### NO. 95-425 

### IN THE SUPREME COURT 

### OF THE STATE OF MONTANA 1996


### FARMERS ALLIfiATCEMUTITAL INSUR&TCE: COMP.LVY, 

### a Kansas Insurance corporation, Plaintiff and Appellant,

KRISTI HOLEW,Personal Representative of the Estate of Gary Lee Leonard,Deceased, Defendant and Respondent

CERTIFZED QUESTION FROM: The United States District Court for the District of Montana, Billings Division, The Honorable Jack D. Shanstrompresiding
COUNSEL OF 

### RECORD: For Appellant: Robert Savage;Habedank, Cumming,Best & 

### Savage, Sidney,Montana (argued for Farmers Alliance) For Respondent: Donald D. Sommerfeld;Towe,Ball, Enright, Mackey & 

### Sommerfeld, Billings,Montana (argued for Kristi Holeman, Personal Representative) For Amicus: Peter F. Habein; Crowley, Haughey, Hanson, Toole & 

### Dietrich, Billings, Montana (argued for Mountain West FarmBureau Mutual Insurance Company) SusanP.Eoy,Garlington,Lohn &Robinson,Missouia, Montana (argued for Alliance of American Insurers) GeneR.Jarussi;Jarussi &Bishop,Billings,Montana

(arguedfor Montana Trial Lawyers Association)
..-:,..* ** .- # , ... 9 

# r"" '@*,& ;- ‘f 

### <;q ./ ? 

### Heard: May 20, 

### 1996 sf-:

. ,

# :~. .LA 

# Akd Submitted: June 25, 1926 

### ~~~id~d: aeptamber 12,

### Justice W. 

### VJilliam Leaphart 

### delivered the Opinion of the Court

The United States District Court for the District of Montana,



### .-- Bliiings Division, bas zertified the folLowing question to this Court pursuant to Rule 

### 44, M.R.Appp.F. 

### We answer the certified question "no." The certified question 

### is: Section 33-23-203,MCA, prohibits the stacking of theuninsuredmotorist coverage available under a policy of motor vehicle liability insurance. Does Section 33- 

### 23-203,MCA,

### prohibit the stackingof themedical payment coverageand the-insuredmotorist coverage available undera policy ofmotor vehicle liability insurance where a 

### premium is charged for coverage of each motor vehicle listed within that policy? In the insurance policy at issue, a premium is charged on each motor vehicle listed within the policy formedical payment co*Jerageand a premium is charged on each motor vehicle listed within the policy for -insurance coverage. The premium for the -insured motorist coverage is includedaspart of the premium for the uninsured motorist coverage. In its Order Certifying Question to the Supreme Court 

### of Montana, the District Court submitted a statement of agreed facts The facts that this Court finds dispositive of the question are as follows: 

### 4. That, at approximately 0450 hours, on November 9, 1991, a vehicle insured by the Plaintiff under the policy issued to Wade and DianaBrown,namely a 1971Ford pickup withVIN FlOGKL66406,being drivenby LoriWatson, in which Scott Hankel and Gary Lee Leonard were passengers, was involved in a one-vehicle accident in Jefferson County, Montana, 

### on Interstate 90 

### at milepost 233.4, 15.6miles west of Whitehall, Montana. 5. 

### Subsequentthereto,atapproximately0510

### hours, at [sic] 1983 Ford pickup truck,V1N 1FTHF26LSDPA15458, owned by Darrel. 

### M. Storey and driven by Darrel Maynard Storey,

### Jr.,was traveling east on Interstate 90when the driver lost control of the vehicle as he attempted to

### slow for the accident scene 

### and went into a sideskid. The Storey vehicle struck the right roar corner of the trailer attached ts the 

### subject 1971 

### Ford pickup, VIN 

### F30GRL66406. Such contact pushed the trailer into the ditch and onto its Left side. The 

### Storey vehicle then rapidly rotated. Mr. Leonard's coat became entangled on the 

### bitch of the Storey pickup which caw-sedMr. Leonard to be 

### dragged under the 

### Storey 

### vehicle until 

### after it 

### went backwards into the ditch on the south side of the road. 1.

### Leonard died as a result of 

### the injuries sustained. 6. 

### The Storey vehicle was insured by State Farm Auto 

### Insurance

### Companyunder Pnli.cy PJo 1.3E 522.2-495-225 

### add State Farm subsequently paid out its policy limits under the liability portion of its policy limits in the amount of $25,000. 7. 

### Prior to signing a Release, the Estate of Gary Lee Leonardmade demand upon Plaintiff for the uninsured

(underinsured)motorist coverage andautomedicalpayment coverage provided for in the Business Auto Policy of Wade and Diana Brown. 8. Plaintiff has refused to make any payments of uninsured (underinsured! motorist coverage and auto medical payment coverage to the heirs and/or Estate of Gary Lee Leonard, deceased.
Answering the question certifiedby theUnited StatesDistrict Court requires this Court to construe § 

### 33-23-203, MCA. In construing a statute, "the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted." Section 1-2-101,MCA. 

### The rules of statutory constructionrequire the language to be construed according to its plain meaning. Stratemeyer v. L~ncoln County (Flont

### . 1996)

### , 915 P.2d175, 178,53 St.Rep. 245, 250 (citingClarke v.

### Massey (19951, 271 Mont. 412,416, 

### 897 P.2d 1085,1088). If the language is clear and unambiguous, then no further interpretation is required; we will resort to legislative history only if the intent cannot be

### determined fromthe

### plain wording of the 

### statute. Clarke, 847F.id 

### at 

### 1088. Where the intention 

### of the 

### legislature 

### canbe determined from che 

### piain meaning of the words used in a 

### statute, 

### the courts 

### may not go further 

### and apply other rneans 

### of interpretation. Clarke, 897 P.2d 

### at 1088 

### (citing Tongue River Glec. Coop. 

### v. Montana Power Co. (1981),191Mont. 511, 515, 636 P.2d 862, 864). The question certified 

### is a 

### narrow one. 

### We are asked 

### only trj 

### determine whether § 

### 33-.23-203,MCA, prohibits the stacking of woptional"coverages--here, themedicalpaymentsandunderinsurance coverages. We do not consider whether the terms of the insurance contractprohibit stacking. Rather,our analysis is confined to an interpretation of § 

