No. 89-562 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

ALLSTATE INSURANCE COMPANY, 

an Illinois Corporation, 

Plaintiff and Appellant, 

WILLIAM R. HANKINSON, LUKE 

HANKINSON, GERALD BAASCH, 

and GWEN GRENFELL, 

Defendants and Respondents. 

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APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable Jack L. Green, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Susan P. Roy, Garlington, Lohn & Robinson, Missoula, 

Montana 

For Respondent: 

Milton Datsopoulos and Darla J. Keck, Datsopoulos, 

MacDonald & Lind, Missoula, Montana 

Hugh Kidder, Attorney at Law, Missoula, Montana 

Submitted: May 15, 1990 

Decided: July 16, 1990 

Filed: 
Justice John Conway Harrison delivered the Opinion of the Court. 

Allstate Insurance Company appeals a decision in a declaratory 

action it filed to determine its duty to indemnify and defend Luke 

Hankinson for any claims arising out of an automobile accident in 

which Hankinson was at fault. The Fourth Judicial District Court, 

Missoula County, Montana, granted summary judgment in respondents' 

favor. We reverse and remand. 

Issues: 

1. Did the District Court err in concluding that Hankinson 

had the owner's permission by defining owner as any driver and by 

assuming facts not in the record? 

2. Is the word lfowner'sll ambiguous? 

3. Is Allstate entitled to summary judgment when the 

undisputed facts show that Cloninger controlled her son's use of 

the automobile and both the son and his friend, the driver at the 

time of the accident, knew that the driver did not have permission 

to drive the automobile? 

On July 30, 1988, Luke Hankinson, a minor, was driving a car 

when an accident occurred injuring Gerald Baasch and Gwen Grenfell. 

The car belonged to Kathy Cloninger who had given her son, Brian 

Young, permission to use the vehicle. Despite Ms. Cloninger's 

express instructions that no one but Brian was to drive the car, 

Brian gave Luke Hankinson permission to drive the car. It is 

undisputed that Luke Hankinson knew that he did not have Kathy 
Cloninger's permission to drive that vehicle. 

Luke Hankinson was an insured on William Hankinson's, Luke's 

father, Allstate automobile owner's liability insurance policy. 

Respondents sought coverage under William Hankinson's Allstate 

policy, specifically under the non-owned automobile provision which 

provided the following coverage: 

A non-owned auto used by you or a resident 

relative with the owner's permission[.] 

Allstate denied coverage because Luke Hankinson did not have Kathy 

Cloninger's permission to use the non-owned automobile. 

Relying on two Montana cases, the District Court found that 

Brian Young was an owner of the non-owned automobile for insurance 

coverage purposes. Since Brian gave Luke permission to drive, Luke 

drove the non-owned automobile with the owner's permission 

triggering coverage under Luke's father's Allstate policy. 

Did the District Court err in concluding that Hankinson had 

the owner's permission by defining owner as any driver and by 

assuming facts not in the record? 

Upon review, we find that 5 61-6-301, MCA (1989) (amended 

effective July 1, 1990), guides the proper resolution to this case. 

In pertinent part, 5 61-6-301, MCA, provides: 

(1) Every owner of a motor vehicle which is 

registered and operated in Montana by the 

owner or with his permission shall 

continuously provide insurance against loss 

resulting from liability imposed by law for 

bodily injury or death or damage to property 

suffered by any person caused by maintenance 

or use of a motor vehicle, as defined in 61- 
1-102, in an amount not less than that 

required by 61-6-103, or a certificate of 

self-insurance issued in accordance with 61- 

6-143. (Emphasis added.) 

The mandatory liability coverage statute compels a motor vehicle 

owner to provide continuous liability coverage for the use by the 

owner or with the owner's permission of any motor vehicle as 

defined in 5 61-1-102, MCA. Kathy Cloningerts automobile falls 

within 5 61-1-102's definition of a motor vehicle. Thus, under 

Montana's mandatory liability protection statutes, the only 

question regarding coverage under the Hankinson policy should be 

whether Luke's father gave him permission, either express or 

implied, to drive the Cloninger vehicle. 

The problem in this case arises because the Hankinson policy's 

non-owned automobile coverage conflicts with the mandatory coverage 

required by § 61-6-301, MCA. Section 61-6-301, MCA, refers to 

9 61-6-103 (2) which is the statute that draws in Hankinson's 

automobile owner's liability policy. The applicable section is 

$j 61-6-103(2), MCA (1989) (amended effective July 1, 1990), which 

states: 

2) Such owner's policy of liability insurance 

shall : 

(a) designate by explicit description or by 

appropriate reference all motor vehicles with 

respect to which coverage is thereby to be 

granted; and 

(b) insure the person named therein and any 

other person, as insured, using any such motor 

vehicle or motor vehicles with the express or 

implied permission of such named insured, 

against loss from the liability imposed by law 

for damages arising out of the ownership, 
maintenance, or use of such motor vehicle or 

motor vehicles within the United States of 

America or the Dominion of Canada, subject to 

limits exclusive of interest and costs, with 

respect to each such motor vehicle . . . 

The language "by appropriate reference1' found in 61-6- 

103(2)(a), MCA, refers to Hankinson's policy's non-owned vehicles 

provision which provides coverage for "[A] non-owned auto used by 

you or a resident relative with the owner's permission." In this 

case, the effect of the non-owned auto provisionls qualifying 

language ''with the owner's permission1' is to provide less than the 

minimum mandatory coverage required by § 61-6-301, MCA. 

