*1 DYLLON R. ROBERTUS, Appellant, Plaintiff and FARMERS UNION MUTUAL
INSURANCE COMPANY,
Appellee,
Cross-Appellant.
Defendant,
No. DA 07-0076.
February
Submitted on Briefs
2008.
Decided June
Rehearing
July
Denied
For W. Tourtlotte, and Matthew I. Firm, Billings. Brown Law
JUSTICE MORRIS delivered the Opinion of the Court. (Robertus) Dyllon Robertus appeals from an order of the District, Thirteenth Judicial County, Yellowstone denying his motion for summary judgment. Farmers Union Mutual Company Insurance (Farmers Union) cross-appeals from the judgment District Court’s following jury trial. We reverse and remand for new trial. Robertus presents following issues for review: Whether the District determined that Farmers effectively had notified Robertus of a in his insurance
coverage. Whether
¶4 the District Court properly determined that the modified policy precluded insurance Robertus from stacking his underinsured (UIM) motorists coverage. Farmers Union presents
¶5 the following issues for review: Whether the District properly ¶6 Court allowed Robertus to regarding a claim for earning capacity. future lost Whether the District instructed jury on Robertus’s future economic losses. Whether the District Court properly mortgage allowed a banker
to testify non-expert as a regarding they interest rates as relate to determining the value of future economic losses.
FACTUAL AND PROCEDURAL BACKGROUND injuries ¶9 Robertus sustained serious to his in a car accident back years December when he was 15 old. had been driving a pickup truck insured under a Farmers policy Uniоn issued parents. to his liability. The driver of the other vehicle admitted The other paid parents liability driver’s insurer Robertus and his $50,000 policy’s limit. injuries required ongoing Robertus’s have 160 $50,000. Farmers Union at a cost far in excess of
medical treatment $300,000 coverage. of UIM agreed pay up policy their Farmers Union parents purchased policy following parties 1994. The renewed December The covered year leading up to the accident. December of each included family’s policy specifically vehicles. The the Robertus seven (UM) $300,000 UIM $300,000 coverage motorists uninsured separate premiums charged Farmers Union the Robertuses Farmers coverage for each vеhicle from 1994 to 1996. for UM/UIM charges policy’s page. on the declarations Union indicated the UM/UIM along with the page separately listed each vehicle The declarations amount of the specific limit and the UM/UIM as follows: page appeared The declarations listed vehicle. VEH NO. [002] [001] <----------------------- 300,000 300,000 300,000 300,000 300,000 300,000 300,000 LIMIT UNINSUREDMOTORISTS-----------------------> PREMIUM $37.00 $37.00 $37.00 $37.00 $37.00 $7.00 $7.00 in Montana toward had taken notice of the trend insured coverage where the allowing payments stacked for UM/UIM multiple vehicles. Farmers separate premiums for paid for UM/UIM way charged policy-holders that it modified the coverage. Farmers avoid ofUM/UIM attempt in 1996 in an parties UM/UIM when changed the Robertuses’ Union modified the 1996. Farmers renewed the Decembеr charge single premium the Robertuses a coverage to policy’sUM/UIM change decreased of the Robertuses’ vehicles. for all seven coverage for the paid for UM/UIM total amount that the Robertuses that the Farmers Union intended from to $116. seven vehicles $199 the Robertuses obligation to would limit its UM/UIM modified $300,000 per occurrence. separate Union did not send only provided page declarations policy’s the Robertuses. UM/UIM changed the Robertuses Farmers Union had indication that *4 each vehicle had listed page previously coverage. The declarations Farmers that vehicle. coverage for the amount of UM/UIM along with UM/UIM showing separate thе column simply replaced word “included.” each vehicle with the charged for premium
161 Union listed a total UM/UIM amount at the separately page of the list. The new declarations appeared bottom follows: [005] NO. [003] Oil OOo [004] VEH -------------- 300.000 300,ood 300.000 300.000 300.000 300.000 300.000 LIMIT UMlNSURED/UNDERINSURSO OF INSURANCE UNINSURED/UNDERINSURED tPER OCCURRENCE! MOTORISTS MOTORISTS PREMIUM INCLUDED INCLUDED INCLUDED INCLUDEO INCLUDED INCLUDED INCLUDEO PREMIUM 5110.00 I 4, brought against Robertus action Farmers Union on March 2005, alleging that Farmers Union had failed to pay Robertus the full amount of UIM policy. under the partial summary moved for judgment on the issue of He argued that Farmers notify Union’s failure to him change rendered the policy modification void pursuant 33-15-1106(1), (1995), thereby MCA entitling up § him to to $2.1 million in UIM coverage. Farmers Union filed summary judgment. its own motion for effectively asserted that it prevented stacking
