Bain v. Gleason

                                    No. 86-113
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                        1986




MARY HELEN BAIN and ALLYN M. BAIN,
husband and wife,
                 Plaintiffs and Appellants,


DANIEL G. GLEASON, FARMERS INSURANCE
EXCHANGE, a reciprocal or interinsurance
exchange,
                 Defendants and Respondents.




APPEAL FROM:     District Court of the Third Judicial District,
                 In and for the County of Powell,
                 The Honorable Robert Boyd, Judge presiding.

COUNSEL OF RECORD:

         For Appellant:
                 Anderson, Edwards      &   Molloy; Donald W. Molloy, Billings,
                 Montana

         For Respondent:
                 Poore, Rot.h   &   Robinson; C. Richard Anderson, Rutte,
                 Montana




                                        Submitted on Briefs: June 19, 1986
                                            Decided:    October 21, 1986


Filed:
         6eT 2 : 79%
Mr. Justice John C.           Sheehy delivered the Opinion of the
Court.


     Mary Helen Bain had a claim for injuries received by her
through the negligence of Daniel P. Gleason, a driver insured
by   Farmers    Insurance Exchange        (Farmers) .      Mary   Helen's
husband, Allyn W. Bain had a claim for damages against Daniel
P.   Gleason    for    Allyn's    loss   of   consortium    through     the
injuries to his wife.            Farmers' applicable motor vehicle
liability      insurance      policy   contains   provisions      defining
limited    coverage     for    "each person1' injured       in    any   one
occurrence and        for "each occurrence."          Allyn made     claim
before the District Court, Third Judicial District, Powell
County, that his claim for consortium was separately covered
by Farmers '    policy of insurance issued to Gleason.                  The
District Court held that Mary Helen's claim for her damages
and Allyn's claim for consortium, were together subject to
the "each person" limitation of the insurance policy.                   We
af firm.
     At the time of the incident wherein Mary Helen was
injured, Daniel P. Gleason's father additionally insured with
Farmers two other motor vehicles owned by the father.              Daniel
Gleason lived with his father, in the same residence, but
Daniel owned the vehicle he was driving when he injured Mary
Helen, and Daniel separately insured his motor vehicle with
Farmers.       Allyn and Mary Helen claim additional coverage
extends to them by virtue of the provisions of the father's
other two polices.       The District Court held not and again, we
affirm.
      On   May      24,    1983, Mary     Helen     Bain was     assisting a
stranded motorist          on    Green    House    Road   near   Deer Lodge,
Montana.       Mary Helen was pouring gas from a gas can into the
tank of the stranded automobile as Daniel Gleason drove his
1970 Ford on the same road.              Gleason drove his Ford into the
back of the stranded automobile trapping Mary Helen Bain
between the cars.
      As   a    result     of    the   collision and      being   struck by
Gleason's Ford, Mary Helen Bain was severely injured.                    She
suffered broken legs, a broken pelvis, and as a result of her
injuries, her left leg was amputated.
      At the time of the collision, Daniel Gleason was living
with his parents in Deer Lodge, Montana.                  Farmers Insurance
Group had issued three policies of insurance covering motor
vehicles owned by occupants of that same household.                      One
policy of insurance was issued to Daniel Gleason and covered
the   1970 Ford        automobile which       he    was   driving when    he
collided with Mary Helen.                A second policy was issued to
Patrick Gleason, Daniel's              father, covering Patrick's 1973
Corona.     The third policy was issued also to the father,
Patrick Gleason, to             insure Patrick's      1981 Buick Skylark.
      Each of the insurance policies provided bodily injury
coverage in the amount of $25,000 per person, and $50,000 per
occurrence.         The terms of the three insurance policies were
the same, except for the named insureds and the vehicles
covered.
      Daniel Gleason was admittedly negligent in driving his
1970 Ford into the back of the stranded car trapping Mary
Helen Bain between the cars.
      Mary Helen's medical expenses at the time this case was
submitted      to    the   District Court         exceeded   $20,000.    She
continues to incur medical expenses and will incur them for
the balance of her life.
       Farmers Insurance Group has paid $25,000 to Mary Helen
and Allyn Bain, individually and as husband and wife.                It is
the position of Farmers that the $25,000 payment is the full
extent of and the limit of its liability under the policy
issued to Daniel Gleason on May 24, 1983.                 Mary Helen and
Allyn contend that under the terms of the three policies,
they     are   entitled    to     t.he maximum   amount    of    insurance
available.
                                     11.

