No. 86-113 IN THE SUPREME COURT OF THE STATE OF MONTANA 1986

MARY HELEN BAIN and ALLYN M. BAIN, husband andwife, Plaintiffsand Appellants,

DANIELG. GLEASON, FARMERS INSURANCE EXCHANGE,a reciprocalor interinsurance exchange, Defendantsand Respondents.

APPEAL FROM: District Court of the Third JudicialDistrict, In and for the County of Powell, The Honorable RobertBoyd,Judge presiding.

COUNSELOF RECORD:

ForAppellant: Anderson, Edwards & Molloy; Donald W. Molloy, Billings, Montana

For Respondent: Poore,Rot.h& Robinson; C. Richard Anderson, Rutte, Montana

Submitted on Briefs: June 19, 1986 Decided: October 21, 1986

Filed:

## 6eT2:

## 79%Mr. Justice John C. Sheehy delivered the Opinion of the Court.

Mary Helen Bain had a claim for injuriesreceivedby her through the negligenceofDanielP. Gleason, adriver insured by Farmers Insurance Exchange (Farmers)

# . Mary Helen's husband,AllynW. Bain had a claim for damages againstDaniel P. Gleason for Allyn's loss of consortium through the injuries to his wife. Farmers' applicable motor vehicle liability insurance policy contains provisions defining limited coverage for "each person1' injured in any one
occurrence and for "each occurrence." Allyn made claim before the District Court, Third Judicial District, Powell County, that his claim for consortiumwas separately covered by Farmers

## ' policy of insurance issued to Gleason. The District Court held that Mary Helen's claim for her damages and Allyn's claim for consortium, were together subject to the "each person" limitation of the insurance policy. We affirm. At the time of the incident wherein Mary Helen was injured, DanielP. Gleason's father additionally insuredwith Farmers two other motor vehicles owned by the father. Daniel Gleason lived with his father, in the same residence, but Daniel owned the vehicle he was drivingwhen he injured Mary Helen, and Daniel separately insured his motor vehicle with Farmers. Allyn and Mary Helen claim additional coverage extends to them by virtue of the provisions of the father's other twopolices. TheDistrictCourt held not and again,we affirm.On May 24, 1983, Mary Helen Bain was assisting a stranded motorist on Green House Road near Deer Lodge, Montana. Mary Helen was pouring gas from a gas can into the tank of the stranded automobile as Daniel Gleason drove his 1970 Ford on the same road. Gleason drove his Ford into the back of the stranded automobile trapping Mary Helen Bain between the cars. As a result of the collision and being struck by Gleason's Ford, Mary Helen Bain was severely injured. She sufferedbroken legs, abrokenpelvis,and as a result ofher injuries,her left legwas amputated. At the time of the collision,Daniel Gleasonwas living with his parents in Deer Lodge, Montana. Farmers Insurance Group had issued three policies of insurance covering motor vehicles owned by occupants of that same household. One policy of insurance was issued to DanielGleason and covered the 1970 Ford automobile which he was driving when he collided with Mary Helen. A second policy was issued to Patrick Gleason, Daniel's father, covering Patrick's 1973 Corona. The third policy was issued also to the father, Patrick Gleason, to insure Patrick's 1981 Buick Skylark. Each of the insurance policies provided bodily injury coverage in the amount of $25,000per person,and $50,000per
occurrence. The terms of the three insurance policies were the same, except for the named insureds and the vehicles covered. Daniel Gleason was admittedly negligent in driving his 1970 Ford into the back of the stranded car trapping Mary Helen Bainbetween the cars. Mary Helen's medical expenses at the time this casewas submitted to the District Court exceeded $20,000. Shecontinues to incur medical expenses and will incur them for thebalance of her life. Farmers Insurance Group has paid $25,000 to Mary Helen and Allyn Bain, individually and as husband and wife. It is the position of Farmers that the $25,000payment is the full extent of and the limit of its liability under the policy issued to Daniel Gleason on May 24, 1983. Mary Helen and Allyn contend that under the terms of the three policies, they are entitled to t.he maximum amount of insurance available. 11. First off, counsel for the Bains point out that no Montana Supreme Court case has directly recognized that a spouse's claim for loss of consortium constitutes a claim which is a distinct and independent cause of action. True,

we have alluded to elements of consortium as in Wallace 

### v. Wallace (1929), 85 Mont. 492, 514, 279 P. 374, 382. The federal courts acting in Montana have recognized claims for loss of consortium as distinct and independent causes of action. Duffey v. Lipsman--Fulkerson and Co. (D. Mont. 1961), 200 F.Supp. 71; Dutton v. HighTower and Lubrecht ConstructionCo. (D.Mont. 1963), 214 F.Supp. 298; Johnson