### 33-23-203,MCA. Accordingly, this Court's recentdecision in Chilberg v. Rose (1995) 

### , 273 Mont

### . 414, 903 

### P. 2d 1377, is not controlling in this case as Chilberq is a multiple policy case and does not interpret § 

### 33-23-203,MCA. In addition,
we note that Sayers 'J. 

### Safeco Ins. Co.of America i1981),192Mont. 336, 628 P.2d 659,cited with approval in Chilberq, is contrary to § 

### 33-23-203,MCA, as Savers approved the stacking of uninsured motorist coverage under a single policy. Thus,under § 

### 33-23-203, MCA, Savers is no longer good law because under the terms of S 33- 23-203,MCA, stacking of uninsured motorist coverage formultiple vehicles lnsured under a single policy is expressly prohibited unless thepolicy specifically provides otherwise. Section 33-23- 203,MCA, provides: (1) Unless a motor vehicle liab~lity policy specifically provides otherwise,the limits of insurance coverage available under any suchpolicy, including the limits of liability under uninsured motorist coverage, 4nmst 

### be determined as follows,regardless of the number 

### of motor vehicles insured under the policy:



## . ' (a) 

### the 

### l~rnltof 

### insurance coverage available 

### for any one accident is the Limit specified for the motor vehicle involved in 

### the accident; (bj 

### if nomotor vehicle insuredunder thepolicy is involved 

### in the scciclent,the limitof insurance coverage available for 

### any one 

### accidest is the highest limit of 

### coverage specified 

### for any one motor vehicle insured under the policy; and 

### (c) the limitsof coveragespecified for eachmotor vehicle insured under the policy may not be added together to determine the limit of insurance coverage available under the policy for any one accident. (2) 

### A motor vehicle liability policy may also provide forother reasonable limitations,exclusions,or reductions of coverage which are designed to prevent duplicatepayments for the same element of loss. From the language of the statute, it is clear that "stacking" is not allowed "unlessa motor vehicle liability policy specifically provides otherwise." It is equally clear that the "anti-stacking" provisions of the statute apply to a "motor vehicle liability policy" (MVLP) 

### . The term MVLP 

### is defined in § 33-23-204(2),

### MCA,


### as "any policy of automobile or motor vehicle insurance against liability now or hereafter required under Title 61, 

### chapter 6, 

### parts 1 

### and 3." 

### (Emphasisadded. ) 

### The dissenters argue that 9: 33-23-204(2),

### MCA, refers to required "policiesti rather than required "co~erages.'~ It makes no sense, however, to discuss "policies" in a vacuum. A policy of insurance is nothing more than the coverages which are provided within the policy. In 9: 33-23-204(2),

### MCA, 

### the legislature was obviously correlating theanti-stackingstiituteswith the fact that policies with specific types of coverage are requiredby Title 61, 

### chapter 6, 

### parts 1 

### and 3. 

### In particular, the per person, per vehicle and property damage coverages mandated by § 61-6-103(2), 5FICA. 

### In interpreting 33-23-204(2), IKA, 

### three points are apparent; it isdirected at insuranceagainst 

### iiabiiity. 

### Secondly, it is directed at insurance coverage which 

### is "required"

### by law: and finally,it is concerned with liability icsuraacewhich is not only required, but is required by both part 1 and part 3. 

### There
are only three variatirjl?~ 

### of insurance coverage whiilh 

### meet the 

### above criteria; that is, liability coverage which is required by both the MVSRA and the Motor Vehicle Liability Act. Those three coverages are the per person, per vehicle and property damage coverages which are required by S 

### 61-6-103(2), MCA, and which are incorporated into the Motor Vehicle Liability Act by § 

### 61-6-301, MCA. Unlilce the third-party coverage mandated by MVSRA and the Motor Vehicle LiabilityAct,underinsurance and medical payment do not qualify as insurance against liability. Rather,underinsurance and medical pay coverage are designed to protect the first party insured. Furthermore,there is nothing inMIJSRA, theMotorVehicle Liability Act or Title 33, 

### chapter 23, MCA, which would "require" underinsurance and medical pay coverage. To the contrary, the MVSRh specifically excludes coverages which are in excess of the required per person, per vehicle and property damage coverage. The MVSRA, § 

### 61-6-103(8), provides as follows: Any policy which grants the coverage required for a motor vehicle liability policymay also grant any lawful coverage in excess of or in addition to the coverage specified for a 

### motor vehicle liability policy, and the excess or additional coverage is not subject to the provisions of thlspart, With respect to a policy which grants the excess oraddlti~nal coverage,the term "motor vehicle liability policy" applies only to that part 

### of

### the coverage which 

### is required by 

### this section. As 

### Justice 

### Erdrnann's dissent points cut, 

### the 

### above 

### pro-,?ision specifically 

### refers to coverage which 

### is required "by this secticlr." Although '*thissection" refers to 

### the MVSRA, the Motor 

### Vehicle LiabilityAct has also 

### incorporated those same "c~verage'~ requirements; $25,000because of bodily injury to any one person, $50,000 for bodily injury in any one 

### accident* and $10,000 fcr property damage. There is nothing in the Motor Vehicle Liability Act which would suggest that the liability coverage requirements incorporated fromMVSRA are any broader than those required under MVSRA. Since MVSRA specifically does not require any excess or additional coverage such as underinsurance, it is reasonable to conclude that the Motor Vehicle Liability Act likewise treats medical pay coverage and underinsurance as in 'IexcessN or in addition to the coverages which are specifically required by both Acts in question. Title 61,

### chapter 6,

### parts 1 

### and 3. Asmedical payment coverageandunderinsured motorist coverage
are "excess or additional coverage" which are not required under either the MVSRA or the Motor Vehicle LiabilityAct, we determine that these coverages are not part of theMVLP under § 

