Mitchell v. State Farm Insurance

No. 02-052

IN THE SUPREME COURT OF THE STATE OF MONTANA

2003 MT 102

CHARLES MITCHELL,

Plaintiff and Appellant,

v.

STATE FARM INSURANCE COMPANY,

Defendant and Respondent.

APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missoula, Cause No. DV-00-586,
The Honorable Ed McLean, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Steve Fletcher, Bulman Law Associates, P.L.L.P., Missoula, Montana

For Respondent:

Gary Kalkstein, C. J. Johnson, Kalkstein Law Firm, P.C., Missoula, Montana

Submitted on Briefs: April 3, 2003

Decided: April 24, 2003
Filed:

__________________________________________
Clerk
Justice Terry N. Trieweiler delivered the Opinion of the Court.

¶1 The Appellant, Charles Mitchell, filed a complaint for declaratory judgment with the

District Court for the Fourth Judicial District in Missoula County. The complaint requested

that the District Court determine that he was entitled to coverage from State Farm insurance

policies pursuant to which he was an “insured.” Both parties filed motions for summary

judgment and oral argument was held. Following oral argument, the District Court issued

an Opinion, Order and Declaratory Judgment in favor of State Farm. Mitchell appeals from

that order. We reverse the judgment of the District Court.

¶2 The dispositive issues on appeal are:

¶3 1. Did the District Court err when it applied California law to determine whether

Mitchell was entitled to underinsured motorist coverage?

¶4 2. Did the District Court err when it concluded that the limitations in the State Farm

policies do not violate public policy?

FACTUAL AND PROCEDURAL BACKGROUND

¶5 On July 27, 1998, the Appellant, Charles Mitchell, was injured while a passenger in

a vehicle driven by Brook Tebb and insured by Glen and Linda Haas. Mitchell alleged that

he suffered approximately $25,000 in medical expenses and alleged damages from loss of

wages, for pain and suffering, and for future medical expenses. Mitchell’s claim for damages

related to pain and suffering, wage loss and future medical expenses, along with the

seriousness of Mitchell’s injuries remain disputed by State Farm. Following the accident,

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Mitchell settled with Farmer’s Insurance, the insurer of the Haas vehicle, for the vehicle’s

policy limit of $50,000.

¶6 Mitchell is insured by his parents’ State Farm insurance policies. Approximately

$25,000 of Mitchell’s medical bills were covered by his parents’ medical expenses coverage.

Mitchell’s parents reside in California, and insure five vehicles through State Farm, which

are registered, owned, operated, and garaged in California. A separate premium was paid

for uninsured motorist coverage for each vehicle. The insurance policy declarations pages

indicate that uninsured motorist coverage in the amount of $30,000 per person and $60,000

per accident is provided for four vehicles, and coverage in the amount of $50,000 per person

and $100,000 per accident is provided for the fifth vehicle. Separate premiums were charged

for each coverage.

¶7 Each policy provides in part:

Where coverage applies:
The coverages you choose apply:
1. in the United States of America, its territories and possessions, or
Canada; or
2. while the insured vehicle is being shipped between their ports.

....

UNINSURED MOTOR VEHICLE - COVERAGE U
You have this coverage if “U” appears in the “Coverages” space on the
declarations page.
We will pay damages for bodily injury an insured is legally entitled to collect
from the owner or driver of an uninsured motor vehicle. The bodily injury
must be caused by an accident arising out of the operation, maintenance or use
of an uninsured motor vehicle.

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IF THE DAMAGES ARE CAUSED BY AN UNDERINSURED MOTOR
VEHICLE THERE IS NO COVERAGE UNTIL:
1. THE LIMITS OF LIABILITY OF ALL BODILY INJURY LIABILITY
BONDS AND POLICIES THAT APPLY HAVE BEEN USED UP BY
PAYMENT OF JUDGMENTS OR SETTLEMENT TO OTHER
PERSONS:
....

Uninsured Motor Vehicle under coverage U - means:
1. A land motor vehicle, the ownership, maintenance or use of which is:
(a) not insured or bonded for bodily injury liability at the time of the
accident; or
(b) insured or bonded for bodily injury liability at the time of the accident;
but
(1) the limits of liability are less than required by the financial
responsibility act of the state where your car is mainly garaged
...
2. an underinsured motor vehicle as defined [in this provision] . . . .

....

