No. 12003 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1972 

JOHN T, SULLIVAN, 

Plaintiff and Respondent, 

-vsJOHN DOE, GLACIER GENERAL ASSURANCE COMPANY, A Montana 

Corporation; and HARTFORD ACCIDENT & INDEMNITY COMPANY, 

a Corporation, 

Defendants and Appellants. 

WILLIAM F, MILLER, 

Plaintiff and Respondent, 

JOHN DOE, GLACIER GENERAL ASSURANCE COMPANY, a 

Montana Corporation and STATE FARM INSURANCE COMPANY, a 

Corporation, 

Defendants and Appellants. 

Appeal from: District Court of the Second Judicial District, 

Honorable John B. McClernan, Judge presiding. 

Counsel of Record: 

For Appellants: 

Poore, McKenzie & Roth, Butte, Montana. 

James A. Poore, 111 argued, Butte, Montana. 

John L. McKeon, Anaconda, Montana. 

Michael J, McKeon argued, Anaconda, Montana. 

Knight, Dahood & Mackay, Anaconda, Montana. 

For Respondents: 

Burgess, Joyce,Prothero, Whelan & ear^, 

Butte, Montana, 

Thomas F. Joyce argued, Butte, Montana. 

Robert OILeary argued, Butte, Montana. 

Submitted: January 12, 1972 

Decided : MAR 2 O 1972 

Filed: MAR 2 O 1972 
Mr. Justice Frank I. Haswell delivered the Opinion of the 

Court. 

This is a consolidated appeal on behalf of an unidentified 

uninsured motorist and three insurance companies from two personal injury judgments entered against the respective insurers 

pursuant to "uninsured motorist" provisions of their policies. 

The judgments were in the amount of $20,000 each, one in favor 

of the policeman driver and the other in favor of the policeman 

passenger, of a city of Butte police car which was involved in 

a collision with an automobile allegedly driven by an unknown 

and uninsured driver, without the permission or consent of the 

owner. 

The facts relating to the accident itself are not complex. 

At about 6:45 a.m. on October 21, 1969, the two plaintiffs, 

John T. Sullivan and the late William F. Miller, policemen for 

the city of Butte, were on duty patrolling the warehouse district 

in Butte. Patrolman Sullivan was driving the police car north 

on Arizona Street in the northbound lane of travel at a speed of 

about 15 to 20 miles an hour, with plaintiff Miller beside him 

in the front seat as a passenger. The street was straight, 

lighted with overhead lights, there was no obstruction to visibility, nor was there any traffic other than the two vehicles 

involved in the accident. The headlights of the police car were 

on and in good working order. The weather was good and the 

street was clear. 

Immediately preceding the accident, the two plaintiffs 

were engaged in a conversation concerning two suspects they 

thought would be burglarizing a drug store. As the plaintiffs 

proceeded north on Arizona Street, plaintiff Miller &outed a 
warning to plaintiff Sullivan to "watch outi'. Immediately 

thereafter a head-on collision occurred between the police 

car and a 1968 Pontiac 4--door automobile. The point of impact 

was in the northbound lane of travel. Plaintiff Sullivan 

testified that he did not see the Pontiac automobile at all 

prior to impact although he had been looking straight ahead 

and to the side for at least a half block prior to impact. 

After the collision plaintiff Sullivan was semiconscious, 

but managed to call for help on the police car radio. When the 

police officer who had been called arrived at the scene of the 

accident, there was no one in the Pontiac, its lights and engine were shut off and it was locked. The driver of the Pontiac 

has never been located or identified. The Pontiac had apparently 

been taken from the Leskovar Motors used car lot by an unknown 

person without the permission or consent of the owner. 

Both plaintiffs were severely injured in the accident. 

At the time of trial, plaintiff Sullivan had incurred medical 

expenses of $1,026.10 and a salary loss of $4,548. Plaintiff 

Sullivan was still permanently disabled at the time of trial, 

the extent and duration of his future disability and future 

medical expenses being uncertain. As a result of his injuries, 

he incurred considerable pain and suffering of a continuing 

nature. Sullivan had received a total of $14,0b1.05 in medical 

expenses and compensation benefits under the Montana workmen's 

Compensation Act, as a result of his injuries and disability. 

