IN THE SUPREME COURT OF THE STATE OF MONTANA 

JODIE ULRIGG, 

plaintiff and Appellant 

-vJACK JONES and SAFECO INSURANCE CO., 

Defendants, Respondents 

and Cross Appellants. 

APPEAL FROM: District Court of the Fourth Judicial District, 

In and for the County of Missoula, 

The Honorable John S. Henson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Michael Sol, Sol & Wolfe, Missoula, Montana 

For Respondent: 

Mark S. Williams, Shelton C. Williams, Williams & 

Ranney, Missoula, Montana 

Filed: 

Submitted on Briefs: October 26, 1995 

Decided: December 5, 1995 
Justice James C. Nelson delivered the Opinion of the Court. 

The Plaint iff , Jodie Ulrigg (Jodie) , appeals from the February 

6, 1995 opinion and order of the Fourth Judicial District Court, 

Missoula County, granting Defendant Jack Jones' (Jack) motion for 

summary judgment. Jack cross-appeals from that part of the June 9, 

1995 opinion and order of the District Court granting Jodie's 

motion to add Safeco Insurance Co. (Safeco) as a party defendant to 

her lawsuit. We affirm the District Court's grant of summary 

judgment in favor of Jack; we reverse the District Court's order 

joining Safeco as a party to the lawsuit. 

BACKGROUND 

On August 18, 1994, Jodie filed her complaint in District 

Court naming Jack as the sole defendant in her personal injury 

suit. Jodie alleged that Jack is "the owner of an automobile which 

negligently struck an automobile driven by [Jodiel on or about 

September 10, 1991" and that Jack's automobile "was driven by a 

person whom [Jodie] believes to be [Jack's] daughter, as agent for 

[Jackl and with the knowledge and permission of [Jackl ; [andl that 

[Jackl was negligent for entrusting his vehicle to his daughter to 

drive. " 

Jack answered, admitting that the automobile which he owned 

was involved in the subject collision on the date alleged and that 

his daughter Jacque Jones (Jacque) was driving the car at the time 

of the accident with his permission. Jack denied that Jacque was 

his agent or that he was negligent for permitting her to use his 

car. 

2 
Subsequently, Jack moved for summary judgment, supporting his 

motion and brief with the fruits of discovery and with his and 

Jacque's affidavits. Jodie filed opposing briefs. Following the 

District Court's February 6, 1995 decision granting Jack summary 

judgment, Jodie moved to alter or amend the summary judgment and to 

add Safeco as a party defendant. Jack objected, and on June 9, 

1995, the District Court entered its opinion and order refusing to 

alter or amend its decision on summary judgment, but granting 

Jodie's motion to add Safeco. This appeal and cross-appeal 

followed. Other pertinent facts are set forth, as necessary, in 

our discussion. 

We address the following issues on appeal: 

I. Did the District Court err in granting summary judgment 

to Jack? 

I Did the District Court err in granting Jodie's motion to 

join Safeco as a party defendant in her lawsuit? 

DISCUSSION 

Notwithstanding that Jodie's notice of appeal only states that 

she is appealing from the District Court's February 6, 1995 order 

granting Jack summary judgment, it is apparent from the briefs that 

both parties presume that Jodie's appeal also includes the District 

Court Is June 9, 1995 denial of her motion to alter or amend the 

summary judgment order and her renewal of that motion. We will, 

likewise, proceed on that basis. 

Our review of the trial court's grant of summary judgment is 

de novo; we utilize the same criteria as the district court. 
Summary judgment is proper only when no genuine issue of material 

fact exists and when the moving party is entitled to judgment as a 

matter of law. Rule 56 (c) , M.R.Civ.P.; Brown v. Demaree (Mont. 

l995), 901 P.2d 567, 569, 52 St.Rep. 819, 820 (citing Minnie v. 