Underinsured Motor Vehicle - means a land motor vehicle, the ownership,
maintenance or use of which is:
1. insured or bonded for bodily injury liability at the time of the accident,
but
2. the limits of the liability are less than the limits of liability of this
coverage.

....

Limits of Liability Under Coverage U
4. The limits of liability are not increased because:
(a) more than one vehicle is insured under this policy. . . .

....

6. If the damages are caused by an underinsured motor vehicle, the most
we pay will be the lesser of:
(a) the difference between the limits of liability of this coverage and the
amount paid to the insured by or for any person or organization who
is or may be held legally liable for the bodily injury; or

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 (b) the difference between the amount of the insured’s damages for bodily
injury, and the amount paid to the insured by or for any person or
organization who is or may be held legally liable for the bodily injury.

If There Is Other Uninsured Motor Vehicle Coverage:

4. If the insured sustains bodily injury while occupying a vehicle not
owned by you, your spouse or any relative and:
(a) such vehicle is not described on the declarations page of another policy
providing uninsured motor vehicle coverage; and
(b) its driver is:
(1) you, your spouse or any relative, or
(2) any other person not insured under another such policy.
then
(a) the total limits of liability under all applicable policies issued by us
shall not exceed that of the one with the highest limit of liability. . . .

We note that, by the terms of the policies, the uninsured motorist provision includes

underinsured motorist coverage.

¶8 State Farm denied Mitchell’s request for underinsured coverage. It reasoned that the

Haas vehicle’s $50,000 liability coverage matched the highest single uninsured motorist

coverage and, therefore, it was not “underinsured” pursuant to the underinsured motorist

definition.

¶9 Mitchell requested that the District Court determine that State Farm’s denial of

coverage violated public policy and determine the amount of coverage he was entitled to

receive pursuant to the policies. The parties filed motions for summary judgement and oral

argument was held on January 25, 2001.

¶10 The District Court issued its Opinion, Order and Declaratory Judgement on November

14, 2001. The District Court was asked to address the following issues: 1) Is the definition

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of “underinsured motorist” coverage in the California State Farm Policy invalid as against

Montana public policy; 2) If Mitchell is entitled to underinsured motorist coverage from his

parents’ State Farm policy, is he allowed to stack the underinsured motorist coverage

provided by all five of his parents' vehicles; and 3) If Mitchell is not permitted to stack the

five coverages, is he entitled to recover $50,000 based on the highest vehicle coverage

provided to his parents for one vehicle?

¶11 Before addressing the specific issues raised by Mitchell, the District Court determined

that California, rather than Montana law controlled. The District Court concluded that,

according to California law, the policies were valid and that Mitchell was not entitled to

underinsured motorist coverage from his parents’ State Farm insurance policies. It,

therefore, awarded summary judgment to State Farm.

STANDARD OF REVIEW

¶12 This Court reviews an appeal of summary judgment de novo. Motarie v. Mont. Joint

Refuse Disposal (1995), 274 Mont. 239, 242, 907 P.2d 154, 156. We apply the same Rule

56, M.R.Civ.P., criteria applied by the district court. Bruner v. Yellowstone County (1995),

272 Mont. 261, 264, 900 P.2d 901, 903. Rule 56, M.R.Civ.P., provides that:

the judgment sought shall be rendered forthwith if the pleadings, depositions,
answers to interrogatories, and admissions on file, together with the affidavits,
if any, show that there is no genuine issue as to any material fact and that the
moving party is entitled to a judgment as a matter of law.

¶13 The party moving for summary judgment has the initial burden of establishing the

absence of genuine issues of material fact. Bruner, 272 Mont. at 264, 900 P.2d at 903. If

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that burden is met, the burden shifts to the nonmoving party to raise a genuine issue of

material fact by more than mere denial or speculation. Bruner, 272 Mont. at 264, 900 P.2d

at 903. Once a court determines that no genuine factual issues exist, it must determine

whether the moving party is entitled to judgment as a matter of law. Bruner, 272 Mont. at

264-65, 900 P.2d at 903. This Court reviews the legal conclusions made by a district court

to determine if they are correct. Bruner, 272 Mont. at 265, 900 P.2d at 903.

DISCUSSION

ISSUE 1

¶14 Did the District Court err when it applied California law to determine whether

Mitchell was entitled to underinsured motorist coverage?

