NO. 94~S42
fN THE SUPREME COURT OF THE STATE OF MONTANA
1995
FRANK CHILBERG,
Plaintiff and AppelZant,
v.
VALERIE WYNN ROSE an@
MID~CENTURY INSURANCE COMPANY,
Defendants and Respondents.
APPEAL FROM: DiStrict Cour§ of the FirSt 3udioial DiStriot,
In and for the County of LewiS ané Clark,
The Honorabl@ JeffreyoSh@rlock, Judg@ preSiding.
COUNSEL OF RECORD:
For App@llant:
ThomaS M. Keegam, Attorney at Law, Helena,
Montana
For Responden€:
Lyman H. Bennett, III; Morrow, S@éivy & Bonnett,
Bozeman, Montana
Submitted on Brief$: July 2B, 1995
Q@gid@d; QCtObGI l3, 1995
Fil@d:
Justice W. william Leaphart delivered the Opinion of the Court.
Frank Chilberg (Chilberg) appeals from an order of the Pirst
Judiciai District Court, Lewis and Clark County, granting Mide
Centnry' Insurance Company (Mid-Century) summary judgment,
concluding'that Mid~Century was not liable under uninsured motorist
coverages and medical coverages provided in separate insurance
poiicies. We affirm.
The following issue is raised on appeal:
Did the District Court err in granting Mid-Century’s motion
for summary judgment?
The material facts of the case are undisputed. On January 5,
l992, Chilherg was a passenger in a car driven by Derek
Whittenberg, which was struck by a car driven by defendant valerie
wynn Rose. Chilberg was injured in the collision. Chilberg
alleges that Rose failed to stop at a red light before running into
the vehicle Whittenberg‘ was driving. Rose was an uninsured
motorist.
Whittenberg is the stepson of Jay Dean, the insured owner of
the car involved in the accident. Dean purchased an auto insurance
policy from Mid~Century covering the car in which Chilherg was
riding. The policy provided coverage for medical expenses and for
bodily injury caused by uninsured motorists. At the time of the
accident, Dean had three cars insured through Mid-Century. Each
car was covered under a separate policy and each policy provided
identical coverages and policy limits. Each of the three policies
had limits of $35,000 per person and $5Q,OGO per incident for
2
uninsured motorist, and S5,hOG per person for medical coverage,
Dean paid separate premiums for each of the coverages provided in
the three policies. Mid~Century paid Chiiherg a total of $30,GGO
under the uninsured motorist and medical coverages provided in the
policy insuring the car in which Chilberg was riding.
On January 31, l994, Chilberg filed suit against Rose and Mid»
Century. Chiiberg was unable to serve Rose. In his complaint,
Chiiherg aiieged that while Mid-Century paid him for uninsured
motorist and medical coverage available under the policy issued on
Dean's car involved in the accident, it refused to pay him
uninsured motorist and medical coverage available under the
policies issued on Dean’s other two cars. In its answer, Mid-
Century alleged that Chilherg was not an "insured" under the terms
of Dean's other two policies. On May 20, l99é, MidWCentury moved
for summary judgment. On August 26, i994, the District Court
granted. MidWCentury's motion for summary judgment. Chilherg
appeais.
our standard in reviewing a district court's grant of a motion
for summary judgment is the same as that utilized by the district
court; we are guided by Rule 56, M.R.Civ.P. Minnie v. City of
Roundup {l993), 257 Mont. 429, 43i, 849 P.2d 212, 2le. Thus, we
determine whether a genuine issne of neterial fact exists and
whether the moving party is entitled to judgment as a matter of
law. Minnie, 349 P.2d at 21e. In this case, there is no genuine
issue of material fact, therefore we need only consider whether the
Bistrict Court was correct inc conciuding' that MidWCentnry' was
entitled to judgment as a matter of law.
For some time, this Court has approved. the practice of
"stacking” uninsured motorist coverages when the insured has paid
separate premiums for the separate uninsured motorist coverages.
gee Kemp v. Allstate Ins. Co. (l979}, i33 Mont. 526, 601 P.2d 2G.
In §emp, we allowed stacking of uninsured motorist coverages under
two separate policies. One policy was issued in Vermont and
covered two cars, one of which was the car in which plaintiff's
decedent was an "occupant.“ The second policy was a New York
policy issued to decedent's parents that covered three cars. There
was no question in §§mp as to whether decedent was an “insured."
Under the Vermont policy, decedent was an “insured" by virtue of
"occupying a motor vehicle owned by the named insured." And,
according to the New York policy, decedent was an "insured“ because
decedent was a “reiative" of the named insured. ss an insured
under both policies, she was ailowed to stack coverages for each
insured vehicle within each policy.
in Sayers v. Safeco Ins. Co. of America (i981), 192 Mont. 336,
628 P.2d 659, one insurance policy covered two vehicies. That
policy defined "insured" as the named insured or "any other person
whiie occupying an insured automobile." This Court determined_that
Sayers was occupying a car owned by Gary Galetti, within the
meaning of the insurance policy, when an uninsured motorist struck
the car. Gaietti's policy covered the car involved in the accident
and another car owned by Gaietti. Once we determined that Sayers
was "occupying” the Galetti car, Sayers qualified as an insured
under the policy and was, therefore, entitled to stack uninsured
motorist coverage from the two Galetti oars. Accordingiy, we held
that a passenger, as well as an insured who pay premiums, can stach
coverage for multiple cars insured under one policy. Sayers, 628
P.Zd at 661.