       First off, counsel for the Bains point out that no
Montana Supreme Court case has directly recognized that a
spouse's claim for loss of consortium constitutes a claim
which is a distinct and independent cause of action.                 True,
we have alluded to elements of consortium as in Wallace v.
Wallace    (1929), 85 Mont. 492, 514, 279 P. 374, 382.                 The
federal courts acting in Montana have recognized claims for
loss of consortium as distinct and independent causes of
action.        Duffey v.    Lipsman--Fulkerson and Co.           (D. Mont.
1961),    200 F.Supp.      71; Dutton v.      HighTower and       Lubrecht
Construction Co. (D. Mont. 1963), 214 F.Supp. 298; Johnson v.
United States         (D. Mont.    1980), 496 F.Supp.     597    (aff'd in
part, rev'd in part, and remanded), 704 F.2d 1431 (9th Cir.
1983).     To lay any doubt aside, we agree with the federal
courts that a cause of action for consortium of the deprived
spouse is separate and distinct from the claim of the injured
spouse and that the basis for a consortium claim lies in the
Montana statutes in which the husband and wife contract for
obligations      of     mutual    respect,   fidelity,     and    support.
Section 40-2-101, MCA.            We further agree with the court in
Dutton, supra, that consortium includes a legal right to the
aid, protection, affection and society of the other spouse.



     - - husband's claim for consortium here subject -
     Is the                                          to

- "each person"
the -                      limit - liability provided - Farmers'
                                 of                   in
policy issued - Daniel Gleason?
              to
     There is no shortage of cases in which this question has
been presented to different courts.                       Without burdening this
opinion with long citations, it is enough to say that the
cases     can   be    found        by     reference          to    the      Annotation,
Construction and Application - Provision - Liability Policy
                             of          in
Limiting the Amount - Insurer's Liability - - Person, 13
                    of                    to One
A.L.R.3d.    1228    (1967    &    Supp. 1 9 8 6 ) .       - - - 5A Words and
                                                           See also
Phrases, "Bodily Injury"                (1968   &      Supp. 1 9 8 6 ) .     The great
majority of the decided cases have held that the consortium
claim is included within the "each person" limitation.                             The
reasons     given    for     the    decisions however are not                    always
uniform, since they depend on the language of the policy
before the respective courts, and the applicable statutes of
the state involved may have different terms.                               We therefore
determine to examine for ourselves this question in the light
of the insurance policy provisions now before us, and of our
applicable statutes.
     Since Montana has a mandatory motor vehicle liability
insurance law, we first look to the terms of the mandatory
insurance statutes to determine what they require, and then
to the terms of the insurance policy to find whether the
insurance policy complies with the mandatory law.                             Following
that, we will look to the terms of the insurance policy to
determine if under the policy, irrespective of the mandatory
insurance law, coverage is extended to a consortium claim
beyond that provided    for in the "each person" provision.
     Section 61-6-301, MCA, provides in pertinent part;
     (1) Every owner of a motor vehicle           shall...
     continuously   provide   insurance  against   loss
     resulting from liability imposed by law for bodily
     injury or death or damage to property suffered by
     any person caused by maintenance or use of a motor
     vehicle ...   in an amount not less than that
     required by 61-6-103   .
                            .    ..
     The referred-to statute,       $   61-6-103, MCA, contains the
following pertinent provisions:
     (2) Such owner's      policy       of   liability insurance
     shall :


     (b) insure the person named therein and any other
     person,   as   insured, using     any  such   motor
     vehicle ...   against loss from the liability
     imposed by law for damages arising out of the
     ownership, maintenance, or use of such motor
     vehicle ...   subject to     limits exclusive of
     interest and costs, with respect to each such motor
     vehicle, as follows:
     (i) $25,000 because of bodily injury to or death
     of one person in any one accident and subject to
     said limit for one person;
     (ii) $50,000 because of bodily injury to or death
     of two or more persons in any one accident;.            ...
     Our statutes do not define "bodily injury" for this
subject.
    We turn now to the terms of the insurance policy issued
by Farmers to Daniel Gleason.       It provides:
     . . . the Company . . .    agrees       ...   :

     To pay all damages the insured becomes legally
     ohligated to pay because of:
     (A) bodily injury to any person          ...

     LIMITS OF LIABILITY
     The limit of bodily injury liability stated in the
     Declarations as applicable to "each person" is the
     limit of the Company's liability for all damages
       arising out of bodily injury sustained by one
       person in any one occurrence.   The limit of such
       liability stated in the Declarations as applicable
       to "each occurrence" is, subject to the above
       provision respecting each person, the total limit
       of the Company's liability for all damages arising
       out of bodily injury sustained by two or more
       persons in a-ny one occurrence.


