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.