No. 8 9 - 3 7 6
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
LAWRENCE W. ERICKSON,
plaintiff and Appellant,
-vs-
DAIRYLAND INSURANCE COMPANY,
Defendant and Respondent.
APPEAL FROM: ~ i s t r i c tCourt of the ~ighteenth~udicial~istrict,
In and for the County of Bozeman,
The Honorable Joseph Gary, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Robert Kolesar, Bozeman, Montana
For Respondent :
Albert A. Frost, Bozeman, Montana
Submitted on ~ r i e f s : Nov. 2 1 , 1989
~ ~ ~ i dJanuary 18, 1990
~ d :
Filed:
Justice Fred J. Weber delivered the Opinion of the Court.
This appeal arises from an order by the District Court,
Eighteenth Judicial District, Gallatin County, Montana,
granting summary judgment in favor of defendant. Plaintiff
appeals. We affirm.
The issues presented for our review are:
1. Did the District Court err in granting summary
judgment in favor of defendant?
2. Did the District Court err in denying costs to
defendant?
Mr. Erickson suffered injuries while riding his motorcy-
cle in April 1988, in Bozeman, Montana. An automobile driven
by Wanda Youngblood made a left turn in front of Mr.
Erickson, striking him. Ms. Youngblood carried no liability
insurance at the time. Mr. Erickson submitted a claim to his
own insurance company, Dairyland Insurance Company
(Dairyland), and it accepted liability. Dairyland paid Mr.
Erickson $25,000 under the uninsured motorist provision, and
also paid $5,000 for the loss of his motorcycle. Mr.
Erickson demanded an additional $25,000 payment, contending
that his policy provided coverage for his own bodily inju-
ries. When Dairyland denied this claim, Mr. Erickson brought
suit. Mr. Erickson moved for judgment on the pleadings,
requesting court interpretation of his policy. Dairyland
moved for summary judgment on the issue of liability, which
was granted by the District Court. From this judgment, Mr.
Erickson appeals.
Did the District Court err in granting summary judgment
in favor of defendant?
Summary judgment is only appropriate when there are no
genuine issues of material fact, and the moving party is
entitled to judgment as a matter of law. Rule 56(c)
M.R.Civ.P. On appeal, this Court's standard of review is to
determine if any genuine issues of material fact exist, which
would preclude summary judgment. Kelly v. Widner (1989), 771
P.2d 142, 144, 46 St.Rep. 591, 593.
On October 15, 1987, Mr. Erickson purchased an insurance
policy from Waite & Company, an agent of Dairyland, through
Ms. Kimberly Jerome. On this insurance application, under
item 5, "Coverage," two boxes are checked: the box indicating
"Full Package" and the box indicating the motorcycle model
group. Item 5 also states, "No coverage unless checked or
premium shown below. " The boxes indicating coverage for
uninsured motorists and medical payments are not checked.
The application specifies that the "Full Package" includes
25/50/5 bodily injury and property damage and comprehensive
and collision. A physical damage deductible amount was
filled in at $250. Mr. Erickson paid the total premium
amount of $336.
The application contained an "Uninsured Motorists Cover-
age Rejection Statement," which was left unsigned by Mr.
Erickson. Mr. Erickson was subsequently billed for uninsured
motorist coverage. He paid the additional premium, thereby
obtaining the uninsured motorist coverage.
Mr. Erickson was issued a policy entitled "Plain Talk
Motorcycle Policy," with a declarations page. The declara-
tions page lists coverages and limits of liability, and
states, "We insure you only for the vehicle(s) described on
this page, and only far those coverages which are shown
below. The liability is limited by the terms of this page."
Mr. Erickson's coverage is then listed as bodily injury
liability, excluding passenger coverage; property damage
liability; uninsured motorist; comprehensive; and collision.
The limits of liability on each item are specified. The
declarations page is expressly made a part of the policy.