### 33-23-204 !2), 

### MCA

### . Accordingly, the prohibition against stacking required coverages in § 

### 33-23-203, MCA,does not apply to underinsurance and medical payment coverage. This Court has recognized that "Montana has no statutory insurance requirement concerning underinsuredmotorists." Grierv. Nationwide Mut. Ins. Co. !1931), 248 Mont. 457, 455-59, 

### 812 P.2d347, 349. While 

### coverage in excess of 

### theminimum amounts mandated 

### by 51-6-103(2), MC<A, and 

### additional coverages such as comprehensive, 

### underinsured, medical payments, 

### or towing may be purchased 

### by the insured, the 

### mandate of Title 61,

### chapter 6,

### part I,

### MCA, and the 

### term MTiLP 

### apply only to 

### the third-party liability coverage required by § 

### 61-5-10312) (b),MCA. Section 33-23-201, MCA, 

### requires thak 

### the 

### insurer offer fisst

### party,uninsured motorist coverage in the same amounts as required for third-party coverage under § 

### 61-6-103,MCA. The distinction between the uninsured motorist coverage and the third-party coverage is that by rejecting the uninsured coverage the insured may waive the first-partyuninsured coveragebenefitting himself, but he cannot waive theminimum liability coverages benefitting the third-party. Importantly, however, in the absence of the insured affirmatively rejecting the coverage, the policy is issuedwith the uninsured motorist coverage. Accordingly, under Montana's statutory scheme the minimum third-partyliability coveragesunder § 

### 61-6-103(2)(b) 

### , MCA, and the minimum first-party, uninsured motorist coverageunder § 

### 33-23-201.MCA, are required coverages. Section 33-23-203,MCA, initially references the MVLP and coverage available under such a MVLP policy and continues: "including the limits of liability under uninsured motorist coverage." This latter inclusion of uninsured motorist coverage was necessary because uninsured motorist coverage is not required
as part 

### of the MVLP. Uninsured motorist coverage is,nonetheless, a coverage which is required by 

## s 33-23-201,MCA, subject to

### rejection by 

### the 

### insured. Accordirigly, we determine that the "anci-stac1ci~g'"provision 

### of S 31-23-203, MCA, 

### applies onllr to 

### tnose coverages required under the MVLP 

### or 

## B 33-23-201,

### MCA. 

### E'arnrersAiiianee 

### argues tha.t the 

### "availablecoverageii language in S 33-23-203, MCA, 

### is broader than the 

### required coverages and 

### that the statute includes underinsurance coverage. We reject this argument. The 

### only insurance coverags a~ailable under both 

### part 1 

### and part 3, as the MVLP has been restrictively defined by the legislature,is the minimum third-partycoverage required by § 

### 61- 6-103(2)(b) 

### , MCA. Thisdefinition of "available coverage" follows because the term MVLP does not encompass any other "excess1'or additional coverage. Section 61-6-103(8),MCA. The limits of coverage availableunder any suchpolicymust refer to the required third-partyminimum coverages,requiredunderboth parts 1 and 3 

### of Title 61, chapter 6. 

### Furthermore, "uninsured motor vehicle" is defined in § 

### 33-23-201,MCA, which provides that "[aln uninsured motor vehicle is a land motor vehicle, the ownership, the maintenance, or the use of which is not insured or bonded for bodily injury liability at the time of the accident." This definition doesnot include "underinsured motor vehicle" within its terms. Although Farmers Alliance asserts that this Court's opinion in 

## Grier holds that underinsured coverage is part of the uninsured motor vehicle coverage,we determine that isdistinguishable. Our holdings in were based upon an interpretation of the policy language and are not controlling as a matter of statutory

### construction. In

# e, we stated tikt 

### "underthese 

### circumstances, the "underinsured"coverage is part of 

### the uninsuredmotor vehicle coverage." Our 

### hoidins, hwdever, was prefaced with the caveat Itunder these circumstances.

### " We recognized that the *'unique fashion"of the Grierpolicy was determinative. We

### noted that "the insurance policy in this case 

### 1- is set up in a unique fashion.
, 

### . the "underinsured"motorist provision is part of 

### the section on uninsured motorist coverage. 

### . . there is no separate policy section providing for underinsured motor vehicle coverage."



### , 812 P.2d at 349. In addition, we noted that "the declarations pagemakes nomentionwhatsoever of underinsured motor vehicle coverage.

### " 

### Grier 812 

### P.2d at 349. 

### Most importantly,we were interpreting the language of the 

### Grier policy--not the statute. Here, however, our conclusion is based on § 

### 33-23-203, MCA. Further, unlike the policy at issue in Grier, the instant policy sets forth the underinsurance coverage on the declarations page. We determine that 

### Grier is not determinative on this issue
as it interpreted the insurance contract, not 5 

### 33-23-203,MCA. The legislature has mandated that motor vehicle liability policies provide two types of coverage: coverage for injury to third-parties,Title 61, chapter 6,parts 1 

### and 3,and firstparty coverage foruninsuredmotorists, § 

### 33-23-201,MCA. Likewise, the legislature has provided that, absent contractual language to the contrary,such required coveragescannot be "stacked"whennumerous vehicles are insured under one policy. Section 33-23-203,MCA. The question of whether excess or additional coverages, such as

### uiidericsurance coverage, can be stacked 

### was left as 

### a matter 

### of pclicy interpret-"; 

### aLAon. -Accordingly, we answer tine certifiedquestion in 

### the negative. Section 33-23-203,

### MCA, 

### does not prohibit the stacking of the 

### medical pa-pent cosrerageand the -insured motorist coverage availableunder 

### apoliqof motor vehicle liability insurance where
a 

### premium is 

### charged for 

### coverage of 

### each 

### motor vehicle listed within that policy.

We concur:

JusticesjrrstioeCames C.Nelson specially concurs,

I Co?-.