City of Roundup (1993), 257 Mont. 429, 431, 849 P.2d 212, 214). We 

look to the pleadings, depositions, answers to interrogatories, 

admissions on file and affidavits to determine the existence or 

nonexistence of a genuine issue of material fact. Krebs v. Ryan 

Oldsmobile (1992), 255 Mont. 291, 294, 843 P.2d 312, 314 (citing 

Sherrodd, Inc. v. Morrison-Knudsen Co. (1991), 249 Mont. 282, 284, 

815 P.2d 1135, 1136). We review the district court's conclusions 

of law to determine if the court's interpretation of the law is 

correct. Nimmick v. State Farm Mut. Auto. Ins. Co. (1995), 270 

Mont. 315, 319, 891 P.2d 1154, 1156 (citing Steer, Inc. v. 

Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 

603) . 

We assume that Jodie's motion to alter or amend was considered 

by the trial court under Rule 60(b), M.R.Civ.P., since her motion 

was filed more than 10 days following the court's February 6, 1995 

order and was, therefore, untimely under Rule 59(g). See Ring v. 

Hoselton (1982), 197 Mont. 414, 424, 643 P.2d 1165, 1171 (citing 7 

Moore's Federal Practice, 9 60.18 [el, at 216.1 (2d ed. 1979)). " [A] 

motion that is made under Rule 59, which is not timely. . . may, 

nevertheless, be considered as a motion under Rule 60 when it 

states grounds for relief under this latter rule." u, 643 P.2d 

at 1171. Under such circumstances, the appropriate standard of 
review is whether the District Court abused its discretion in 

denying a motion to alter or amend the summary judgment order. 

Goodover v. Lindey's, Inc. (19881, 232 Mont. 302, 312, 757 P.2d 

1290, 1296. 

Under the applicable standards of review, we determine that 

the District Court's legal conclusions for granting Jack summary 

judgment were correct and that it, therefore, did not abuse its 

discretion in refusing to alter or amend its summary judgment 

order. 

Jodie first argues that she attempted to "streamline" the 

litigation by simply suing Jack as the owner of the automobile and 

by not suing the driver, Jacque, who Jodie believed was out of 

state and unavailable--i.e. she limited her suit to "one plaintiff 

and one defendant." Jodie claims that her approach was proper 

because Jack, as the owner of the car, was the real party in 

interest or a necessary party. Under Jodie's theory, an action may 

be brought against the owner of a motor vehicle directly to invoke 

insurance coverage because the controlling statutes, the Motor 

Vehicle Safety-Responsibility Act, 5 61-6-101 through 5 61-6-304, 

MCA, (the Act) while, not imputing negligence to the vehicle owner, 

nevertheless, does, under Montana's mandatory motor vehicle 

insurance laws, impute responsibility for financial liability. 

Jodie bases her argument on her interpretation of those statutes, 

on her view of what the legislature intended in adopting the Act, 

and, by analogy, on the fact that the legislature has, in certain 

other instances, mandated financial responsibility of one person 
for the acts, omissions, negligence, necessities or support of 

others (in this regard, Jodie cites 55 41-1-201, 40-6-237, 40-2- 

106, 40-2-103, and 23-2-505, MCA). We reject this argument. 

Generally, the owner of a motor vehicle is not vicariously 

liable for the acts or omissions of the driver, absent statute or 

proof of some other legal theory such as agency or negligent 

entrustment. See Smith v. Babcock (1971), 157 Mont. 81, 84-87, 482 

P.2d 1014, 1016-17 (citing Clawson v. Schroeder (l922), 63 Mont. 

488, 499, 208 P. 924, 927). See also Forrester v. Kuck (1978), 177 

Mont. 44, 49, 579 P.2d 756, 759 (quoting 8 Am.Jur.2d, Automobiles 

and Highway Traffic, 5 571). 

Contrary to Jodie's argument, except in two instances 

mentioned below, the Act does not impose vicarious liability on a 

third party. Rather, the Act requires the owner of a motor vehicle 

to continuously provide liability insurance coverage for operation 

of the vehicle by the owner and any permissive user. Section 61-6- 

301(1) (a), MCA. In that respect, it is undisputed that Jack 

fulfilled his obligation under the Act in this case--he provided 

liability insurance through Safeco which covered the permissive use 

of his car by his daughter, Jacque. Nothing in the Act made Jack 

personally liable, however, for Jacquels alleged negligent driving. 