under policy by charging single premium for each vehicle under policy. Robertuses’ Farmers Union contended that the decreased total and the modified page declarations sufficient December constituted notice to Robertus of the change in coverage. The District Court decided that modified excluded
Robertus from receiving stacked payments pursuant Hardy Progressive Specialty Co., 85, 47, 107, Ins. MT 315 Mont. ¶ 892, 47, light 67 P.3d policy charged single the fact that the premium for UM/UIM coverage for all seven of the Robertuses’ vehicles. The District Court seemingly contradictory arrived at conclusions, however, regarding the policy whether modification constituted a requiring notice. The court determined first that the modification constituted change requiring pursuant notice Co., Thomas v. Northwestern Nat. MT Ins. contrast, By District
determined that the change requiring modification did not constitute a (1995). notice 33-15-1106(1), concluded, MCA any court event, any statutory that Farmers Union had satisfied requirement premiums charged because the decrease in total UM/UIM and the changed page format ofthe UM/UIM declarations should have
put the Robertuses on notice of trial to determine the amount of proceeded The case injuries to which Robertus’s entitled him. compensatory damages injuries on the fact that his wages based his future lost claim Robertus eventually would limit physical capacity caused his to dеteriorate discovery Union submitted its first wage-earning his abilities. Farmers 4, 2005, including interrogatory an request May to Robertus on 2,2005, wages. responded future on June regarding lost Robertus an interrogatory expert to this without he could not an answer after supplement asserted that he would his answer opinion. Robertus consulting expert. with an interrogatory Union submitted a second on October Farmers answers, including
2006, requesting supplemental supplementation interrogatory regarding answers to the future regarding Robertus’s 22,2006, than two wages. responded on November more lost Robertus after the deadline discovery after the close of and six months months hour testimony. reported per He that he earns expert $65 to disclose welder, accept significantly less required as a and that he would be teaching high of injuries quit welding if him to favor his he did not elaborate on how school level industrial arts. Robertus Union filed a motion wages. would evidence of lost Farmers present regarding evidence his presenting limine to Robertus from prohibit testimony. expert without earning capacity claim for future lost testimony speculative would be Farmers Union asserted that such lack foundation. testify regarding future Robertus to The District Court allowed compensation testimony to “the amount wages,
lost but it limited his that Robertus The court determined currently he receives as a welder.” rates, interest or testify wages, as to future qualifications lacked the other rely on financial The court ordered Robertus projections. other filed a wage future loss. Robertus any regarding for evidence sources that announced his days three before trial January brief secondary school wage for testify regarding average intention to future lost prove in Montana in order industrial arts teachers constituted responded brief wages. Farmers regarding evidence proposed and that the untimely discovery response argued that teacher salaries lacked foundation. ability to severely impaired its discovery tactics dilatory Robertus’s prepare opportunity had not had thе as Farmers Union defend claims. otherwise, Robertus’s vocational witnesses, to rebut expert or to The District allowed Robertus as to Court nevertheless pursuant amount of received as a compensation he welder questioned the court’s also Robertus instructions. counsel during knowledge trial about his of teacher salaries. Farmers Union foundation, objected speculation, for lack of and late disclosure. presented previously Robertus two disclosed to the documents