No. 01-575
IN THE SUPREME COURT OF THE STATE OF MONTANA
2002 MT 145
BARBARA J. BARTELL, Individually,
and as Personal Representative of the
Estate of Gordon L. Bartell, deceased,
Plaintiff,
v.
AMERICAN HOME ASSURANCE COMPANY,
a New York corporation,
Defendant.
CERTIFIED QUESTION FROM: The United States District Court for the District of
Montana, Missoula Division
COUNSEL OF RECORD:
For Plaintiff:
Edward K. Duckworth, Duckworth Law Office, P.C., Ronan, Montana
For Defendant:
L. D. Nybo, Conklin, Nybo, Leveque & Lanning, P.C., Great Falls,
Montana
Argued and Submitted: January 29, 2002
Decided: June 27, 2002
Filed:
__________________________________________
Clerk
Justice W. William Leaphart delivered the Opinion of the Court.
¶1 This case is before us on a question certified to this Court
by the United States District Court for the District of Montana,
Missoula Division. We accepted certification by our order dated
August 30, 2001.
¶2 The certified question presented by the federal court is re-
stated as:
Whether an automobile policy issued in the State of
Montana with respect to a motor vehicle registered and
maintained in Montana that states: “‘Uninsured motor
vehicle’ does not include any vehicle or equipment: . . .
owned by any governmental unit or agency” is in violation
of § 33-23-201, MCA, or the public policy of the State.
¶3 The parties stipulated to the following facts pertinent to our
review. The Salish Kootenai College purchased a semi-trailer
without wheels and intended to use it as a storage container. On
August 3, 1999, Gordon Bartell and two of his co-employees at the
college used a pair of forklifts to move the semi-trailer. Gordon
Bartell provided direction from the ground to his co-employees as
they operated the forklifts. He was killed when he was crushed by
the semi-trailer as it was moved or pushed by one of the forklifts.
¶4 The Salish Kootenai College is incorporated as a tribal non-
profit corporation. As of the date of Gordon Bartell’s death, the
college was insured by a liability insurance policy issued by St.
Paul Guardian Insurance Company. The policy did not provide
coverage for bodily injury to an employee arising out of his
employment by the college. As such, the college was uninsured for
purposes of this case.
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¶5 At the time of the accident, Gordon Bartell’s own automobile
insurance policy issued by the Defendant, American Home Assurance
Company (AHAC), included uninsured motorists coverage. According
to the policy, AHAC agreed to pay compensatory damages which an
insured is legally entitled to recover from the owner or operator
of an uninsured motor vehicle because of bodily injury sustained
by an insured and caused by an accident. The policy defines an
“uninsured motor vehicle” as a land motor vehicle or trailer of any
type to which no bodily injury liability bond or policy applies at
the time of the accident. The policy also provides that “uninsured
motor vehicle” does not include any vehicle or equipment owned by
any governmental unit or agency. At issue now is this government-
owned exclusion.
¶6 The United States District Court concluded that since the
uninsured vehicle, the semi-trailer, was owned by the Salish
Kootenai College, Inc., a tribal governmental agency, the
government-owned exclusion would defeat AHAC’s uninsured motorist
coverage in this case. After receiving additional briefing on the
applicability of the government-owned exclusion, the United States
District Court entered its Certification Order to this Court.
DISCUSSION
¶7 Montana’s mandatory uninsured motorist coverage statute, § 33-
23-201, MCA, requires all motor vehicle liability insurance
policies issued in this state to include uninsured motorist
coverage unless the named insured rejects such coverage. It does
not exclude any class of vehicle. The statute provides:
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Motor vehicle liability policies to include uninsured
motorist coverage– rejection by insured.
4
(1) No 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 may be
delivered or issued for delivery in this state, with
respect to any motor vehicle registered and principally
garaged in this state, unless coverage is provided
therein or supplemental thereto, in limits for bodily
injury or death set forth in 61-6-103, under provisions
filed with and approved by the commissioner, 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, caused by an accident arising out of the
operation or use of such vehicle. An 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.
(2) The named insured shall have the right to reject such
coverage . . . .
Comment [COMMENT1]: P 7
¶8 Plaintiff, Barbara J. Bartell (Bartell) claims that since
§ 33-23-201, MCA, contains no exceptions to its mandatory uninsured
motorists coverage requirement, the exclusion for government-owned
Comment [COMMENT2]: P 14-15
vehicles at issue in this case violates the statute. She also
insists that the exclusion is void as a matter of well-established
Comment [COMMENT3]: P 12
Montana public policy governing uninsured motorist coverage. In
support of these arguments, Bartell notes that the majority of
jurisdictions with broad uninsured motorist statutes such as
Montana’s have concluded that government-owned exclusions are void.
Comment [COMMENT4]: P 10
Finally, Bartell points out that in the face of the ConfederatedComment [COMMENT5]: P 16-17
Salish & Kootenai Tribe’s sovereign immunity, she cannot look to it
for recovery and argues that the enforcement of the government-
owned exclusion would violate a Montana insured’s reasonable
expectations that they will receive adequate compensation for
losses caused by an uninsured motorist.
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Comment [COMMENT6]: D 3
¶9 AHAC claims that an insurance company can provide reasonable
limitations and exclusions in a motor vehicle policy under § 33-23-
203(2), MCA, and that the government-owned exclusion is reasonable,
valid and enforceable. AHAC cites cases from several jurisdictions
which have upheld the government-owned exclusion.
