No. 14574 

IN THE SUPREME COUHT OF THE STATE OF rnrnANA 

1979 

CONNIE J. VELTE et al. , 

Plaintiffs and Appellants, 

-VSALLsI'ATE INSURANCE COMPANY, 

Defendant and Respondent. 

Appeal from: District Court of the Thirteenth Judicial District, 

Honorable Charles Luedke, Judge presiding. 

Counsel of Record: 

For Appellants: 

Em J. Dolve, Jr., Billings, Wntana 

Calvin A.Calton, Billings, Wntana 

Rodd HamMn argued, Billings, mntana 

For Respondent: 

Anderson, Symnes, B-, Gerbase, Cebull & Jones, Billings, 

plbntana 

Richard F. Cebull, Billings, Wntana 

Subsnitted: March 19, 1979 

-- -- 

Decided: APR 17 1979 

T- Filed: .' " i' ', - 
Mr. Justice Gene B. Daly delivered the Opinion of the Court. 

This is an appeal brought by the survivors and the 

personal representative of the estate of Oscar F. Johnson. 

Johnson was killed as the result of an automobile collision 

in Billings, Montana, in July 1976. At the time of the 

accident, Johnson was a passenger in an automobile driven by 

John Schaefer and insured by defendant Allstate Insurance 

Company. Schaefer's policy with Allstate had a liability 

limit of $10,000 as well as an uninsured motorist endorsement. The other automobile involved in the accident was not 

insured. 

Johnson's heirs and personal representative filed 

claims with Allstate, which in turn offered to pay the 

claimants the policy limit of $10,000, applicable to the 

injury or death of one person. The heirs and personal 

representative contended they were entitled to more compensation, arguing that the Motor Vehicle Safety Responsibility 

Act, at section 53-438, R.C.M. 1947, now section 61-6-103 

MCA, required the insurer to pay at least $25,000 in compensation for Oscar Johnson's death. 

At Allstate's suggestion, appellants commenced a 

declaratory action in the District Court, Yellowstone County, 

seeking to have the policy limits declared to be $25,000 

rather than $10,000. The ~istrict Court ruled in favor of 

defendant Allstate's motion to dismiss on September 7, 1978. 

In a memorandum accompanying that order, the District Court 

stated the issue presented to it as whether the law required 

liability coverage of at least $25,000, regardless of the 

agreed-upon terms of the policy: 
"The complaint seeks to establish that Montana 

law requires motor vehicle liability coverage 

for bodily injury to be in the sum of $25,000 

regardless of any lesser stated limits in the 

issued policy ($10,000 in this case). . ." 

On appeal the heirs and personal representative present 

a new theory--namely, that section 40-4403, R.C.M. 1947, now 

section 33-23-201 MCA, entitles them to greater compensation 

than the stated liability limits of the Allstate policy. 

Appellants contend that section 40-4403 requires an insurer 

to provide at least $25,000 per person and $50,000 per 

accident of uninsured motorist coverage and that they are 

therefore entitled to $15,000 of that coverage under the 

uninsured motorist endorsement of Johnson's policy with 

Allstate. We conclude that the District Court correctly 

decided the issue presented to it, and that appellants may 

not raise, for the first time on appeal, the issue of whether they are entitled to uninsured motorist benefits under 

Schaefer's policy. 

A. Appellant's statutory limits arqument. 

The issue of whether an automobile owner must have a 

particular amount of liability insurance or liability insurance covering particular situations has been before this 

Court on several previous occasions. In Northern Assurance 

Company of America v. Truck Insurance Exchange (1968), 151 

Mont. 132, 439 P.2d 760, the issue was whether an exclusion 

in a liability policy was consistent with the statutory 

policy of the Motor Vehicle Safety Responsibility Act. The 

Court reasoned that the exclusion was "not violative of 

public policy" because the law required liability insurance 

in only certain specified instances, and that a policy which 

the owner voluntarily obtained was not subject to the cover- 
age requirements of the Safety Responsibility Act. 151 

Mont. at 136-37, 439 P.2d at 763. 

In Boldt v. State Farm Mutual Automobile Insurance Co. 

(1968), 151 Mont. 337, 443 P.2d 33, an injured plaintiff 

sought to have a clause in a liability policy declared void 

because it conflicted with the Safety Responsibility Act. 

The Court again ruled that the Act's requirements "are not 

absolute but are applicable under certain circumstances and 

are subject to certain limitations and exceptions." 151 

Mont. at 341, 443 P.2d at 35. The Court reasoned that the 

law required an automobile owner to carry liability insurance as proof of financial responsibility in only certain 

specified circumstances, and otherwise "is not required to 

post proof of future financial responsibility at all." 151 

Mont. at 343, 443 P.2d at 36. Since an owner may not be 

required to purchase liability insurance at all, the Court 

concluded that the requirements applicable to policies 

issued and certified as proof of finanacial responsibility 

had no application to policies which owners voluntarily 

obtain. 151 Mont. at 343-44, 443 P.2d at 36. See also, 

Universal Underwriters Insurance Co. v. State Farm Mutual 

Automobile Insurance Co. (1975), 166 Mont. 128, 134, 531 

P.2d 668, 672. 