court to demonstrate information Robertus intended to document, present public constituted a matter of record. The first from website, Department average wage the U.S. Labor shоwed the secondary school industrial arts teachers in Montana. The second document, Billings Agreement, Public School District Master starting salary showed the for a teacher beginning with bachelor’s degree and no allow experience. District refused to *6 testify average as wage secondary to to the for a school industrial arts teacher in Montana as this was too The vague. information District judicial starting Court took of salary notice for a beginning teacher awith and degree experience, bachelor’s no to allowed Robertus testify to this information. The jury court settled objected instructions. Farmers Union to
¶20 proposed Robertus’s instructions regarding earning сapacity future lost upon notice, foundation, based lack of late and speculation. Farmers Union also to objected proposed regarding Robertus’s instructions adjustment of present future economic upon losses cash value based of testimony. lack foundation absent expert The District Court determined that had presented enough evidence about future earning capacity jury to the warrant instructions. brother, broker, mortgage a regarding
¶21 testified interest they as determining rates relate to value present of future economic objected losses. Farmers Union on the basis that Robertus had not expert disclosed his brother The District Court witness. allowed non-expert regarding Robertus’s brother to as a a fair witness rate of return for a safe investment. jury $1,375,292. The already awarded Robertus $220,422
voluntarily previously had The paid to Robertus. court had $300,000 light limited Farmers Union’s UIM of its effectively determination that Farmers modification had Union’s avoided coverages. of District Court ordered $79,577. of pay remaining Union to Robertus the amount REVIEW
STANDARD OF grant summary de novo a district decision review court’s by the court judgment using applied the same criteria district 17, P. MT Luloff, M. R. Civ. 56. Walters ¶ 17, 176 properly grants 17. A district court a motion for ¶ ¶ summary genuine no issue of material fact exists judgment when Walters, moving entitled to as a matter of law. party judgment is district determination 17. We review for abuse disсretion a court’s Roedel, 291, 35, MT admissibility ofthe ofthe evidence. State v.
DISCUSSION Whether District Court determined that Farmers effectively change Robertas in his insurance notified coverage. parties’ summary judgment District Court addressed court, in in a order and memorandum. The its own 21-page motions words, through looking glass” address alternate and “travelled] granting summary judgment to Farmers hypothetical partial bases for Union, such, order reaching issues. its dispositive addition As attempt several different conclusions. We shall memorandum reaches clarify. change of a adequate an insurer has notice provided Whether analysis. Contrary to the coverage requires two-step in insurance determine analysis we first must whether District Court’s notice under coverage requiring change modification constituted 33-15-1106, the insurer MCA. We then must determine whether Thomas, 29. provided adequate I. *7 33-15-1106(1), MCA, duty governs an insurer’s to Section 33-15-1106(1), changes.
notify an of certain Section insured claim, (1995), applicable to Robertus’s MCA the version statute part: in relevant provides renew but on less purports
If an offers or a insurer rate, higher rating plan, the terms, higher or at a favorable at a renewal terms, rate, rating take effect on the plan new or the notice of new only insurer has mailed or delivered date if the days before terms, rate, rating plan to the insured least or expiration the date. previously that “when an insurer renews
Thomas also clarified
notice to
duty
provide adequate
policy, has an affirmative
issued
Thomas,
changes
coverage.”
insured of
the
The District Court considered
the 1995
ofthe statute
both
version
effectively
Thomas when it addressed
and
whether
UIM
modified Robertus’s
December 1996. The District
prohibit anti-stacking
Court asserted that
Court did not
clauses
opinion
until
when it rendered its second
in the
Company
between Farmers Alliance Mutual Insurance
dispute
Holeman,
Kristi Holeman. Farmers Alliance Mut. Ins. Co. v.
