No. 85-41 INTHE SUPREME COURT OF THE STATE OF MONTANA 1985

STACEY JOHUBBEL, Individuallyand as Guardianad Litemof BROOKE ANNE HUBBEL, etal., Plaintiffsand Respondents,

THE WESTERI? FIRE INSURANCE COMPANY and STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, Defendant and Appellant,

APPEAL FROM: DistrictCourtof the FourthJudicial District, Inand for theCountyof Ravalli, The HonorableJames B. Wheelis, Judge presiding.

COUNSEL OF RECORD:

For Appellant: WilliamsLawFirm; RichardRanneyargued, ?4issoula, Montana For Respondents: Recht & Greef; John D. Greef argued, Hamilton, Montana

Filed: Submitted: July 25, 1985 Decided: September 10, 1985 

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ClerkMr. Justice Frank B. Morrison, Jr., delivered the Opinion of the Court. State Farm Mutual Automobile Insurance Company (State Farm) appeals the November 23, 1984,opinion and order of the Fourth Judicial District Court holding that Stac~y JoHubbel, individually, as personal representative of her husband's estate and as guardian ad litem of their children, is entitled to recover damages from State Farm under an insurance policy's uninsuredmotoristprovisions. We reverse the order of the DistrictCourt. Ronald 

### L. Pearson and David Earl Hubbel were partners, doing business asAlpine Oil. They elected to be covered by Workers' Compensation Insurance. On April 12, 1983,while acting within the course and scope of their employment, Pearson and Hubbel were killed in an automobile accident. Pearsonwas driving. It is alleged that Pearson's negligence

was the sole cause of the accident. Workers' Compensation benefits were applied for and received by the heirs and/orpersonal representativesof the decedents. Thereafter, respondent,Stacey JoHubbel,brought

a declaratory judgment action againstWestern Fire Insurance, the insurer of two vehicles owned by Alpine Oil, and State Farm,the insurer of thevehicle involved in the fatal collision, claiming entitlement to uninsured motorist benefits from both companies. The insurance companies denied any obligation to respondent, claiming that neither of the two conditions for receiving uninsured motorist benefits exists. The parties briefed the issues. Thereafter, the trial judge determined that the two conditions were met and that respondent was entitled to receive the benefits. Western Fire Insurance has since settledwith respondent. StateFarm appeals,raising one issue:"Whether respondent is legally entitled to uninsured motorist benefits in addition to any Workers' Compensation benefits received when the decedent was fatally injured by a co-employee's negligent operation of amotor vehicle?" Ron Pearson was the owner and operator of the vehicle i-nvolvedin the fatal collision. He purchased a standard automobile insurance policy from State Farm to cover the vehicle. The policy provides for uninsured motorist coverage. The liability and the uninsured motorist coverage limitsare legally sufficient underMontana law. The uninsured motorist provisions 

### of the policy and Montana's uninsured motorist's statute, 5 33-23-201, MCA, base payment of uninsured motorist benefits on two conditions: (1) the claimant is legally entitled to recover damages from the owner or operator of the uninsured vehicle; and (2) the driver of the vehicle is uninsured. Oleson v. Farmers Insurance Group (1980),185Mont. 164, 166, 605 P.2d 166, 167. We find that neither of these conditionsexists. Therefore, respondent is not entitled to uninsured motorist benefits. I LEGAL ENTITLEMENTTO DAMAGES Section 39-71-411, MCA, provides that when an employer has elected to be covered under the Workers' Compensation Act, that Act provides the exclusive remedy available to employees for the negligent acts of their employer. Section 39-71-412,MCA, and Madison 

### v. Pierce (1970), 156Mont. 209, 212-216, 478 P.2d 860, 863-866,extend this exclusive remedy to recovery for injuries caused by the negligent acts of co-employees. In case of an employee's death, the Act also binds "his personal representative and allpersons having anyright or claim to compensation for his injury or death. 