- ,..-dr in oar agswer co t-?ecertified qfiestion. In doing so, 

### I aiso agree with Justice Gray that tne statutes at issue are neitkLera rtodelof 

## clar-2~ nor do they track well. ~f zn-fb\'-- ri LiiCt, that is an understatenl~ent.As demonstrate6 

### by the Court'sopinion and by the dissents, reasonable interpretations lead to diametrically opposed results. Whether one interpretation ismore "absurd"rhan the sther is aore a funccion of perception than 

### it is logic. One thing, however, is obvious: if the legislaturewanted to prohibit the stacking of underinsured and med-pay coverage, it could have simply said so in S 33-23-203,

### MCA. It had no trouble sa-yingthat with respect to uninsured coverage. It could have used


### an equally simple, clear and unambiguous approach to underinsured and med-pay coverage, The fact is it did not, and 

### we are, thus, left with the task of trying to make sense out of a mishmash of overlapping statutes,adopted and amended at different times and, with one possible exception, absent any clear unifying rationale. That possible exception is, as our opinion points out, where the legislature has explicitiy or implicitly mandated third-party


### or first-partycoverage, it has clearly prohibited stacking,absent agreement between the insurer and the insured. Where, on the other hand, it has not statutorily mandated coverage in one fashion or another, the legislature has not clearly prohibited stacking. Finally, ;note that; if in discharging our task of statutory interpretation, the majority has erred on the side of the insured, L2. 

### . thzri, c:Jr OFLnion is at least consistent with this Cocrt's histcrical approac!? in numerous 

### other J~sura~ce cases 

### wherein we 

### have enforced Montana's strong pu.biic policy 

### favoring co:reraTe where either 

### the 

### pollcy 1.apguage or 

### rhe Law was not clear. See

-, k%~hrai?d -J. Xat. Farmers 

### Union (13951, 272 'ilo~t.1, 6, 998 P.26 122C, 1223;Wellcome v. Home 

### Ins. Co. (1993i,257 

### Monc. 354, 358, 849 P.2d 19C. 192-93: Head.v. 

### Central Reserve 

### Life (1993), 256 Kont. 188, 200, 845 P.2d 735, 742.Justice Charles 4. Erdman~ dissentica. I respoctfvlly dissanr, Iritialiy, it is impcrcarr to note that in ics dlscxssi.cn of

i+- ?he certifiedqdesticil, ~~~c majoricy has cmitted Agrsed Facz Nr;. 3 ccntained in the Order Certifying Questior, wnich provides:
* That on or about Kay 31, 1931, riaintiff issued co Wade and Diana Brown, the named insured and pareets of Scotr Hankel, a policy of auto insurance, a true, correct, and complete copy of which is marked "Exhibit A" attached -Terence. hereto and incorporated herein by rl- Thus, al~houghthe certified question from xhe Federal District Court is somewhat narrow, it is also clear that bctn the parties and the Federal District Ccurt contemplated that thisCncrt address the certifiedquestion with reference toand inthe context of the provisions of rhe specific insurance policy in this case. While resolution of the certified question requires an analysis of ;he language of S 33-23-203, MCA, such an analysis should not be in
a vacuum separate and apart from the policy involved in the case. After narrowing an already narrow certified question, the majority embarks on a strained statutory construction analysis to reach its ultimate result. The majority correctly sezs forth the rsles apon which this Courc relies when construing a stacute. If the statutory langcage is clear and unambiguous, then ro furrher interpretation is required. C13rke .J; Massep :I9351, 271 Kant. 412, 416, 857 P.2d 1.085, 1088. Where the intention of the Segislatsre can be drrermined frcx the plaifi meaning of the words ased in a scatuce, -,he ccurEs r~aynot go fzrtker and apply ariyother mears of interpretatior. Clar~e, e97 P.2d at 1CEE (srcinc

-. 

## - -. 511; 515, 636 2~2a 352, 664;. 

### under this fra??ewcukjI woci~ nsid

of underinsured votorise and medical payment coverages

Unless amotor vehicle liability policy specifically provides :herwise, fhe limits of insurance coverage available ~nder any suchpolicy, including the Limits of Liability under ani~suredmotsrist coverage, nuat be determined as foliows, regardless of the number of xotor vehi.cles insnred under the policy: (a) the limit 

### cf insuranze coverage available for any one accideric is the limit specified for rhe motor vehicle involved in the accident;



### .... (cj the limitsof coverage specified for each motor vehicle insured under the policy may no: be added together eo determine the limit of insurance coverage available under the policy far any one accident. The majority cpinior focuses on che term "motor vehicle liability policy" 

### (MVLF) as ic is used ir S; 33-23-233(li,PSCA As noted by the msjority, 

### MVL? is deficed in 5 33-23-234(2), MCA,
as any policy required under Title 61, Chapter 6,Parts 1 

### & 3. 

# - he majority opini~n igr'cres the refererice to Part 3 and improperly

- ~t 1s important to understand the different pur~osesof

, 33-23-204 i2!, PICA. Part 1 is the Motor Vehicle SafetyResponsibility Act iMWRAj which was enacted to require that



### . . ar:vers wno nave had 

### an accidenn involving a w.otor vekiicle, =rdrivers who have an outstanding unsatisfied judgment a~gainst inem

L~nanckal F 2 rsspcnsihlii, pr-- - ~ 

# - LY 

### . ,~r of flnagc~a; responsibility

v, Stare Farm W~tual Auto ins. Co. ;196Rj, i5i Piocc. ii7?443 P.2d

Section 61-6-103, 

### MCA, defines 

### WVLP forpurpcses of the bIVSRA and yrcvrdes, rrpertznent part, as foilows: (1) A "motor vehicle liabilitypolicy", as the term is used in thispart, Eeans an owner's or operator'spolicy of liabilityins~lrance, certifiedasprovided in61-6-133 or 61-6-134 as croof of financial responsibility and issued, exceot as otherwise provided in 61-5-134, bv an 

## - - insurancecarrierdulyaxthorized totransact business in this state, to or for the benefit of the person named therein as insured. (2! Tne owner'spo:.icy of liabilityinsurancemust :



