No. 12003 INTHE 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 JudicialDistrict, 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 OILearyargued, Butte, Montana.

Submitted: January 12, 1972

Decided

### :

## MAR2

## O1972

Filed: 

## MAR

## 2

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# 1972Mr. Justice Frank I. Haswell delivered the Opinion of the Court.

This isa consolidated appeal on behalf of an unidentified uninsured motorist and three insurance companies from two personal injuryjudgments 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 collisionwith anautomobile allegedly driven by an unknown and uninsured driver, without the permission or consent of the

owner. The facts relating tothe accident itself arenot complex. At about 6:45 a.m. on October 21, 

### 1969, the two plaintiffs, John T. Sullivanand the lateWilliam F. Miller, policemen for the city of Butte, were on duty patrolling thewarehouse district inButte. Patrolman Sullivanwas driving the police car north

on Arizona Street in thenorthbound lane of travel ata speed of about 15 to 

### 20 miles an hour, with plaintiff Miller beside him in the front seat as a passenger. The streetwas straight, lighted with overhead lights, therewas no obstruction tovisibility, nor was there any traffic other than the two vehicles involved in the accident. The headlights of the police car were

on and ingood working order. The weather was good and the streetwas 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 awarning toplaintiff Sullivan to "watch outi'. Immediately thereafter a head-on collision occurred between the police

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

was in the northbound lane of travel. Plaintiff Sullivan testified that he did not see the Pontiac automobile atall prior to impact although he had been looking straight ahead and to the side for atleast a half block prior to impact. After the collision plaintiff Sullivanwas semiconscious, but managed to call for help on the police car radio. When the police officer who had been called arrived atthe scene of the accident, therewas no one in the Pontiac, 

### its lights and enginewere shut off and itwas locked. The driver of the Pontiac has never been located or identified. The Pontiac had apparently been taken from theLeskovar Motors used car lot by an unknown person without the permission or consent of the owner. Both plaintiffs were severely injured in the accident. Atthe time of trial, plaintiff Sullivanhad incurred medical expenses of $1,026.10 and a salary loss of $4,548. Plaintiff Sullivanwas stillpermanently disabled atthe time of trial, the extent and duration of his future disabilityand future medical expenses being uncertain. As a result of his injuries, he incurred considerable pain and suffering of a continuing nature. Sullivanhad received a total of $14,0b1.05 inmedical expenses and compensation benefits under the Montana workmen's Compensation Act, as a result of his injuries and disability. Plaintiff Miller likewisewas permanently disabled with medical expenses of $1,405.30 and a salary loss of $5,003. The extent of his future disabilityand medical expenses was undetermined. As a result of his injuries, he suffered extensive pain and sufferingwhich 

### willcontinue in the future. He received a total of $13,735.30 inmedical expenses and compensation



### -3-benefits under the Montana workmen's Compensation Act. Atthe time of the accident, the cityof Butte carried

an automobile insurance policy on the involved police car containing an "uninsured motorist" endorsement with defendant Glacier GeneralAssurance Company and both Sullivanand 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 Mutua1Automobile Insurance Company. Plaintiff Sullivan fileda persona1injury 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 soughtjudgment that the unidentified and uninsured driver of the Pontiac was liable for his injuries; that he was entitled todamages 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 defensewas 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 trialbefore the district court sittingwithout a jury on April 29, 1970. Immediately prior to trial, allparties tothe Sullivan case agreed that the districtcourtwould try only the issues of liability of the uninsured motorist toSullivan and the damages Sullivan incurred. The parties alsoagreed that a separate trialwouldbe held thereafter inwhich 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 districtcourt found the uninsured motorist negligent; found that Sullivanwas not contributorily negligent; found the uninsured motorist liable toSullivan; and, fixed Sullivan's damages at$20,000. Thereafter, the Miller casewas submitted tothe district court for determination ofthe issue of liabilityof the uninsured motorist toMiller and the extent of ~iller's damages, on the basis of an agreed statement of fact. The districtcourt entered findings of fact and conclusions of law tothe effect that the uninsured motorist was liabletoMiller and fixed ~iller's damages at$20,000. Thereafter, the district court ordered the three defendant insurance companies to filetheir motions and briefs in support of their policy defenses under their "uninsured motorist" endorsements. The insurers did soand also filed a stipulation and agreed statement of facts entered intoby allparties toboth 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 toeach person and $20,000 with respect toeach accident under the "uninsured motorist" endorsement; and, that Sullivanhad received $14,051.05 inmedica1and compensation' benefits under the workmen's Cornpansation Act and Miller had received $13,735.50.On November 