¶15 Mitchell contends that the District Court erred when it concluded that California law

governed whether he was entitled to underinsured motorist coverage. He maintains that

Restatement (Second) of Conflict of Laws § 6(1) (1971), requires that a court follow § 28-3-

102, MCA, where, as in this case, there is a conflict between California law and Montana

law.

¶16 Generally, conflicts between an insured and an insurer are resolved by contract law

rather than tort law. State Farm v. Estate of Braun (1990), 243 Mont. 125, 127, 793 P.2d

253, 254. However, the analysis used to determine which state’s law applies to a particular

case is the same for contract and tort law. Phillips v. General Motors Corp., 2000 MT 55,

¶ 23, 298 Mont. 438, ¶ 23, 995 P.2d 1002, ¶ 23. Consistent with our decisions in Phillips

and Casarotto v. Lombardi (1994), 268 Mont. 369, 886 P.2d 931, the District Court applied

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the Restatement (Second) of Conflict of Laws, when it determined California law applied to

this case.

¶17 While the court was correct when it concluded that conflicts of law are resolved

pursuant to the Restatement, its application of the Restatement was incorrect. Phillips

represents this Court’s attempt to avoid conclusory application of the Restatement, a practice

we recognized as an error in other appellate courts. Phillips, ¶ 26. Consequently, we

approached the criteria in a careful, step-by-step fashion, to avoid misapplication of the law.

Phillips, ¶ 26. We incorporate the same careful procedure to the instant case and reach a

different result than the District Court.

¶18 Restatement (Second) Conflict of Laws provides:

§ 188. Law Governing in Absence of Effective Choice of Law by the Parties
(1) The rights and the duties of the parties with respect to an issue in
contract are determined by the local law of the state which, with respect
to that issue, has the most significant relationship to the transaction and
the parties under the principles stated in § 6. . . .

§ 193. Contracts of Fire, Surety or Casualty Insurance
The validity of a contract of fire, surety or casualty insurance and the
rights created thereby are determined by the local law of the state
which the parties understood was to be the principal location of the
insured risk during the term of the policy, unless with respect to the
particular issue, some other state has a more significant relationship
under the principles stated in § 6 to the transaction and the parties, in
which event the local law of the other state will be applied.

§ 6. Choice-of-Law Principles
(1) A court, subject to constitutional restrictions, will follow a statutory
directive of its own state on choice of law.
(2) Where there is no such directive, the factors relevant to the choice of
law include . . . .

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The District Court began its analysis with § 6(2) and did not ascertain whether Montana law

addressed the choice of law concerning Mitchell’s State Farm policy pursuant to § 6(1).

¶19 Section 28-3-102, MCA, provides:

What law and usage to govern interpretation. A contract is to be interpreted
according to the law in usage where it is to be performed or, if it does not
indicate a place of performance, according to the law and usage of the place
where it is made.

The policies contemplate that State Farm will be required to perform its contractual duty

anywhere in the United States: “The coverages you choose apply (1) in the United States of

America . . . .” Therefore, we conclude that Montana was an anticipated place of

performance. Pursuant to § 28-3-102, MCA, Montana law applies to the instant case if

Montana is the actual place of performance.

¶20 In general, unless the terms of the insurance contract provide otherwise, the law of

the place of performance controls a contract’s legal construction and effect Kemp v. Allstate

Ins. Co. (1979), 183 Mont. 526, 533, 601 P.2d 20, 24. We have held that where an insurance

contract designates the place of performance to be any state where a claim arises,

performance occurs where the insured obtains judgment. Kemp, 183 Mont. at 532-33, 601

P.2d at 23. It logically follows, that the place of performance is also the place where an

insured is entitled to receive benefits, has incurred accident related expenses, or is entitled

to judgment.

¶21 State Farm maintains that Kemp has limited precedential value following this Court’s

adoption of the Restatement. However, the Restatement requires a court to first look to

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relevant state law when determining applicable law. Restatement (Second) Conflict of Laws

§ 6(1). Section 28-3-102, MCA, provides that when a contract indicates the place of

performance, the law of the state where performance occurs should be applied. In Kemp we

determined what constitutes place of performance pursuant to § 28-3-102, MCA. We hold

that the adoption of the Restatement does not change Kemp’s applicability in cases where

a court is asked to determine the place of performance pursuant to § 28-3-102, MCA.