       Bodily Injury means bodily injury, sickness or
       disease, includinq death at any time resultinq
                                                    -
       therefrom, sustained by a person.-
       Damaqes with respect to Coverage A [bodily injury
       Coverage] includes damages for care and loss of
       services.
       Plainly it is the public policy of this State, under S
61-6-301, MCA, and       $    61-6-103, MCA, that every owner of a
motor vehicle operated in Montana must procure a policy of
insurance which continuously provides coverage up to the
limits set forth in the two statutes.            The provisions of the
two statutes are a part of every policy of motor vehicle
insurance issued in this State under the mandatory law and if
the    provisions   of       the   insurance   policy   countermand    or
diminish the statutory requirements, the policy nevertheless
will be considered to provide the statutory requirements.
Farmers recognizes this because in each of its policies of
insurance it provides that "[p]olicy terms which conflict
with the statutes of the state wherein this policy is issued
are hereby amended to conform to such statutes."
       In this case, the language of the statutes and of the
policies are substantially similar and it is apparent that
the policy terms used by Farmers are in compliance with our
mandatory motor vehicle liability insurance law.
      In considering the consortium claim, and where it fits
into    the   mandatory       motor    vehicle   liability   insurance
statutes, we examine closely             61-6-103, MCA, supra.        The
statute requires the motor vehicle owner to "insure the         ...
insured,   . . . against - - - liability imposed &
                         loss from the
law
-      - damages . . . subject
       for                             to   limits . . . as
follows: . . . (i) $25,000 because - bodily
                                         of          injury

- . . . one person in any one accident[.]"
to                                                (Emphasis
supplied).
      It is certain that liability is imposed by law against a
negligent driver who causes bodily injuries to one person in
any one accident, and for such liability, the mandatory motor
vehicle    liability   insurance   statute   applies.      It   seems
equally certain that if the injured party is a spouse, and
the   injuries   deprive   the     other   spouse   of   consortium,
liability is imposed by law against the negligent driver for
consortium damages "because of bodily injury to           ...    one
person."     In other words, the liability of the negligent
driver to the injured party, and to the deprived spouse, both
stem from the same bodily injury sustained by "one person in
. . . one accident."    The statute obviously contemplates that
no matter who suffers damages, if the respective damages stem
from bodily injury to one person, all of the damages are
subject to the "one accident" limitation, in this case, the
limit of $25,000.
      Counsel for Bains acknowledge that a deprived spouse's
action for loss of consortium is derivative from the injured
spouse's injuries, but contend that it is derivative only to
the extent that the negligent driver must be proved to have
caused the original injury.      They support their argument with
the holdings in cases that regard an action for consortium
loss as a separate and independent cause of action which is
the property of the impaired spouse and not controllable by
the injured spouse.     They point also to the injuries of Mary
Helen as different in nature from the injuries suffered by
Allyn, such that the cause of action for loss of consortium
in favor of the deprived spouse is an independent action
which stands on its own footing.             Wolff v. Du ~ u i s (Ore.


      Counsel   for   Farmers   point   to    Wohlberg   v.   Hartford
Accident and Indemnity Co. (D. Mont. 19671, 262 F.Supp. 711.
In that case the federal district court said:
      [Tlhe words "one person" have been held to refer to
      the injured person, and the limit specified for
      injury to one person applies although others
      suffered loss from the injury to such person, and
      although the injured person suffers speci.al
      damages.
      Under    this  construction   of   the   limitation
      provision, a husband is not entitled to recover
      from the insurance company an additional amount
      over the limit specified for one person for
      consequential damages to himself resulting from the
      injury to his wife, such as damages for loss of her
      services or consortium and for the cost of her care
      and treatment. (Footnotes omitted.)    8 Blashfield
      Automobile Law and Practice (1965), S; 345.2, pages
      458-459.   See also cases cited in Holtz v. Mutual
      Service Casualty Company, 264 Minn. 121, 117 N.W.2d
      767 (1962) and the annotation at 150 A.L.R. 1154.