The Act as written imposes only financial responsibility, not 

liability. 

As noted above, the legislature has imposed vicarious 

liability on third parties for the acts and omissions of motor 

vehicle drivers in two instances. First, under 5 61-5-108, MCA, a 
parent or other responsible adult must sign the driver's permit or 

license application of a person under age 18 and, along with the 

minor driver, assume the financial obligation of any negligence or 

willful misconduct of the minor while driving. Under that statute, 

the negligence or willful misconduct of the minor is statutorily 

imputed to the adult signing the minor's application. Section 61- 

5-108(2), MCA. Second, 5 61-6-201, MCA, imposes vicarious liability 

upon owners of vehicles used in commercial passenger transportation 

for acts and omissions of their employees while driving such 

vehicles. 

Neither of those statutes is applicable in the instant case. 

Jacque was not a minor at the time of the accident nor was she 

driving Jack's commercial passenger transportation vehicle as his 

employee. Moreover, contrary to Jodie's arguments, it is apparent 

that where the legislature intends to impose vicarious liability on 

a third person for a driver's acts or omissions, it does so by 

statute specifically written to accomplish that purpose. (To the 

same effect, See S, 23-2-505, MCA, wherein the legislature has 

statutorily imposed vicarious liability on the owner of a vessel 

for injury or damage occasioned by its negligent operation.) 

Jodie also argues that Jack is properly sued as a necessary 

party to her litigation, regardless of fault, in order to recover 

on his insurance, since the insurer's duty to defend is only to the 

person who purchases the insurance and owns the policy and because 

the insurance contract is not designed to protect permissive users. 

Nothing could be further from the truth. 
Section 61-6-103 (2) (b) , MCA, provides, in pertinent part, that 

the owner's policy must: 

insure the person named therein and any other 

person, as insured, using any motor vehicle or motor 

vehicles with the express or implied permission of the 

named insured. . . . 

Jack's policy issued by Safeco conforms to this statutory mandate. 

Accordingly, Jacque, had she been sued, would have been covered by 

Jack's insurance policy. While Jodie raises hypothetical questions 

regarding how a tort victim might recover if the vehicle owner 

posts an indemnity bond under § 61-6-301(2), MCA, that is not the 

fact situation at issue, and we decline to address her concerns in 

that regard. 

Next, having found unavailing Jodie's arguments to impose 

statutory liability on Jack under the Act, we turn to her 

contention that Jack should be liable under theories of agency and 

negligent entrustment. On the basis of the record before us, we 

conclude that Jodie did not establish a genuine issue of material 

fact implicating either theory. 

In discovery, Jack propounded to Jodie an interrogatory 

request requiring her to state the basis for her contention that 

Jacque was acting as Jack's agent at the time of the accident. 

Jodie responded that 

[Jacque] was in control of Jack Jones1 vehicle; 

appeared to be in charge of the vehicle with Jack Jones' 

permission or at his behest, and appeared to be in charge 

of the vehicle and responsible to him for its care and 

operation, and operating it under his authority and 

auspices. 

There is nothing in Jodie's answer (or in any other part of the 
record, for that matter) that sets forth any factual basis 

supporting Jodie's conclusion that there was an agency relationship 

between Jacque and Jack in connection with her operation of his 

automobile. At the most Jodie's answer demonstrates that Jacque 

was driving Jack's car with his permission--a fact conceded by 

Jack. 

Jodie speculates that Jacque was her father's agent because 

the purpose of her trip was to visit the University financial aid 

office. However, both Jack and Jacque submitted uncontroverted 

affidavits on summary judgment that established that Jack did not 

know of Jacque's trip, that he did not request her to use his car, 

that she was not driving the car in the performance of any task for 

him, and that he did not derive any benefit from her use of his 

car. 

