NO. 90-272 IN THE SUPREME COURT OF THE STATE OF MONTANA 1991

ARVID GRIER, Plaintiff,-vsNATIONWIDE MUTUAL INSURANCE COMPANY, 

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# -4 1991

ORIGINAL PROCEEDING:
COUNSEL OF RECORD: For Plaintiff: Richard Reep argued; Graham, Reep & Spoon, Missoula, Montana For Defendant: PaulC. Meismer argued; Garlington,Lohn & Robinson, Missoula, Montana For Amicus Curiae: Molly Shepherd;Worden, Thane & Haines, Missoula, Montana

Submitted: May 9, 1991 Decided: June 4, 1991 Filed:Chief Justice J. A. Turnage delivered the Opinion of the Court. This is a certified question submitted by the United States District Court for Montana. This Court accepted certification of the question by order dated June 5, 1990. Thecertified questionaspresentedby the federal courtwas: Is an offset provision in an Itunderinsured motoristupolicy, entitling the insured to an offset for an amount equal to the liability coverage available from a responsible tortfeasor,void as contrary to the public policy of the State of Montana? We rephrase the question as follows: Does the contested provision contained in this insurance policy provide uninsured motorist coverage or underinsured motorist coverage? If it providesuninsuredmotorist coverage, is the offset provision void as contrary to the public policy of the State of Montana? Nationwide Mutual Insurance Company (Nationwide) issued a policy of automobile liability insurancetoArvid Grier,a resident of Missoula, Montana. The policy provided coverage for Grierls 1988DodgeCaravan fromDecember 8,1988,through December 8,1989. On December 19, 1988, while driving his Dodge Caravan, Grier
was rear-ended by a driver insured by Farmers Union Insurance Company for thestatutoryminimum $25,000forbodily injury. Grier suffered severe and permanent injuries for which Farmers Union InsuranceCompanyhas paid its entire $25,000policy limit. Grier
now seeks to recover under his own insurance policy.Thepertinent provision of theNationwide insurancepolicy is found at page 3 of the 1999B endorsement, under the UNINSURED MOTORISTS coverage: We will pay compensatory bodily injury (meaning bodily injury, sickness, disease, or death) damages that are due you by law from the owner or driver of an uninsured motor vehicle 

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... An uninsured motor vehicle is:



# . .. 2. one which is underinsured. This is one for which there are bodily injury liability coverage or bonds in effect. Their total amount, however, is less than the limits of thiscoverage. These limitsare shown inyour policy's Declarations. The policy also provides, on the same page, under LIMITS OF PAYMENT,that Iv[t]helimits of this coverage will be reducedby any amount paid by or for any liable parties." Griertspolicy of insurance included UNINSURED MOTORISTS coverage in the amounts of $25,000 for each person and $50,000 for each occurrence. This Court has been consistent in invalidating insurance contract clauses wherein the insurer attempts to limit its liability foruninsured motorist coverage. See,e.g., Sullivanv. Doe (1972), 159 Mont. 50, 495 P.2d 193;Guibersonv. Hartford Cas. Ins. Co. (1985), 217 Mont. 279, 704 P.2d 68. The purpose of Montana's uninsured motorist statute, 5 33-23-201, MCA, is the protection of persons insured from acts of the uninsured. Guiberson, 704 P.2d at 74.Montana has no statutory insurance requirement concerning underinsured motorists. The question presented by the federal court was whether the public policy prohibiting offsets against coverage for uninsured motor vehicles also extends to cases involving underinsured motorists. The parties have briefed this issue at length. However, the insurance policy in this case is set up in a unique fashion. As set forth above, the "underinsuredtt motorist provision is part of the section on uninsured motorist coverage. There is no separate policy section providing for underinsured motor vehicle coverage. According to thedeclarations page of the policy, no separatepremium was charged for underinsuredmotorist coverage. In fact, the declarations page makes no mention whatsoever of underinsured motor vehicle coverage. We conclude that, under these circumstances, the "underinsuredtt coverage is part of the uninsured motor vehicle coverage. As such, thepublic policy of Montana prohibits any offset for the amount of coverage carried by the third-party tortfeasor. As the parties noted in oral argument, this Court is not presented with the issues of whether the insurance policy is ambiguous or whether the vehicle driven by the tortfeasor was wunderinsuredtt under Griertsinsurance policy. Those are issues to be resolved in the federal court.The answer to the certified question as we have restated it is that the ltunderinsuredll provision in question is part of the uninsured motor vehicle coverageand that no offset ispermissible.

We concur: Chief Justice 

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