### .... :bi insure the person named therein and any other person, ;;s insured, uzi.ng ar,y motor vehicle cr zocor vehicles with the express or implied permission sf the named insured, against loss from the liabilityinposed by law for damages arisi~gcut of the ownership, xaintenance, or use cf the motor vehicle or motor -~ehicles within the C'nited States of Axerica or che Dominion of Canada, subject to limits exclusive of i~zerest and costs, with respect to sach sotor vehicle, as fclicws: (i) $25,060 because of bodily i~jury toor ;path of one person in any one accident and subject to said 

## " dsit for one person; iiij $50,036 because of bodily injury to or dearh of twc or Rore persons in any Dne a-ccident; and (iii) $10,000 because of injury to or destruciion of property cf others in any one accidect. :8) ArLypclicy which grants the coveraqe required for a motor vehicle liabilitypolicy nay alsa grant any iawfxl coverage in excess of or in additicn to the 

## - - coverage specified for a motor -.&iicle Liabilitypolicy, and rko excess or addicic~al coverage is noc subject to the ~rovisions of chis part. Nitk respect to a poiicy which grants the excess or addirional coverage, the ; ~erm"motor vehicle ?izbZ' 

### ilzry policy" ap~l~ies cnly tc tkat pzrt the Co""-eI-.-- . . ,a,e \qh$ch 5s rcquirea r-rr this sect$sn, :E-.phasisadded. j 'rhorfiajorityrei.les or: s:~bsfctiicii(8) to coccluae 

### that sir!:^ ucderinsured motorist a~d medical payment coverages are not included 

### in saksecticn i2! 

### (bi,tk-ey are not part of an ?4VL>~rder 33-23-203(I;, MCA. 

### - ,i the majority was only construing 5 61-6-103,MCP., they wosld be ccrrect in their i.r.ter;recazion. However, in the present case the Fecieral Giscrict Court has requested our interpretaticc of § 33-23-203,MCA. When several statutes 

### apply to a given sitnarion, this Cocrt's '-i J~; is t? adopt
a construction that will qive 

### - effect to all. Section ;-2-L01,NCA; See also Schuman 

### v. Besrrom (1Y85),214 Mcnt. 410, 693 P.26 536. 

### -- The aefinition of 

### NVLP in S 61-6-103!13,MCA, applied 

### by tne majority to g 33-23-203,MCA, is restricted by its own terms to Part 1 of Chapter 6 and to only those pclicies certified under SS. 61-6-133or -i34, MCA, for individuals 

### who are required 

### zo provide proof of financial responsibi.lity.' § 01-6-131,YCA. The Language of S 61-5-:03 (8:

### , A, reas~naklyconstraed, means
The cajority relies on 

### S 1-2-107, M3A, as authcriry to apply the definition of IWLP in the MVSRA in Title 61 to rhe + slcii +--I<: 

### lng statute in Title 33. Secti2;r i-2-1Q7, MCA, prcviees,

, . however, that the defirrclon of a phrase in cne part of the co5e may be applied to the same phrase 

### - iq



### - ansther uerceu7 A

# - wkLert.i ccntrary intention plaizly appears," Here, the plair language of 5 6;-5-133 (i), MCA, restzict-sthe defi~itton of WJLP "as tl?e tern 

### is used 

### in :his part" ard then cnLy for policies certifie" under S§ 61-5-133, -4, 

## -- XCA. -C A %. w3.cld be difficult to enyw~isicn 

### z clearer expression of legislative ictenz. The 1,egislztureinten6ed that the defifiitlon of MVLP in S 51-6-103(1), MCA, be restricted to the MVSEA.that the strict require~orrsof the MVSRA apply to the 1iabil;ty cs~~crzg~ rea;ired by 

### scbser--icn (2)

### (b:,but not t- the adjitic-al

L
-, ~r excess cs:-eraqes avziLaE;li; in a x;n_:c;r ertified f,zr 

### z~ :'>,- ,a? +.".: "" 

### GL .,ey, 18,'

-? , in~s cons~ruction:s further supportedby reviewing Fart 3 sf Chapter 5 which contains the mandatory liability limizs far all Montana dri~~ers. As noted, 

### S 33-23-204(2:, MCA, defines KVLF as any policy required uncer Title 61, Chapcer 5, Parts 1 

### & 3. Policies can be lssued under either Par- 1 or Part 3 and the two parts are 

### independent. Transamerica Ins. Co. v. Xoyle i13531, 202 Mont. 173, 656 P.2d 920. Part 3 of Chapter 6 references and incorporates only the liability limits ccctaiced in 

### S 61-6-103,FICA, and the remaining provisio~sof the MVSRA are not incorporated into Part 3. 

### If, ,at subjecr +~- -herefore, a policy is issaed under Part 3, it 

## '-r-' Lu

L 

### . . 

### _he prcnlslons of Part I. 

### -- See Boldr, 443 P.23 at 35-36; Tra~sanerica,655 P.2d at e22-23. ?he facts incll~iedwith the certified question 

### do not reflect that the policy was issued under Zart 1, and it is apparerit frcn the policy Lrself that it was issued under Par: 3. 

### I thereforebelieve themajority'sconciusion that the definitioc of MVLP 

### in the MVSBA apclies in its entirety tc 

## ' Fclicies issuecunder the ?4VSnnA (Part 1: contain a cumber 

### of restricti.orrs not fcun5 

### in joiizies issued ucder the mandatcry liakility provisions (Part 3). For instance, ~nder the NVSRA the liability of tne insurer is absolute afser an accident occurs and there are restrictions as cc cancellation and increasing premiums. & § 61-5-103(6)- (71, MCA.g 33-23-203?PICA, is in error and ignores the refsrecce rc Part 3

only to policies issued under the MVSRA: Other policies not affected. (1;This pr:, :&art 1; shall not be held to apply tc or affecr. poiicies 

### f -. a,~torr.obile insarance a~ga~irst ~1abilit-y which rtaynow or hereafter be repire5 

### by a2y ccher Law cr' LI1:is srate



### .... 'iere .the policy was issaed u:ider Parc 3 ar,d the rescricti-,-e definitiofi of MVLF in Part I clearly was cot ictecded ro apply to policies issued under thepart repiri-g mandatory liability limits for a11 drivers. 