# . .." Section 39-71-411, MCA. StaceyHubbel's exclusive remedy isthatprovided by the Workers' Compensation Act, so neither Ron Pearson nor his insurer is liable to respondent. Gray v. Margot Inc. (La.~pp.1981), 408 So.2d 436, 437

## - 438. Respondent has no

cause of action againstRon Pearson. Respondent therefore is not legally entitled to recover damages from Ron Pearson or Pearson's insurer. Carlislev. StateDepartment of Transportation and Development (La.App. 1981), 400 So.2d 284, 286. We approve the rationale on which theMichigan Court of Appeals reliedwhen resolvinga similarissue. In Hopkins v. Auto-Owners Insurance Company (Mich.App. 2972), 200 N.W.2d 784, an employee was injured as a result of the negligent driving of a co-employee who was alsoan uninsured motorist. The injured employee, despite conceding his inability to bring a direct action against the tortfeasor because of the exclusive remedy provisions of theWorkers' Compensation Act, sought redress from theuninsured motorist provisions of his employer's insurer. In affirming an arbitrator's denial of any liability on the part of the insurer, the court stated: "Because of the exclusiveness of the workman's compensation coverage, plaintiff never had a remedy against the tortfeasor. He was never entitled to damages from the negligent motorist. To hold otherwise would be to grant plaintiff a windfall not contemplated by the parties when they entered into their contract of insurance, and not intended by the Legislature in its enactments encouraging the utilization of uninsured motorist coverage [citationsomitted]

# ." Hopkins, 200 N.W. 2d at786. Finally, we find the trial judge's reliance on this Court's decision in Sullivanv. Doe (1972), 159Mont. 50, 495 P.2d 193, to be misplaced. In Sullivan, two co-employees

were injured asa result of a third party's negligence. The third party was neither their employer nor a co-employee.Therefore, the Workers1Compensation Act did not provide the exclusive remedy availabl-eto plaintiffs for their injuries. Plaintiffs could seek redress through the uninsured motorist provisions of their employer's insurancepolicy. I1 UNINSUREDMOTORIST The trial judge found Ron Pearson to be an uninsured motorist for two reasons. First,S 39-71-411, MCA, requires that respondent's exclusive remedy be the Workers1Compensation Act, so Pearson1sautomobile insurance is not applicable. Since the insurance is not applicable, Pearson was operatingan uninsured vehicle. Second,State Farm's refusal toprovide coverage under the "bodilyinjury"portions of its policy resulted in Pearson qualifying as an uninsured motorist. The trial judge's analysj-screates a "Catch-22" situation for the insurance company. First,the insurance policy is not applicable because of the exclusive remedy set forth in the Workers' Compensation Act. Therefore, the uninsured motorist provision of the policy comes into play, providing insurance coverage inviolation of § 39-71-411,MCA. Second, the insurance company1 s refusal to provide coverage because of the exclusive remedy provided by the Act triggers the uninsured motorist provisions, and respondent is once again entitled to a remedy other than thatprovided for in theAct. These resultsare contrary to the intentof the Legislature in creating the uninsured motorist provisions. This Court discussed two reasons for the provisions in Sullivan, supra. "Thebasic purpose of this statute is obvious

## - to provide protection for the automobile insurance policyholder against the risk of inadequate compensation for injuries 

### or death caused by the negligence of financially irresponsible motorists." Sullivan, 159 Mont. at 60,495 P.2d at 198.

### Pearson was not a financially irresponsible motorist. As discussed earlier,hewas covered by legally adequate automobile insurancepolicies. He was an insuredmotorist. "The legislative purpose behind the enactment of such statutory provisions on 'uninsured motorist' coverage is equally clear. It is simply to place the injured policyholder in the same position he would have been if the uninsured motorist had liability insurance.

