No. 87-278 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

EUGENE T. OLMSTEAD, Personal 

Representative of the Estate 

of Ione Olmstead, Deceased, 

Plaintiff and Appellant, 

-vsSTEVEN E. HUBERT, 

Defendant and Third-Party 

Defendant, 

and 

MILBANK MUTUAL INSURANCE COMPANY, 

Intervenor, Third-Party Plaintiff 

and Respondent, 

-VSUNITED PACIFIC INSURANCE COMPANY, 

Third-Party Defendant and Appellant. 

APPEAL FROM: District Court of the Eleventh Judicial District, 

In and for the County of Flathead, 

The Honorable Michael Keedy, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Murphy, Robinson, Heckathorn & Phillips; I. James 

Heckathorn, Kalispell, Montana 

Murray, Kaufman, Vidal & Gordon; James E. Vidal, 

Kalispell, Montana 

For Respondent: 

Warden, Christiansen, Johnson & Berg; Gary R. Christiansen, Kalispell, Montana 

M. Dean Jellison, ~alispell, Montana 

Submitted on Briefs: Nov. 13, 1987 

Decided: February 18, 1988 
Mr. Justice R. C. McDonough delivered the Opinion of the 

Court. 

The plaintiff was involved in a four vehicle accident. 

Two vehicles were insured, one was uninsured. Olmstead 

settled with the insured drivers and brought an action 

against the third, Steven E. Hubert, to establish liability 

in order to recover on his uninsured motorist coverage. The 

District Court, Eleventh Judicial District, Flathead County, 

Montana, entered summary judgment against Olmstead holding 

that Hubert was not an uninsured motorist. We affirm. 

The four vehicles involved in this accident were insured 

as follows: 

Hansen, Vehicle No. 1, United Pacific 

Hubert, Vehicle No. 2, no insurance 

Olmstead, Vehicle No. 3, Milbank 

Schwartz, Vehicle No. 4, United Pacific 

Hansen's vehicle went off icy U.S. Highway 93 at night. 

Hubert stopped to help and attached a chain between the two 

vehicles. Olmsteads' vehicle was proceeding south when it 

struck the Hubert vehicle. The Schwartz vehicle was also 

proceeding south when it struck the Olmstead vehicle, which 

again struck the Hubert vehicle. Eugene Olmstead and his 

wife, Ione, were both injured. Olmstead settled with United 

Pacific, relative to Hansen and Schwarts, and reserved claims 

against Hubert. Olmstead made a claim under his uninsured 

motorist coverage. Milbank refused to provide coverage, 

asserting that Hansen was "using" the Hubert vehicle because 

of the towing and the Hansen vehicle was insured so Hubert 

was not an uninsured motorist. The District Court agreed. 

The issues on appeal are: 1) whether the vehicle operated by 

Steven E. Hubert was an uninsured vehicle on the date in 
question; and 2) does Hansen's insurer owe Hubert a duty to 

defend? 

Olmstead contends that Hubert was uninsured because he 

had no insurance for the operation of his own vehicle or his 

use of Hansen's vehicle. Olmstead argues that the mere fact 

that Hansen purchased insurance to cover himself in the use 

of any automobile does not insulate Hubert as the owner and 

operator of an uninsured motor vehicle, from his own 

negligence and liability. 

Section 33-23-201, MCA, governs uninsured motorist 

coverage : 

(1) No motor vehicle liability policy insuring 

against loss resulting from liability imposed by 

law for bodily injury or death suffered by any 

person arising out of the ownership, maintenance, 

or use of a motor vehicle may be delivered or 

issued for delivery in this state, with respect to 

any motor vehicle registered and principally 

garaged in this state, unless coverage is provided 

therein or supplemental thereto, in limits for 

bodily injury or death set forth in 61-6-103, under 

provisions filed with and approved by the 

commissioner, for the protection of persons insured 

thereunder who are legally entitled to recover 

damages from owners or operators of uninsured motor 

vehicles because of bodily injury, sickness, or 

disease, including death, resulting therefrom, 

caused by an accident arising out of the operation 

or use of such vehicle. An uninsured motor vehicle 

is a land motor vehicle, neither the ownership, nor 

the maintenance, nor the use of which is insured or 

bonded for bodily injury liability at the time of 

the accident. 

Here we have an uninsured motor vehicle towing an insured 

motor vehicle. The towing of one vehicle by another falls 

under the definition of use. "When the accident at issue 

occurred, ABT Towing and Jarvis were towing the insured auto, 

and were therefore 'using' the auto in such a fashion as to 

invoke coverage. Under similar circumstances, a clear 
majority of jurisdictions find that a 'use' is occurring and 

that liability coverage applies." Westfield Ins. v. Aetna 

Life & Casualty Co. (Ariz. 1987), 739 P.2d 218, 220. 

The Hansen vehicle was using the Hubert vehicle. 

Section 33-23-201, MCA, provides that an uninsured motor 

vehicle is one the use of which is not insured at the time of 

the accident. Hansen's use of Hubert's vehicle was covered 

by his insurance issued by United Pacific. The policy 

provided "We will pay damages for which any insured person is 

legally liable . . arising out of the ownership, 

maintenance or use of a private passenger car. . . . Insured 

person as used in this part means: 2. Any person using your 

insured car. " Hubert does not qualify as an uninsured 

motorist because the use of his vehicle was insured by 

Hansen's policy. 

Hansen's policy with United Pacific provides coverage 

for "any person using your insured car". The policy provides 

"We will pay damages for which any insured person is legally 

liable. . . . We will defend any claim or suit asking for 

these damages. . . ." Hubert was using Hansen's automobile, 

so in accordance with the policy language United Pacific owes 

a duty to defend. Affirmed. 

We Concur: / 

. // Chief Justice /Y 
Justices