### v. United States (D. Mont. 1980), 496 F.Supp. 597 (aff'd in part, rev'd in part, and remanded), 704 F.2d 1431 (9th Cir. 1983). To lay any doubt aside, we agree with the federal courts that a cause of action for consortium of the deprived spouse is separateand distinct from the claim of the injured spouse and that the basis for a consortium claim lies in the Montana statutes in which the husband and wife contract for obligations of mutual respect, fidelity, and support. Section 40-2-101, MCA. We further agree with the court inDutton, supra, that consortium includes a legal right to the aid, protection, affection and society of the other spouse.

Is the husband's claim for consortium here subject to 

### -- - the "each person" limit of liability provided in Farmers' 

## - - - - policy issued to DanielGleason? 

### - There isno shortageof cases in which this questionhas been presented to different courts. Without burdening this opinion with long citations, it is enough to say that the

cases can be found by reference to the Annotation, Construction andApplication 

### - of Provision

### - in Liability Policy Limiting the Amount 

### - of Insurer'sLiability

### -- to One Person, 13 A.L.R.3d. 1228 (1967 & Supp. 1986). 

### --- See also 5A Words and Phrases, "Bodily Injury" (1968 & Supp. 1986). The great majority of the decided cases have held that the consortium claim is included within the "each person" limitation. The reasons given for the decisions however are not always uniform, since they depend on the language of the policy before the respective courts, and the applicable statutes of the state involved may have different terms. We therefore determine to examine for ourselves thisquestion in the light of the insurancepolicy provisions nowbefore us, and of our applicable statutes. Since Montana has a mandatory motor vehicle liability insurance law, we first look to the terms of the mandatory insurance statutes to determine what they require, and then to the terms of the insurance policy to find whether the insurance policy complies with the mandatory law. Following that, we will look to the terms of the insurance policy to determine if under the policy, irrespectiveof the mandatoryinsurance law, coverage is extended to a consortium claim beyond that provided for in the "each person" provision. Section 61-6-301,MCA,provides inpertinent part;

(1) Every owner of a motor vehicle

# ... shall continuously provide insurance against loss resulting from liability imposed by law forbodily injury or death or damage to property suffered by any person caused by maintenance or use of amotor vehicle

# ..

# . in an amount not less than that requiredby 61-6-103

# ..

# . . The referred-to statute, $ 61-6-103,MCA, contains the followingpertinent provisions: (2) Such owner's policy of liability insurance shall:

(b) insure the person named therein and any other person, as insured, using any such motor vehicle

# ...against loss from the liability imposed by law for damages arising out of the ownership, maintenance, or use of such motor vehicle

# ... subject to limits exclusive of interestand costs, with respect to each suchmotor vehicle, as follows:

(i) $25,000 because of bodily injury to or death of one person in any one accident and subject to said limit foroneperson;

(ii) $50,000 because of bodily injury to or death of two or more persons in any one accident;. 

# . . . Our statutes do not define "bodily injury" for this subject. We turn now to the terms of the insurance policy issued by Farmers to DanielGleason. Itprovides:



# ..

# .the Company

# . .. agrees

# . . . : To pay all damages the insured becomes legally ohligated topay because of:

(A) bodily injury to anyperson

# . . .

LIMITSOF LIABILITY The limit of bodily injury liability stated in the Declarations as applicable to "each person" is the limit of the Company's liability for all damagesarising out of bodily injury sustained by one person in any one occurrence. The limit of such liability stated in the Declarations as applicable to "each occurrence" is, subject to the above provision respecting each person, the total limit of the Company's liability for alldamages arising out of bodily injury sustained by two or more persons in a-nyone occurrence.

