrong approach is found in Street Surfing, LLC v. Great American E & S Ins. Co. , 776 F.3d 603 (9th Cir. 2014) (applying California law). The company Street Surfing began selling skateboards using its company name in violation of the owner's registered trademark "Streetsurfer." Id. at 605-06. After obtaining a business liability policy, Street Surfing began also selling skateboard accessories with its company name. Id. After the inevitable trademark infringement action was brought, Street Surfer's insurer refused to defend the suit because of a prior publication exclusion found in its policy. Id. at 606-07. Street Surfer sued its insurer, arguing that even if the initial infringement actions were excluded under the prior publication exclusion, the trademark infringement allegations arising from the sale of skateboard accessories were fresh wrongs that triggered the insurer's duty to defend. Id. at 612. The court held that the difference in products was not material in determining a fresh wrong (i.e., skateboards v. skateboard accessories), "because the alleged wrong arose out of each term's similarity" to the advertising idea. Id. at 614. Therefore, to assess substantial similarity, courts should not consider all differences between pre- and post-coverage publications, but should instead focus on the relationship between the alleged wrongful acts manifested by the publications. Id. at 613-14.

Another fitting example of "fresh wrongs" is found in a Third Circuit opinion centering on trademark infringement. Hanover Ins. Co. v. Urban Outfitters, Inc. , 806 F.3d 761 (3rd Cir. 2014) (applying Pennsylvania law). In Hanover , the court had to decide if an insurer had a duty to defend under a policy with a similar prior publication exclusion in a suit brought by Navajo Nation against a clothing outfitter for trademark infringement. Id. at 763-66. Looking strictly at the four corners of the complaint, the court decided that the alleged post-coverage infringement did not allege any fresh wrongs-fresh wrongs being defined as allegations in a complaint that allege a substantive difference between allegedly infringing advertisements, published before and during the relevant policy period. Id. at 768-69. The Hanover court listed several factors to assist in determining fresh wrongs: (1) "whether the plaintiff charged the insured with separate torts or an agglomeration;" (2) "whether the complaint describes a significant lull between pre-and post-coverage advertising initiatives;" and, (3) "whether the advertisements share a common theme relating to the alleged violation." Id . at 768. Because the Navajo complaint alleged continuing torts sharing a common and thematically consistent theme occurring both before and during coverage dates that were accompanied with qualifiers denoting continuity, the prior publication exclusion applied, relieving the insurer from its duty to defend. Id. at 769-70.

A counter-example where fresh wrongs were found, thereby creating a duty to defend, centered upon the appropriation of a marketing idea involving a Chihuahua "with a spicy Mexican personality and an insatiable craving" for tacos. Taco Bell Corp. v. Continental Cas. Co. , 388 F.3d 1069, 1072 (7th Cir. 2004). Taco Bell allegedly misappropriated the Chihuahua idea from a marketer, who thereafter brought suit alleging both copyright infringement and Michigan common law misappropriation. Id. at 1073. Taco Bell's insurer refused to defend-pointing to its prior publication exclusion-because Taco Bell had run commercials both prior to and after coverage featuring the taco-loving Chihuahua. Id. The Seventh Circuit determined that the insurer had a duty to defend because the allegations in the complaint included the misappropriation of subordinate ideas as separate torts that occurred only after coverage began, even though some of the separate claims involved copyright infringement that continuously occurred before and after the insurer's coverage period. Id. at 1073-74. The court explained that the Chihuahua idea cannot be so broadly construed as to trigger the prior publication exclusion for all the claims found in the complaint:

At some point a difference between the republished version of an unlawful work and the original version would be so slight as to be immaterial. But that observation cannot save the insurer when the republication contains new matter that the plaintiff in the liability suit against the insured alleges as fresh wrongs. [The marketer's] complaint claims that Taco Bell stole the "basic idea" before October 7, 1997, and used it in its earliest commercials, which predated [the insurer's] coverage, but that it stole additional, subordinate but still protected, ideas as well and incorporated them into the later commercials ...
The misappropriator, or at least this alleged misappropriator, takes an idea; and the boundaries of an idea can be quite uncertain. If [the marketer's] idea of a "Psycho Chihuahua" advertising campaign is defined broadly enough, it encompasses all the subordinate ideas embodied in the later commercials. But this possibility is irrelevant. We repeat that the duty to defend is determined by what is charged in the complaint. [The marketer's] complaint charges the misappropriation of the subordinate ideas as separate torts, and those torts occurred during the period covered by [the insurer's] policy.