1998 MT
(Holeman II).
premium charges terms, higher rate, constituted less favorable or a (1995). 33-15-1106(1), higher rating plan MCA The court § only reasoned the modification could be considered have been on less if favorable terms it had certain in been December 1996 that Montana law would allow of UIM The court conceded that the modification potentially would have had the effect reducing UIM coverage $300,000. from million to $2.1 The court our stacking precedent again examined determined that Montana not recognize stacking did of UIM until January 1998 when this Court announced its decision in Holeman II. The District Court decided that the did not present modification with Robertus less favorable did not terms when Montana law entitle UIM payments, stack either or after before modification. District Court concluded therefore that modification require did not constitute less favorable terms that would (1995). 33-15-1106(1), notice under MCA § analyzed The District Court separately adequacy nevertheless pursuant requirement of the notice Thomas’s statute’s Thomas, It true that requirement. part, analyzes is insurer’s Thomas, duty notify under common law. 24-27. Thomas ¶¶ however, provides separate analysis, no basis or for the separate requirement that an insurer with notice of must insured changes in coverage. rejected The Court in Thomas the notion that an duty policy required page by page insured’s read insurance by requirements “the of 33-15- inspection evidenced fact that *8 1106, (1991), Thomas, suggest MCA otherwise.” 28. Court’s prove provided that has conclusion “the insurer the burden that changes notice of to its insured” emanated from adequate this (1991), Thomas, 33-15-1106, 29. statutory basis. Section MCA set duty policy changes. notice of forth an insurer’s Thomas statutory duty. of provides analysis additional upheld public policy Robertus asserts that this Court has that may in an that place рrovision “an insurer not insurance coverage” coverage defeats in the context of UIM since well before Co., 386, Farm Auto. Ins. 261 Mont. E.g. Bennett v. State Mut. (1993). 1146, Bennett, P.2d Court This considered Appeals, certification from the Ninth Circuit Court of whether upon stacking rendered a clause that public policy prohibited Montana void coverage by separate Bennett, 261 provided policies. of UIM Mont. at at 862 P.2d coverage that she to stack UIM Bennett asserted was entitled Farm insurance that covered two different separate policies two State her. injured vehicles after underinsured motorist struck and Both $100,000 person UIM policies per limited Bennett’s Bennett, 388, 862 $300,000 at P.2d at 1147-48. per accident. 261 Mont. public policy The Court affirmed Montana “an longstanding may provision not in an that defeats place insurer insurance coverage for which the insurer has received valuable consideration.” 389, 862 Bennett, 261 Mont. at P.2d at 1148. Court concluded that prohibits renders an insurance clause that public policy Montana void from the stacking coverage provided by separate policies of UIM same Bennett, argues, 390, 862 Mont. at P.2d at 1149. Robertus insurer. therefore, part II plays decision In.Holeman no the Court’s law stacked at the question of Montana allowed UIM whether time his accident in December 1996. correctly counters that the District Court anti-stacking рrovisions did prohibit that Montana law not
concluded
Holeman II in 1998. Farmers
coverage until the Court decided
for UIM
Mut. Ins.
in Farmers Alliance
Co.
points
the statement
(1996)
I), that
Holeman,
278 Mont.
CHoleman
of whether
question
policy interpretation
left to
legislature
argues
Farmers Union further
can be stacked.
grounds
on the
distinguished
II
Bennett
Holeman
disagree.
separate
policies.
involved
insurance
Bennett
two
I on the issue of whether
The Court decided Holeman
coverages pursuant
statutory prohibition against
coverage.
of UIM
33-23-203,
(1995), precluded stacking
MCA
I,
275-76, 924
at
Holman I
1316-17.
did
Holeman
anti-stacking
prohibited
whether Montana law otherwise
discuss
provisions
regarding
for UIM
The Court’s comments
*9
pоlicyinterpretation
intent
leave that
refers
legislature’s
question
public
to the
affirmed in Bennett. Holeman
merely
longstanding
policy
I,
that insurers
not
of UIM
where one
policy
II,
covered multiple vehicles. Holeman
47. Farmers Union
¶
holding
rule,
that
new
asserts
constituted a
and not continuation
of Bennett’s
of
public policy,
by
statement Montana
as evidenced
the
coverages
fact that Bennett concerned
of UIM
under more
Although
policy.