Bodily Injury means bodily injury, sickness or disease, includinq death at any time resultinq therefrom,sustainedby aperson.- 

### - Damaqes with respect to Coverage A [bodily injury Coverage] includes damages for care and loss of services. Plainly it is the public policy of this State,under S 61-6-301, MCA, and $ 61-6-103, MCA, that every owner of a motor vehicle operated in Montana must procure a policy of insurance which continuously provides coverage up to the limits set forth in the two statutes. Theprovisions of the two statutes are a part of every policy of motor vehicle insurance issued in this State under themandatory lawand if the provisions of the insurance policy countermand or diminish the statutory requirements, the policy nevertheless will be considered to provide the statutory requirements. Farmers recognizes this because in each of its policies of insurance it provides that "[p]olicy terms which conflict with the statutesof the state wherein thispolicy is issued

are hereby amended to conform to such statutes." In this case, the language of the statutes and of the policies are substantially similar and it is apparent that the policy terms used by Farmers are in compliance with our mandatorymotor vehicle liability insurance law. In considering the consortium claim, and where it fits into the mandatory motor vehicle liability insurance statutes, we examine closely 61-6-103, MCA, supra. Thestatute requires themotor vehicle owner to "insure the

# ... insured, 

# .

# ..against 

### --- loss from the liability imposed 

### & law for 

### - 

## - damages

# .. . subject to limits

# . ..as follows: 

# ... (i) $25,000 because of bodily injury 

### - to

# . . .one person in any one accident[.]" 

### - (Emphasis supplied). It is certain that liability is imposedby lawagainst a negligent driver who causesbodily injuries to one person in any one accident,and for such liability, themandatorymotor vehicle liability insurance statute applies. It seems equally certain that if the injured party is a spouse, and the injuries deprive the other spouse of consortium, liability is imposed by law against the negligent driver for consortium damages "because of bodily injury to 

# .. . one person." In other words, the liability of the negligent driver to the injuredparty,and to thedeprived spouse,both stem from the samebodily injury sustained by "one person in



# ... one accident." The statute obviously contemplates that no matter who suffersdamages,if the respective damages stem from bodily injury to one person, all of the damages are subject to the "one accident" limitation, in this case, the limitof $25,000. Counsel for Bains acknowledge that a deprived spouse's action for loss of consortium is derivative from the injured spouse's injuries,but contend that it is derivative only to the extent that the negligent driver must be proved to have caused the original injury. They support their argument with the holdings in cases that regard an action for consortium loss as a separate and independent cause of action which is the property of the impaired spouse and not controllableby the injured spouse. They point also to the injuriesofMaryHelen as different in nature from the injuries suffered by Allyn, such that the cause of action for loss of consortium in favor of the deprived spouse is an independent action which stands on its own footing. Wolff v. Du ~uis(Ore.

Counsel for Farmers point to Wohlberg v. Hartford Accident and IndemnityCo. (D.Mont. 19671, 262 F.Supp. 711. In that casethe federal district court said: [Tlhewords "oneperson"havebeen held to refer to the injured person, and the limit specified for injury to one person applies although others suffered loss from the injury to such person, and although the injured person suffers speci.al damages. Under this construction of the limitation provision, a husband is not entitled to recover from the insurance company an additional amount over the limit specified for one person for consequential damages tohimself resulting from the injury tohis wife, suchas damages for lossofher servicesor consortiumand for the costofher care and treatment. (Footnotes omitted.) 8 Blashfield Automobile Law and Practice (1965), S; 345.2, pages 458-459. See also cases cited in Holtz v. Mutual Service Casualty Company, 264 Minn. 121,117N.W.2d 767 (1962) and the annotation at 150 A.L.R. 1154.

Bains contend that Wohlberg should not controlus here, because it was decided before the adoption of the mandatory motorvehicle liability insurance statutes. The trouble with that argument is that Wohlberq fitsneatly into the statutory scheme of the mandatory statutes. Nothing in the mandatory statutes is adverse toWohlberg. In order to escape the "one person" provision of the mandatory liability insurance law, Allyn must show that his

causeof action comeswithin the "twoor more persons" clause of the statute. There is, however, no comfort in the language of the statute itself. Section 61-6-103, MCA, provides for limitation of "$50,000because ofbodily injuryto or death of two or more persons in any one action.