### 6, 1970, the district court entered judgment inboth cases. The substance of the court's findingswas that the "uninsured motorist" provisions ineach policy authorizing

an of£set of other insurance benefits and workmen's compensation benefits against liabilitywas void as against public policy and, accordingly, the insurance commissioner's approva1of the policy forms containing such offsets could not validate such void provisions. Thejudgment held Glacier General and Hartford liable toSullivan for $10,000 each, and Glacier General and StateFarm liable toMiller in the amount of $10,000 each. Alldefendants appeal from this consolidatedjudgment against them. The three basic issues on appealmay be summarized as follows: 

### 1. Should plaintiffs' claims have been barred by reason of contributorynegligence asa matter of law? 2. Are the policy provisions offsetting workmen's compensation 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 itnecessary toconsider the Sullivan and Miller cases separately. Directing our attention firstto the Sullivan case, we note that this casewas tried to the district court wikhout a jury. Threewitnesses testified on behalf of the plaintiff: plaintiff Sullivan; Officer Tromley of the Butte PoliceDepartment; and Butte Chief of Police Clark. In addition, the deposition of Ben F. Bentley, the used car salesman attheLeskovar Motors used car lot, was admitted in evidence by stipulationaswere records of medical expense and other special damages and five photographs of the accident scene. Defendants called no witnesses but cross-examined thewitnesses of the plaintiff. The key finding of fact by the district court on the issue of liability reads: "That atabout 6:30 A.M. on October 21, 1969, while it was stilldark, 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 SouthArizona Streetata 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 itsown 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 Sullivanwere proximately caused by the negligence of the unidentified and unknown motorist, and that Sullivanwas not contributorilynegligent. There isno evidence supportinga 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 isno evidence that itwas moving a t a l latthe time of the accident, or that itwas anything other than an abandoned vehicle obstructing the street. The uncontradicted evidence shows that the doors of the Pontiac were found locked atthe time the first investigating police officer arrived atthe

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 ofthe uninsured motorist rested, althoughhe was the one witness who presumably could testify as towhether the Pontiac was being driven or whether itwas parked and abandoned atthe time of the accident. Miller was aliveatthe time of the Sullivan trial, but 

### isnow deceased. The evidence further shows there

was no other traffic on the street and that the streetwas wide enough topermit passage of the police car around any obstruction, such as the Pontiac automobile. The uncontradicted evidence further shows that atthe time and place of the accident the streetwas straight, there

were overhead lights illuminating the street, the headlights of the police vehicle were on, ingood working order, and illuminated the area ahead. Sullivanhimself testified that he was looking straight ahead and tothe sidewithout distraction for atleast half a block prior tothe point of impact. Under such circumstances, plaintiff Sullivan is guilty of contributorynegligence as a matter of law barring any recovery by him. Whether the Pontiac was moving or stopped, Sullivan should have seen it in time toavoid an accident in the exercise of ordinary care on his part. It is important tonote thathere there isno evidence the Pontiac was moving atall, much less that it suddenly swerved in his path without sufficient time to enable him toavoid 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 laterallyahead' 

# * *

# * oreo over, a person is presumed to see that which he could seeby looking.*

# *

# * He willnot be permitted tosay that he did not seewhat 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 tokeep a lookout includes the duty to see that which 

### is inplain sight.

## ' [Citation]

## ''The failure of plaintiff Sullivan toexercise 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 isbound toan absolute duty to exercisehis 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 todiscover and avoid the danger, which he alleges was brought 

# '*

# *

# *"'1' about by the negligence of the defendant. ., A Montana case directly in point isBoepple v. Mohalt, 101Mont. 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 therewas room for the plaintiff toget past it. This Court held that plaintiff was contributorilynegligent as a matter of law, reversed in favor of the defendant, and in dismissing the action, said: 

