NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

WILLIAM DURBIN; CAROL DURBIN, 

Plaintiffs-Appellants, 

 v. 

MOUNTAIN WEST FARM BUREAU 

MUTUAL INSURANCE COMPANY, 

Defendant-Appellee.

No. 17-35740 

D.C. No. 9:16-cv-00040-DLC 

MEMORANDUM*

Appeal from the United States District Court

for the District of Montana

Dana L. Christensen, District Judge, Presiding

Submitted January 2, 2020**

Portland, Oregon

Before: WARDLAW and OWENS, Circuit Judges, and MÁRQUEZ,*** District 

Judge.

In their attempt to obtain third-party liability insurance payments under a 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2). This case is resubmitted as 

of January 2, 2020.

*** The Honorable Rosemary Márquez, United States District Judge for 

the District of Arizona, sitting by designation.

FILED

JAN 7 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

policy issued by Mountain West Farm Bureau Mutual Insurance Company 

(“Mountain West”), William and Carol Durbin appeal from the district court’s 

grant of summary judgment in favor of Mountain West and the court’s refusal to 

certify a question of state law to the Montana Supreme Court. We review de novo 

a district court’s decision to grant summary judgment. Folkens v. Wyland 

Worldwide, LLC, 882 F.3d 768, 773 (9th Cir. 2018). We review a district court’s 

refusal to certify a question of state law for abuse of discretion. Louie v. United 

States, 776 F.2d 819, 824 (9th Cir. 1985). As the parties are familiar with the 

facts, we do not recount them here. We affirm.

1. The district court properly determined that the Durbins cannot require 

Mountain West to “stack” liability coverage limits under the policy at issue in this 

case. The terms of Mountain West’s policy clearly state that “the most [Mountain 

West] will pay” as a result of “any one ‘accident’ is the Limit of Insurance for 

Liability Coverage shown in the Declarations.” That limit is $500,000, the same 

amount that Mountain West has already paid to the Durbins. If those terms are 

enforceable, then the policy clearly prohibits stacking. To the extent that the 

Durbins may have expected otherwise, that expectation was unreasonable. See 

Fisher v. State Farm Mut. Auto. Ins. Co., 305 P.3d 861, 867 (Mont. 2013) (holding 

that the reasonable expectations doctrine does not apply when a policy’s terms 

“clearly demonstrate an intent to exclude coverage”).
3 

These terms do not violate public policy and are therefore enforceable under 

Montana law. An insurance policy that provides illusory coverage—in other 

words, that “contains provisions that defeat coverage for which the insurer has 

received valuable consideration”—is against public policy, and the offending 

provisions are unenforceable. Hardy v. Progressive Specialty Ins. Co., 67 P.3d 

892, 899–900 (Mont. 2003). If a single insurance policy provides a person with 

multiple sets of first-party coverage that is “personal and portable,” then the person 

must be allowed to “stack” the limits of that coverage and receive a higher 

maximum payout. See Cross v. Warren, 435 P.3d 1202, 1208 (Mont. 2019) 

(collecting cases). However, coverage is “personal and portable” only if it protects

the insured person in “all circumstances.” Jacobson v. Implement Dealers Mut. 

Ins. Co., 640 P.2d 908, 912 (Mont. 1982). Third-party liability coverage is not 

portable under Montana law because such coverage “is not . . . portable and 

applicable in ‘all circumstances.’” Cross, 435 P.3d at 1208. Instead, such 

coverage applies only when the insured is operating a vehicle covered by that 

insurance. Id. Because the coverage applies only under specific circumstances, 

refusing to stack limits does not defeat coverage for which the insurer has received 

consideration. Id. at 1209–10.

That the Durbins received a full assignment of rights under the Mountain 

West policy is irrelevant. An assignment of rights does not make the liability 
4 

coverage “personal and portable” because the coverage still applies “only with 

respect to an accident arising out of the ownership, maintenance, or use of an auto 

or trailer.” Id. at 1208; see also id. at 1212 n.1 (McKinnon, J., concurring) 

(recognizing that liability coverage “does not become personal or portable through 

an assignment”). Even if the Durbins became insureds through the assignment of 

rights, their status as insureds does not allow them to stack liability coverage 

limits.

2 The decision whether to certify an issue to a state court of last resort 

“rests in the sound discretion of the federal court.” Lehman Bros. v. Schein, 416 

U.S. 386, 391 (1974). Even if state law is unclear, “resort to the certification 

process is not obligatory.” Riordan v. State Farm Mut. Auto. Ins. Co., 589 F.3d 

999, 1009 (9th Cir. 2009). Given the ample precedent describing when insurance 

coverage is “personal and portable” for purposes of stacking coverage limits, the 

district court did not abuse its discretion when it determined that it could apply 

existing law to the Durbins’ claims.1

AFFIRMED.

1 For similar reasons, the Durbins’ Motion for Certification to the 

Montana State Supreme Court, Dkt. 5, is denied.