### " Two persons did not receive bodily injury in the unfortunate accident which is the basis of this case. Only Mary Helen received bodily injury. Plainly themotor vehicle liability insurance statute cannotbe interpreted to require additional coverage for a consortium cause of action over and above the coverage provided for damages imposed by law through a solely-injuredperson in one accident. Recognizing this, counsel contended that bodily injury is not required to establish a cause of action for consortium. On several occasions this Court has recognized the principle that recoverymay be allowed even though there is no contemporaneous physical injury. Johnsonv. Supersave Markets, Inc. (Mont. 1984), 686 P.2d 209, 41 St.Rep. 1495; Versland v. Caron Transport (Mont. 1983), 671 P.2d 583, 40 St.Rep. 1681;Dawsonv. Hill & Hill Truck Lines (Mont. 1983), 671 P.2d 589, 40 St.Rep. 1689; Ewalt v. Scott (Mont. 19841, 675 P.2d 77. Those cases, however, did not involve "one person," "one accident" provisions of insurance policies nor how recompense for damages for loss of consortium fitted into the mandatory motor vehicle liability insurance statutes. We therefore interpret the mandatory motor vehicle insurance statutes now in effect to mean that the cause of action for loss of consortiumby the deprived spouse and the

cause of action forbodily injuriesby the injured spouse are subject together to the "one person limitation" found in S 61-6-103, MCA, as referred to in S 61-6-301,MCA. IV. We now come to consider the terms of the insurance policy itself. Much ofwhat we have said foregoing relating to the interpretation of the mandatory motor vehicleliability insurance statutesapplies to theprovisions of the insurance policy which we have set forth above. We must, however,examine the insurancepolicy provisions to determine whether, even though the statutes do not require it, this particular insurance policy granted additional coverage to a
cause of action for consortium, either by direct policy provision orby inartfuldrafting. We are aware of three cases where courts in sister jurisdictionshave determined thatpolicy provisions required coverage for loss of consortium beyond the "one person," or "eachperson" limitations. One such case is Allstate Insurance Co. v. Handegard (Or. App. 1984), 688 P.2d 1387. InAllstate, the insurance policy defined bodily injury as "bodily injury, sickness, disease or death to any person, including

### -- loss of services." Id. at 1388. The Oregon court pointed out that the term 

### - "bodily injury" was defined in a manner different from the ordinary understanding of that term under the policy definition and that since a bodily injury included "loss of services," under the terms of the policy, the deprived spouse, though actually uninjured, suffered a bodily injury within the terms of the policy. 

### - Id. at 1389-90. Accordingly, the Oregon court extended coverage over and above the "each person" limitation to the "each occurrence" limitation since more than one bodily injury was involved. In the case before us, as we have shown above, the provision of the policy defining "bodily injury" does not include loss of services. Rather, the Farmerspolicy defines "damages" as including loss of services. The Oregon case of Allstate is therefore inapplicablehere.The second case is Abellon v. Hartford Insurance Co. (Cal. App. 1985), 212 Cal.Rep. 852. In Abellon, the California court found a wide-open provision of coverage for "each accident.'I The Hartford policy provided "subject to the limit 'ofeach person,' themost [Hartford]will pay for all damages resulted from bodily injury caused by any one accident" is $500,C00. 

### - Id. at 853. Thus the Hartford policy did not limit the "each accident" clause to bodily injuries caused to one person as does our statute, and as does the Farmers policy before us. The California Court extended coverage in the Hartford case under the "each accident" clause because of the lack of specificity in the Hartford policy that the bodily injury under the "each accident" clause must be suffered by two or more persons. We do not have sucha clausehere. Our interpretation of the Farmerspolicy in the case at bar must follow our interpretation of the statutes as they apply to mandatory motor vehicle liability insurance. It is plain, under our statutes, and under the policy provisions here that the "eachperson" limitation refers to all damages by whomever suffered resulting from one bodily injury in one accident; the "each accident" limitation applieswhen two or more persons suffer bodily injury in the same accident. The third case that extended coverage for loss of consortium under the "each accident" clause of thepolicy is that of Bilodeau v. Lumberman's Mutual Casualty Co. (Mass. 1984), 467 N.E.2d. 137. In Bilodeau, as in the artf ford case, supra, the Massachusetts court had before it a policy the terms of which were ambiguous. Under that policy, the company agreed to pay damages to the "injured person" and contained language to the effect that "themost we will payfor injuries to two or more people as a result of any one accident is a total of [$20,000]