# . .

# ." Sullivan,159Mont. at 60,495

### P.2d at 198. 

### A corollary to this principle is that uninsured motorist provisions should notbe used toplace an injured claimant in

a better position than he would be under the ordinaryprovisions of an existing insurancepolicy. As State Farm states

onpage ten of itsbrief, "[wlhether ornotHubbel can recover judgment for his damages against Pearson does not depend, and is not affected,by whether or not Pearsonhad liability insurance.

### " Rather, recovery by Hubbel from Pearson is dependent on,and denied by, the exclusive remedyprovisions of theWorkers' CompensationAct. Reversed and remanded for entry of an order consistent with the law set forth in this opinion.

We concur:

### Mr. JusticeJohn C. 

### Sheehy,dissenting:

I 

### dissent. I would affirm the District Court and.hold that plaintiffs are entitled to recover from State Farm Mutual Automobile Insurance Company under the uninsured motorist provisions of its policy issued to Ron Pearson. The majority opinion puts an exception in § 

### 33-23-201, MCA, the uninsured motorist coverage statute, that was not placed there by the legislature. The Court-made exception holds that employees in the course of their employment who

are injured or killed by the negligent acts of their co-employees have no right to claim uninsured motorist coverage benefits even under their own policies. The exception is all-inclusive: there could be no recovery from policies of insurance provided by the employer, the injured employee, nor the negligent co-employee. I do not accept thatholding. The public policy of this State is expressed in § 

### 33-23-201,MCA, stating: No automobile liability

# ..

# .policy 

# .

# . . shall be delivered 

# . . 

# . in this State, 

# . . . unless coverage is provided therein 

# . . . for the protection of persons insured thereunder who are legally entitled to recover damages from owners or operatorsof uninsured motor vehicles

# . .

# . Here the heirs ofDavid Hubbel are "legally"entitled to recover damages for their decedent against Ron Pearson's estate. Thiswas made clear in a recent case involving the same insurance company, State Farm Automobile Insurance Companyv. Baldwin (Ala. 1985), 470 So.2d 1230. The facts in Baldwin are right in line with the facts in this case. Baldwin, an army sergeant, was riding a motorcycle when a U.S. 

### government vehicle operated by White, a 

### civilian

### employee of U.S. Government, collided with Baldwin's motorcycle. All parties conced-ed that the accident was caused by White's negligence. Under the Federal Tort Claims Act, 28 U.S.C.A., S 

### 1346, as interpreted in Feres v. United States (1950), 340 U.S. 135, 71 

### S.Ct. 153, 95 L.Ed. 152, Baldwin cannot recover from either the United States of America or its employee-agent,Wh.ite. It is noteworthy that the situation of Baldwin is exactly the situation in the case at bar. In Baldwin, the plaintiff Baldwin could not recover from the government or its employee because of the Feres doctrine. In the case at bar, the heirs of Hubbel could not recover against his employer or his co-employee because of the exclusivity provisions in theWorkers' CompensationAct. The Baldwin court discussed what the words "legally entitled" meant in the Alabama uninsured motorist statute. It said: "One must, then, make a determination as to what the words, 'legally entitled to recover damages,' mean. They mean that the insured must be able to ---- 

### establish fault on the part 

### - of 

### - the uninsured motorist,which rise 

### -- to damages,and must be 

### --- able to prove the extent of those damages. In a. 

### -- direct action by the insured against the insurer, the insured had the burden of proving in this regard that the other motorist was uninsured, legally liable for damage to the insured, and the amount of this liability. Note that the insurer would have available, in addition to policy defenses, the substitute defenses that would have been available to the uninsured motorist 

# . . ." 4707 So.2d 1233. (Emphasisadded.) The 

### Alabama Supreme Court went on to note that State Farm wanted not only to use the substantive defenses available toWhite and the United States Government, but also to assert the immunity defense afforded by the Feres doctrine. The Alabama Court held that such application of the Feres doctrine to prevent the recovery of uninsuredmotorist benefits violated Alabama's legislativepolicy. It refused to allow State Farm to apply the Feres doctrine to avoid liability under the uninsured motorist coverage statute. We should reach the same resulthere. The only defenses available to State Farm which we should allow should relate to defenses as to legal liability on thepart of Pearson (for example comparative negligence) or policy defenses which relate to the coverage itself. Otherwise, the legislative policy declared in S: 33-23-201,MCA, is impaired. We noted in Sullivan v. Doe, relied on by the majority, that 

