No. 90-081 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

KAREN ROWE, individually, and 

as Guardian of JOSHUA ROWE and 

KARRY ROWE; and WILLIAM BOURRET, 

the Personal Representative of the 

Estate of BARRY R. ROWE, Deceased, 

Plaintiffs and Appellants, 

THE TRAVELERS INDEMNITY COMPANY, 

a Connecticut Corporation and 

JOHN DOE AND RICHARD ROE, INC., 

a Montana Corporation, 

Defendants and Respondents. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Leif B. Erickson, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Joseph R. Marra and David A. Hopkins; Marra, Wenz, 

Johnson & Hopkins, P.C., Great Falls, Montana 

For Respondents: 

William Conklin and Allen P. Lanning; Conklin, 

Nybo, LeVeque & Murphy, P.C., Great Falls, Montana 

Judith Bartram; Jardine, Stephenson, Blewett & 

Weaver, Great Falls, Montana (for John Doe and 

Richard Roe, Inc. ) 

Filed: 

Submitted on Briefs: September 20, 1990 

db Decided: October 24, 1990 
Justice John Conway Harrison delivered the Opinion of the Court. 

This is an appeal from the Eighth Judicial District, Cascade 

County. Plaintiffs, the personal representative of the deceased, 

Barry R. Rowe, his widow, Karen Rowe, and their two children, 

sought a declaratory ruling that they were entitled to recover 

uninsured motorist benefits under two umbrella policies issued by 

Travelers Indemnity Company. The parties filed cross-motions for 

summary judgment. The District Court denied the plaintiffs' 

summary judgment motion and granted summary judgment to Travelers. 

From this decision, plaintiffs appeal. We affirm. 

The sole issue is whether the District Court erred in ruling 

that an umbrella policy does not constitute an automobile or motor 

vehicle policy which must include uninsured motorist coverage. 

I. 

On December 9, 1985, Barry R. Rowe was fatally injured in an 

automobile collision with an alleged uninsured motorist. Rowe was 

insured by a primary general liability insurance policy and two 

umbrella policies, all issued by Travelers. The policies insured 

Rowels business, Page-Werner, and Rowe and his two partners 

individually. The primary policy contained single liability limits 

of $500,000 and provided $50,000 in uninsured motorist coverage. 

The other two policies, a Catastrophic Umbrella Policy (CUP), 

and a Personal Liability Umbrella of Security Policy (PLUS), had 

total liability limits of $3,000,000 and did not provide uninsured 
motorist coverage. The CUP policy excluded coverage for obligations imposed by the uninsured motorist law. The PLUS policy did 

not specifically exclude such coverage. However, Travelers refused 

to extend uninsured motorist coverage beyond the $50,000 it had an 

obligation to pay under the primary automobile liability policy. 

Plaintiffs brought this action, claiming that Montana's 

uninsured motorist statute, 5 33-23-201, MCA, required Travelers 

to supply uninsured motorist coverage under each of the umbrella 

policies. 

11. 

While this is a case of first impression in Montana, several 

other jurisdictions have addressed the issue of whether their 

uninsured motorist statutes mandate issuance of uninsured motorist 

coverage in umbrella policies. These cases have been resolved on 

either of two grounds: (1) the type of uninsured motorist statute; 

or (2) the type of insurance. See, e.g., Bartee v. R.T.C. 

Transportation, Inc. (Kan. 1989), 781 P.2d 1084; Cohn v. Pacific 

Employers Insurance Co. (Conn. 1990), 569 A.2d 544. 

The courts basing their decisions on the type of uninsured 

motorist statute have discerned two differing policy considerations 

and legislative intent underlying such statutes, depending on the 

jurisdiction. "Minimum liability" statutes require that motorists 

maintain a minimum level of liability insurance and, therefore, a 

minimum level of uninsured coverage. The policy in such states is 
to ensure that injured motorists can recover the same amount as 

would have been available from an insured motorist who maintained 

the minimum statutory limit of bodily injury liability coverage. 

Continental Insurance Co. v. Howe (Fla. App. 3 Dist. 1986), 488 

So.2d 917, 919. 

"Full recovery" statutes, on the other hand, require insurers 

to issue uninsured motorist coverage equal to the amount of bodily 

injury liability insurance that the policy provides. For example, 

if the insurance policy has limits of $50,000/$100,000 for bodily 

injury liability, the insurer must also provide $50,000/$100,000 

in uninsured motorist coverage. The policy underlying these 

statutes is to I'allow full recovery under the terms of any 

applicable policies when a person is injured by an uninsured 

m~torist.~~ Continental, 488 So.2d at 919-20. 