¶22 Montana is the place of performance pursuant to Mitchell’s policies because Mitchell

was working and living in Montana at the time of the accident; the underinsured tortfeasor’s

vehicle was insured in Montana; Mitchell’s medical expenses were incurred in Montana;

Mitchell settled with the Haas’ insurers for the policy limit giving rise to the underinsured

motorist claim in Montana; and judgment concerning the accident will be rendered and paid

in Montana. See Kemp, 183 Mont. at 532-33, 601 P.2d at 23-24.

¶23 We conclude that the District Court was incorrect when it held that California law

applies to the instant case. Whether or not Mitchell is entitled to recover damages pursuant

to the State Farm policy is a matter of Montana law.

ISSUE 2

¶24 Did the District Court err when it concluded that the limitations in the State Farm

policies do not violate public policy?

¶25 Mitchell contends that the definition of underinsured motorist, the Limits of Liability

provision, and the Other Insurance provision in his State Farm policies contradict the amount

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of coverage indicated by the declarations pages. State Farm contends that the terms of the

policies are clear and unambiguous and must be enforced as written.

¶26 When we look at an insurance contract for purpose and intent “we [will] examine the

contract as a whole, giving no special deference to any specific clause.” Farmers Alliance

Mut. Ins. Co. v. Holeman, 1998 MT 155, ¶ 25, 289 Mont. 312, ¶ 25, 961 P.2d 114, ¶ 25.

The terms and words used in an insurance contract are to be given their usual meaning and

construed using common sense. Dakota Fire Ins. Co. v. Oie, 1998 MT 288, ¶ 5, 291 Mont.

486, ¶ 5, 968 P.2d 1126, ¶ 5. Any ambiguity in an insurance policy must be construed in

favor of the insured, and in favor of extending coverage. Holeman, ¶ 25. An ambiguity

exists where the contract, when taken as a whole, is reasonably subject to two different

interpretations. Holeman, ¶ 25. Whether an ambiguity exists is determined through the eyes

of “a consumer with average intelligence but not trained in the law or insurance business.”

Holeman, ¶ 25.

¶27 The policies' declarations pages indicate that Mitchell paid five separate premiums for

$30,000 of uninsured motorist coverage on four vehicles, and $50,000 of uninsured motorist

coverage on one vehicle. The uninsured motorist coverage pledges that it will pay damages

that the insured is legally entitled to recover from a tortfeasor for bodily injury. Uninsured

coverage includes coverage for damages by an underinsured motorist. However, according

to the underinsured motorist definition, coverage is only available if the tortfeasor’s liability

insurance limit is less than the single highest coverage purchased by Mitchell. Moreover,

underinsured motorist coverage is only available where the tortfeasor’s liability coverage

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does not satisfy the mandatory minimum liability limit for the state where the insured’s

vehicle is primarily garaged. Finally, the underinsured coverage is offset by the amount

payable to the insured by any person or organization held legally liable.

¶28 In all cases where the tortfeasor’s liability coverage is equal to or more than $50,000

Mitchell can recover nothing. If Mitchell is injured by a tortfeasor who satisfies the

underinsured motorist definition in Montana, his recovery will automatically be offset by

$25,000. Moreover, underinsured portions of the four $30,000 uninsured motorist coverages

purchased are rendered valueless by the anti-stacking provision. These provisions contradict

the expectation created by the declarations pages that five coverages were paid for and are

available. Consequently, we conclude that the State Farm policies are subject to more than

one interpretation and, therefore, ambiguous.

¶29 Mitchell contends that the underinsured motorist definition, the offset provision and

the anti-stacking provision all violate Montana public policy. State Farm responds that

Montana public policy permits limitations and exclusions in optional insurance coverages.

State Farm also maintains that the legislature established Montana public policy with regard

to stacking pursuant to § 33-23-203, MCA, which allows insurers to avoid stacking

regardless of the premiums charged.

Underinsured Motorist Definition

¶30 Mitchell maintains that the limits comparison underinsured motorist definition

contravenes the insured’s reasonable expectation that coverage will be available in the event

that a tortfeasor does not provide adequate indemnification. State Farm responds that

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Montana public policy does not prohibit limiting underinsured motorist coverage and,

therefore, the limits comparison underinsured motorist definition is valid.