# - Even if an TMVLP ander 5 33-23-263,

### KCA,was as limited as chc majcrity holds, the clear language of S 32-23-2833, KC?., still leads

. . to the conciusion char the szacite ~rohibics SSaCKIrig of underinsured mccorist and medicai pay coverages. ectisn 33-23-203(13, 

### MCA, provides that stacking is prohibited f~r insurance coverage "available under any such 

### [KJL?] policy." :Znphasis aicied.: The Legislarcre dic! r?ot grohibis stacking for in~urar~ce caverage "required"

### by thepolicy,whicil according to cke


### -. r2aJor: 'tyis ocly the iiaciii~,y lizitc fo~rd in 5 5I-0--lC3:2, I, "

~3

) P2A, t-at rat,~r3hibitedsca~kingfor -_.oi;erages"availablev under the colicy. Under tne plain ianjliage of 

### D 33-22-263, MCA, stackkgcf b.oci-

.. 

### - mea;ca~ payaent and undericsured mctorist ccvsraqes is prohibited..- since both were "available' under the policy. wnere the languaue

G 

### . , 

# -- a stat-;te is ;;lair,,l~r.avpm7 

### i.-il.l-U~, el..-7, and 

## .---'--- , L. ~r~e furcti-,r:cf

~ 

### - Eke c0c-Z is sln~iy to ascertain and Secisr? :what is in ?.errns cr

s LI,U~t3n~e

~,I- c~ntained -i 

### . 

## - , -.--3'- 

### 3.2 , 5s i~serc h;is I- --vs ~dez.. omitted 

### or orrit what has been 

### inserted. Secitisn 1-2-Xi, NCA. Xeese v. Iieese ii381),136 Mont. 1a1, E37 P.2d ii63. Further, :he =ajority1sconclusion thac an XVLF policy, as it is used in § 33-23-203,MCA, is limiied to the $25,000/$50,090,' $10,000 requirements of § 61-6-163 (2:(b), MCA, is simply not consisterc with the other language of § 33-23-203,XCA. Becrion 33-23-203(1) , MCA, provides that stacking is prohibited for insurance coverage "available under any su-oh LMVLP; policy Lyunder uninsured mctorist coverage." includinq limirs cE liabiii" (Emphasis added.) Znzer ~he ma?oritylsinterpretation, an MVL? ii~cluder; only the found 

### in S 61-6-1C3(2~ (b), MCA. Clea--I ,ly, uninsured rnc:orisr coverage is not repired by that provision, b~: is specifically recognized by the Legislature 2s being available ur.der an MVLF. Lr, an effort to av~idthis clear statctory language, tne xajority coccLudes chat ucinsured coverage is required ccverage. cnics-cred c-xjeraqe, La ch~ dearee it 

### is required, is not recuirei

d kv Fart I of Chapter 6, Title 61, MCA, but rather by 5 33-23-20? 

# - I MCA.' The language 

### ir S 61-5-?.03i8iC MCA, relied 

### upon by the

Ir?Yemp 7.r. Allstate 1~s. CC. (1975),193 Mcnt. 526, 531, 6CI P.2d 20, 25, this Cc~Jrt, ina stacking case predating 5 33-23-203, MCA, neld that: 'vru;oncana's urinsured motorist statute is coc

### . , 3ajorit-y, cirarly states thar when a pci:c); 9r;;ncs cc7~eracre 

### in
e----c

iiir~r mF the c=uerz.ge i-q?airedby 22 :,?VLP, term ~~VLP 

### vapplies



### . . 

### c~Ly cs thzic cf ,he co~j-ra~f- ,I 

### Is rt.q,jire+

, sectl37.L' , zdjej,: 

### sirice ..i.-'7s-.-1: u A. . ,_c_c. c.ul,_ qe 1s not required by 5 6i-6-103,MCA, che najority's Logic breaks dcwn. Finally, the phrase "inciuding the ].inits 

### of liability under uni~sured motor-isrco-reraqe"

### in 

### S 33-23-233,C also de~onstrates that the ieoislature inter.ded that the stacking prohibition apply to coverages other than those required 

### by 5 6i-6-i03 !,2

### 1 (b'j, MCA, an6 uninsured motorist coverase. ?he rerm "including" is rct a limii;izg ce-m, but instead is used as an illiistratii~edevice. A cumber of courts have neld that the term "includir,g" used ir, similar contexts is not all-inclusive. i?h;llpsDodge Corp. v. National Labor Relations Bd. (lY41),313 U.S. 177, 51 S. Ct. 845, 85 1.Ed. 1271; Federai 'and Bank of Sc, Pa~i 

### v. Bismarck iumber Cic. i13411, 314 Z.S. 95, 62 S. Ct. 1 86, 1,. Ed. 65; Schab v. Ariyoshi [Eaw.I977), 564 P.26 135; Ccfinerty 

### v.Mecrcpclitan Disc. Comm'n ;Mass. 1986), 495 N.E.2d 84C; Cumberland Reclamatior, v. Secretarq. Dep't of interior (6cn Cfr. I991), 925 "2d 161. 

### SEf: also 2A C. Sands, Sutkerland Statutorv Ccnstruition S 47.23 at 114

(4th

## ee. 19ec:

### .

zandatory, 1~ the sense that the insured has the right tc -~-je,-+ 

## --, 

## -- :r -, wricin~si;c?: ccverage in pollcies 

### issiled in Nontana." he ~ajoric~'~ holding in chis rase tha.tuni~sured mstorist coverage is ri.quire6 col-erageis in dil-ect conflict with cur holding in 

## m.. . Tnis Court's prior cleclsion; irr this area are ad-itredly

, ., ccnf;~i~cr a ar.3 ~23j~rity ad& zr, c-zfasigr,by ~istir.j216;~-~13c2 ., sev-rai s;ses that clear>; apply tr tkis slt~~ation. v!,~ -.A- 7.<ii ,.. 4<,?-; -LC.: k-7 atte-rprs-,o3isripqd-s? :?is -as; --rnm:"?'---