Most jurisdictions which have llfull recoveryI1 uninsured 

motorist statutes have concluded that since an umbrella policy 

includes liability coverage for motor vehicle accidents, an 

umbrella policy must offer an equivalent amount of uninsured 

motorist benefits to the insured in order to permit full recovery. 

See Chicago Insurance Co. v. Dominguez (Fla. App. 1982), 420 So.2d 

882; Bartee v. R.T.C. Transportation, Inc. (Kan. 1989), 781 P.2d 

1084; Southern American Insurance Co. v. Dobson (La. 1983), 441 

So.2d 1185; Cincinnati Insurance Co. v. Siemens (Ohio App. 1984), 

474 N.E.2d 655. But see United Services Automobile Assln v. 

Wilkinson (N.H. 1989), 569 A.2d 749 (holding that uninsured 
motorist statute does not apply to umbrella policies, even though 

statute was vvfull recovery" type). 

Montana's uninsured motorist statute provides Ivminimum 

liabilityvv insurance: 

(1) No automobile liability or motor 

vehicle liability policy insuring against loss 

resulting from liability imposed by law for 

bodily injury or death suffered by any person 

arising out of the ownership, maintenance, or 

use of a motor vehicle shall be delivered or 

issued for delivery in this state . . . unless 

coverage is provided therein or supplemental 

thereto, in limits for bodily injury or death 

set forth in 61-6-103 . . . for the protection 

of persons insured thereunder who are legally 

entitled to recover damages from owners or 

operators of uninsured motor vehicles because 

of bodily injury, sickness, or disease, 

including death, resulting therefrom. 

Section 33-23-201(1), MCA (1985). The minimum amounts of uninsured 

coverage which must be provided pursuant to 5 61-6-103, MCA, are 

$25,000 for one person and $50,000 for two persons. Montana has 

no requirement that uninsured coverage must equal the policy's 

coverage for bodily injury liability unless the limits are not 

specified in the policy. See 5 33-23-203, MCA. 

In this case, however; both parties agree that the distinction 

between vvminimum liabilityvv and Ivfull recoveryvv statutes is 

meaningless. Rather, their argument involves whether an umbrella 

policy is within the realm of insurance contemplated by the 

uninsured motorist statute. 

Plaintiffs argue that the words vv[n]o automobile liability or 

motor vehicle liability policy" in the uninsured motorist statute 
do not exclude umbrella insurance policies; therefore, umbrella 

policies must include uninsured motorist coverage because they also 

provide I1motor vehicle liability1! insurance. 

Travelers contends that umbrella policies are fundamentally 

different from automobile liability policies since umbrella 

policies are intended solely to provide excess liability 

protection for claims against the insured by third parties. 

Because of this difference, an umbrella policy is not a I1motor 

vehicle liability policyf1I designed to be controlled by the 

uninsured motor vehicle statute. 

Courts have discussed the unique nature of umbrella policies, 

which are a continuation of an underlying primary policy. Thompson 

v. Grange Insurance Assln. (Wash. App. 1983), 660 P.2d 307, 311. 

Umbrella policies I1provide at a modest cost broad coverage for 

catastrophic losses, and excess coverage over and above any type 

of primary coverage. . . .I1 United Services Automobile Assln, 569 

A.2d at 753. While the excess coverage of an umbrella or 

catastrophe policy protects an insured and his business against 

liability from third parties, the uninsured motorist protection of 

the underlying primary policy does not involve liability claims 

against the insured from third parties. Matarasso v. Continental 

Casualty Co. (App. Div. 1981), 440 N.Y.S.2d 40, 41. 

However, we need go no further than our own statutes to 

determine whether an excess or umbrella policy is a "motor vehicle 

liability policy" as contemplated by the uninsured motorist 
statute. A I1motor vehicle liability policy11' is defined as: 

an owner's or operator's policy of liability 

insurance, certified as provided in 61-6-133 

or 61-6-134 as proof of financial responsibility and issued, except as otherwise provided 

in 61-6-134, by an insurance carrier duly 

authorized to transact business in this state, 

to or for the benefit of the person named 

therein as insured. 

