*1 1 COMPANY, INSURANCE ALLSTATE Corporation, an Illinois Plaintiff and
Appellant, v. Hankinson, HANKINSON, R.
WILLIAM
Grenfell,
and Gwen
Baasch,
Gerald
Respondents.
Defendants
No. 89-562.
15,
May
1990.
Submitted
16,
Decided
1990.
Aug.
Rehearing
1990.
Denied
Susan appellant. and Keck, Datsopoulos, MacDonald
Milton and Darla J. Datsopoulos Lind, Kidder, Missoula, Hugh respondents. for defendants and & the of the Court. Opinion
JUSTICE HARRISON delivered declaratory in decision a Company appeals Allstate a Insurance indemnify to Luke duty it filed its and defend action to determine accident in arising claims out of an automobile Hankinson for Court, at The Fourth Judicial District was fault. which Hankinson summary Montana, granted judgment County, Missoula remand. respondents’ We reverse and favor.
Issues: had concluding Did the that Hankinson the
1. District Court err by assuming driver and permission defining owner owner’s not the record? facts ambiguous? the
2. Is word “owner’s” undisputed summary judgment to when the 3. Is Allstate entitled her use of the automobile facts show that controlled son’s friend, accident, time the his the driver at the ofthe and both son and drive automobile? permission that the did not have to knew driver minor, Hankinson, driving was a car July 30, Luke a On and Gwen injuring Baasch when an accident occurred Gerald son, her belonged Kathy Cloninger given who had Grenfell. car Cloninger’s Despite Ms. Young, Brian use the vehicle. permission car, Brian Brian was to drive the express instructions no one but undisputed It Hankinson the car. Luke drive gave Cloninger’s Kathy he did not have that Luke Hankinson knew that that vehicle. drive Hankinson’s, Luke’s was an insured on William Luke Hankinson Respon- father, policy. insurance Allstate automobile owner’s policy, Allstate sought coverage under William Hankinson’s dents specifically provision pro- which under non-owned automobile following coverage: vided the by you
“A auto used a non-owned resident relative permission!.]” owner’s
Allstate denied Luke Hankinson not have because did Kathy Cloninger’s permission to use the non-owned automobile. cases,
Relying on two Montana Court that Brian District found Young an was owner of the non-owned automobile for coverage purposes. drive, Since Brian Luke permission to drove the permission trig- non-owned automobile with the owner’s gering coverage under policy. Luke’s father’s Allstate
Did the District Court err in concluding that Hankinson had the permission by owner’s defining by assuming driver and facts in the record? (1989) (amended review,
Upon we find that July 1, 1990), guides proper resolution to this case. In pertinent part, provides: “(1) Every owner of motor vehicle is registered operated in Montana the owner or with his shall resulting from imposed by bodily for injury law or damage death to property *3 by any person by suffered caused maintenance or use a motor of vehicle, as defined in in an amount not than less by 61-6-103, required or a certificate of in self-insurance issued added.) accordance with 61-6-143.” (Emphasis The mandatory liability coverage compels statute a motor vehicle owner to provide liability coverage continuous by for the use owner or with the owner’s of motor vehicle as defined in Kathy Cloninger’s MCA. § automobile falls within § Thus, 61-1-102’s definition of a motor vehicle. under man- Montana’s datory liability statutes, protection question the only regarding cov- erage policy under the Hankinson should be whether Luke’s father gave permission, him express implied, either or to drive the vehicle. problem
The in case arises because the Hankinson policy’s coverage mandatory non-owned automobile conflicts coverage required by 61-6-301, 61-6-301, MCA, MCA. § Section refers 61-6-103(2) which is the statute § that draws Hankinson’s liability policy. automobile owner’s The is applicable section 61-6- § (1989) (amended 103(2), 1,1990), which states: 4
“2) of insurance shall: policy Such owner’s “(a) designate by description explicit by appropriate or thereby respect coverage to which to be all motor vehicles with granted; and
“(b) person, other person insure the named therein insured, motor vehicles using such motor vehicle or insured, against express implied permission or such named arising by damages law for out of the imposed from the maintenance, or of such motor vehicle or motor ownership, use America the Dominion of the United States of vehicles within costs, Canada, respect exclusive ofinterest and subject limits to each motor ...” such vehicle 61-6-103(2)(a), language “by appropriate reference” found provision
MCA,
policy’s
to Hankinson’s
non-owned vehicles
refers
you
coverage
provides
“[A]
for
non-owned auto used
case,
permission.”