Plaintiff Miller likewise was permanently disabled with 

medical expenses of $1,405.30 and a salary loss of $5,003. 

The extent of his future disability and medical expenses was 

undetermined. As a result of his injuries, he suffered extensive 

pain and suffering which will continue in the future. He received a total of $13,735.30 in medical expenses and compensation 

-3- 
benefits under the Montana workmen's Compensation Act. 

At the time of the accident, the city of Butte carried 

an automobile insurance policy on the involved police car 

containing an "uninsured motorist" endorsement with defendant 

Glacier General Assurance Company and both Sullivan and Miller 

I1 were insureds'' within the meaning d the policy. In addition, 

plaintiff Sullivan carried his own policy with an "uninsured 

motorist'' endorsement with defendant Hartford Accident & Indemnity Company, while plaintiff Miller carried his own policy 

with an "uninsured motorist" endorsement with defendant State 

Farm Mutua 1 Automobile Insurance Company. 

Plaintiff Sullivan filed a persona 1 injury action against 

John Doe, the unidentified and uninsured driver of the Pontiac 

automobile; Glacier General Assurance Company, the insurer of 

the city of Butte; and Hartford Accident & Indemnity Company, 

his insurer. In this action Sullivan sought judgment that the 

unidentified and uninsured driver of the Pontiac was liable for 

his injuries; that he was entitled to damages of $20,000; and, 

that either Glacier General or Hartford or both must pay him 

this sum under the "uninsured motorist" provisions of their 

respective policies. The defense was denial of liability on 

the part of the driver of the Pontiac, together with various 

policy defenses under the "uninsured motorist'' endorsements on 

the respective policies. 

The Sullivan case came on for trial before the district 

court sitting without a jury on April 29, 1970. Immediately 

prior to trial, all parties to the Sullivan case agreed that 

the district court would try only the issues of liability of 

the uninsured motorist to Sullivan and the damages Sullivan 

incurred. The parties also agreed that a separate trial would 
be held thereafter in which the policy defenses of the insurers 

under the "uninsured motorist" coverage would be determined by 

the district court and judgment entered accordingly. 

Following trial, the district court entered findings of 

fact and conclusions of law in favor of plaintiff Sullivan. 

In substance, the district court found the uninsured motorist 

negligent; found that Sullivan was not contributorily negligent; 

found the uninsured motorist liable to Sullivan; and, fixed 

Sullivan's damages at $20,000. 

Thereafter, the Miller case was submitted to the district 

court for determination ofthe issue of liability of the uninsured 

motorist to Miller and the extent of ~iller's damages, on the 

basis of an agreed statement of fact. The district court entered 

findings of fact and conclusions of law to the effect that the 

uninsured motorist was liable to Miller and fixed ~iller's 

damages at $20,000. 

Thereafter, the district court ordered the three defendant 

insurance companies to file their motions and briefs in support 

of their policy defenses under their "uninsured motor is t" endorsements. The insurers did so and also filed a stipulation 

and agreed statement of facts entered into by all parties to both 

actions. The substance of the stipulation and agreed statement 

of facts sets forth the applicable policy provisions in the 

policy of each insurer. It provided that Glacier General had 

"the primary coverage" on the police car involved in the accident; that each policy provided limits of liability of $10,000 

with respect to each person and $20,000 with respect to each 

accident under the "uninsured motorist" endorsement ; and, that 

Sullivan had received $14,051.05 in medica 1 and compensation' 

benefits under the workmen's Cornpansation Act and Miller had 

received $13,735.50. 
On November 6, 1970, the district court entered judgment 

in both cases. The substance of the court's findings was that 

the "uninsured motorist" provisions in each policy authorizing 

an of £set of other insurance benefits and workmen's compensation 

benefits against liability was void as against public policy and, 

accordingly, the insurance commissioner's approva 1 of the policy 

forms containing such offsets could not validate such void provisions. The judgment held Glacier General and Hartford liable 

to Sullivan for $10,000 each, and Glacier General and State Farm 

liable to Miller in the amount of $10,000 each. All defendants 

appeal from this consolidated judgment against them. 