Section 61-6-103 (I), MCA (1985). The "motor vehicle liability 

policy1' must "designate by explicit description or by appropriate 

reference all motor vehicles with respect to which coverage is 

thereby to be granted." Section 61-6-103(2)(a), MCA (1985). With 

respect to excess coverage, the statute provides: 

(8) Any policy which grants the coverage 

required for a motor vehicle liability policy 

may also grant any lawful coverage in excess 

of or in addition to the coverage specified 

for a motor vehicle liability policy and such 

excess or additional coverage shall not be 

subject to the provisions of this part. With 

respect to a policy which grants such excess 

or additional coverage the term ''motor vehicle 

liability shall apply only to that 

part of the coveraqe which is required by this 

section. 

Section 61-6-103 (8), MCA (1985) (emphasis added) . The statutory 

definition of "motor vehicle liability policyI1 does not include 

excess insurance, such as an umbrella policy. Thus, an umbrella 

policy could not constitute a "motor vehicle liability policy1' as 

envisioned by the uninsured motorist statute. 

'section 33-23-204 (2) , MCA, enacted in 1987, specifically 

refers to Title 61, Chapter 6 of the Code in defining I1motor 

vehicle liability policy.I1 
A majority of courts which have addressed this issue have 

concluded that umbrella policies are not ''motor vehicle liability 

policies1' as defined by their uninsured motorist statutory schemes, 

similar to Montana's. See OIHanlon v. Hartford Accident and 

Indemnity Co. (3d Cir. 1981), 639 F.2d 1019 (interpreting Delaware 

law); Trinity Universal Ins. Co. v. Metzger (Ala. 1978), 360 So.2d 

960; Furlough v. Transamerica Insurance Co. (Cal. App. 2 Dist. 

1988), 249 Gal-Rptr. 703; Cohn v. Pacific Employers Ins. Co. (Conn. 

1990), 569 A.2d 544; Continental Insurance Co. v. Howe (Fla. App. 

3 Dist. 1986), 488 So.2d 917, rehlq denied 494 So.2d 1151 

(interpreting Rhode Island law) ; Cincinnati Insurance Co. v. Miller 

(Ill. App. 1 Dist. 1989), 546 N.E.2d 700, rehlq denied 550 N.E.2d 

554 ; United Services Automobile Assln v. Wilkinson (N.H. 1989) , 569 

A.2d 749; Matarasso v. Continental Casualty Co. (App. Div. 1981), 

440 N.Y.S.2d 40; Moser v. Liberty Mutual Insurance Co. (Okla. 

1986), 731 P.2d 406; MacKenzie v. Empire Insurance Co. (Wash. 

1989), 782 P.2d 1063. 

As we have stated previously, the purpose of the uninsured 

motorist statute, for those who elect such coverage, is to 

recompense innocent persons injured through the negligence of 

motorists who, because they are uninsured and not financially 

responsible, cannot be made to respond in damages. See Guiberson 

v. Hartford Casualty Insurance, Inc. (1985), 217 Mont. 279, 289, 

704 P.2d 68, 74; see also Horace Mann Insurance v. Hampton (1989), 

235 Mont. 354, 357, 767 P.2d 343, 344 (stating purpose of Mandatory 
Liability Protection Act).- 

However, reading §§ 33-23-201 and 61-6-103, MCA, together, the 

statutes clearly apply only to primary automobile insurance, not 

to a commercial umbrella policy issued to protect the insured from 

liability to third parties. If the legislature desires uninsured 

motorist coverage to equal liability coverage from any source, it 

may amend the statute accordingly. 

When no genuine issue exists as to any material fact, the 

moving party is entitled to summary judgment as a matter of law. 

Rule 56(c), M.R.Civ.P.; Blaskovich v. Noreast Development Corp. 

(Mont. 1990), 790 P.2d 977, 978, 47 St.Rep. 740, 742. The party 

asserting summary judgment.has the burden of demonstrating that no 

genuine issue of material fact exists. Once this is established, 

the burden shifts to the other party to show otherwise. Rule 

56(e), M.R.Civ.P. We hold that Montana's uninsured motorist 

statute does not require an insurer to provide uninsured motorist 

coverage in an excess or umbrella policy. Since a genuine issue 

of material fact has not been demonstrated, the District Court did 

not err in denying summary judgment to plaintiffs and granting 

defendant's motion for summary judgment. 

Our ruling does not mean that an insurer may not offer 

additional uninsured motorist coverage as part of a primary policy 

or umbrella policy. 

Affirmed. 
. . 

We concur: