IN THE SUPREME COURT OF THE STATE OF MONTANA 

No. 80-78 

STATE FARM MUTUAL AUTOMOBILE INSURANCE 

COMPANY, 

Defendant and Third-Party Plaintiff, 

CINDY J. SOLEM, 

Plaintiff and Appellant, 

HELEN G . BUCKINGHAM, 

Third-Party Defendant and Respondent. 

ORDER 

The above-captioned opinion shall be amended to 

read as follows: 

Page 5, lines 9, 10, 11, 12 and 13 from the 

top shall read: 

". . . 1810, mandated that result. But that 

case held only that impleading parties not 

sued by the plaintiff, for purposes of 

contribution, is not proper. This is a 

subrogation case based on contract, and 

Osier has no application." 

DATED this 3_td day of February, 1981. 

Justices ! ii; 
No. 80-78 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

STATE FARM MUTUAL AUTO!IIOBILE INSURANCE 

COMPANY, 

Defendant and Third-Party Plaintiff, 

CINDY J. SOLEM, 

Plaintiff and Appellant, 

vs. 

HELEN G. BUCKINGHAM, 

Third-Party Defendant and Respondent. 

Appeal from: District Court of the Eighth Judicial District, 

In and for the County of Missoula, Montana 

Honorable Jack L. Green, Judge presiding. 

Counsel of Record: 

For Appellant: 

Williams Law Firm, Missoula, Montana 

Berger, Anderson, Sinclair and Murphy, Billings, Montana 

For Respondent: 

Garlington, Lohn and Robinson, Missoula, Montana 

Submitted on briefs: July 11, 1980 

~ecided : JAN 2 8 1987 
Mr. Justice Daniel J. Shea delivered the Opinion of the Court. 

State Farm Mutual Automobile Insurance Company sued by 

its insured under an uninsured motorist provision, appeals 

from an order of the Missoula County District Court 

dismissing its third-party complaint which sought indemnity 

from the uninsured motorist for any liability the insurance 

company might be adjudged to owe the plaintiff. We hold 

that the District Court erred in not allowing State Farm to 

implead the third-party defendant. 

Cindy J. Solem as plaintiff filed a complaint against 

State Farm alleging that Solem was a passenger in a car 

driven by William J. Schultz which collided with a car 

driven by Helen G. Buckingham, an uninsured motorist. The 

complaint alleged that the negligence of the uninsured 

motorist was a proximate cause of the collision and of 

personal injury to Solem. It further alleged that both 

Solem and Schultz were insured at the time of the collision 

under separate policies of insurance with State Farm, each 

of which provided uninsured motorist coverage in the amount 

of $25,000/$50,000. Solem has filed suit under the 

uninsured motorist provisions of both policies and prays for 

judgment against State Farm in the amount of $50,000 or such 

lesser amount as a jury might determine. 

State Farm filed its answer to the complaint admitting 

that the collision occur red, but denying the negligence of 

the uninsured motorist. State Farm's answer raises as 

affirmative defenses: (1) that the suit against State Farm 

is premature unless it is first determined that the 

plaintiff is legally entitled to recover damages from the 

uninsured motorist, and (2) that the uninsured motorist is 

an indispensable party under Rule 19, M.R.Civ.P. 

State Farm then filed a third-party complaint naming 
Helen G. Buckingham as third-party defendant. The thirdparty complaint recites the fact that Solem has sued State 

Farm under the uninsured provisions of the policy and then 

alleges that Buckingham is the uninsured motorist involved 

in the collision mentioned in Solem's complaint. State Farm 

then seeks indemnity from Buckingham for "such sums as may 

be adjudged against it in favor of Cindy J. Solem, and for 

their costs." 

Buckingham moved to dismiss the third-party complaint 

against her on the grounds it failed to state a claim 

against her on which relief could be granted. Buckingham 

and State Farm filed briefs. The District Court originally 

denied the motion to dismiss, but then reversed itself and 

dismissed the claim against Buckingham. State Farm moved 

for reconsideration of the order of dismissal and, after 

argument, the District Court declined to change its 

decision. Plaintiff, Solem, has not submitted a brief with 

this Court in support of or in opposition to State Farm's 

appeal. 

The sole issue before us is whether an insurer, sued by 

its insured for recovery of uninsured motorist benefits may 

implead the uninsured motorist under Rule 14(a), M.R.Civ.P. 

If plaintiff establishes that Buckingham was negligent 

and caused the accident resulting in plaintiff's injuries, 

State Farm then is responsible under uninsured motorist 

coverage, to pay the amount of the judgment to the extent of 

the applicable coverage. Upon payment, State Farm would 

then be subrogated to the rights of plaintiff Solem and may 

seek to establish that amount from Buckingham. See, Skauge 

v. Mountain States Tel. & Tel. (1977), 172 Mont. 521, 565 

P.2d 628. We hold that State Farm doesn't have to wait 

until it pays a judgment obtained before it has a right to 
bring Buckingham into the lawsuit. Rule 14(a), M.R.Civ.P., 

expressly grants a defendant the procedural right to bring 

into the lawsuit as a third-party defendant, anyone who "may 

be" liable to him. This can be done under the principle of 

subrogation even if the liability of the third party is 

contingent and cannot be established until the original 

defendant has been held liable. 1A Barron and Holtzoff, 5 

426 at 664-73 (1960); 3 Moore's Federal Practice, 5 14.08, 

at 243-46; Moore's Federal Practice, S 14.10, at 281-88. 