The three basic issues on appeal may be summarized as 

follows: 

1. Should plaintiffs' claims have been barred by reason 

of contributory negligence as a matter of law? 

2. Are the policy provisions offsetting workmen's compensa tion benefits against "uninsured motorist" coverage void 

as against public policy? 

3. Do any other exclusions in their respective -policies 

preclude liability on the part of any of the insurers? 

In discussing the first issue for review,we find it necessary to consider the Sullivan and Miller cases separately. 

Directing our attention first to the Sullivan case, we 

note that this case was tried to the district court wikhout a 

jury. Three witnesses testified on behalf of the plaintiff: 

plaintiff Sullivan; Officer Tromley of the Butte Police Department; and Butte Chief of Police Clark. In addition, the deposition of Ben F. Bentley, the used car salesman at the Leskovar 

Motors used car lot, was admitted in evidence by stipulation as 
were records of medical expense and other special damages and 

five photographs of the accident scene. Defendants called no 

witnesses but cross-examined the witnesses of the plaintiff. 

The key finding of fact by the district court on the 

issue of liability reads: 

"That at about 6:30 A.M. on October 21, 1969, 

while it was still dark, a City of Butte police 

patrol car driven by plaintiff, John T. Sullivan 

and occupied by William F. Miller, another police 

officer, was proceeding north on South Arizona 

Street at a speed of 15 to 20 m.p.r. in its own 

and proper lane of traffic when a 1968 Pontiac 

automobile crossed over the center line of said 

Arizona street from its own lane of traffic and 

struck head on the police car operated by plaintiff." 

The district court concluded that the accident and the 

resulting injuries to Sullivan were proximately caused by the 

negligence of the unidentified and unknown motorist, and that 

Sullivan was not contributorily negligent. 

There is no evidence supporting a finding that the Pontiac 

automobile crossed over the center line of Arizona street from 

its own lane of traffic and struck the police car head-on. In 

fact there is no evidence that it was moving a t a l l at the time 

of the accident, or that it was anything other than an abandoned 

vehicle obstructing the street. The uncontradicted evidence 

shows that the doors of the Pontiac were found locked at the 

time the first investigating police officer arrived at the 

scene of the accident following his summons there) by Sullivan. 

The uncontradicted evidence also shows there were no skid marks 

from the Pontiac on the pavement. It is likewise uncontradicted 

that Miller, the police officer passenger in the police car, saw 

the Pontiac and shouted a warning. He was not called as a witness 

by the plaintiff upon whom the burden of proof of negligence of 
the uninsured motorist rested, although he was the one witness 

who presumably could testify as to whether the Pontiac was 

being driven or whether it was parked and abandoned at the time 

of the accident. Miller was alive at the time of the Sullivan 

trial, but is now deceased. The evidence further shows there 

was no other traffic on the street and that the street was wide 

enough to permit passage of the police car around any obstruction, such as the Pontiac automobile. 

The uncontradicted evidence further shows that at the 

time and place of the accident the street was straight, there 

were overhead lights illuminating the street, the headlights 

of the police vehicle were on, in good working order, and 

illuminated the area ahead. Sullivan himself testified that 

he was looking straight ahead and to the side without distraction for at least half a block prior to the point of impact. 

Under such circumstances, plaintiff Sullivan is guilty of 

contributory negligence as a matter of law barring any recovery 

by him. Whether the Pontiac was moving or stopped, Sullivan 

should have seen it in time to avoid an accident in the exercise 

of ordinary care on his part. It is important to note that here 

there is no evidence the Pontiac was moving at all, much less 

that it suddenly swerved in his path without sufficient time 

to enable him to avoid the accident. 