The policy itself is divided into ten sections, as
follows:
I. Definitions
11. Insuring Agreement
111. Motorcycles We Insure
IV. What to do when an Accident Happens
V. Liability Insurance
VI. Medical Expense Insurance
VII. Uninsured Motorist Insurance
VIII. Collision Insurance
IX. Comprehensive Insurance
X. General Policy Provisions
The first page of the policy states:
Insuring Agreement
Upon your payment of the premiums,
we agree that this policy provides the
various kinds of insurance you have
selected as shown on the declarations
page. The declarations page is a part of
this policy. (Emphasis in original. )
Under Part V, "Liability Insurance," the policy states:
We promise to pay damages for
bodily injury or property damage for
which the law holds you responsible
because of a motorcycle accident involv-
ing a motorcycle we insure. (Emphasis in
original. )
Under Part VI, "Medical Expense Insurance," the policy
states,
We promise to pay medical expenses
for your bodily injury, sickness, disease
or death suffered in a motorcvcle acci-
.'
dent while occupying a motorcycle or from
havins been struck bv a motor vehicle.
we ' 11- pay the medical expenses incurred
- -
within one year from the date of the
motorcycle accident, within the limits
and subject to a $50 deductible amount
applicable to each person per accident.
(~mphasis original.)
in
Mr. Erickson was also issued five endorsements with
this policy, one of which was a "Named Insured Exclusion
Endorsement." That endorsement stated:
This endorsement modifies your policy in the following
way :
LIABILITY INSURANCE
The liability insurance provided by
this policy doesn't apply to injuries to
the person named on the declarations
page. It doesn't apply to the husband or
wife of that person if they are living in
the same household.
An insurance policy is subject to the general rules of
contract law. Hildebrandt v. Washington Nat. Ins. Co.
(1979), 181 Mont. 231, 234, 593 P.2d 37, 39. When a contract
is reduced to writing, the intention of the parties is to he
ascertained from the writing alone if possible. Section
28-3-303, MCA. A written contract supersedes a11 oral nego-
tiations or stipulations concerning its matter which preceded
or accompanied the execution of the instrument. Section
28-2-904, MCA. Whenever the terms of an agreement have been
reduced to writing by the parties, it is considered as con-
taining all those terms. Section 28-2-905(1), MCA.
Mr. Erickson contends that the language of the policy is
ambiguous and should be construed against the drafter,
Dairyland, to provide coverage for his bodily injuries. He
contends the policy does not adequately differentiate between
different types of bodily injury. He contends that his
coverage for "bodily injury liability" should include all
bodily injury.
The District Court determined that the language of the
policy was clear and unambiguous, and that by its language
the bodily injury liability coverage which Mr. Erickson
purchased only covered bodily injury damage for which Mr.
Erickson could be held legally liable; it did not include
coveraqe for Mr. Erickson's own bodily injuries. The court
determined Mr. Erickson did not purchase medical expense
coverage, which would have covered his own injuries. The
court also considered depositions of Mr. Erickson and Ms.
Jerome. The District Court granted summary judgment in favor
of Dairyland on the issue of liability, concluding that no
genuine issues of material fact existed.
The plain language of the declarations page which is
part of the policy, is not ambiguous in stating that Mr.
Erickson's coverage was for "bodily injury liability."
Reference to the "Liability" section of the policy further
clarifies this coverage. It states, "We promise to pay
damages for bodily injury. . . for which the law holds you
responsible ... " Under the definitions section the policy
defines "damages" as the "cost of compensating those who
suffer bodily injury . . ." Additionally, the commonly
understood meaning of "liable" is " [blound or obliged in law
or equity; responsible" Black's Law Dictionary 1060 (4th Ed.
1968). "In interpreting and applying insurance contracts,
the common rather than technical usage and meaning of defini-
tional terms and policies should be used." Bauer Ranch v.