We have consistently held that speculative and conclusory 

statements are not a sufficient basis on which to raise a genuine 

issue of material fact. Miller v. Herbert (Mont. 19951, 900 P.2d 

273, 276, 52 St.Rep. 655, 658; Howard v. Conlin Furniture No. 2, 

Inc. (Mont. 1995), 901 P.2d 116, 119, 52 St.Rep. 814, 815. Jodie's 

burden on summary judgment was to come forward with substantial 

evidence that would establish a genuine issue of material fact that 

there was an agency relationship between Jacque and Jack. She 

failed in her burden to demonstrate such a fact, and her bald, 

unsupported conclusions and speculation to that effect are legally 

insufficient to withstand summary judgment. See Thornton v. 

Songstad (1994), 263 Mont. 390, 398-401, 868 P.2d 633, 638-40. 
Similarly, Jodie failed in her burden to establish any factual 

basis for her claim that Jack negligently entrusted his automobile 

to Jacque. In discovery Jack required Jodie to set forth her 

evidence on this theory of her case. Jodie admitted that she did 

not have sufficient information to admit or deny Jack's contention 

that he had no reason to believe Jacque would fail to drive his 

vehicle in a reasonable and safe manner and that he had no reason 

to believe that she would use his vehicle in a manner involving 

unreasonable risk of physical harm to others. According to Jodie, 

when asked via interrogatory, the basis for her negligent 

entrustment claim was that, 

[Jacque'sl operation of the vehicle was the 

proximate cause of the accident and the resulting 

injuries and consequential damages to the Plaintiff. 

[Jack] was negligent in not ascertaining or ensuring that 

the driver was sufficiently experienced or skilled in the 

operation of a motor vehicle to avoid such an accident, 

and to avoid injuring the Plaintiff. 

Again, Jodie supplied no factual basis for her claim of 

negligent entrustment. Jacque was 21 at the time of the accident; 

she was a licensed driver; and her's and her father's 

uncontradicted affidavits establish that Jack had no reason 

whatsoever to doubt his daughter's competency as a driver. 

Jodie maintains that our decision in Williams v. State Medical 

Oxygen & Supply, Inc. (1994), 265 Mont. 111, 874 P.2d 1225, 

supports her negligent entrustment theory. That is not the case, 

however. In the first place and most importantly, the plaintiff in 

Williams, established a factual record supporting his theory of 

negligent entrustment. Williams, 874 P.2d at 1226. Secondly, our 
decision in that case turned on a factual scenario that supported 

negligent entrustment under 5 308 of the Restatement (Second) of 

Torts (1965). That is not the situation in this case. Rather, 

Jodie's complaint alleges negligent entrustment of the type 

described in 5 390 of the Restatement--i.e. supplying a chattel to 

a person incompetent to use it safely. Williams, 874 P.2d at 1227. 

As pointed out above, however, Jodie wholly failed to demonstrate 

any facts supporting her theory of liability in that regard. 

The record here demonstrates that, in opposition to Jack's 

motion for summary judgment, Jodie offered only conclusory and 

speculative statements as to her theories of agency and negligent 

entrustment. The District Court was under no duty to anticipate 

Jodie's proof to establish a material and substantial issue of 

fact. Thornton, 868 P.2d at 640 (quoting Taylor v. Anaconda 

Federal Credit Union (1976), 170 Mont. 51, 57, 550 P.2d 151, 154). 

Jodie failed in her burden to raise any genuine issue of material 

fact that Jacque was Jack's agent at the time of the accident or 

that Jack negligently entrusted his automobile to his daughter. 

Moreover, as a matter of law, Jack was not liable for Jacque's 

alleged negligence merely because he was the owner of the 

automobile she was driving. As the trial court concluded: 

Plaintiff could easily have named [Jack's] daughter in 

this action, and father's insurer would have been 

required to defend, no evidence of explicit exclusion 

from the policy having been shown. Simply because 

[Jack's] car was involved in the accident does not make 

him the proper party to be named as Defendant. What is 

clear is that Plaintiff named the wrong party to this 

suit, and the three-year statute of limitations has since 

run. While naming [Jack] may have been no more than an 

unfortunate error, there exists no basis for him to be 
party to this lawsuit. 

We hold that summary judgment was properly granted in favor of 

Jack on Jodie's complaint, and that the District Court did not 

abuse its discretion in denying Jodie's motion to alter or amend 

its ruling in that respect. 

11. 