In Autio v. Miller, 92 Mont. 150, 165, 11 P.2d 1039, this 

Court said: 

"The driver must look 'not only straight ahead, 

but laterally ahead' * * * oreo over, a person 

is presumed to see that which he could see by 

looking.* * * He will not be permitted to say 

that he did not see what he must have seen, had 

1 he looked, as Mr. Justice Toole said in Grant 

v. Chicago, M.& St.Pau1 Ry. Co., 78 Mont. 97, 252 

Pac. 382, 386. he duty to keep a lookout includes the duty to see that which is in plain 

sight. ' [Citation] '' 
The failure of plaintiff Sullivan to exercise reasonable 

him 

care for his own safety precludes any recovery bylagainst the 

"uninsured motorist" herein. In Sullivan v. Northern Pacific 

Railway Co., 109 Mont. 93, 108, 94 P.2d 651, we held: 

 very person is bound to an absolute duty 

to exercise his intelligence to discover and 

avoid dangers that may threaten him. When, 

therefore, a plaintiff asserts the right of 

recovery on the ground of culpable negligence 

of the defendant, he is bound to show that he 

exercised his intelligence to discover and 

avoid the danger, which he alleges was brought '* * *" '1' about by the negligence of the defendant. ., 

A Montana case directly in point is Boepple v. Mohalt, 

101 Mont. 417, 435, 54 P.2d 857. In that case the defendant's 

road grader was on the wrong side of the road but it was visible 

and there was room for the plaintiff to get past it. This 

Court held that plaintiff was contributorily negligent as a 

matter of law, reversed in favor of the defendant, and in 

dismissing the action, said: 

 he duty to keep a lookout implies the duty 

to see what is in plain view, and the driver 

ot an automobile is bound to operate his conveyance with reference, not only to the pedestrians 

and conditions he actually sees, but also to those 

he should see in the exercise of reasonable care * * *. He [a driver] could not escape the penalty 

of his negligence by saying that he did not see that 

which was in plain sight. Ill 

Finally, in Hall v. United States, 407 F.2d 849, a Montana 

case decided by the United States Court of Appeals, Ninth Circuit, 

in 1969, the plaintiff collided with an Air Force tractortrailer which negligently blocked or obstructed the highway. 

The Federal court held that the plaintiff was barred by his 

contributory negligence in driving faster at night than his 

lights would safely permit or a failure to look, since the 

adverse vehicle was on the highway and in plain sight. 
Accordingly, the judgment of the district court in favor 

of plaintiff Sullivan is vacated and the action dismissed. 

Turning our attention to plaintiff ~iller's case, there 

is no question of contributory negligence involved. There is 

simply no basis for imputing the negligence of plaintiff Sullivan, 

the driver, to Miller, the passenger, nor is there any evidence 

of contributory negligence on the part of Miller himself. 

of 

Accordingly, the district court's fi-ndinglliability on the 

part of the uninsured motorist to plaintiff Miller is affirmed. 

Whatever Sullivan did or failed to do in regard to the accident 

cannot bar plaintiff ~iller 's recovery herein. 

The second issue for review presents an important question 

1 l relating to uninsured motorist" coverage in Montana. Stated 

broadly, the question posed is whether it is permissible for an 

It insurance company in Montana to place limitations in its uninsured motoristr' coverage which reduce or eliminate its liability 

below the statutory limits. 

Section 40-4403, R.C.M. 1947, provides: 

"Motor vehicle liability policies to include uninsured 

motorist coverage---rejection of coverage by insured. 

No automobile liability or 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, shall be delivered 

or issued for delivery in this state, with respect 

to any motor vehicle registered or principally garaged 

in this state, unless coverage is provided therein or 

supplemental thereto, in limits for bodily injury or 

death set forth in section 53-422, under provisions 

filed with and approved by the insurance 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; provided, that the named insured 

shall have the right to reject such coverage; and, 

provided further, that unless the named insured requests such coverage in writing, such coverage need 
not be provided in or supplementa 1 to a renewal 

policy where the named insured had rejected the 

coverage in connection with the policy previously 

issued to him by the same insurer." 

There is a divergence of authority in other jurisdictions 

with respect to whether an insurance company may reduce its 

Liability under its uninsured motor is t coverage below the 

statutory limit by substracting workmen's compensation benefits 

received. Our reading of section 40-4403, R.C.M. 1947, leads 

us to the conclusion that its language is both clear and direct. 