### he duty tokeep a lookout implies the duty toseewhat 

### is in plain view, and the driver otan automobile isbound tooperate his conveyance with reference, not only to the pedestrians and conditions he actually sees, but alsotothose 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 inplain sight.Ill Finally, inHall 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 AirForce tractortrailer which negligently blocked or obstructed thehighway. The Federal court held that the plaintiff was barred by his contributorynegligence in driving faster atnight than his lights would safely permit or a failure to look, since the adverse vehicle was on the highway and in plain sight.Accordingly, thejudgment of the district court in favor of plaintiff Sullivan is vacated and the action dismissed. Turning our attention toplaintiff ~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, toMiller, the passenger, nor is there any evidence of contributorynegligence on the part of Miller himself. of Accordingly, the district court's fi-ndinglliability on the part of the uninsured motorist toplaintiff Miller is affirmed. Whatever Sullivan did or failed todo inregard tothe accident cannot bar plaintiff ~iller 

### 's recovery herein. The second issue for review presents an important question

1l relating to uninsured motorist" coverage inMontana. Stated broadly, the question posed iswhether it ispermissible for an

It insurance company inMontana to place limitations in 

### its uninsured motoristr' coveragewhich reduce or eliminate its liability below the statutory limits. Section40-4403, R.C.M. 1947, provides: "Motor vehicle liabilitypolicies 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, shallbe delivered or issued for delivery inthis state, with respect to any motor vehicle registered or principally garaged in this state, unless coverage isprovided therein or supplemental thereto, in limits for bodily injury or death set forth in section 53-422, under provisions filedwith and approved by the insurance commissioner, for the protection of persons insured thereunder who are legally entitled torecover 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 shallhave the right toreject such coverage; and, provided further, that unless the named insured requests such coverage inwriting, such coverage neednot be provided in or supplementa1toa renewal policy where thenamed insured had rejected the coverage in connectionwith the policy previously issued tohim by the same insurer." There 

### is a divergence of authority in other jurisdictions with respect towhether an insurance company may reduce 

### its Liabilityunder its uninsured motor

### ist coverage below the statutory limitby substractingworkmen's compensation benefits received. Our reading of section40-4403, R.C.M. 1947, leads

us to the conclusion that 

### its language is both clear and direct. That section states that no liabilitypolicy can be issued for any

11 motor vehiclewhich 

### is registered in this stateunless uninsured motorist" coverage 

### is alsoprovided ina minimum amount of $10,000, which statutoryminimum 

### is fixed in section 53-422, R.C.M. 1947. The basic purpose of this statute

### is obvious--- toprovide protection for the automobile insurance policyholder against the risk of inadequate compensation for injuries or death caused by thenegligence of financially irresponsible motorists. The legislativepurpose behind the enactment of such statutory provisions on "uninsured motorist" coverage 

### is equally clear. It is simply toplace 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 benefitsrgeivedby him. In theMiller case, Glacier

## c en era1's insurance policy contained "uninsured motorist" coverage; it applied here because the police

car of the city of Butte was being operated by itspolicemen in the course and scope of their employment, with the permission of the city. In addition, plaintiff Miller was a naded insuredunder his own policy with StateFarm Mutual Automobile Insurance Company to the extent of coverage under the $10,000 uninsured motorist endorsement therein. The insurers concede section40-4403, 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 toapprove the form of their policies containing such deductions and he has done so. We cannot agreewith 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 toapprove those policies of insurance which complied with the clear terms of the statute. In approving insurance policies atvariance with the statute, the commissioner undoubtedly exceeded his authority and his approval innofi%idates provisions atvariance with this statute. This Court has previously declared void certain clauses contained in insurance policies which were atvariancewith applicable statutes of this state. See Dominici v. StateFarm Mutual Ins. Co., 143Mont. 406, 390 P.2d 806. 

