STATE FARM MUT. AUTO. INS. COMPANIES v. Queen

                                    No. 83-252
              IN THE SUPREME COURT OF THE STATE OF MONTANA
                                        1984



STATE FARM MUTUAL AUTObIOBILE
INSUWNCE COMPANIES, an Illinois
Corporation,
                   Plaintiff and Apellee,


RHONDA R. QUEEN,       Defendant,

MARY LOU CLARK and DALE R. CLARK,
                   Defendants and Appellants.




ORIGINAL PROCEEDING:


COUNSEL OF RECORD:
      For Appellants:
              Terry N. Trieweiler argued for the Clarks, ifhitefish,
              Montana

      For Appellee:
              Richard Ranney argued for State Farm, Missoula,
              Montana



                                    Submitted:   Slay 31, 1984
                                      Decided:   August 17, 1984


Filed:   AUG 17 1984



                                    Clerk
Mr. Justice Frank B. Morrison, Jr. delivered the Opinion of
the Court.
      By order dated March 31, 1 9 8 3 the Ninth Circuit Court of
Appeals   certified four questions to this Court.                  Before
setting forth the questions, a brief history of this case is
necessary.
      On August 5, 1 9 7 9 appellant, Mary Lou Clark, while a
passenger in an automobile owned by Mary Jane Foss, was
injured       in    an   automobile   accident.      She   subsequently
instituted an action against Rhonda R. Queen, the driver of
the automobile in which she was a passenger.
      At the time of the accident in question, State Farm
Mutual Automobile         Insurance Company       (State Farm)    insured
Rhonda Queen through two liability insurance policies issued
on automobiles other than the one involved in the accident.
On June 2, 1 9 8 0 State Farm filed a declaratory judgment
action in the United States District Court for the District
of Montana seeking to have the court declare that State Farm
did not insure Rhonda Queen for the August 5, 1 9 7 9 accident.
It contended that Rhonda Queen was excluded from coverage
while driving a non-owned vehicle.                State Farm named as
defendants Rhonda Queen, Mary Lou Clark and her husband Dale
K.   Clark.        The Federal District Court ordered, pursuant to
motion    for      summary   judgment, that the policies         excluded
Rhonda Queen from coverage for the accident in question.
From this order, defendants Mary Lou Clark and Dale Clark
appealed.       The following issues were thereafter certified to
this Court by the Circuit Court of Appeals:
      1. Must   this policy be construed to provide
      coverage for Rhonda Queen while driving a non-owned
      automobile, on the ground that the policy is
      ambiguous as to whether Gary Queen, Rhonda Queen,
      or both, are the first-named insured.?
      2. Where the na.med insured are listed in the
      manner described above, is extrinsic evidence
     admissible under the Montana Parol Evidence Rule to
     prove the intent of the parties regarding who is
     the first-named insured?
     3. Was     State  Farm    required   under   M.C.A.
     ss61-6-103 (3), 61-6-136 (1), 61-6-301 to provide
     non-owned automobile coverage to Rhonda Queen after
     she ceased to live in the same household with the
     first-named insured in the policy?
     4. Must this policy be construed to provide
     coverage for Rhonda Queen while driving a non-owned
     automobile where the insurer has a policy or
     practice of listing the husband as first named
     insured and the wife second on its insurance
     policies, on the ground that such a pra.ctice
     constitutes discrimination based      on    sex  in
     violation of the Montana statute pertaining to
     illegal discrimination, M.C.A. S49-2-101 - -
                                               et. seq.,
     or other Montana law or policy?
     Three members of this Court hold that the insurance
policy   in   question   contains an    ambiguity which   must   be
construed against the maker of the policy, thereby affording
coverage for Rhonda Queen under the first certified question.
However, we are not able to agree with a majority            that
coverage can be afforded under any single proposition.           The
fourth member    of our majority concurs specially, holding
there is coverage under issue 3.       Thus we have four votes for
coverage but no consensus on any one issue.
    The policy in question affords coverage for the use of
"non-owned automobiles" to "the first person named in the
declaration".    The policy declaration lists the following as
insureds:
    Queen, Gary
    A. and Rhonda R.
    Box 145
    Rt. 2
    Ronan, MT 59864
    The in-surer is responsible for the language which the
policy contains.    Whenever a contract of insurance is drawn
so that it is fairly susceptible to two constructions, one
favorable to the insured and the other favorable to the
insurer, the one favorable to the insured will be adopted.
Park Saddle Horse Co. v. Royal Indemnity Co. (1927), 81 Mont.
99, 261 P. 880, 883-884.