Mountain W. Farm Bur. Mut. Ins. (1985), 215 Mont. 153, 156,
695 P.2d 1307, 1309. "If the language is unambiguous, and
subject to only one meaning, there is no basis for the inter-
pretation of policy coverage under the guise of ambiguity."
Rauer Ranch, 695 P.2d at 1309, citing Nelson v. Combined Ins.
Co. of America (1970), 155 Mont. 105, 467 P.2d 707. We
conclude that the policy language was unambiguous in covering
only bodily injury liability, which does not include Mr.
Erickson's own injuries. Mr. Erickson's attempt to create an
ambiguity is unpersuasive.
Mr. Erickson also contends that the insurer failed in
its duty to define any limitations or exclusions in clear and
explicit terms. Mr. Erickson misapplies this requirement
since the present case does not involve an exclusion. The
insurance company is not required to expressly exclude cover-
age which is not purchased. Mr. Erickson's argument in this
regard also fails since he received from Dairyland the named
insured exclusion endorsement, which expressly informed him
that coverage for his own bodily injuries was excluded.
Mr. Erickson also urges that his election to purchase
"Full Package" coverage led him to believe this included
coverage for his own medical expenses.
However, intent of the parties is only looked to
when the agreement in issue is not clear on its
face. Glacier Campground v. Wild Rivers, Inc.
(1979), 182 Mont. 389, 394, 184 Mont. 543, 547, 597
P.2d 689, 692. Where the contractual language is
clear and unambiguous on its face, it is this
Court's duty to enforce the contract as drafted and
executed by the parties. Wortman v. Griff (1982),
200 Mont. 528, 536, 651 P.2d 998, 1002.
Monte Vista Co. v. Anaconda Co. (Mont. 1988), 755 ~ . 2 d1358,
1362, 45 St.Rep. 809, 814. As previously discussed, the
language of the insurance contract is unambiguous and is
enforceable as drafted.
We conclude that Mr. Erickson failed to present any
genuine issues of material fact regarding the extent of his
insurance coverage. The District Court was correct in deter-
mining that according to the plain language of the policy,
Mr. Erickson was not covered for his own medical expenses,
and that he had failed to present any genuine issues of
material fact in this regard. We affirm the District Court's
grant of summary judgment in favor of Dairyland.
Did the District Court err in denying costs to
defendant?
Defendant submitted a verified memorandum of costs and
disbursements for a total amount of $432.60. This amount
included deposition costs of Kimberly Jerome and Lawrence
Erickson. The record contains no objection to these costs by
plaintiff. The District Court denied these costs, however,
without explanation. On appeal defendant contends these
expenses should have been allowed, citing Frigon v.
Morrison-Maierle, Inc. (Mont. 1988), 760 P.2d 57, 64, 45
St.Rep. 1344, 1353; Roy v. Neibauer (1981), 191 Mont. 224,
227-28, 623 P.2d 555, 557.
Costs are generally allowable to the prevailing party
pursuant to Rule 54 (d), M.R.Civ.P., unless the court directs
otherwise, except where expressly provided by statute.
Carroccia v. Todd (1980), 189 Mont. 172, 178, 615 P.2d 225,
228.
In the present case, costs to defendant are statutory
pursuant to § 25-10-102, MCA, which provides costs to defen-
dant upon a judgment in his favor in actions mentioned in
5 25-10-101, MCA. From the complaint of the plaintiff, it
does not appear that this claim falls within any of the cases
enumerated in 5 25-10-101, MCA. The District Court may in
its discretion choose to allow costs or not allow costs.
Section 25-10-103, MCA. In the absence of any showing of
abuse of discretion by the District Court, we sustain the
court's ruling. Swenson v. Buffalo Bldy. Co. (Mont. 1981),
635 P.2d 978, 985, 38 St.Rep. 1588, 1596. We affirm the
District Court's denial of costs to defendant.
Affirmed.
We Concur: p
@ a u
@ & Justices