¶31 Initially, we note that the combined uninsured/underinsured motorist coverage

provision lends itself to confusion. To determine whether the underinsured motorist

definition is valid in Montana, we consider the underinsured motorist definition

independently. Montana public policy considerations that favor adequate compensation for

accident victims apply to underinsured motorist coverage. Bennett v. State Farm Mut. Auto.

Ins. Co. (1993), 262 Mont. 386, 389, 862 P.2d 1146, 1149. Moreover, Montana law

recognizes that an insurance consumer reasonably expects that underinsured motorist

coverage will provide additional coverage when the insured’s damages exceed what is

available from the tortfeasor. Hardy v. Progressive Specialty Ins. Co., 2003 MT 85, 315

Mont. 107, __ P.3d __; Bennett, 261 Mont. at 389, 862 P.2d at 1149.

¶32 In Transamerica Ins. Group v. Osborn (1986 D.Mont.), 627 F. Supp. 1405, 1406-407,

an underinsured motor vehicle was defined as: “a land motor vehicle or trailer of any type

to which a bodily injury liability bond or policy applies at the time of the accident but its

limit for bodily injury liability is less that the limit of liability for this coverage.” The United

States District Court concluded that the underinsured motorist definition transgressed the

reasonable expectation created by the declarations page representation that $50,000 of

additional coverage would be available if Osborn’s damages exceeded the bodily injury

liability available from the tortfeasor. Osborn, 627 F.Supp. at 1412.

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¶33 In Hardy v. Progressive Specialty Ins. Co., we held that a limits comparison

underinsured motorist definition violated the insurance consumer’s reasonable expectation

that underinsured motorist coverage provided additional coverage. The definition provided:

“Underinsured motor vehicle” means a land motor vehicle or trailer of any
type to which a bodily injury liability bond or policy applies at the time of the
accident, but the sum of all applicable limits of liability for bodily injury is
less than the coverage limit for Underinsured Motorist Coverage shown on the
Declarations Page.

Hardy, ¶ 8. Pursuant to the common law definition of underinsured motorist coverage, the

declarations page, and the consumer’s reasonable expectation, we concluded that the

underinsured motorist coverage provided indemnification in the event that the tortfeasor’s

liability was insufficient to compensate the insured for his damages. We held that the

underinsured motorist definition in that policy was void. Hardy, ¶ 29.

¶34 We acknowledge that the Mitchell policy is identical to neither the policy in the

Hardy nor the policy in Osborn. In Hardy and Osborn, a separate premium was paid for

underinsured motorist coverage that was provided independently of the uninsured motorist

coverage. The underinsured motorist coverage in Mitchell’s policies are a part of the

uninsured motorist coverage, no separate premium was paid for underinsured motorist

coverage, and the declarations pages do not list underinsured motorist coverage separately.

However, those distinctions do not alter the consumer’s reasonable expectation that

underinsured motorist coverage provides additional coverage, up to the coverage limit, which

is expressed on the declarations page in terms of “uninsured” coverage, when the tortfeasor

provides insufficient liability coverage. The underinsured motorist definition in Mitchell’s

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policies contravenes that expectation. Consequently, we conclude that the underinsured

motorist definition violates Montana public policy.

Offset Provision

¶35 The offset provision violates public policy on separate grounds. A case in point is

Grier v. Nationwide Mut. Ins. Co. (1991), 248 Mont. 457, 812 P.2d 347, where we

considered whether a provision that permitted “underinsured” motorist coverage to be offset

by the amount the insured recovered from a tortfeasor violated public policy. In Grier, the

policy defined underinsured motorist coverage as part of the uninsured motorist coverage;

no independent underinsured motorist provision was included in the policy; no separate

premium was charged for underinsured motorist coverage; and the declarations page only

indicated that uninsured motorist coverage was provided. Grier, 248 Mont. at 459, 812 P.2d

at 349. Based on these characteristics, we concluded that the underinsured coverage in the

policy was in fact part of the mandatory uninsured motorist coverage. Grier, 248 Mont. at

459, 812 P.2d at 349. Montana public policy prohibits offsets of mandatory coverage.

Therefore, the underinsured motorist coverage offset clause violated Montana public policy

and was void. Grier, 248 Mont. at 459, 812 P.2d at 349.