The District Court ' s granting Jodie' s motion to join Safeco as 

a party defendant in her lawsuit is a different matter, however. 

This issue is raised as a cross-appeal from Jodie's appeal of the 

District Court's order denying her motion to alter or amend and is, 

we conclude, properly before this Court--Jodiers suggestion that 

the District Court ' s order adding Saf eco is not a final, appealable 

order, to the contrary. Inasmuch as we have concluded that summary 

judgment was properly granted in favor of Jack and, because, as 

noted by the District Court, the statute of limitations has run on 

any claim Jodie might have had against Jacque, Safeco is the only 

remaining party in the lawsuit. Since, in this case there is no 

legal basis on which Jodie can sue Safeco, it is proper that we 

dispose of this issue in order to conserve judicial resources and 

avoid further needless litigation. On Jack's cross-appeal, we 

reverse the District Court's order adding Safeco as a party to 

Jodie's lawsuit. 

While she has failed to establish liability against either of 

Safeco' s insureds, Jack or Jacque, Jodie maintains that she should, 

nevertheless, be able to sue Safeco directly. Jodie argues that 

under § 61-6-103 (6) (a) , MCA, the liability of the insurance carrier 
becomes absolute wherever injury or damage covered by the motor 

vehicle liability policy occurs. She also contends that Safeco is 

the real party in interest under Rule 17(a), M.R.Civ.P. The 

District Court agreed with this latter contention, concluding that 

while Rule 17(a) speaks to the prosecution of matters by real 

parties in interest, including contractually related parties, the 

Rule should apply, as well, in matters of defense. Moreover, the 

District Court agreed with Jodie that Safeco's liability stemmed 

from a contractual relationship with Jack, and that, accordingly, 

the longer contract statute of limitations applied to Safeco rather 

than the shorter tort statute. We disagree with Jodie's arguments 

and with the District Court's conclusions of law. 

As noted by Justice Sheehy in his concurring opinion in State 

Farm Mut. Auto Ins. Co. v. Solem (1981), 191 Mont. 156, 622 P.2d 

the long-established rule in Montana [is] that a direct 

action against an insurer does not lie until the 

liability of the insured has been established, Conley v. 

U.S.F.&G. Co. (1934), 98 Mont. 31, 37 P.2d 565 and 

Cummings v. Reins (1910), 40 Mont. 599, 107 P 904, and 

our further long-standing rule [is] that the injection of 

insurance into the action determining liability is 

improper. Vonault v. O'Rourke (1934), 97 Mont. 92, 33 

P.2d 535. 

State Farm, 622 P.2d at 684-85. The reasons for this rule are set 

forth in 8 Appleman, Insurance Law and Practice, § 4861, p. 568 

The extent of the insurer's liability has no relation to 

the personal injury action as such, other than as regards 

its duty to defend, and its presence in the case would 

only serve to confuse and complicate it, and prejudice 

the insured, the injured party, or both. . . . Because direct actions against a liability insurer 
contravene the common law, such a right must be expressly 

sanctioned by the legislature and not merely 

inferentially deduced. 

Montana does permit a direct action against an insurance 

carrier under 5 33-18-242, MCA, which, among other things, allows 

a third-party claimant, such as Jodie, to bring an independent 

cause of action against an insurer for actual damages caused by the 

insurer's violation of certain subsections of 5 33-18-201, MCA, the 

Unfair Trade Practices Act. Jodie's claim against Safeco was not, 

however, based upon 5 33-18-242, MCA, for conduct of Safeco 

prohibited by § 33-18-201, MCA. Rather, Jodie moved to join Safeco 

simply because she was left with no one else to sue; she had no 

cause of action against Jack, and her claim against Jacque was 

time-barred. Moreover, even if Jodie had brought suit against 

Safeco under 5 33-18-242, MCA, subsection (6) (b) of that statute 

prohibits the third-party claimant from filing an action against 

the carrier until after the underlying claim has been settled or a 

judgment is entered in favor of the claimant on the underlying 

claim. See Harman v. MIA Service Contracts (1993), 260 Mont. 67, 

73, 858 P.2d 19, 23. 