        There are several different ways that State Farm could
have listed the persons in the declaration so that the first
person listed would present no ambiguity.             The names could
have been listed as:        Gary Queen, Rhonda Queen.         Less clear
but perhaps sufficient to avoid an ambiguity would be:              Gary
Queen and Rhonda Queen.           Though the names are here coupled,
Gary Queen's name does appear first.          However, in the instant
policy, the first-named is simply "Queen".               Following the
last name the names Gary and Rhonda are coupled.              This would
seem to indicate an intention on the part of State Farm to
grant     no   preference    to    one   of   the   individuals   as     a
first-named     insured     entitled     to   coverage   on    non-owned
automobiles.
       One test for determining whether a policy is capable of
more    than   one construction is whether          different persons
looking at the writing in light of its purpose cannot agree
upon its meaning.     Walker v. Fireman's Fund Insurance Company
(1967), 268 F.Supp.       899, 901 -02.       This case is a perfect
illustration.     The dissenters think the policy clearly shows
Gary Queen as the first person named in the declaration.               The
three members of the Court signing this opinion think that
the last name of the couple is the first name listed in the
declaration and the first two names are coupled together
making both parties first named in the declaration.             We have
seven Supreme Court Justices, who frequently review insurance
policy language, closely divided in interpretation.                What
more need be said.
       In conclusion, the declaration sheet of the insurance
policy contains an ambiguity which must be construed against
the maker    of   the policy.   We   find there is coverage for

Rhonda Queen.




We concur:



Chief Justice




Justices
Mr. Chief Justice Frank I. Haswell, specially concurring:
       I concur in the result.      I would hold that the policy
is not ambiguous as to Rhonda Queen not being the first.
person named in the declarations.     However, I would hold that
the   public   policy   behind   Montana's   compulsory   liability
insurance   law precludes enforcement of        the exclusion of
Rhonda Queen from coverage under the policy.



                                               KcuQ-QQ
                                      Chief Justice
     Mr.     Justice Fred J. Weber dissents as follows:
     I     respectfully    dissent    from the opinion of Justice
Morrison which concludes that the declaration sheet of the
policy contains a.n ambiguity which must be construed against
the maker of the policy.
     As pointed out in that opinion, the policy               affords
coverage for the use of non-owned automobiles to "the first
person named in the declaration."              The policy listed the
names:     Queen, Gary A. and Rhonda R.         The opinion suggests
that had the names been listed a-s Gary Queen, Rhonda Queen,
there would be no ambiguity; and points out that it would
probably be sufficient if it said Gary Queen and Rhonda
Queen.     I am unable to make such distinctions.       It seems that
Gary A.     Queen is clearly the first person named in the
declaration of the policy.           I would not distinguish between
the following wording:
     Gary A. Queen, Rhonda R. Queen;
     Gary A. Queen and Rhonda R. Queen;
     Gary A. and Rhonda R. Queen;
     Queen, Gary A. and Rhonda R.
In each instance,         it is clear that Gary A. Queen is the
first person named in the declaration.
     I conclude that for policy coverage purposes Gary A.
Queen is the first person named in the declaration and there
is no ambiguity.        Therefore, under issue two no extrinsic
evidence is admissible to show the intent regarding who is
the first named insured.
     Issue three was properly decided by the United States
District Court when it pointed out that the policies in
question     were   not     certified     as    proof   of   financial
responsibility under section 61-6-131 to 134, MCA.             In the
absence     of   such   certification,     there   is   no   statutory
requirement     to     provide   non-owned      automobile   coverage    to

Rhonda   R.    Queen    after    she   ceased    to   live   in   the   same
household with the first person named in the declaration.
                                                       -
     I agree with the conclusion of the Distr-ict Court.




I join in t



         //'
         i




~vlr. Justice ~ a n i e lJ. Shea dissents and will file a written
dissent later.