than one
the Court in Holeman II
stated
Bennett
“arguably
facts,
distinguishable”
reasoning
was
on its
the
of Bennett
governed
II,
nevertheless
its analysis. Holeman
43. The Court
rejected as
the fact
separate policies
immaterial
that two
were at issue
II,
in Bennett.
overriding
Holeman
The Court concluded that “the
public policy considerations
we
upon which
relied in Bennett mandate
that Holeman
permitted
coverages
[UIM]
be
to stack the
in this case.”
II,
rule;
Holeman
clearly
44. The Court affirmed Bennett’s
it did not
distinguish
II,
Bennett. Holeman
43-44.
¶¶
Bennett affirmed Montana public policy
that this Court will not
enforce an anti-stacking provision regarding
UIM
because
“an
may
place
provision
insurer
in an insurance
policy
defeats
for which
insurer
has received valuable
Bennett,
consideration.”
Union’s total financial modification intended to reduce the amount ofUIM which Robertus was by nearly entitled million dollars constitutes less favorable terms $2 33-15-1106(1), (1995). MCA
II. analyze next the notice that adequacy must provided Robertus. The District Court concluded adequate changed page and the declarations constituted The from the one in Thomas. policy change notice. court contrasted the represented Court that the in Thomas The noted modification subtle body to an found within the main obscure exclusion Thomas, fact that the 28. The District Court relied policy. obscurity modification in Thomas emphasized kind be on the by noting that it was not of a that could revealed Thomas, page. page declarations or forms exclusions attempted distinguish by Thomas District Court also accompanied noting that UM/UIM modification other obvious payments changes. pointed court to the fact that UM/UIM *10 $116, that for the decreased from to and the Robertuses’ $199 $2,532 $2,944. to The District Court stated policy entire increased from that increase in ones judicial [sic] that it would “take a $400+ year usually enough to cause one premiums year insurance from to is The Court further why.” look at the to see District page declarations expect it to the Robertuses tо have noticed deemed be reasonable to changes their UM/UIM such placed has improperly District Court argues Robertus that the “figuring that a modification the an insured the burden of out”
upon interpreting an earlier exists. cites Montana cases Robertus requires law statutory notify proposition for the that Montana duty to instance, notice, summary including, separate, one written more Bros., Inc., 156 v. Pinski policy changes. Company Home Insurance (1971); 274, v. Montana 257, 479 Fassio Mont. P.2d Service, 320, 327-28, 553 1001-02 170 Mont. P.2d Physicians’ (1976). an insurer also reasserts Thomas’s rule “when duty it has an affirmative previously policy, renews a issued Thomas, coverage.” changes to the insured of adequate notice 19. obligating principle a commonlaw Thomas considered whether policy tempers examine and the insurance insured read Thomas, duty notify. 26. The Court affirmed “the insurer's obligation policy depends upon of an insured’s to read the what extent Thomas, under the facts and each is reasonable circumstances of case.” 71, 77, 938 Northwestern, (citing Fillinger 27¶ (1997)). The Court determined that an insured not have 1351-52 does obligation by page an absolute to read a insurance page renewed Thomas, discover 28. The that the policy changes. Court concluded imposed upon the prove statute instead insurer the burden to that it provided to adequate, its insured affirmative notice of Thomas, changes. 25, 29. ¶¶ argues correctly Farmers the District Court
distinguished upon Thomas based the nature of the modification at issue. The Court in comparison Thomas stated “a fair policies... significant changes would reveal no in either the declaration page page or the second which scheduled the forms and exclusions.” Thomas, determined, District Court here, that, contrast, argues appeal, by itself should have put Robertuses on notice to an extent that relieves the insurer of providing additional notification. to interpret narrowly. refuse so Thomas The Court cited
Fillinger for proposition that “the extent obligation of an insured’s upon to read the policy depends whаt is facts reasonable Thomas, of each Fillinger circumstances case.” determined that the facts and circumstances include nature the relationship Fillinger, 77-78, 938 between the parties. P.2d at 1351-52. “ relationship involves whether an ‘unsophisticated the insured is ” “ insurance,’ who nothing know[s] about an ‘experienced individúalo ” “ person[] knowledgable business insurance,’ ‘large about or a ” corporation^ with oflawyers.’ batteries This reasoning also considers complexity ofthe provision Fillinger, at issue. atMont. P.2d at 1352 (quoting Agency, Martini v. Inc., Beaverton Ins. (Ore. 1992)).