### "[tlhe majority of jurisdictions outside Montana declarevoid those clauses which purport to limit liability not expressly authorized by statute." 159 Mont. at 63, 495 P.2d at 200. Moreover, the majority members are uninstructed as to the underlying facts and the effect of the holding in Sullivan v. Doe. In that case,both Sullivan and Miller had recovered a judgment against John Doe, an unknown uninsured motorist. Sullivan and Miller were both policemen who were riding in a police car in Butte at the time of the incident. Sullivan was driving with Miller a passenger beside him in the front seat. Thepolice carwas owned and provided by the City of Butte which also carried an automobile insurance policy on the police car containing an uninsured motorist endorsement with Glacier General Insurance Company. In addition Sullivan carried his own policy with an uninsured motorist endorsement with Hartford Accident Indemnity Company. Miller carried a policy with an uninsured motorist endorsement with State Farm Mutual Automobile Insurance Company.

### When the case reached this Court on appeal, this Court determined that Sullivan, the driver of the automobile, was negligent as a matter of law, and therefore set aside his judgment against the unknownuninsured motorist. This Court, however, sustained the judgment that Miller had obtained, since as a passenger in the police car, the negligence of Sullivan in operating the police car was not imputed to Miller. In holding for Miller, this Court decided that the City of Butte's Glacier General insurance policy containing uninsured motorist coverage applied and that in addition Miller could recover fromhis own insurer,StateFarm Mutual, foran additionaluninsuredmotorist coveragebenefit. Thus, Miller was in exactly the same position that the heirs of Hubbel are in this case. Miller had been injuredby his co-employee, Sullivan, and Miller was held entitled to

recover uninsured motorist coverage benefits against the policy provided by his employer, the City of Butte. Miller also recovered Workers' Compensation benefits. Further Miller recovered from the insurer under his own policy for the legal liabilityof the unknown uninsured motorist. In Sullivan, both insurers Glacier General and State Farm contended that because Miller had recovered Workers' Compensation, they were entitled.to an offset to the extent of the Workers' Compensation that he ha.dreceived. This Court held that such a holding would reduce or limit his "eligible uninsured motorist coverage" by deduction of payments from other insurance which was adverse toMontana's uninsuredmotorist coverage law. Without stating so, the majority members have overruled Sullivan v. Doe, supra. They have ignored the legislativepolicy to provide uninsured motorist coverage,which we have heretofore strongly supported. Thebasic fault in the reasoning of themajoritymembers in this case is they have regarded the interpretationof the Workers' Compensation Act and the Uninsured Motorist Coverage Act from the viewpoint of the insurer, and not from the viewpoint of the claimant. To State FarmMutual, Pearson is not uninsured, because its policy does provide liability coverage to him. To the Hubbel claimants, however, Pearson is uninsured,because through 

### a legal technicality,much the

same as the Feres doctrine, the Hubbel heirs cannot obtain a judgment against Pearson which could be satisfied under the liability portion of the StateFarmPolicy. If StateFarm is caught in a Catch-22, the Hubbel heirs are caught in a Catch-44, 

### a doublewhammy. State Farmgets to keep themoney forwhich it collected apremium; theHubbel heirs do not get to collect anything under the uninsured motorist coverage. Thedistrict judgehere correctly decided to support the legislativepolicy of this State. 

### Iwould affirm the holding of the district judge.

Justice

Mr. Justice John Conway Harrison,dissenting: Iconcur in the dissent of Mr. Justice Sheehy.

F 

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Justice