¶10 Although we have not specifically addressed the validity of
government-owned exclusions contained in uninsured motorist
coverage policies, we have addressed the public policy and scope of
the uninsured motorist coverage statute:
The purpose of the statute is to protect completely,
those willing to accept its protection, from all harm,
whatever their status–passenger, driver, pedestrian–at
the time of injury, produced by uninsured motorists. The
only restrictions are that the plaintiff must be an
insured, the defendant motorist uninsured, and that
plaintiff be legally entitled to recover.
Guiberson v. Hartford Casualty Ins. Co. (1985), 217 Mont. 279, 289,
704 P.2d 68, 74 (citing Jacobson v. Implement Dealers Mutual Ins.
Co. (1982), 196 Mont. 542, 547, 640 P.2d 908, 911). Relying upon
Guiberson, this Court has stated that it “does not support
provisions placed on uninsured motorist coverage which restrict or
thwart available liability coverage that the insured would be
entitled to in an accident.” Dagel v. Farmers Ins. Group (1995),
273 Mont. 402, 406, 903 P.2d 1359, 1361 (exhaustion clause held
unenforceable); State Farm Mutual Auto. Ins. Co. v. Taylor (1986),
223 Mont. 215, 220, 725 P.2d 821, 824 (no-consent-to-settlement
clause held void); Guiberson, 217 Mont. at 289, 704 P.2d at 74
(consent provision held inapplicable and irrelevant).
Additionally, we have consistently upheld and relied upon Montana’s
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public policy that “an insurer may not place in an insurance policy
a provision that defeats coverage for which the insurer has
received valuable consideration.” Ruckdaschel v. State Farm Mutual
Auto. Ins. Co. (1997), 285 Mont. 395, 398, 948 P.2d 700, 702
(citations omitted).
¶11 Other jurisdictions with statutory language similar to
Montana’s uninsured motorist statute have concluded that insurance
policy provisions specifically excluding government-owned vehicles
from the category of uninsured motor vehicles are against public
policy and, therefore, void and unenforceable. See 3 Alan I.
Widiss, Uninsured and Underinsured Motorist Insurance § 35.10 (rev.
2d ed. 2001); Cropper v. State Farm Mutual Auto. Ins. Co. (Del.
1995), 671 A.2d 423, 426-27 (listing the majority of jurisdictions
declaring government-owned exclusions void).
¶12 AHAC directs our attention to jurisdictions which have upheld
the government-owned exclusion in accordance with statutory
language expressly excluding government vehicles from the category
of uninsured motor vehicles. See, e.g., Jones v. Southern Farm
Bureau Casualty Co. (S.C. 1968), 163 S.E.2d 306; Commercial Union
Ins. Co. v. Delaney (Ky. 1977), 550 S.W.2d 499; and Francis v.
International Service Ins. Co. (Tex. 1976), 546 S.W.2d 57. The
Nebraska Supreme Court recently discussed the importance of state
uninsured motorist statutes to judicial decisions on the
government-owned exclusion issue. Those states without statutes
providing for the government-owned exclusion, like Montana, void it
while those states with statutes specifically permitting the
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exclusion find the exclusion enforceable. Continental Western Ins.
Co. v. Conn (Neb. 2001), 629 N.W.2d 494, 500-01. Accordingly, we
are not convinced that the decisions cited by AHAC are persuasive
in Montana.
¶13 Finally, AHAC’s reliance on § 33-23-203(2), MCA, for the
proposition that it may provide reasonable limitations and
exclusions on uninsured motorist coverage in a motor vehicle policy
is misplaced. This provision does not “override” § 33-23-201, MCA,
and allow for exceptions which are not specifically delineated by
the legislature. Had the legislature chosen to exclude specific
vehicles from the uninsured motorist coverage statute, it could
have done so. See § 61-6-303(1), MCA (exempting specific vehicles,
including government-owned vehicles, from liability insurance
requirements).
¶14 In sum, Montana’s uninsured motorist statute does not
specifically exclude any class of vehicles. Accordingly, we
conclude that the government-owned exclusion in AHAC’s policy
impermissibly restricts the broad and mandatory coverage of § 33-
23-201, MCA. The exclusion is repugnant to the clear public policy
of Montana in favor of uninsured motorist coverage and against any
limitations upon complete protection. We hold that an automobile
policy issued in the State of Montana with respect to a motor
vehicle registered and maintained in Montana which provides that
any vehicle or equipment owned by any governmental unit or agency
may not be an uninsured motor vehicle violates § 33-23-201, MCA,
and the public policy of this state.
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/S/ W. WILLIAM LEAPHART
We concur:
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER
/S/ TERRY N. TRIEWEILER
/S/ JIM REGNIER
/S/ JIM RICE
Chief Justice Karla M. Gray, concurring.
¶15 I concur with the Court's statutory analysis and the
conclusion based thereon. I do not agree with the remainder of the
Court's discussion and analysis.
¶16 As the Court observes, the certified question from the United
States District Court is stated in the disjunctive: whether the
automobile policy at issue "is in violation of § 33-23-201, MCA, or
the public policy of this State." The Court concludes, and I
agree, that the policy violates the statute. The first portion of
the certified question having been answered in the affirmative, it
is my view that the matter has been resolved and it is entirely
unnecessary to go on--via dicta--to the second portion of the
certified question.
/S/ KARLA M. GRAY
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