      Bains contend that Wohlberg should not control us here,
because it was decided before the adoption of the mandatory
motor vehicle liability insurance statutes.         The trouble with
that argument is that Wohlberq fits neatly into the statutory
scheme of the mandatory statutes.        Nothing in the mandatory
statutes is adverse to Wohlberg.
      In order to escape the "one person" provision of the
mandatory liability insurance law, Allyn must show that his
cause of action comes within the "two or more persons" clause
of   the   statute.    There    is, however, no comfort in the
language of the       statute itself.        Section 61-6-103, MCA,
provides for limitation of "$50,000 because of bodily injury
to or death of two or more persons in any one action. "                   Two
persons did not receive bodily injury in the unfortunate
accident which is the basis of this case.                   Only Mary Helen
received bodily injury.        Plainly the motor vehicle liability
insurance statute cannot be interpreted to require additional
coverage for a consortium cause of action over and above the
coverage   provided     for   damages         imposed by    law through a
solely-injured person in one accident.
     Recognizing this, counsel contended that bodily injury
is   not   required     to    establish        a   cause    of   action   for
consortium.       On several occasions this Court has recognized
the principle that recovery may be allowed even though there
is no contemporaneous physical injury.               Johnson v. Supersave
Markets, Inc. (Mont. 1984), 686 P.2d 209, 41 St.Rep. 1495;
Versland v. Caron Transport (Mont. 1983), 671 P . 2 d                583, 40
St.Rep. 1681; Dawson v. Hill        &   Hill Truck Lines (Mont. 1983),
671 P.2d 589, 40 St.Rep. 1689; Ewalt v. Scott (Mont. 19841,
675 P.2d    77.     Those cases, however, did not involve "one
person," "one accident" provisions of insurance policies nor
how recompense for damages for loss of consortium fitted into
the mandatory motor vehicle liability insurance statutes.
     We    therefore    interpret       the     mandatory    motor   vehicle
insurance statutes now in effect to mean that the cause of
action for loss of consortium by the deprived spouse and the
cause of action for bodily injuries by the injured spouse are
subject together to the "one person limitation" found in S
61-6-103, MCA, as referred to in S 61-6-301, MCA.
                                    IV.
     We now come to consider the terms of the insurance
policy itself.      Much of what we have said foregoing relating
to   the   interpretation      of       the    mandatory     motor   vehicle
liability insurance statutes applies to the provisions of the
insurance policy which we have set forth above.                  We must,
however, examine the insurance policy provisions to determine
whether, even though the statutes do not require it, this
particular insurance policy granted additional coverage to a
cause of action for consortium, either by                 direct policy
provision or by inartful drafting.
     We are aware of three cases where courts in sister
jurisdictions have determined that policy provisions required
coverage for loss of consortium beyond the "one person," or
"each person" limitations.
     One such case is Allstate Insurance Co. v. Handegard
(Or. App. 1984), 688 P.2d 1387.             In Allstate, the insurance
policy defined bodily injury as "bodily injury, sickness,
disease or death to any person, including - -of services."
                                          loss