That section states that no liability policy can be issued for any 

motor 11 vehicle which is registered in this state unless uninsured motorist" coverage is also provided in a minimum amount 

of $10,000, which statutory minimum is fixed in section 53-422, 

R.C.M. 1947. The basic purpose of this statute is obvious--- 

to provide protection for the automobile insurance policyholder 

against the risk of inadequate compensation for injuries or 

death caused by the negligence of financially irresponsible 

motorists. 

The legislative purpose behind the enactment of such 

statutory provisions on "uninsured motorist" coverage is equally 

clear. It is simply to place the injured policyholder in the 

same position he would have been if the uninsured motorist 

had liability insurance and, accordingly, the amount of plaintiff's recovery from "uninsured motorist" coverage cannot be 

reduced by any workmen s compensation benefits rgeived by him. 

In the Miller case, Glacier c en era 1's insurance policy contained 

"uninsured motorist" coverage; it applied here because the police 

car of the city of Butte was being operated by its policemen 

in the course and scope of their employment, with the permission 

of the city. In addition, plaintiff Miller was a naded insured 
under his own policy with State Farm Mutual Automobile Insurance 

Company to the extent of coverage under the $10,000 uninsured 

motorist endorsement therein. 

The insurers concede section 40-4403, R.C.M. 1947, does 

not expressly authorize a deduction of workmen's compensation 

benefits from the $10,000 coverage afforded under the "uninsured 

motorist" coverage, but argue instead that that section authorizes 

the insurance commissioner to approve the form of their policies 

containing such deductions and he has done so. 

We cannot agree with insurers' position. We view the 

intent and construction of section 40-4403, R.C.M. 1947, to 

mean that the legislature simply authorized the insurance commissioner to approve those policies of insurance which complied 

with the clear terms of the statute. In approving insurance 

policies at variance with the statute, the commissioner undoubtedly exceeded his authority and his approval in nofi%idates 

provisions at variance with this statute. 

This Court has previous ly declared void certain clauses 

contained in insurance policies which were at variance with 

applicable statutes of this state. See Dominici v. State Farm 

Mutual Ins. Co., 143 Mont. 406, 390 P.2d 806. 

In Peterson v. State Farm Mutual Automobile Ins. Co., 

238 Ore. 106, 393 P.2d 651, 655, we find a situation similar 

to the one now before this Court. The Oregon statute on uninsured motorist coverage is very similar in language to our 

section 40-4403, R.C.M. 1947. In Peterson,the Oregon Supreme 

Court held their statute did not authorize the insurance commissioner to approve an insurance policy which permitted a deduction 

of workmen's compensation benefits from uninsured motorist 

coverage in this language: 
t By approving the insurance policy provisions 

here in question, the Insurance Commissioner 

has made such a decision. The Commissioner's 

decision goes beyond the mere approval of the 

language ot forms drafted to accomplish the 

basic legis la tive purpose of the uninsured 

motorist statute. In so doing, the Commissioner 

has acted beyond the scope of his authority, 

and the provision of the insurance policy in 

question is void." 

Directing our attention to the third issue for review, 

defendant State Farm contends that defendant Glacier General 

is the primary insurer under the agreed stipulation, and 

where the Glacier Genera 1 policy provides the statutory minimum 

coverage of $10,000, there is no reason why State Farm should 

be required to pay an additional $10,000 under its %ninsured 

motoristtt coverage, over and above Glacier ~eneral's liability. 

The clause in its policy upon which State Farm relies 

reads : 

1 t Other insurance: With respect to bodily injury 

to an insured while occupying an automobile not 

owned by the named insured, the insurance under 

Section 111 shall apply only as excess insurance 

over any other similar insurance available to such 

insured and applicable to such automobile as primary 

insurance, and this insurance shall then apply only 

in the amount by which the limit of liability for 

this coverage exceeds the applicable limit of liability of such other insurance. 

"Except as provided in the foregoing paragraph, 

if the insured has other similar insurance available 

to him and applicable to the accident, the damages 

shall be deemed not to exceed the higher of the applicable limits of liability of this insurance and 

such other insurance, and the company shall not be 

liable for a greater proportion of any loss to which 

this Coverage applies than the limit of liability 

hereunder bears to the sum of applicable limits of 

liability of this insurance and such other insurance." 