Mid~Century argues that Sayere is distinguishable because in
Sagers Safeco only issued one policy under which both cars were
insured. Here, Mid-Century issued three separate policies to Dean
and, according to Mid-Centnry, Chilberg does not qualify as an
insured under the two disputed policies because he was not
occupying the cars insured under the two disputed policies. we
agree. Although this case, like §§MQ and Sayers, involves a
passenger it presents a different situation from those cases. ln
both §emp and Sayers, the plaintiff fit within the definition of
“insured“ for each policy that was etacked. Once the injured party
qualified as an insured, either as a relative or as an occnpant,
the injured party could stack the coverage for each vehicle within
that policy.
Here, however, we have three separate vehicles covered by
three separate policies. Each policy covers the named insured or
“any other person while occupying your insured car." Mid-Century
paid the coverage for the one vehicle Chilherg occupied at the time
of the accident. The question then becomes whether or not Chilberg
is an insnred.under the other two policies and, therefore, entitled
to stack as we allowed in §eQp and Sayers. The only way Chilherg
can be ana insured under the other two policies is jXf he were
"occupying“ the insured car named under that policy or if he fit
within the definition of family member or relative. Obviously,
Chilberg can. only’ "occupy“ one car‘ at a time. Unlike Kemp,
Chilberg is not a relative and cannot qualify as a family member
under any of the policies. Unlike Sayers, the policy under which
Chilberg qualifies as an insured.passenger covers only one vehicle.
we note that the other two policies in question could
arguably he stacked if the vehicle involved in the accident were
acquired during either or both policy periods since both policies
define “insured car" as including:
1. The vehicle described in the Declarations of this
policy or any private passenger car or utility car with
which you replace it. You must advise us within 30 days
of any change of private passenger car or utility car.
2. Any additional private passenoer car or utility car
of which you acduire ownership durinc the policy period.
Provided that:
a. You. notify us within, 30 days of its
acquisition, and
b. As of the date of acquisition, all
private passenger and utility cars you own are
insured with a member company of the Farmers
Insurance Group of Companies. [Emphasis
added.}
Here, the car involved in the accident was acquired in i9B6. Dean
purchased the two policies in question on May 6, 199l. Even though
the car involved was insured after the other two policies became
effective, Dean acquired it years before the effective period of
the poiicies. Thus, it does not qualify as an "insured car“ under
the aboveequoted policy language.
Recently, we examined several prior decisions in which this
Court allowed.plaintiffs to stack uninsured motorist coverages. we
stated that "§t]he public poiicy embodied in these decisions is
that an insurer may not place in an insurance policy a provision
that defeats coverage for which the insurer has received valuable
consideration." Bennett v. State Farm Mut. Anto. Ins. Co. {1993),
251 Mont. 386, 389, 862 P.2d 1l46, il48. However, in Bennett, the
plaintiff qualified as an insured under both policies. She was the
named insured in one poiicy and a spouse under the other policy.
In addition, Bennett relies upon the reasonable expectations of the
insnred.
The public policy and rationale we restated in Bennett is not
furthered by permitting Chilberg to stack the policies in the
instant case. Chilherg was a passenger who neither had "reasonable
expectations" of coverage under the policy nor did he qualify as an
insured spouse or family member under more than one policy.
This Conrt also recognizes that underinsurance coverage is not
dependent on the insured occupying a covered vehicle, rather, the
coverage is personal to the insnred. Chaffee v. U.S. Fid. & Gaar.
CC>. {19'79}, 181 I\/§ont. l, '7, 591 P.Zd llGZ, 13,05. 11'1 Ci"laffee, three
cars were insured under one policy and we held that plaintiff, as
an insured or a family memher, was entitled to stack the coverage
regardless of occupancy. Chaffee, 591 P.2d at li05.
Here, however, the Chaffee holding is inapplicahie. The
policy at issue states: “Insured person means: (a) Yon or a family
member. (h) Any other person while occupying your insured car."
The Chaffee holding that occupancy is not required applies only to
subsection (a) of the policy definition, that is, the insured or a
family member. ss to passengers, logic dictates that you cannot he
a “passenger" in a car unless you are occupying that car. lt the
occupancy requirement were deleted as to subsection (b),
passengers, then the definition of insured becomes totally open»
ended and encompasses not only the insured and his or her family,
but also “any other person.“ Public policy is not furthered by
having insurance policies cover named insureds, their families, and
"any other person." Such global coverage would render the
definition of insured nonsensical.
In this case, Chilberg does not fit within the definition of
insured, either as a named insured, family member, or occupant of
a vehicle insured under that policy. Further, the public policy
rationale underlying stacking, namely prohibiting insurers from
defeating coverage which the insured reasonably eXpected, is not
served by stacKing the policies in the instant case. §ee_§emp, 601
P.Ed at 24; Chaffee, 591 P.2d at llO.';"~».
We hold that the District Court properly determined that there
were no genuine issues of material fact and that Mid~Century was
entitled to judgment as a matter of law.
Affirmed.
we concur:
she
Chief Justiced=i ll
/z ~ l
f
October 13, 1995
QERTIFICATE QF §ERYIQ§
§ hereby certify that the foiiowing certified order was sent by Unif:ed States mail, prepaid, to the
foiiowing named:
Thomas M. Keegan, P.C.
Att_ox'.ney At I_.aw
1313 Elevent`lm_ A~_venue
Helena-MT 5960!
L.yman H. Bennett, III.
MORROW, SEDI-VY & BENNETT, P.C.
Box 1168
Bczeman M'I` 59771-1168
an sMrm
cream oF nas supreme comm
seam ns MONTANA _ __
BY: n ~ '
D€pufy cl