No. 14574 IN

### THE SUPREME COUHT OF

### THE STATE OF rnrnANA 1979

CONNIE J. 

### VELTE 

### etal.

## , Plaintiffs and Appellants,

-VSALLsI'ATE 

### INSURANCECOMPANY, Defendant and Respondent.



### Appeal from: District

### Court of the 

### ThirteenthJudicial District, Honorable Charles Luedke, Judge presiding. Counselof Record: For Appellants: 

### Em J. Dolve, 

### Jr., Billings, Wntana CalvinA.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

## 171979 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'sheirs 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 defendantAllstate'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 toestablish thatMontana 

### lawrequires motor vehicle liability coverage forbodily injury tobe 

### inthe sum of $25,000 regardless of any lesser stated limitsinthe issued policy ($10,000 inthiscase). 

# . ." 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 togreater compensation than the stated liabilitylimits

### of theAllstate policy. Appellants contend that section 40-4403 requires an insurer toprovide 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 DistrictCourt correctly decided the issuepresented toit, 

### and that appellants may not raise, forthe firsttime on appeal, the issue of whether they 

### are entitled touninsured motorist benefits under Schaefer's policy. A. 

### Appellant's statutory 

### limitsarqument. The issueof whether an automobile owner must have 

### a particular amount of liability insurance or liability insurance covering particular situationshas been before this Court on severalprevious occasions. InNorthern Assurance Company of America v. Truck Insurance Exchange (1968), 151 Mont. 132, 439 P.2d 760, the issuewas whether an exclusion ina liabilitypolicy was consistent with the statutory policy of theMotor Vehicle Safety Responsibility Act. 

### The Court reasoned that the exclusion was 

### "not violative of public policy" because the law required liability insurance inonly 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. at136-37, 439 P.2d at763. In Boldt v. StateFarm Mutual Automobile Insurance Co. (1968), 151Mont. 337, 443 P.2d 33, an injured plaintiff sought tohave a clause ina liabilitypolicy declared void because 

### it conflicted with the Safety Responsibility Act. The Court again ruled that the Act's requirements "are not absolute but areapplicable under certain circumstances and

are subject tocertain limitations and exceptions." 151 Mont. at341, 443 P.2d at35. The Court reasoned that the 

### lawrequired an automobile owner tocarry liability insurance asproof of financial responsibility inonly certain specified circumstances, and otherwise "isnot required to post proof of future financial responsibility atall." 151 Mont. at343, 443 P.2d at36. Since an owner may not be required topurchase liability insurance atall, the Court concluded that the requirements applicable topolicies issued and certified 

### as proof of finanacial responsibility had no application topolicieswhich owners voluntarily obtain. 151Mont. 

### at343-44, 443 P.2d 

### at 36. See also, Universal Underwriters Insurance Co. v. StateFarm 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 statutemaking it applicable to

### all automobile liabilitypolicies issued inMontana. They make no mention of that argument intheir briefs on appeal, however. Under the rule established inNorthern Assurance and Boldt, the argument that the Safety Responsibility Act requires the insurer toissue liabilitypolicies with no

### less than $25,000 coverage must be rejected. In this case,

as inNorthern Assurance and Boldt, the owner voluntarily obtained the liability coverage. There 

### is no statutory basis upon which torequire this voluntary policy tobe 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 toprovide atleast $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 thatbecause the owner had only $10,000 of liability coverage, he was uninsured to the extent of the differencebetween his liability coverage and the uninsured motorist coverage required by the statute. A review of the briefs of both parties before the DistrictCourt indicates this argument 

### is raised for the first

### timeon appeal. The District Court 

### was presented with, and decided only, the question of whether the Safety Responsibility Act's coverage requirements applied tothe 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 tothis Court from that advanced inthe 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 theDistrictCourt inadvance of the appeal. They urge further that a declaratory judgment actionpresents a unique situation, because such an action 

### isbrought solely for the purpose of determining issues of law, and that an appellate courtmay 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 actmay 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 districtcourt determines issues of factin the same manner asissues of fact inother proceedings. Section 93-8909, R.C.M. 1947. We review the action of the districtcourt the 

### same as inother proceedings. Section 93-8907, R.C.M. 1947." StateHighway Commission v. West Great Falls Flood Control and Drainage District (1970), 155Mont. 157, 171, 468 P.2d 753, 761. Courts inother Uniform Declaratory Judgments Act jurisdictions have considered more precisely the issue of whether an appellant has more latitude to alterhis theory

on appeal ina declaratory action than inother 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 topresent 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 toprovide Schaefer with $25,000 of motor vehicle liability coverage (paragraphs V-VII 

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

an entirely different theory, involving an uninsured motorist claim: "Because Allstate failed toprovide liability coverage equalling theminimum amount 

### set atsection 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 tonew theories raised on appeal 

### is the same for actions brought under the Declaratory Judgment Act as 

### it is for other civil actions. Therefore, 

### wewillnot determine appellants' uninsured motorist claim. The judgment of the District

### Court 

### is affirmed.

We 

### concur:



# Q4-45 ustices