Our prior decisions interpreting insurance policies in light 

of Montana's Mandatory Liability Protection Act establishes that 

when policy language excludes coverage otherwise statutorily 

mandated then that policy language is void as contrary to public 

policy. See, Horace Mann Ins. v. Hampton (1989), 235 Mont. 354, 

767 P.2d 343; Iowa Mutual Ins. Co. v. Davis (1988), 231 Mont. 166, 

752 P.2d 166. If Luke's father gave Luke permission to drive the 

non-owned vehicle, then 5 61-6-301, MCA, mandates coverage. 

However, under Hankinson's policy terms even if Luke's father gave 

permission, coverage is cut short if the non-owned vehicle's owner 

did not give permission. Such an exclusion is contrary to public 

policy. Thus, we hold that Hankinson's policy's non-owned 

automobile provision's qualifying language "with the owner's 

permission1' is void as contrary to the public policy established 

by Montana's Mandatory Liability Protection statutes. 
In summary, the key issue for this case is whether Luke's 

father gave him permission to drive the non-owned vehicle. 

However, that has not yet been addressed by the District Court. 

Because of our holding on this issue, we need not address the other 

issues raised. We reverse the District Court's granting of summary 

judgment and remand for proceedings consistent with this opinion. 

We concur: A 

~YP 

Chief Justic 

Justices 
Justice Fred J. Weber dissents as follows: 

I respectfully dissent from the majority opinion. The intent 

of the majority opinion is to require the following with regard to 

the insurance purchased by a father on his owned vehicle where he 

has named his son as an insured: Any motor vehicle driven by his 

son shall be covered by the father's insurance policy, even where 

the son was denied permission to drive the vehicle by its owner. 

While it may be commendable to require that every driver of a motor 

vehicle be covered by insurance, I am unable to find such 

requirements in the statutes. 

I will restate portions of the pertinent code sections. 

Section 61-6-301, MCA (1989), (amended effective July 1, 1990) , 

provides in part: 

(1) Every owner of a motor vehicle which is . . . operated in Montana by the owner or with his permission 

shall continuously provide insurance against loss . . . suffered by any person caused by maintenance or use of 

a motor vehicle, as defined in 61-1-102 . . . (Emphasis 

is supplied in majority opinion.) 

In pertinent part 9 61-1-102, MCA, provides: 

ItMotor vehiclett means every vehicle propelled by its own 

power and designed primarily to transport persons or 

property upon the highways of the state. . . . The term 

does not include a bicycle . . . 

The majority concludes that the Kathy Cloninger automobile falls 

within the definition of a motor vehicle as contained in 5 61-1- 

102, MCA. That section covers all automobiles, and of course does 

include the Cloninger vehicle. I find it misleading to suggest 

that section somehow assists in reaching a conclusion that the 

Cloninger vehicle comes within the definition of § 61-6-301, MCA, 
in such a manner that all that is left is to determine if the 

father gave his son permission to drive the Cloninger vehicle. Our 

problem is to determine if 5 61-6-301(1), MCA, requires coverage. 

In substance 5 61-6-301, MCA, requires the owner of a motor 

vehicle operated with his permission to provide insurance. Clearly 

that reference to providing insurance is a reference back to the 

owned motor vehicle. It also seems clear that the reference to 

insurance against loss caused by use of a motor vehicle is merely 

descriptive of the type of insurance which is required on the motor 

vehicle. I therefore conclude that 5 61-6-301, MCA, clearly 

requires every owner of a motor vehicle being operated in Montana 

with his permission to continuously provide insurance against loss 

resulting from use of the owned motor vehicle. I can find nothing 

in that section which applies to any vehicle other than the owned 

motor vehicle. I must dissent from the key conclusion of the 

majority opinion--that in some manner the foregoing statute compels 

an owner of a motor vehicle to provide continuous coverage for the 

use of anv motor vehicle which is used with the owner's permission. 

Having reached the foregoing conclusion, I of course cannot 

agree with the further conclusion that the policy as written 

violates the public policy of the statute so that the limitation 

of the use by Brian Hankinson of an automobile with his father's 

permission is void as contrary to public policy. 

I further note that the majority's interpretation does not 

consider statutory provisions such as 5 61-6-103, MCA (1989), 

(amended effective July 1, 1990) , which in pertinent part provides: 
(1) A "motor vehicle liability policy1' . . . shall mean 

an owner's . . . policy of liability insurance . . . 

(2) Such owner's policy of liability insurance shall: 

(a) designate by explicit description or by 

appropriate reference all motor vehicles with respect to 

which coverage is thereby to be granted; and 

(b) insure the person named therein and any other 

person, as insured, using any such motor vehicle or 

motor vehicles with the express or implied permission of 

such named insured . . . 

Clearly the foregoing section allows an owner to purchase insurance 

which designates which vehicles shall be covered by appropriate 

reference, and therefore allows the limitation contained in the 

present policy which grants coverage to motor vehicles driven by 

an insured used with the permission of the owner. Such a 

limitation seems completely consistent with 5 61-6-103, MCA. 

As suggested at the beginning of this dissent, it may be 

commendable to require insurance so that the driver of anv car is 

covered. Under the facts of this case, it is not proper for this 

Court to make such a change in the statutes. That change should 

be left to the legislature. 

I dissent**