Appellants argued before the District Court that 

several amendments to section 53-438 changed the application 

of the statute making it applicable to all automobile liability policies issued in Montana. They make no mention of 

that argument in their briefs on appeal, however. 

Under the rule established in Northern Assurance and 

Boldt, the argument that the Safety Responsibility Act 

requires the insurer to issue liability policies with no 
less than $25,000 coverage must be rejected. In this case, 

as in Northern Assurance and Boldt, the owner voluntarily 

obtained the liability coverage. There is no statutory 

basis upon which to require this voluntary policy to be 

construed as providing more than the $10,000 coverage which 

its terms show. 

B. Appellants' Uninsured Motorist Argument. 

Appellants argue that section 40-4403 requires the 

insurer to provide at least $25,000/50,000 uninsured motorist 

coverage along with any liability policy it issues, and that 

they are entitled to $15,000 compensation from the owner's 

uninsured motorist policy with Allstate. Their position is 

that because the owner had only $10,000 of liability coverage, he was uninsured to the extent of the difference between his liability coverage and the uninsured motorist 

coverage required by the statute. 

A review of the briefs of both parties before the 

District Court indicates this argument is raised for the 

first time on appeal. The District Court was presented 

with, and decided only, the question of whether the Safety 

Responsibility Act's coverage requirements applied to the 

owner's liability policy. Therefore, appellants may not now 

raise the issue of uninsured motorist coverage. 

It is well settled that a party "may not change his 

theory on appeal to this Court from that advanced in the 

trial court." Chamberlain v. Evans (1979), - Mont . I 

591 P.2d 237, 240, 36 St.Rep. 419, 423-24. See also, 

Sturdevant v. Mills (19781, - Mont. , 580 P.2d 923, 

925, 35 St.Rep. 839, 842. Appellants argue, however, that 

the theory of uninsured motorist coverage presents a question of law only, and therefore need not be presented to the 
District Court in advance of the appeal. They urge further 

that a declaratory judgment action presents a unique situation, because such an action is brought solely for the 

purpose of determining issues of law, and that an appellate 

court may consider these issues -- de novo. 

The Uniform Declaratory Judgments Act, section 93-8907, 

R.C.M. 1947, now section 27-8-312 MCA, provides that "[all1 

orders, judgments and decrees under this act may be reviewed 

as other orders, judgments and decrees." Only one Montana 

decision directly construes section 93-8907 and that decision concerns appellate review of factual findings: 

"In a declaratory judgment action . . . the 

district court determines issues of fact in 

the same manner as issues of fact in other proceedings. Section 93-8909, R.C.M. 1947. We 

review the action of the district court the 

same as in other proceedings. Section 93-8907, 

R.C.M. 1947." State Highway Commission v. West 

Great Falls Flood Control and Drainage District 

(1970), 155 Mont. 157, 171, 468 P.2d 753, 761. 

Courts in other Uniform Declaratory Judgments Act 

jurisdictions have considered more precisely the issue of 

whether an appellant has more latitude to alter his theory 

on appeal in a declaratory action than in other types of 

civil actions, and have concluded that he does not. Board 

of Supervisors of Fairfax County v. Williams (1975), 216 Va. 

49, 216 S.E.2d 33, 39 n. 3; City of St. Louis v. Missouri 

Commission on Human Rights (Mo. 1974), 517 S.W.2d 65, 71; 

Crowe v. Wheeler (Colo. 1968), 439 P.2d 50, 53; Goldberg v. 

Valve Corporation of America (1967), 89 Ill.App.2d 383, 233 

N.E.2d 85, 90. In each of these decisions the courts ruled 

that they would not determine legal issues which the parties 

failed to present to the trial court, either by objection or 

by pleadings. 
It is clear that appellants here have changed their 

theory on appeal. At the District Court level, they sought 

a declaration that section 53-438, R.C.M. 1947, required the 

insurer to provide Schaefer with $25,000 of motor vehicle 

liability coverage (paragraphs V-VII of complaint, and 

paragraph 1 of prayer for judgment). On appeal, they state 

an entirely different theory, involving an uninsured motorist claim: "Because Allstate failed to provide liability 

coverage equalling the minimum amount set at section 53-438, 

R.C.M. [1947], (Supp. 1977), Schaeffer should be considered 

an uninsured driver and Velte, et al., are entitled - to 

recover under the uninsured motorist section -- of the Allstate 

policy." (Emphasis added.) The rule applied to new theories 

raised on appeal is the same for actions brought under the 

Declaratory Judgment Act as it is for other civil actions. 

Therefore, we will not determine appellants' uninsured 

motorist claim. 

The judgment of the District Court is affirmed. 

We concur: 

Q4-45 

ustices