Also see, Crosby v. Billings Deaconess Hospital (1967), 149 

Mont. 314, 426 P.2d 217 (holding that defendant should have 

been allowed to implead a third party under a theory of 

indemnity). Under a theory of subrogation to the insured's 

rights of recovery against the third party, federal courts 

have regularly permitted the insurer to implead that party 

as a third-party defendant. See, King v. State Farm Mutual 

Insurance Co. (W.D. Ark. 1967), 274 F.Supp. 824; St. Paul 

Fire & Marine Insurance Co. v. United States Lines Co. (2d 

Cir. 1958), 258 F.2d 374, cert. den. 359 U.S. 910, 79 S.Ct. 

587, 3 L.Ed.2d 574: Concordia College Corp. v. Great 

American Ins. Co. (D. Minn. 1953), 14 F.R.D. 403; Glen Falls 

Indemnity Co. v. Atlantic Bldg. Corp. (4th Cir. 1952), 199 

F.2d 60. 

In King v. State Farm Mutual Insurance Co., supra, the 

court specifically held that an insurer sued by its insured 

under an uninsured motorist provision, may bring the 

uninsured tortfeasor into the lawsuit. The court rejected 

the argument (which is the same argument Buckingham makes 

here) that the insurance company has no right of action 

until it has actually paid the judgment to its insured, and 

therefore that impleader of the uninsured motorist should 

not be permitted until payment is made. 274 F.Supp. at 826. 
We also reject this argument. 

We are persuaded that the better practice is to permit 

impleader in such practices, and therefore that the trial 

court erred in granting Buckingham's motion to dismiss. We 

find no authority supporting Buckingham's position, and we 

further note that the trial court granted the motion under 

the mistaken belief that Consolidated Freightways Corp. v. 

Osier (1979), Mont. , 605 P.2d 1076, 36 St.Rep. 

1810, mandated that result. But that case held only that 

there is no right of contribution or indemnity between joint 

tortfeasors - in pari delecto. 605 P.2d at 1081. Here, State 

Farm is not a tortfeasor and obviously isn't in - pari delicto 

with Buckingham: Solem's action against State Farm isn't a 

tort action; rather, it is a contract action. 

We hold that State Farm may implead Buckingham under a 

theory of contingent liability based on subrogation. 

Liberally allowing impleader of contingently liable parties 

is consistent with the underlying purposes of Rule 14. The 

rule is designed to reduce multiplicity of litigation by 

settling all disputes arising from one occurrence in one 

suit, to spare an unsuccessful defendant the burden of 

bearing a judgment against him while he brings suit against 

someone liable to him for plaintiff 's claim, to prevent 

inconsistent judgments on the same facts, and to settle the 

ultimate liability for a claim with a minimum of effort and 

expense. See, C. Wright and A. Miller, 6 Federal Practice 

and Procedure, .§ 1442 (1971); See also, Glen Falls Indemnity 

Co. v. Atlantic Building Corp., supra, 199 F.2d at 63; St. 

Paul Fire & Marine Insurance v. United States Lines Co., 

supra. There is no good reason to afford Buckingham the 

procedural protection of being able to postpone being sued 

until the action between Solem and State Farm is concluded. 
In fact, a contrary holding would not eliminate 

Buckingham from being at least indirectly involved in the 

suit between Solem and State Farm. Plaintiff Solem must 

establish that Buckingham negligently caused any inj ur ies 

she received and therefore, it is unlikely that Buckingham 

could avoid an appearance in court to testify. 

The order of the District Court dismissing the thirdparty complaint is vacated. The case is remanded with 

instructions that the District Court require Buckingham to 

answer State Farm's third-party complaint. 

F-1 

We Concur: 

ChieL Justice 

......................... Justices 

This case was submitted prior to January 5, 1981. 
Mr. Justice John C. Sheehy, specially concurring: 

I agree with the result reached in the foregoing 

opinion, which is the only proper result in the posture 

of the case as it is received from the District Court by 

this Court 

What puzzles me is the fact that the insured sued his 

insurer in the first instance by a direct action to establish 

liability against the uninsured motorist. I believe all 

insurance companies writing uninsured motorist coverage in 

this state use a common form for such coverage, last amended, 

I believe, in 1966. Under that common form, the insured 

injured motorist may, after notice to his insurance company, 

sue the responsible uninsured motorist to determine the extent 

of the uninsured motorist's legal liability, if they are not 

otherwise able to agree. Until the legal liability of the 

uninsured motorist is determined, which in turn determines 

the liability of the insurer, a direct action against the 

insurer, in my opinion, is premature. 

Suit first against the uninsured motorist would be in 

conformance with the long-established rule in Montana that a 

direct action against an insurer does not lie until the 

liability of the insured has been established, Conley v. 

U.S.F. & G. Co. (1934), 98 Mont. 31, 37 P.2d 565, Cummings v. 

Reins (1910), 40 Mont. 599, 107 P. 904, and our further 

long-standing rule that the injection of insurance into the 

action determining liability is improper. Vonault v. O'Rourke 

(1934), 97 Mont. 92, 33 P.2d 535. 

If plaintiff here had properly sued Buckingham to determine 

liability in the first place, the problem of this cause would 

not have arisen. 

Justice