. . , , L,~ A,cl _ -7 , 1i:at:.~~~~~~LCie r"I;itci,a; Insurance Co. 5, 248 P%ont. 457, 2 2 3'7, on tile basis that 

### LC we interpreted rhe policy, while re we are


### - restri.ct;?dtc intsrpreticg the statute. As noted earlier, i. beii.eve the ::ajorizy has ixproperiyr,arrowecirhe issue presented by the Federal District Cocrt fo exclude acy copsideration of the policy language. By referencing the policy ~rovisionsin the certified question and by attaching a copy of the policy to tie certified question,both the Federal Distrlct Conrc and the parties intended tnar we consider the provisicns of the poljcy in responding to the questicc.

ifi 

## m, the underinscred mc-,oristcoverage was par-; c,f cr!e 

### pel-icy secti.i;~ cn u~insuredmotorist coverage and there was no separace policy section for underinsured coverage. We ilsc noted chat the declarations page made no mention of anderinsured coverage. We conc1.uded that ~inder those circuxstances, the unaeri~sur.ed caverzge was part cf tile uninsured ccverage. In this case, icwevor, 

### :he u~derinsured coverage is also UZVT .r)f the

. . uninsured e-veraoe - orovisioc and tiers is no separat:e sezcicn i~ tee policy for underinsured ccverage. While the declaration page does reference -~r~derinsi;red ccverage, it s~ecifies that there is fio

, , separatepremiun forunderinsured coverage as it is lccluded in theaninsured co-veragepremium, which was the racicnale relied upon in crier,



### - T!:erefrc: arder the raci.cn2;e 0: 

### -, C.~E~~rL~eri~~;~:~y~~ co~.~eiage 1 ' i~ -1,- ~o;icy irLa;r_yicn i.: ~lphr!~ czirt_ ,;f i-5" ii~~lls7;l.~~ & . - 

## - coxjerageand stacking is specifically prchibited bv S 33-23-iC3, DICA
. The majority 3150 distinguishes chis Court's recenr decision in Cnilberg V. Rose i1995;, 273 Nont. 414, 903 F.2d 1377, on the grounds tna: Chilberq was a xuitiple poiicy case and did nor intersret S 33-23-203, IvTCA. In Chilberq there were zultiole policies since rhe same insurance company issued separate policies for each vehicle rather than insaring all ~he vehicles 

### i one palicy, aswas done in this :as". The decision in Chilbnrg was not dependent on the fact that multiple policies were involved, bat rather 

### on izne fact that Ck:xiberg, iike Leonard in tnis case,was a strznger to ths inscra~ce pclicies, no~ being the na:ned insured or
a fanily merber. Having never paid any ~remiuas or! rhe policies,
nor having any knowledge the policies even existed prior co the accidect, this Ccurt riled that Chiiberq shodld r'ot be able zc stack the separate underinsured coverage limits, ChiIberc, c"j3 P.Zd at L38C. ~ik,~ chi1be-< q, Leocard had nc "reasonable

, , expectation" of covezags and,under tk eattir:aie cf Chilberc, n:s estate should not be allowed to stack underinsured coverage.

T 

### n summary, the majority's 

### strained and :restrictisre consrracrisn of MVLhsused in S 33-23-203, ?4CA, is contrary tcc. the clear language cr ine statute and dces ncr take into acccnnt 

# - -;csfitext in :he szatlte .?.;is "A?rittfn.Tnjfr the_ -aj-ri--r

, , . , 

### - - :, the zrly stac;k~cg rrc;i-i;,ite.53gc-e~ 9 -2.- 3 ?4Clj 1.s fax-

### rple liab5>4-. -. , ~.. Lie; i~rn~ts far poi;cies

. iss~j~ei under

# --- iLr- MT,7SX.EA f0;- "ha3drivers" an6 unirisured motorist coverage. Since sta-ckinghas

-, n-;-x,-e:-been appiieci to ;:ability cc-jera~es," the only type cf coverage in Monrana for which sracking is prchibired is ncw cninsureamotorist coverage. The plain language of the statute is simply not that narrow. The practical result of tne majority'sdecisisn is absurd. Since the majority opinion recognizes che prohibition against che stacking 

### crf ~ninsured coverage limits, if Leonard had been struck and killed by a driverwith no liability insurance a, all,stacking wozld not be allowed and ~he xaxin~mhis esrate could have

. recovered under rhe poiicy would be $SC,OOC. 

### under ;he aajority's interpretation, however, since the driver who strack Leonard had the r~ini~urn iimics, the vehicles ucder the policy can be stacked and Leonard's estate is entitled to $350,0CO. Statutes should be read and eonstr~iedso as tc avoid absurd resul-rsif a reascnable constructign can avoid it. Christenot v. State (I995j, 272

- 

### ' See Ailstate Lnsurapce ConpaiLyv. Skor;pa (1533), 13 Norit.

. , Fed. Rep. 355, which addressed the issue of stackicg -iability- 

### ., 

# - pc;licies and concluded that tnls _oar: 5~s lsariy reccgrizc;d a -, . ,-, distirrc:isn betweerr i;abL~.lty cc7.rerage and re rnotcri.sc csverage cizing Jacobson -J. Implement DealersW2t. 

### Ins.Co. ;1982;,

. . 196 Mont. 542, 644 P.2d 908, and Cnaffee v. Lynited States 

### Fid. & -. -dar. Co. '19'793, 191 Nonc. 1,i9i F.8d i102.Mcnc
. 395, 9C1 T2.55418 

### - Darby S~ar, 

### Lzd. v. Cepartment of Reven*~e 

## -

# - (1195), 3, 376, ,G5 p~zd. 11:~

T would therefor? ans:~Jer certified quesh~c oresegred ic

. . 