# ." Id. at 139. 

### - The Massachusetts court determined that the "injury" included loss of consortium, because it was not limited to bodily injury and that the consortium clause was covered under the "each accident clause." Id. at 142. Again that clause is 

### - much different than the clause facing us in the case at bar. Our interpretationof the Farmers'policy in the case at bar must follow our interpretation of the statutes as they apply to mandatory motor vehicle liability insurance. It is plain under our statutes, and under the policy provisions here that the "eachperson" limitation refers to all damages imposedby lawby whomever suffered resulting fromonebodily injury and one accident; the "each accident" limitation applies when two or more persons sufferbodily injury in the

same accident. Taking another tack,the Bains argue here that the words "bodily injury" do not necessarily require a physical injury to a person; that this Court has held that emotional and mental stress are "injuries" which are compensable as damages. Versland v. Caron Transport,supra;Dawsonv. Hill and Hill Truck Lines, supra; French v. Ralph E. Moore, Inc.

(Mont. 1983), 40 St.Rep. 481, 661P.2d 844. As we noted above, the Montana mandatory motor vehicle liability insurance statutes do not define "bodily injury." Thepolicy in this case however does provide adefinition for damages, which includes damages "for care and loss of services." Thus when under the policy here, Farmers agrees to pay the insured for the liability imposed by law "for damages

# .. .because of bodily injury to one person in any
one accident." The policy term of "damages" obviouslyincludes the consortium claim within the damages limited by the "one person" provision. The policy term "for care and loss of services" is broad enough to cover all elements of damages for loss of consortium. Bains also point to the definition in the policy of bodily injury, claiming an ambiguity. The definition states that "bodily injurymeans bodily injury,sicknessordisease, including death at any time resulting therefrom,sustainedby

a person." Bains contend that defining a term by repeating the same term, such as "bodilyinjurymeans bodily injury" is in itself ambiguous. Gertrude Stein years ago said that "a

rose is a rose is a rose," and all of the literateurs thought Gertrude Stein was marvelous. If we define an apple as an apple, the definition may be ridiculous, but it is not ambiguous. Bodily injury does not become ambiguous simply because it is defined asbodily injury,especially since the term can be plainly understood asmeaning physical injury to

aperson. We find no ambiguity otherwjse in Farmers' policy to change this result. 

### v. The remaining issue to be resolved in this case is whether either Allyn or Mary Helen or both are entitled to coverage under the two additional policies of insurance that had been obtained by Daniel Gleason's father on two separate automobiles not involved in the collision with Mary Helen. In short,Bains contend that Daniel is an insured under the father's policies because Daniel is a relative of his father, and policy provisions which are construed to mean that Daniel is not a relative of his father are nonsensical, and are tohe given no effect.The pertinent terms of the father's policies are these: Insuredmeans (1)

Definition

### - of insured

(b) with respect to a non-owned automobile, (1) thename insured ora relative

Non-owned automobile means an automobile not owned by or regularly or frequently used by the named insured or any resident of the same household, other than a substituteautomobile.

Relativemeans a relative of the named insuredwho is a resident of the same household, provided - neither such relative nor his spouse owns an automobile. Again, unfortunately for the Bains, we find no comfort

or coverage for them under the additional policies owned by Daniel Gleason's father. The policies can only be interpreted to mean that if the name insured under the policies [Patrick Gleason] has a relative livingwith him in the same household, and.that a relative or his spouse owns separately another automobile which is not covered under the

same policy procured by the named insured, the automobile owned or frequently used by the relative is not entitled to coverage under the father's policies here because (1) it is not an non-owned automobile entitled to such coverage, and (2) the relative is not a relative within the terms of the policy. The language of the father'spolicies cannotbe construed in any other way. VI. Accordingly, we affirm the judgment of the District Court./ Justice

We Concur: /57