Id. at 1073-74 (emphasis added) (internal citations omitted). Fresh wrongs were found in the Taco Bell case because of allegations present in the complaint alleging the taking of additional material from the marketer and using it in commercials after the insurer's policy was in effect. Thus, allegations found within the four corners of a complaint alleging new injuries independent of prior injuries will trigger an insurer's duty to defend, regardless of other allegations in a complaint being excluded under a prior publication exclusion.

In the present case, Scout argues that the only allegation in the OBC complaint that could possibly be excluded by the prior publication exclusion is the alleged violation of OBC's ROGUE mark used in connection with restaurant, pub, and catering services. Therefore, argues Scout, the other allegations that allege trademark infringement in connection with goods such as beer and ale, beverage glassware, beer, and clothing, are fresh wrongs that triggered Truck Insurance's duty to defend. Likewise, Scout claims the allegation of cyber-squatting under the Lanham Act due to its creation of the Facebook page www.facebook.com/GoneRoguePub, cannot reasonably be interpreted to be connected with the October posting.

Analyzing this case using the three Hanover factors shows that no fresh wrongs are alleged in the OBC complaint. The Hanover factors look to the complaint to ascertain whether separate torts are alleged, whether the complaint describes a significant continuity, and whether a common theme is present. The first factor looks to the types of claims found in the complaint, whereas the second factor looks to the continuity of harm. While separate torts are alleged in the OBC complaint, each claim incorporates and re-alleges that "In October 2012, long after OBC's first use and registration of the mark ROGUE, Defendant's commenced use of the mark ROGUE as the name of their restaurant and bar." There are no allegations of new content being taken from OBC in these complaints as there were in Taco Bell , but it instead alleges a constant agglomeration of continuing harm stemming from the use of the ROGUE mark beginning a month before Scout's insurance coverage. Thus, the first and second factors suggest an absence of fresh wrongs.

The third factor, whether a common theme is present, demonstrates the absence of fresh wrongs. It is true that Scout was not alleged to yet be violating the ROGUE trademark in connection with glassware or clothing when it posted its October Facebook logo, but it was the use of the ROGUE mark that was alleged to be the common infringement across all products. Much like in Street Surfer , where placing a mark on different products post-coverage did not produce fresh wrongs, Scout placing the ROGUE mark on other products or on its Facebook page does not make the post-coverage wrongs "fresh." Advertising a logo featuring the word ROGUE in connection with a restaurant about to open and thereafter placing an almost identical logo featuring the word ROGUE on glassware, clothing, beer and ale, and Facebook creates substantially similar wrongs. Thus, the OBC complaint did not allege any fresh wrongs that triggered Truck Insurance's duty to defend.

B. There was no breach of the warranty of good faith and fair dealing or bad faith failure to defend because there was no coverage under the insurance policy.

The district court held that Truck Insurance did not have a contractual obligation to defend Scout in the underlying OBC complaint, and therefore could not have breached the warranty of good faith and fair dealing or bad faith failure to defend. We agree. If there is no coverage under an insurance contract, there can be no breach of the duty of good faith and fair dealing or liability for bad faith failure to defend.

C. Scout is not awarded attorney's fees and costs.

Scout's request for attorney's fees and costs under Idaho Code section 41-1839 is denied because it did not prevail.

V. CONCLUSION

In consideration of the foregoing, the judgment of the district court is affirmed. Costs on appeal are awarded to Truck Insurance.

Chief Justice BURDICK, Justices HORTON, BEVAN and STEGNER concur.