¶36 The Mitchell policies are nearly identical to the policy in Grier. The policies define

underinsured motorist as part of uninsured motorist coverage; they do not have an

independent underinsured motorist provision; no separate premium was charged for

underinsured motorist coverage; and the declarations pages only indicate that uninsured

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coverage is provided by each policy. Consistent with our holding in Grier, we conclude that

the offset provisions violate Montana public policy.

Anti-Stacking Provision

¶37 Finally, we consider whether the anti-stacking provision in the State Farm policies

violates Montana public policy. Mitchell contends that the anti-stacking provision violates

public policy because it permits State Farm to charge a premium for coverage that is defeated

by the provisions of the policy. State Farm counters that § 33-23-203, MCA, expressly

permits the anti-stacking provision.

¶38 We recently held that § 33-23-203, MCA, is unconstitutional to the extent that it

allows an insurance company to charge a premium for illusory coverage. Hardy, ¶ 38. The

anti-stacking provision in this case permits State Farm to charge premiums for five separate

uninsured motorist coverages in spite of the fact that the anti-stacking provision only permits

Mitchell to recover for one coverage. Therefore, § 33-23-203, MCA, violates substantive

due process, see Hardy, ¶ 38, and is not controlling. In the absence of a legislative directive,

we must review the anti-stacking provision in light of this Court’s proclamation of public

policy.

¶39 An insurance policy cannot include provisions that defeat coverage for which valuable

consideration was received. Bennett, 261 Mont. at 389, 862 P.2d at 1148. Pursuant to

Montana case law, uninsured motorist coverage may be stacked when separate premiums are

charged for coverage on more than one vehicle. Chaffee v. U.S. Fid. & Guar. Co. (1979),

181 Mont. 1, 6, 591 P.2d 1102, 1105. In short, an anti-stacking provision that permits an

16
insurer to receive valuable consideration by charging premiums for coverage that is not

provided, violates Montana public policy. Any limitations on coverage must be reflected in

the premium charged.

¶40 Moreover, uninsured motorist coverage is both personal and portable. Jacobson v.

Implement Dealers Mut. Ins. Co. (1982), 196 Mont. 542, 547-48, 640 P.2d 908, 912. In

Hardy, the declarations page indicated that four coverages had been purchased. However,

the anti-stacking provision only permitted the insured to recover one amount of coverage.

We held that the anti-stacking provision defeated the insurance consumer’s reasonable

expectation that multiple coverages could be aggregated because it destroyed the personal

and portable nature of underinsured motorist coverage. Hardy, ¶¶ 44-45.

¶41 State Farm charged five premiums for five uninsured motorist coverages. However,

Mitchell can only receive one amount of coverage.

¶42 In Hardy, ¶ 45, we concluded that limitations of this nature violated the consumer’s

reasonable expectation that underinsured motorist coverage was personal and portable. The

same holds true for uninsured motorist coverage. The anti-stacking provision in the instant

policies contravene Mitchell’s reasonable expectation that uninsured motorist coverage is

personal and portable. Consequently, we conclude that the anti-stacking provision in

Mitchell’s policies violate the public policy of this state and is void.

¶43 We conclude that Montana law applies to this case. Pursuant to Montana law, we

conclude that the District Court was incorrect when it held that the underinsured motorist

definition in the State Farm policies was valid in Montana. Furthermore, we conclude that

17
the District Court was incorrect when it held that Montana public policy permitted the anti-

stacking provision in the State Farm policies.

¶44 Based upon the foregoing conclusions, we reverse the judgement on the District Court

and remand this case to the District Court for further proceedings consistent with this

Opinion.

/S/ TERRY N. TRIEWEILER

We Concur:

/S/ JIM REGNIER
/S/ W. WILLIAM LEAPHART
/S/ JAMES C. NELSON
/S/ PATRICIA COTTER

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Justice Jim Rice concurring in part and dissenting in part.

¶45 I concur with the Court’s holding in Issue 1 and with the Court’s holdings in regard

to the underinsured motorist definition and offset provision under Issue 2. For the reasons

set forth in my concurring and dissenting opinion in Hardy v. Progressive Specialty

Insurance Co., 2003 MT 85, 315 Mont. 107, ___ P.3d ___, I disagree with the Court’s

discussion of the anti-stacking provision under Issue 2 and would affirm the District Court’s

order as to that provision of the policy.

/S/ JIM RICE

Chief Justice Karla M. Gray joins in the concurring and dissenting opinion of Justice Rice.

/S/ KARLA M. GRAY

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