### In Peterson 

### v. StateFarm 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 statutedid not authorize the insurance commissioner toapprove an insurance policy which permitted a deduction of workmen's compensation benefits from uninsured motorist coverage in this language:tBy approving the insurance policy provisions here in question, the Insurance Commissioner has made sucha decision. The Commissioner's decision goes beyond themere approval of the language ot forms drafted toaccomplish the basic legislative purpose of the uninsured motorist statute. In sodoing, the Commissioner has acted beyond the scope of his authority, and the provision of the insurance policy in question 

### isvoid." Directing our attention to the third issue for review, defendant StateFarm contends that defendant Glacier General 

### is the primary insurer under the agreed stipulation, and where the Glacier Genera1policy provides the statutoryminimum coverage of $10,000, there isno reason why StateFarm should be required topay an additional $10,000 under its %ninsured motoristttcoverage, over and above Glacier ~eneral's liability. The clause in 

### its policy upon which StateFarm relies reads:

1tOther insurance: With respect tobodily injury toan insured while occupying an automobile not owned by the named insured, the insurance under Section 

### 111 shallapply only as excess insurance over any other similar insurance available tosuch insured and applicable tosuch automobile as primary insurance, and this insurance shall then apply only in the amount by which the limitof liability for this coverage exceeds the applicable limitof liability of such other insurance. "Except as provided in the foregoing paragraph, if the insured has other similar insurance available tohim and applicable tothe 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 shallnot be liable for a greater proportion of any loss towhich this Coverage applies than the limitof 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 firstplace, the statutoryrequirement of $10,000 "uninsured motorist'' coverage prescribes a minimum amount only and does not purport to fixa statutorymaximum. Secondly, Miller bought and paidfor the additional "uninsured motor

### ist" coverage afforded by his own policy with StateFarm. Finally, the adjudicated Liability of the "uninsured motorist" toMiller in the instant

case 

### is $20,000, which requires application toboth the $10,000 coverage of the "primary insurer'2lacier General and the $10,000 coverage of the "excess insurer" StateFarm, tosatisfy such liability. The nondeductibility of other insurance benefits applies for the same reasons that workmen's benefits arenot deductible. The majority of jurisdictions outside Montana declarevoid those clauseswhich purport to limit liabilitynot expressly authorized by statute. The leading decision is Peterson, heretofore cited. We refer also toBryant v. StateFarm Mutual Automobile Ins. Co., 205 Va. 897, 140 S.E.2d 817,819, wherein the Supreme Court of Virginia invalidated an "other insurance" clause as being inviolation of Virginia's "uninsured motorist" statute. In Bryant, the Virginia Supreme Court stated: "These cases allestablish that the controlling instrument 

### is the statuteand that provisions in the insurance policy that conflict with the requirements of the statute, either by adding to or taking from 

### its requirements, arevoid and ineffective.II In addition, the decision of Simpson v. StateFarm Mutual Automobile Insurance Co., 318 F.Supp. 1152 (1970), is important. There theUnited States District Court held that under Indiana law

an insurer was not entitled toreduce or limitits !'uninsured motorist" coverage by deduction of payments from other similar insurance even though clauses containing such provisions had been approved by the statecommissioner of insurance. Simpson indicates how the minority line of authority holding such clauses valid emerged from the tenuous precedent of decisions decidedbefore the enactment of statestatutes similar to our section 40-4403, R.C.M. 1947. Additionally, defendants contend that thejudgment 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 theworkmen'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 tomitigate the consequences of his injury, which he suffered asa result of defendant's tort, may not be appropriated by the defendant as an offset todamages which defendant would otherwise be required to pay. There has always been a widespread judicial refusal tocredit to the benefit of thewrongdoer money received inreparation of the victim's injury from

sources other than the wrongdoer himself. See Maxwell, The Collateral Source Rule intheAmerican 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 fullpayment of damages occasioned by the injury

# . For example, Montana

### 's Workmen's Compensation Act provides only for payment of a percentage of the injuredworkman's actualwage loss inmost 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 statutorymaximums without regard toadditional damages actually suffered. Accordingly where, ashere, there 

### is no evidence that thevictim 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 tobe construed as authorizing recovery of any amount in excess of the total damages suffered regardless of thenumber of insurers involved or the aggregate amount of coverage afforded. Such arenot the facts of the instant case, however. The judgment in favor of the estate of William F. Miller against Glacier General Assurance Company and StateFarm 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 teJustices.