(dissenting).
I respectfully dissent.
*380When Michael Meister was thrown off the pickup truck, he was entitled to no-fault economic loss benefits. But from whose policy? The answer, at least up until now, has been to look to Minn.Stat. § 65B.47 (1988), entitled “Priority of Applicability of Security for Payment of Basic Economic Loss Benefits.”
Subdivision 1 of the Priority Statute provides that if Michael was injured while driving or occupying a motor vehicle “while the vehicle is being used in the business of transporting persons or property,” the basic economic loss benefits are to be paid by the insurance “covering the vehicle.” Everyone now agrees that this subdivision does not apply.
Subdivision 2 provides that if Michael was an employee and was driving or occupying a motor vehicle furnished by the employer, basic economic loss benefits are to be paid by the insurance covering the vehicle. The majority opinion, agreeing with the court of appeals, holds that this subdivision applies. Mutual Service Casualty Insurance Company, as insurer of the pickup truck furnished by its employer-owner to Michael and his co-employees, is therefore required to pay its basic economic loss benefits of $20,000/20,000 to Michael.
Michael, however, would like to recover more than Mutual Service’s $20,000/20,000. He looks, therefore, to the insurance policy covering the automobiles owned by Michael’s father under which Michael would be an insured. This policy, issued by Western, provides $40,000/40,000 in stacked economic loss benefits. To invoke these benefits, Michael has to come under subdivision 4 of the Priority Statute which says, in pertinent part, “In all other cases, the following priorities apply: (a) The security for payment of basic economic loss benefits applicable to injury to an insured is the security under which the injured person is an insured.”
The trial court refused to allow Michael to reach Western’s $40,000/40,000 because this would mean crossing the priority levels of the Priority Statute. In so ruling, the trial court applied the well-established case law of this court. Wasche v. Milbank Mut. Ins. Co., 268 N.W.2d 913 (Minn.1978); Murphy v. Milbank Mut. Ins. Co., 320 N.W.2d 423 (Minn.1982); and Koons v. National Family Ins. Co., 301 N.W.2d 550 (Minn.1981).
The majority opinion, however, following the lead of the court of appeals, believes it has found a way to avoid, at least in part, the Priority Statute. In 1985, the legislature amended the No-Fault Act to include an anti-stacking provision:
Unless a policyholder makes a specific election to have two or more policies added together the limit of liability for basic economic loss benefits for two or more motor vehicles may not be added together to determine the limit of insurance coverage available to an injured person for any one accident. An insurer shall notify policyholders that they may elect to have two or more policies added together.
Minn.Stat. § 65B.47, subd. 7 (1988).
No longer, after this amendment, may an owner of several automobiles automatically stack the economic loss benefits coverages of the several automobiles to cover an injury an insured suffers while driving or occupying one of the vehicles. If such an insured wants to stack, the insured now must elect to add together the benefit coverages of his several automobiles and pay a premium for doing so.
This, I believe, was the legislative intent of the anti-stacking amendment. The majority opinion goes beyond this intent. The court reasons that when Michael’s father elected to stack his basic economic loss coverages, thereby raising his coverage to $40,000/40,000, that the second tier of $20, 000/20,000 is not really basic economic loss benefits. Rather, the election results in something called “optional benefits” that float free of the Priority Statute. Consequently, the majority opinion holds that Michael may collect $20,000/20,000 basic economic loss benefits from Mutual Service plus an additional $20,000/20,000 benefits *381from Western’s stacked coverage on one of the two cars that Michael’s father owns.1
Minn.Stat. § 65B.44, subd. 1 (1988), says basic economic loss benefits “shall provide a maximum of 840,000” in benefits, consisting of $20,000 for medical expense loss and $20,000 for income loss and other specified expenses.2 The court of appeals attributed great significance to the word “maximum.” It concluded that any economic loss benefits in excess of the $20, 000/20,000 “maximum” must be “outside” the definition of basic economic loss benefits, and consequently must be something else. Meister v. Western Nat’l Mut. Ins. Co., 465 N.W.2d 428, 431 (Minn.App.1991). It seems to me, however, that this analysis confuses the nature of basic coverage with the limits of basic coverage.
An insurer may, of course, choose to offer benefit coverage in addition to the compulsory limits required by the No-Fault Act, see § 65B.49, subd. 7 (1988), and this additionally purchased coverage is thought of as “optional” coverage. For example, insurers may and do offer optional benefits over and above the required $20,000/20,000. This optional coverage existed prior to 1985 and has always been understood to be subject to the Priority Statute. The majority opinion says, however, that under the 1985 anti-stacking amendment, if the insured elects to stack benefits coverages (which can only be done if the insured owns two or more motor vehicles) this stacking creates a new kind of “optional” benefits. These “optional benefits” occur even though, from the insurer’s standpoint, the stacking offer is mandatory.
The majority seems to believe that when basic economic benefit coverages on each of the insured’s cars are “added together,” half the coverage remains subject to the Priority Statute while the other half floats free, following the person, not subject to the prohibition against cross-priority stacking, and even impervious to any business vehicle exclusion. This seems to me particularly creative judicial legislation.
By allowing an insured to elect to stack basic economic loss benefits, the legislature did not, in my view, change the character or parameters of basic economic loss benefits, nor did it create some new kind of free-floating first party coverage. In this case, basic economic loss benefit coverages of $20,000/20,000 on two vehicles are simply stacked or added together. When added together, these coverages are still payable according to the provisions of the No-Fault Act, one of which is the Priority Statute. The anti-stacking amendment did not amend the Priority Statute. The 1985 amendment was meant only to allow an insured to elect to return to a pre-1985 stacking situation. Therefore, P.I.P. coverages (Personal Injury Protection), even when stacked at the election of the insured, afford coverage only within their priority level.
This, too, is the view of Professor Steen-son. After stating that the purpose of the 1985 amendment was to eliminate stacking unless the insured makes an election to stack, Professor Steenson went on to say, “Once the election is made, stacking should be permitted according to the principle previously established in Wasche." M. Steen-son, 1 Minnesota No-Fault Automobile Insurance (2d ed. 1989) 148.
I would, therefore, reverse and reinstate the trial court’s decision, but I do so with *382reluctance. The insured who elects to stack benefits does so to get added benefit protection. Yet, because of the Priority Statute, the insured, in an accident such as we have here, is required to accept the benefits provided at a different priority level which were purchased by someone else who chose to leave its coverage at only the $20,000/20,000 basic coverage. As the court of appeals and the majority opinion quite rightly point out, here the Priority Statute works to deprive the insured of his own prudent insurance purchase. The problem is that to make the second tier of stacked benefits free-floating, the court must overrule established case law and write into the No-Fault Act language that is not there.
. In an attempt to avoid overruling Wasche, Murphy, and Koons, the majority opinion holds that half of Western’s $40,000/40,000 stacked coverage remains “basic” and, therefore, subject to the Priority Statute.
. Minn.Stat. § 65B.44, subd. 1 (1988) reads as follows:
Basic economic loss benefits shall provide reimbursement for all loss suffered through injury arising out of the maintenance or use of a motor vehicle, subject to any applicable deductibles, exclusions, disqualifications, and other conditions, and shall provide a maximum of $40,000 for loss arising out of the injury of any one person, consisting of:
(a) $20,000 for medical expense loss arising out of injury to any one person; and
(b) a total of $20,000 for income loss, replacement services loss, funeral expense loss, survivor’s economic loss, and survivor’s replacement services loss arising out of the injury to any one person.
(Emphasis added.)