- at 1388.
Id.               The Oregon court pointed out that the term
"bodily injury" was defined in a manner different from the
ordinary    understanding      of    that    term   under    the    policy
definition and that since a bodily injury included "loss of
services," under     the      terms of the policy, the deprived
spouse, though actually uninjured, suffered a bodily injury
within     the   terms   of    the    policy.       -
                                                    Id.     at     1389-90.
Accordingly, the Oregon court extended coverage over and
above the "each person" limitation to the "each occurrence"
limitation since more than one bodily injury was involved.
     In the case before us, as we have shown above, the
provision of the policy defining "bodily injury" does not
include loss of services.       Rather, the Farmers policy defines
"damages" as including loss of services.            The Oregon case of
Allstate is therefore inapplicable here.
     The second case is Abellon v. Hartford Insurance Co.
(Cal. App.    1985),        212   Cal.Rep.   852.    In Abellon,      the
California court found a wide-open provision of coverage for
"each accident. I'     The Hartford policy provided "subject to
the limit 'of each person,' the most [Hartford] will pay for
all damages resulted from bodily injury caused by any one
accident" is $500,C00.        - at 853. Thus the Hartford policy
                              Id.
did not limit the "each accident" clause to bodily injuries
caused to one person as does our statute, and as does the
Farmers policy before us.             The California Court extended
coverage in the Hartford            case under the    "each accident"
clause because of the lack of specificity in the Hartford
policy   that the bodily          injury under the    "each accident"
clause must be suffered by two or more persons.              We do not
have such a clause here.
     Our interpretation of the Farmers policy in the case at
bar must follow our interpretation of the statutes as they
apply to mandatory motor vehicle liability insurance.              It is
plain, under our statutes, and under the policy provisions
here that the "each person" limitation refers to all damages
by whomever suffered resulting from one bodily injury in one
accident; the "each accident" limitation applies when two or
more persons suffer bodily injury in the same accident.
     The   third     case    that    extended   coverage   for   loss of
consortium under the "each accident" clause of the policy is
that of Bilodeau v. Lumberman's Mutual Casualty Co.                (Mass.
1984), 467 N.E.2d.      137.        In Bilodeau, as in the       artf ford
case, supra, the Massachusetts court had before it a policy
the terms of which were ambiguous.              Under that policy, the
company agreed to pay damages to the "injured person" and
contained language to the effect that "the most we will pay
for injuries to two or more people as a result of any one
accident    is a    total of     [$20,000]   ."      - at 139.
                                                     Id.                  The
Massachusetts court determined that the "injury" included
loss of consortium, because it was not limited to bodily
injury and that the consortium clause was covered under the
"each accident clause."        - at 142.
                               Id.                  Again that clause is
much different than the clause facing us in the case at bar.
      Our interpretation of the Farmers' policy in the case at
bar must follow our interpretation of the statutes as they
apply to mandatory motor vehicle liability insurance.                 It is
plain under our statutes, and under the policy provisions
here that the "each person" limitation refers to all damages
imposed by law by whomever suffered resulting from one bodily
injury    and   one accident; the       "each accident"           limitation
applies when two or more persons suffer bodily injury in the
same accident.
      Taking another tack, the Bains argue here that the words
"bodily injury" do not necessarily require a physical injury
to a person; that this Court has held that emotional and
mental     stress   are    "injuries"   which       are   compensable     as
damages.     Versland v. Caron Transport, supra; Dawson v. Hill
and Hill Truck Lines, supra; French v. Ralph E. Moore, Inc.
(Mont. 1983), 40 St.Rep. 481, 661 P.2d 844.
      As we noted above, the Montana mandatory motor vehicle
liability insurance statutes do not define "bodily injury."
The policy in this case however does provide a definition for
damages, which      includes    damages      "for    care   and    loss   of
services."      Thus when under the policy here, Farmers agrees
to pay the insured for the liability imposed by law "for
damages    . . . because    of bodily injury to one person in any
one   accident."      The    policy   term    of    "damages" obviously
includes the consortium claim within the damages limited by
the "one person" provision.        The policy term "for care and
loss of services" is broad enough to cover all elements of
damages for loss of consortium.
     Bains also point to the definition in the policy of
bodily injury, claiming an ambiguity.      The definition states
that "bodily injury means bodily injury, sickness or disease,
including death at any time resulting therefrom, sustained by
a person."   Bains contend that defining a term by repeating
the same term, such as "bodily injury means bodily injury" is
in itself ambiguous.   Gertrude Stein years ago said that "a
rose is a rose is a rose," and all of the literateurs thought
Gertrude Stein was marvelous.       If we define an apple as an
apple, the definition may     be     ridiculous, but   it is not
ambiguous.   Bodily injury does not become ambiguous simply
because it is defined as bodily injury, especially since the
term can be plainly understood as meaning physical injury to
a person.
    We find no ambiguity otherwjse in Farmers' policy to
change this result.
                              v.
     The remaining issue to be resolved in this case is
whether either Allyn or Mary Helen or both are entitled to
coverage under the two additional policies of insurance that
had been obtained by Daniel Gleason's father on two separate
automobiles not involved in the collision with Mary Helen.
     In short, Bains contend that Daniel is an insured under
the father's policies because Daniel is a relative of his
father, and policy provisions which are construed to mean
that Daniel is not a relative of his father are nonsensical,
and are to he given no effect.
      The pertinent terms of the father's policies are these:
      Insured means (1)


      Definition - insured
                 of


      (b) with respect to a non-owned                   automobile,
      (1) the name insured or a relative



      Non-owned automobile means an automobile not owned
      by or regularly or frequently used by the named
      insured or any resident of the same household,
      other than a substitute automobile.


      Relative means a relative of the named insured who
      is a resident of the same household, -    provided
      neither such relative nor his spouse owns an
      automobile.
      Again, unfortunately for the Bains, we find no comfort
or coverage for them under the additional policies owned by
Daniel      Gleason's   father.         The   policies    can   only   be
interpreted     to mean   that if the name         insured under the
policies [Patrick Gleason] has a relative living with him in
the same household, and. that a relative or his spouse owns
separately another automobile which is not covered under the
same policy procured by the named insured, the automobile
owned or frequently used by the relative is not entitled to
coverage under the father's policies here because (1) it is
not   an    non-owned   automobile      entitled   to    such   coverage,
and   (2)    the relative is not a relative within the terms of
the policy.     The language of the father's policies cannot be
construed in any other way.
                                  VI.
      Accordingly, we affirm the judgment of the District
Court.
                   /   Justice



We Concur:
             /57