1061, 1067 The modification to the policy appeared Robertuses’ on the page accompanied declarations decrease the amount that charged for UIM coverage and a in the $400 increase *11 premium. total bury Farmers Union did not the deep modification policy. within the The considered, however, modification cannot be a simple, easy concept contrary, to understand. To the the modification stacking concerned multiple of UIM for vehicles covered policy. under a single Nothing in the record indicates that Robertus parents and his are experienced people knowledge business with of insurance, large lawyers. Fillinger, of corporation or with batteries unreasonably The District Court 283 Mont. at changes the expected grasp significancе the Robertuses to the of solely changed and the cost of page based the declarations premium. overall 33-15-1106(1), (1995), upon imposed Section MCA duty adequate the Robertuses with an affirmative less
notice of a that resulted in terms favorable Thomas, page the insured. 28-29. The modified declarations ¶¶ charged standing policy, amount that Farmers Union for the modified alone, adequate upon not constitute notice based the facts did 33-15-1106(1), of that MCA circumstances this case. conclude (1995), modification inserted into the rendered ineffective the upon renewed insurance December based provide adequate pursuant Farmers Union’s failure Thomas, need not аddress Montana law. 28-29. We whether ¶¶ that the modified insurance properly District Court determined light fact his UIM ofthe precluded Robertas from modify effectively that Farmers Union did not we determine Robertas’s Court Robertas to Whether the District allowed earning capacity. lost
regarding a claim for future discovery responses late Farmers Union claims that Robertus’s asserts to its defense. Farmers Union prejudice resulted in substantial it had no opportunity not reach a settlement as could earning capacity. Farmers claim for future lost evaluate Robertus’s lost out it was to assess Robertus’s future points unable and, therefore, discovery claim, it could not conduct further wages asserts testimony. expert obtain an rebut Robertas’s of to a blatant abuse dilatory discovery tactics amount that Robertus’s discovery. MT Farms, 1998 Big Sky Thoroughbred The Court Morris plaintiffs concluded that had evaded they repeatedly discovery process
abused the when to one rights apply claim did civil request for admission district Morris, 2-3, upheld ¶¶ defendants. two plaintiffs after discovery against sanctions imposition court’s request final for admission. passed the defendants’ months had since court 4, 18. Court concluded that district Morris, ¶¶ discovery abusing the plaintiffs had sanctioned the appropriately from discovery resulted deficiencies process plaintiffs’ whether *12 171 trickery Morris, or tactical mere carelessness. ¶ Discovery “promote serves to the ascertainment of truth and the ¶50 [by] ultimate of the lawsuit in accordance ... disposition therewith assuring knowledge gathered by the mutual of all relevant facts both Dunham, are parties proper litigation.” which essential Massaro v. (1979) 400, 405, 603 249, (citing P.2d 252 Hickman v. (1947)). 507, Taylor, 495, 385, 329 67 U.S. S. Ct. 392 Adherence to “ discovery pre-trial procedures produces and a ‘fair contest with the ” practicable basic issues facts disclosed fullest extent.’ State, 22, 22, 43, 231, Richardson v. 2006 MT 331 130 Mont. ¶ 634, (quoting Gamble, 677, 22 United States Procter & U.S. (1958)). 682, 983, 78 S. Ct. 986-87 This Court follows “a strict dilatory discovery actions not leniently.” shall be dealt with (internal omitted). Morris, citation provided incomplete Robertus answer to Farmers May Union’s 2005, for request regarding information his claim for future lost
wages. failed to expert Robertus consult an and to supplement his promised answer as he had in response. finally his initial answered interrogatory Farmers Union’s second requesting supplemental relating wages answers to future lost on November 2006, more than two months of discovery after close and six months after deadline to expert testimony. disclose Robertus’s answer future lost but wages, discussed it failed to elaborate how present he would evidence of wages future lost trial. Robertus did not disclose his intention to testify regarding wages himself future lost days until three before the start of trial. dilatory discovery Robertus’s conduсt amounted tactics.
