No. 86-113 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

MARY HELEN BAIN and ALLYN M. BAIN, 

husband and wife, 

Plaintiffs and Appellants, 

DANIEL G. GLEASON, FARMERS INSURANCE 

EXCHANGE, a reciprocal or interinsurance 

exchange, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Third Judicial District, 

In and for the County of Powell, 

The Honorable Robert Boyd, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

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: 6eT 2 : 79% 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Mary Helen Bain had a claim for injuries received by her 

through the negligence of Daniel P. Gleason, a driver insured 

by Farmers Insurance Exchange (Farmers) . Mary Helen's 

husband, Allyn W. Bain had a claim for damages against Daniel 

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 consortium was 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 

af firm. 

At the time of the incident wherein Mary Helen was 

injured, Daniel P. Gleason's father additionally insured with 

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 driving when 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 two polices. The District Court 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 

suffered broken legs, a broken pelvis, and as a result of her 

injuries, her left leg was amputated. 

At the time of the collision, Daniel Gleason was 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 Daniel Gleason 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 $25,000 per person, and $50,000 per 

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 Bain between the cars. 

Mary Helen's medical expenses at the time this case was 

submitted to the District Court exceeded $20,000. She 
continues to incur medical expenses and will incur them for 

the balance 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 $25,000 payment 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 

Construction Co. (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 separate and 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 in 
Dutton, 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 - Daniel Gleason? 

There is no shortage of cases in which this question has 

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 and Application - of Provision - in Liability Policy 

Limiting the Amount - of Insurer's Liability -- 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 this question in the light 

of the insurance policy provisions now before 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, irrespective of the mandatory 
insurance law, coverage is extended to a consortium claim 

beyond that provided for in the "each person" provision. 

Section 61-6-301, MCA, provides in pertinent part; 

(1) Every owner of a motor vehicle . . . shall 

continuously provide insurance against loss 

resulting from liability imposed by law for bodily 

injury or death or damage to property suffered by 

any person caused by maintenance or use of a motor 

vehicle . . . in an amount not less than that 

required by 61-6-103 . . . . 

The referred-to statute, $ 61-6-103, MCA, contains the 

following pertinent 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 

interest and costs, with respect to each such motor 

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 for one person; 

(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 Daniel Gleason. It provides: 

. . . the Company . . . agrees . . . : 

To pay all damages the insured becomes legally 

ohligated to pay because of: 

(A) bodily injury to any person . . . 

LIMITS OF 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 damages 
arising 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 all damages arising 

out of bodily injury sustained by two or more 

persons in a-ny one occurrence. 

Bodily Injury means bodily injury, sickness or 

disease, includinq death at any time resultinq 

therefrom, sustained by a person.- 

- 

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. The provisions of the 

two statutes are a part of every policy of motor vehicle 

insurance issued in this State under the mandatory law and 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 statutes of the state wherein this policy 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 

mandatory motor 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. The 
statute requires the motor 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 imposed by law against a 

negligent driver who causes bodily injuries to one person in 

any one accident, and for such liability, the mandatory motor 

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 injured party, and to the deprived spouse, both 

stem from the same bodily injury sustained by "one person in 

. . . one accident." The statute obviously contemplates that 

no matter who suffers damages, 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 

limit of $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 controllable by 

the injured spouse. They point also to the injuries of Mary 
Helen 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 Indemnity Co. (D. Mont. 19671, 262 F.Supp. 711. 

In that case the federal district court said: 

[Tlhe words "one person" have been 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 to himself resulting from the 

injury to his wife, such as damages for loss of her 

services or consortium and for the cost of her 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, 117 N.W.2d 

767 (1962) and the annotation at 150 A.L.R. 1154. 

Bains contend that Wohlberg should not control us here, 

because it was decided before the adoption of the mandatory 

motor vehicle liability insurance statutes. The trouble with 

that argument is that Wohlberq fits neatly into the statutory 

scheme of the mandatory statutes. Nothing in the mandatory 

statutes is adverse to Wohlberg. 

In order to escape the "one person" provision of the 

mandatory liability insurance law, Allyn must show that his 

cause of action comes within the "two or 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 "$50,000 because of bodily injury 
to 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 the motor vehicle liability 

insurance statute cannot be 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-injured person 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 recovery may be allowed even though there 

is no contemporaneous physical injury. Johnson v. 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; Dawson v. 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 consortium by the deprived spouse and the 

cause of action for bodily injuries by 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 of what we have said foregoing relating 

to the interpretation of the mandatory motor vehicle 
liability insurance statutes applies to the provisions of the 

insurance policy which we have set forth above. We must, 

however, examine the insurance policy 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 or by inartful drafting. 

We are aware of three cases where courts in sister 

jurisdictions have determined that policy provisions required 

coverage for loss of consortium beyond the "one person," or 

"each person" limitations. 

One such case is Allstate Insurance Co. v. Handegard 

(Or. App. 1984), 688 P.2d 1387. In Allstate, 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 Farmers policy defines 

"damages" as including loss of services. The Oregon case of 

Allstate is therefore inapplicable here. 
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. 'IThe Hartford policy provided "subject to 

the limit 'of each person,' the most [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 such a clause here. 

Our interpretation of 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 "each person" limitation refers to all damages 

by whomever suffered resulting from one bodily injury in one 

accident; the "each accident" limitation applies when 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 the policy 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 "the most we will pay 
for 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 interpretation of 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 "each person" limitation refers to all damages 

imposed by law by whomever suffered resulting from one bodily 

injury and one accident; the "each accident" limitation 

applies when two or more persons suffer bodily 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; Dawson v. Hill 

and Hill Truck Lines, supra; French v. Ralph E. Moore, Inc. 

(Mont. 1983), 40 St.Rep. 481, 661 P.2d 844. 

As we noted above, the Montana mandatory motor vehicle 

liability insurance statutes do not define "bodily injury." 

The policy in this case however does provide a definition 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" obviously 
includes 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 injury means bodily injury, sickness or disease, 

including death at any time resulting therefrom, sustained by 

a person." Bains contend that defining a term by repeating 

the same term, such as "bodily injury means 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 as bodily injury, especially since the 

term can be plainly understood as meaning physical injury to 

a person. 

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 to he given no effect. 
The pertinent terms of the father's policies are these: 

Insured means (1) 

Definition - of insured 

(b) with respect to a non-owned automobile, 

(1) the name insured or a 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 substitute automobile. 

Relative means a relative of the named insured who 

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 living with 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's policies cannot be 

construed in any other way. 

VI. 

Accordingly, we affirm the judgment of the District 

Court. 
/ Justice 

We Concur: 

/57