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, Plaintiffand Appellant,-vsSTEVEN E. HUBERT, Defendantand Third-Party Defendant, and MILBANK MUTUAL INSURANCECOMPANY, Intervenor,Third-Party Plaintiff and Respondent,-VSUNITED PACIFIC INSURANCECOMPANY, Third-Party Defendantand Appellant.

APPEAL FROM: District Court of the Eleventh Judicial District, In and for the County of Flathead, The HonorableMichael Keedy, Judgepresiding.
COUNSELOF RECORD: ForAppellant: 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, 1988Mr. 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 Hubertwas not anuninsured motorist. We affirm. The four vehicles involved in this accidentwere insured
as follows:
Hansen,Vehicle No. 1,United Pacific Hubert,Vehicle No. 2,no insurance Olmstead, Vehicle No. 3,Milbank Schwartz,VehicleNo. 

### 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 inquestion; 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 theprotection ofpersons insured thereunder who are legally entitled to recover damages fromowners or operators ofuninsured 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 suchvehicle. An uninsured motor vehicle is a land motor vehicle, neither the ownership,nor the maintenance,nor the use ofwhich 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 clearmajority 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 ofwhich 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 willpay damages forwhich any insured person is legally liable 

# . . arising out of the ownership, maintenance or use of a private passenger car.

# .. . Insured person asused in this partmeans: 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'spolicy. Hansen's policy with United Pacific provides coverage for "anyperson using your insured car". Thepolicy provides "We will pay damages for which any insured person is legally liable. 

# . .

# . We will defend any claim or suit asking for these damages.

# . .." Hubertwas using Hansen's automobile, so in accordancewith thepolicy languageUnited Pacific owes
a duty to defend. Affirmed.

We Concur: 

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