This prevented conduct Farmers Union from assessing the merits of the Robertus’s case. Farmers could prepare adequately not its defense, discovery, could conduct follow-up and could not obtain its expert testimony own to rebut regarding wages Robertus’s future lost in time for trial. The District when Court abused its discretion allowed Robertus to his regarding earning claim for future lost Morris, Roedel, capacity. 18; We for trial on remand a new damages light of the prejudice that Farmers Union suffered. We need not cross-appeal address Farmers Union’s additional issues two for this reason. proceedings reverse remand for further consistent with opinion. GRAY, NELSON,
CHIEF JUSTICE JUSTICES COTTER and WARNER conсur. LEAPHART, dissenting part concurring part.
JUSTICE I ofwhether the District Court question dissent earning testify regarding a claim for future lost allowed Robertus to analysis I concur in the Court’s other issues. capacity. litigation do not discovery phase actions in the State, MT rise level of abuse discussed Richardson v. to the 231, 130 eventually responses provided P.3d 634. Robertus including specific request supplementation, Farmers Union’s Richardson, time job. Contrary information about his new full not fail compel; not seek a motion to Robertus did did Richardson, did to a order. 13. Farmers Union respond court ¶¶ *13 as it have not to seek clarification of Robertus’s answers could move (3) 37(a)(2), discovery it that be under M. R. Civ. P. nor did ask the trial be reоpened depositions further or ask allow postponed. its I conclude that the District Court abused discretion cannot earnings despite future
when it allowed Robertus to lost 291, 35, Roedel, v. MT 339 State discovery responses. ¶ his late 694, 35. 171 P.3d Mont. dissenting part. in RICE, concurring part
JUSTICE but appeal, I resolution of the cross concur with the Court’s on appeal of the District Court dissent from Court’s reversal Union was I do not believe that Farmers issues. it in the method calculated Robertuses’
notice of
for UIM
rule”
not
new
Court
that Holeman II “did
announce
reasons
coverages
previous,
because
permitting stacking
single-policy
which
against provisions
statements
generalized public policy
received valuable
for which the insurer has
“defeated]
consideration,”
36,
enough
communicate
were sufficient
not be
anti-stacking provisions would
enforced.
specific message that
Court,
though
pre-1996
the Robertuses’
According to the
even
have
provision,
would
anti-stacking
“Robertus
explicit
contained an
paid separate
he
coverages for which
to stack seven UIM
been able
no
38,
the fact that
despite
pre-1996 policy,”
under the
premiums
anti-staking
ignore
permitted Robertus
case or statute then
rendering of
view,
is
a fair
my
In
this
not
single policy.
ofhis
provision
upon
requirement
a divination
places
in 1996 and
the law as
stood
is unreasonable.
which
anti-stacking language
express
contained
pre-1996 policy
was
$300,000 payment
only
one
family
notifying
single
available under their
Farmers Union
At
policy.
the time
changed
pricing
charge
its
structure to
single
vehicles,
all
premium for
Montana
had
law
not
prohibited
anti-stacking provision. Bennett,
1993,
decided in
did
apply
policy. Although
not
to this
we offered the observation eleven
years later
Dempsey
anti-stacking policies had been
“discouraged” Bennett,
holding
the actual
in Bennett permitted
stacking
separate policies
separate
of two
premiums
which
were
(“Bennett
Bennett,
390,
paid.