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Vol. 8 - Issue10
November 20, 2019


Insurance Coverage For Pants Snug In The Waist






I don’t know what to make of some menus having calorie counts on them.  Of course it’s good information to have.  But man, if there was ever a time when ignorance is bliss.

For Roger Winkler, ignorance was bliss.  Then he became no longer ignorant.  And then he was no longer bliss.

Winkler, an accountant in Kalispell, Montana, was headed home from the office one night when a craving for Mexican food hit.  He stopped off at Big Sky Tacos.  Perusing the menu, Winkler came upon the restaurant’s 7 Layer Nachos, described as a heap of homemade tortilla chips topped with mounds of salsa, guacamole, cheese, sour cream, refried beans, tomatoes and chili peppers.    

Winkler, who considered himself fit and health conscious – 2-3 times a week at the gym – was curious about the calorie count for such gluttony.  The menu listed it as just 250.

Winkler could hardly believe his good fortune.  But the more he thought about it, it made sense, given that so many of the toppings were vegetables.  Winkler ordered the gargantuan platter and savored every chip.  In fact, Winkler was hooked and returned to Big Sky Tacos 14 times over the next month.  On each visit he indulged in the restaurant’s mammoth delight.

At this point Winkler noticed that his pants were beginning to feel snug in the waist.  It seemed curious since he was watching what he ate, as he always had, and making frequent visits to the gym.

On Winkler’s next visit to Big Sky Tacos he noticed that the menu listed the calorie count, for 7 Layer Nachos, as 2,500.  It was odd since he had previously seen the calories listed as 250.  He asked the manager about the discrepancy.  She replied that there had been a printing error on the menus.  She thought all of the incorrect menus had been taken out of circulation.  But she now knew that one had slipped by.  As the manager put it:  “Since this is a Mexican restaurant, I guess I should say que sera, sera.”

Winkler was none too pleased with the situation – both that he had been eating such a huge meal for a month and the manager’s flippant attitude about it.  Sorry Doris Day, Winkler said to himself.  It was not going to be que sera, sera.     

Winkler filed suit against Big Sky Tacos.  In his complaint, in Roger Winkler v. Big Sky Tacos, District Court of Montana, Flathead County, No. 18-1489, Winkler alleged that Big Sky Tacos misrepresented the calorie count of its 7 Layer Nachos.  He asserted claims for violation of all manner of Montana consumer protection statutes.  He sought statutory damages and attorney’s fees, as well as “consequential damages caused by weight gain.”

Big Sky Tacos tendered the Winkler complaint to its insurer – Treasure State Mutual Property and Casualty Company.  Treasure State disclaimed coverage, asserting that the damages being sought by Winkler were not because of “bodily injury,” “property damage” or “personal and advertising injury.”

Big Sky retained counsel and filed a motion to dismiss.  After that was denied, Big Sky, looking to avoid on-going defense costs, reached a settlement with Winkler for $2,500.  Outraged that Treasure State Mutual had denied coverage, especially since Treasure State had held its annual holiday party at Big Sky for the past two years, and gotten free jalapeno poppers, Big Sky filed suit against Treasure State Mutual, seeking recovery of its defense costs, the Winkler settlement payment and damages for bad faith.

Both sides filed motions for summary judgment.  In Big Sky Tacos v. Treasure State Mutual Property and Casualty Company, District Court of Montana, Flathead County, No. 19-9267, the court granted Big Sky’s motion in part and denied Treasure State Mutual’s. 

The court agreed with Treasure State Mutual that the damages being sought, for violation of the Montana consumer protection laws, were not because of “bodily injury,” “property damage” or “personal and advertising injury.”
However, the court concluded that a defense was owed to Big Sky Tacos on the basis that the Winkler suit sought damages because of “property damage.”  

The court explained its decision as follows:  “Plaintiff in the underlying suit alleged that he sustained ‘consequential damages caused by weight gain.’  Throughout the complaint, he alleged that his pants were snug in the waist on account of eating fourteen orders of 7 Layer Nachos in a one month period.  That’s 98 layers of nachos.  A reasonable reading of the complaint is that Plaintiff in the underlying action sustained ‘property damage’ because of his snug pants.  This qualifies as ‘property damage’ as the definition of that term includes “loss of use of property that has not been physically injured.”  Treasure State maintains that, because Plaintiff could still wear his trousers, he did not lose the use of them.  However, use of trousers reasonably means the use of them with a degree of comfort desired by the wearer.  On account of the actions of Big Sky Tacos, Mr. Winkler lost this ability.  He suffered a loss of use of his property.”

The court also denied both parties’ motion for summary judgment on bad faith, concluding that, based on the denial of coverage, fact issues remained on whether damages are warranted for Treasure State Mutual’s decision.     


That’s my time. I’m Randy Spencer. Contact Randy Spencer at

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