This contention is without merit. In the first place, 

the statutory requirement of $10,000 "uninsured motorist'' 

coverage prescribes a minimum amount only and does not purport 

to fix a statutory maximum. Secondly, Miller bought and paid 
for the additional "uninsured motor is t" coverage a fforded by 

his own policy with State Farm. Finally, the adjudicated 

Liability of the "uninsured motorist" to Miller in the instant 

case is $20,000, which requires application to both the $10,000 

coverage of the "primary insurer'2lacier General and the 

$10,000 coverage of the "excess insurer" State Farm, to satisfy 

such liability. 

The nondeductibility of other insurance benefits applies 

for the same reasons that workmen's benefits are not deductible. 

The majority of jurisdictions outside Montana declare void 

those clauses which purport to limit liability not expressly 

authorized by statute. The leading decision is Peterson, heretofore cited. We refer also to Bryant v. State Farm Mutual 

Automobile Ins. Co., 205 Va. 897, 140 S.E.2d 817,819, wherein 

the Supreme Court of Virginia inva lida ted an "other insurance" 

clause as being in violation of Virginia's "uninsured motorist" 

statute. In Bryant, the Virginia Supreme Court stated: 

"These cases all establish that the controlling 

instrument is the statute and that provisions 

in the insurance policy that conflict with the 

requirements of the statute, either by adding to 

or taking from its requirements, are void and ineffective. I I 

In addition, the decision of Simpson v. State Farm Mutual 

Automobile Insurance Co., 318 F.Supp. 1152 (1970), is important. 

There the United States District Court held that under Indiana law 

an insurer was not entitled to reduce or limit its !'uninsured 

motorist" coverage by deduction of payments from other similar 

insurance even though clauses containing such provisions had been 

approved by the state commissioner of insurance. Simpson indicates how the minority line of authority holding such clauses 

valid emerged from the tenuous precedent of decisions decided 
before the enactment of state statutes similar to our section 

40-4403, R.C.M. 1947. 

Additionally, defendants contend that the judgment of 

the district court against them in the amount of $10,000 each 

has the effect of granting plaintiffs a "double recovery" in 

view of the workmen's compensation benefits previously awarded. 

As a general rule, it has been held that the fact that a 

person receives from a collateral source payments which have 

a tendency to mitigate the consequences of his injury, which he 

suffered as a result of defendant's tort, may not be appropriated 

by the defendant as an offset to damages which defendant would 

otherwise be required to pay. There has always been a widespread judicial refusal to credit to the benefit of the wrongdoer money received in reparation of the victim's injury from 

sources other than the wrongdoer himself. See Maxwell, The 

Collateral Source Rule in the American Law of Damages, 46 Minn.- 

Law Review 669; Annotations, 75 ALR2d 885 and 4 ALR3d 535. 

It is axiomatic that benefits payable under Montana's 

workmen's Compensation Act do not represent full payment of 

damages occasioned by the injury . For example, Montana 's Workmen's Compensation Act provides only for payment of a percentage 

of the injured workman's actual wage loss in most cases; nor is 

there any compensation payable for pain and suffering, interference with the workman's established course of life, nor any 

other elements of general damages ; workmen's compensation benefits 

for disability, partial or total, are limited to statutory maximums without regard to additional damages actually suffered. 

Accordingly where, as here, there is no evidence that the victim 

has received a "double recoveryrYor the damages he suffered, 

the insurer's contention is nothing but a puff of smoke. 
We specifically point out, however, that nothing said 

herein is to be construed as authorizing recovery of any amount 

in excess of the total damages suffered regardless of the number 

of insurers involved or the aggregate amount of coverage afforded. 

Such are not the facts of the instant case, however. 

The judgment in favor of the estate of William F. Miller 

against Glacier General Assurance Company and State Farm Mutual 

Automobile Insurance Company in the amount of $10,000 against 

each defendant is affirmed. The judgment in favor of John T. 

Sullivan against Glacier General Assurance Company and Hartford 

Accident & Indemnity Company is reversed and dismissed. 

Associate Justice 

Assoc 4 te Justices.