Continental Insurance Company v. Montana Bancsystem, Inc. Montana Bank of Red Lodge, N.A.

996 F.2d 1223 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel. CONTINENTAL INSURANCE COMPANY, Plaintiff-Appellant, v. MONTANA BANCSYSTEM, INC.; Montana Bank of Red Lodge, N.A., Defendants-Appellees. No. 91-36193. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 7, 1993. Decided June 17, 1993. Before: WRIGHT, FARRIS, and D.W. NELSON, Circuit Judges. 1 MEMORANDUM * 2 We understand but reject the bank's argument that Continental waived its right to rely on or is estopped from relying on a policy exclusion not explicitly mentioned in its initial summary judgment brief before the district court. Continental's pleadings were sufficient to put the Bank on notice of the defense. See Hydro Systems, Inc. v. Continental Ins. Co., 929 F.2d 472, 476 (9th Cir.1991). We nevertheless find that Continental had a duty to defend. 3 In Montana, the "duty to defend may be triggered by notification to the insured of facts asserted in the pleadings, discovery or final…