the effect
resident relative with the owner’s
In this
language
provision’s qualifying
auto
“with
of the non-owned
mandatory
than the minimum
permission”
owner’s
is to
less
6-301,
coverage
61-
MCA.
required by §
light
policies
interpreting
Our
decisions
prior
when
Liability
Act establishes that
Mandatory
Protection
Montana’s
statutorily mandated
language
excludes
otherwise
policy
See,
contrary
public policy.
policy language is void as
then that
343;
(1989),
354,
Hampton
235 Mont.
767 P.2d
Horace Mann Ins. v.
If
v.
In However, that vehicle. permission to drive the non-owned gave him *4 of by Court. Because our the District yet has not been addressed raised. We issue, not address the other issues holding we need on summary judgment and granting of the District Court’s reverse opinion. consistent with this proceedings remand for BARZ, SHEEHY, CHIEF and JUSTICES JUSTICE TURNAGE and concur. HUNT McDONOUGH WEBER, dissenting:
JUSTICE respectfully majority opinion. I dissent from the The intent the of following regard to majority opinion require is the to the insur- purchased a father by ance on his owned vehicle where he has named Any by son as an vehicle his insured: motor driven his son shall be by policy, covered the father’s insurance even where the son was by to may denied drive the vehicle its While it be owner. require every commendable to that driver of a motor vehicle be insurance, by I requirements covered am to find such the unable I will portions pertinent restate of the code sections. Section 61-6- (amended 1,1990), provides in part: “(1)Every of a operated owner motor vehicle which is... in Montana by the owner with his permission shall by against any person by ... suffered caused mainte- vehicle, nance or use a motor as defined in 61-1-102 ...” (Emphasis supplied in majority opinion.) is pertinent MCA, part provides: In § “ every ‘Motor vehicle’ means propelled power vehicle its own designed primarily persons property to the transport upon highways of bicycle the state .... The term does not include ...” majority Kathy Cloninger concludes that the automobile falls the of a within definition motor vehicle contained § automobiles, MCA. That covers all section and of course does include Cloninger suggest the I find misleading vehicle. it that section somehow reaching Cloninger assists in a conclusion that the vehicle comes within the definition of such a manner § all that that is is to the left determine if father his son problem drive vehicle. Our if is determine § 61-6-301(1), MCA, coverage. requires 61-6-301, MCA, requires
In substance of a motor operated Clearly vehicle his insurance. providing that reference to is a back to the owned motor vehicle. It also seems clear reference to insurance merely loss caused use of a vehicle is descriptive motor type required of insurance which motor I on the vehicle. 61-6-301, MCA, clearly every requires therefore conclude owner of a his being operated motor vehicle in Montana with *5 resulting permission to insurance I nothing can find that section from use ofthe owned motor vehicle. I than the owned motor vehicle. applies which vehicle other — majority opinion key from the conclusion of the must dissent compels an owner of a motor foregoing in some maimer the statute coverage use of motor vehicle vehicle to continuous for the permission. with the owner’s which used conclusion, Having agree I of course cannot foregoing reached the as written violates the policy with the further conclusion that of the use Brian public of the statute so that the limitation policy as an father’s is void Hankinson of automobile with his contrary public policy. interpretation does not consider majority’s
I note that the further (amended statutory such provisions 1, 1990), part provides: pertinent which “(1) an owner’s ... liability policy’ A ... shall mean ‘motor vehicle ... policy of insurance
“(2) shall: policy Such owner’s “(a) explicit description by appropriate designate by thereby coverage is to be respect all to which motor vehicles granted; and
“(b) person, named therein and other person insure the insured, or motor using any such motor vehicle vehicles insured ...” express of such named implied purchase insur- Clearly foregoing allows an owner to section by appropriate covered designates vehicles shall be ance which which pres- in the reference, the limitation contained and therefore allows vehicles driven an insure ent to motor policy grants a limitation seems of the Such used with the owner. MCA. completely consistent dissent, may it be commend- beginning of this suggested As at any car is covered. so the driver of require able case, Court to make for this proper the facts it is Under to the should be left change change That such a legislature. I dissent.