Furthermore, Jodie' s contention that § 61-6-103 (6) (a) , MCA, 

supports her claim against Safeco is also misplaced. This 

subsection of the financial responsibility law does not authorize 

a direct action against an automobile insurance carrier, nor does 

this statute repeal the general rule prohibiting direct actions 

against an insurer until the insured's liability is established. 

Rather, 5 61-6-103 (6) (a), MCA, freezes the liability of the 
insurance carrier at the point where injury or damage covered by 

the policy occurs. There is nothing in the cited code section, 

however, that obviates the tort claimant's obligation to first 

establish that the insured was liable for the injuries or damages 

for which coverage under the policy is claimed. Simply put, unless 

and until the tort claimant establishes the liability of the 

tortfeasor, then there are no injuries or damages "covered by the 

policy. " 

Additionally, we conclude that the District Court erroneously 

permitted joinder of Safeco under Rule 17 (a) , M.R. Civ.P. That rule 

requires that every action be prosecuted in the name of the real 

party in interest. We have interpreted this rule to require a 

fully subrogated insurance carrier to bring suit in its own name 

against the wrongdoer responsible for the loss, because once the 

loss is fully paid by the insurer the insurer becomes subrogated to 

the insured's claim against the wrongdoer and the insured no longer 

has a right of action against the wrongdoer. State ex rel. Nawd's 

T.V. and App. Inc. v. District Court (1975) , 168 Mont. 456, 459-60, 

543 P.2d 1336, 1338 (citing United States v. Aetna Casualty & 

Surety Co. (l949), 338 U.S. 366, 70 S.Ct. 207, 94 L.Ed. 171). 

Obviously, that is not the situation in the instant case. There is 

nothing in the plain language of the rule nor in any authority 

cited by Jodie that supports her interpretation and the trial 

court's conclusion that, by reason of the rule, an insurance 

company can be sued directly by a third-party claimant in the place 

of the insured tortf easor. Rule 17 (a) , M. R. Civ. P., is not a direct 
action statute, and we decline to stretch the plain language of the 

rule to hold that it is. 

Finally, we need only briefly address Jodie's contention and 

the District Court's conclusion that the statute of limitations for 

bringing Safeco into the litigation has not expired, because the 

eight-year contract, rather than the three-year tort statute of 

limitation applies. As pointed out above in our discussion of this 

issue, Jodie established no basis under statute or in common law 

for her direct action against Safeco. Accordingly, it follows that 

any discussion of what statute of limitations applies is 

irrelevant. Discussion of which statute of limitations applies to 

a cause of action presupposes that the plaintiff has a cause of 

action against the defendant in the first place. Jodie has no 

direct cause of action against Safeco because she has not 

established any liability on the part of Safeco's insureds and 

because there is no applicable Montana statute or theory under 

which Jodie can sue Jack and Jacque's insurer, absent her first 

establishing the insureds' liability. Jodie has no contract with 

Safeco; she has pled no claim against Safeco for violation of the 

Unfair Trade Practices Act; and any liability on the part of Safeco 

for coverage of Jodie's claims derives solely from the underlying 

liability of Safeco's insureds--which Jodie has failed to 

establish. 

We have reviewed Jodie's arguments and authorities, but none 

support her attempt to join Safeco in this case. Accordingly, we 

hold that the District Court erred in allowing the joinder of 
Safeco as a party defendant under the circumstances, here, and we 

reverse the order of the District Court granting Jodiers motion to 

add Safeco as a party to her lawsuit. 

Affirmed as to Jodie's appeal; reversed as to Jack's crossappeal 

ustice 

/;u /? 

/ Chief Justice 
December 5, 1995 

CERTIFICATE OF SERVICE 

I hereby certify that the following certified order was sent by United States mail, prepaid, to the 

following named: 

Michael Sol, Esq. 

Sol & Wolfe 

101 E. Broadway, Ste. 300 

Missoula. MT 59802 

Mark S. Williams, Esq. 

Williams & Ranney 

P.O. Box 9440 

Missoula, MT 59807 

ED SMITH 

CLERK OF THE SUPREME COURT 

STATE OF MONTANA