### this Tcart in 

### ~1.-affirrxarL\-oaid ksid L^," 3,;.~2;2C3i 'J-" Il-ni 

### prohibits the 

### stacki~g cf medical 

### payment coverage

### and uncierir.sured 

### mctcrist coverage

### Justice Kar1.aPI. 

### Gray,dissenting.
I respectfully dissent from the 

### Court's opinion. 

### While I 

### think 

### the Court 

### does a 

### relatively 

### creditable job 

### of attsmpting to mesh statxtes which simply 

### do not track well, 

### I: am uzabie 

### to 

### join in its analysis. Plainly stated, the question before us is whether the antistacking provision contai~~eci 

### in 5 33-23-2C3(i!,XCA, 

### is limited to liability coverages required by law or applies to all coverages contained in a vehicle insurancepolicy. The Court concludes that the statute prohibits only the stacking of required liability coverages, as the Court creatively defines such coverages. It is my view that, while the statute is not a model of clarity, the legislature's intent to more broadly prohibit stacking is apparent therein, On that basis, I would answer the certified question in the affirmative. The Court begins with the "motor vehicle liability policy" (MVLP)language contained in § 

### 33-23-203,MCA, and looks first to 5 

### 33-23-204, 

### MCA, for a definitionof that term; that detinition is stated as "any policy of automobile or motor vehicle insurance against 

### liabilitynow orhereafter required under Title 51,

### chapter 6; 

### parts i 

### and 3.'! 1 

### agree that chis appears co be a rational starting point. Moreover, I generally agree with the Court's interpretation that the definition of MVLP contained in § 

### 33-23-204, MCA, addresses the third-partyper person, per vehicle and property damage liability coverages required by Title 61,

### chapter 6,

### parts 1 

### and 3. Finally, 

### I agree that the first-party med pay and

### underinsuraace coverages at issue 

### in this case are not 

### liability coverages within the definitional parameters of W7LE 

### contained in S 33-23-204,

### MCA. 

### Tnat saic?,it is important to 

### recall that our resolutiori of the certifiedquestionbeforeus turns 

### on the proper interpretation of 5 

### 33-23-203,MCA, 

### rather than § 

### 33-23-204, MCA. 

### Inmy view, it is the 

### Court's attempt to 

### force feed the S 33-23-204, 

### MCA, 

### definition of MVLP 

### into § 

### 33-23-203(1),MCA, 

### that results in a legally flawedand logically inconsistent analysis which disregards the actual language used by the legislature in 5 

### 33-23-203(I),MCA. 

### Inserting the 5 

### 33-23-204, MCA, 

### definition of MVLP 

### into § 

### 33- 23-203(1),MCA, 

### produces the following rough reading of the first pertinent portion of that statute: "the limits of liability coverage required by Title 61, chapter 6,

### parts 1 and 3 

### . . . cannotbe stacked." Theproblem 

### Ihave with such a reading is that the legislature did not use language even approximating such a reading;it clearly used differentwords, andwords clearlyat odds with the Court's interpretation, in 

### 5 33-23-203(1), MCA. 

### What the legislature said is that the iimits of "insurance coverage available" cannot be stacked. It is my view that, if the legislature had intended to limit the anti-staclcingprovision to "liabilitycoverage required by law,"it could and would have done
so. It did not. A 

### more reasonable interpretation of 5 

### 33-23-203(1),MCA, 

### is that the legislature intended precisely what it said: to prohibit stacking of any and all "insurance coverage available" in an automobiie insurance poiicy, inciuding the med pay and

### underfnsiirznce coverages 

### a:: issuehere. in

### tila:: regard, 1 ccjnclude that neither thedefinition contained in § 

### 33-23-204, MCA; 

### nor that contained in 61-6-103,MCA, is 

### logically transferable to the

t, 

### 1

### in; ,, 

### s 

### of insurance coverage availablei'language contaiaed in B 

### 33-23-203;l), MCA. 

### Therefore,while the geaeral ruie contained in § 

### 1-2-107, MCA, is that definitions contained in onepart of the ?~?ontana Code Annotated are 

### applicable to 

### the saw?

### wor4 or 

### phrase wherever it occurs, 

### I would apply the exception to that rule also contained in 5 

### 1-2-107,MCA, and conclude in this case that "a contrary intention plainly appears" with regard to inserting definitions of 

### MVLP into § 

### 33-23-203(1),MCA. This conclusion is further buttressed by the remaining--and, inmy view, largest--barrierto the Court's interpretationof § 

### 33- 23-203(I),MCA. The critical portion of the statute reads "the limits of insurance coverage available under any such policy, including the limits of liability under uninsured motorist coverage. 

### . . ." With the Court's definition of "such policy" inserted,the statute reads "the limits of coverage required under Title 61, 

### chapter 6,

### parts 1 and 3 [the $25,000/$50,000/$10,000 amounts of third-partyliability coverage! including the limits of liability under uninsured motorist coverage." Whether or not one agrees with the Court's creative interpretation that uninsured motorLst coverage is actually reauired by § 

### 33-23-201,MCA, and 1 

### do not, an inconsistency results on the face of § 

### 33-23-203(1), MCA, when both the Court's definitron of MVLP and the "includingnclause are considered. It is ciear that notblng ~n 

### 'i'ltie61, chapter 6, 

### parts 1 and 3,

### requires uninsured motorist coverage; the Court's own anaiy-'- % biP 

### makes that clear inpointing out that the 

### ii 33-23-204,

### E4CA/Title 61 

### required coverages are third-party per person, per vehicle and Froperty damage liability ccverage. it 

### 5s 

### equally clear that the 

### "including"clause refers back to

### what preceded it in the 

### statute-- "such policy"--definedby the Court as tile § 

### 33-23-204,MCA, definitior sf MVL9. 

### The "inciudingNclause simply cannot

### broaden, by any rule of logic, grammar or law of which I am aware, the statutorydefinition of MVLP which the Court has inserted into the statute. For these reasons, it ismy view that the Court's analysis is flawed. Amore reasonable readingof § 33

### -23-203(1) , 

### MCA, requires a conclusion that the legislature intended to prohibit the stacking of all coverages contained in an automobile insurance policy insuring more than one vehicle. I 

### invite the legislature to revisit the statutes addressed in this case by both the Court and the dissenting opinions with an eye toward clarifying statutes which simply do not mesh well under any analysis. I dissent.