Wamsley v. NODAK MUTUAL INSURANCE COMPANY

COREY JAY WAMSLEY and JEFFREY ALAN WAMSLEY, Representatives as Co-Personal of the Estate of ALAN and SHARON WAMSLEY, Deceased, Appellees,

Plaintiffs v.

NODAK MUTUAL INSURANCE COMPANY, corporation,

a North Dakota Representative JOHN DOE, as Personal of the Estate of Lester Stanton, Deceased, Appellant.

Defendant No. DA 06-0194. February 14, Submitted on Briefs 2007. February 19, Decided

2008 MT 56. 341 Mont. 467. 178 P.3d 102. Dahle, Dable, P.C., Billings. Jared S. Nelson & Appellant: For O’Brien, PLLP, Kalispell. & Appellees: Biby, For Anne G. Hash delivered the of the Court. Opinion JUSTICE COTTER 23,2003, Corey Wamsley Jeffrey Alan Appellees Jay On June Wamsley, capacities Representatives in their as co-Personal (Estate), against filed Wamsley of Alan and Sharon suit Estate (Nodak) in the Company Mutual Insurance Appellant Nodak sought compensation The Eighteenth Judicial District. Estate Bozeman, accident near damages August from an 2002 automobile Wamsley Montana, Alan and Sharon parents, in which their “stack,” suit, sought to or (Wamsleys), killed. In its the Estate were (UIM) policies of, three underinsured motorist coverage combine the Wamsleys by issued to the Nodak. Nodak disputed obligation its policies. stack these three lengthy legal proceedings, After on 9,2005, November the District stipulated judgment against

Court rendered a to M. pursuant order, R. In Civ. P. 54. its the District Court held the Estate could stack all three policies, UIM judgment against rendered final $400,000.00. Nodak in the amount of On appeal, challenges order as well as District Court’s stay, denials of its motion its summary judgment, motions for its reconsider, motion to grant and a summary affirm. to the Estate on the issue of stacking. We FACTUAL AND PROCEDURAL BACKGROUND Although complicated, the facts and chronology in this case are not in dispute. August On the Wamsleys traveling were Chrysler eastbound in a Voyager minivan on Interstate 90 near Bozeman, Stanton, Montana. Lester resident, traveling was westbound the opposite on side of Interstate 90 at the same time. Stanton was highly intoxicated and passed driving. out while As a result, he highway crossed the meridian and collided Wamsleys’ impact minivan. The from the spun Wamsleys’ crash vehicle into a motor home which was traveling behind it on Interstate 90. The Wamsleys and Stanton were all Wamsleys killed. The had been residents of North Dakota and Nodak, insured with a North Dakota-based insurance carrier. Stanton was insured an Idaho- carrier, based insurance Progressive Specialty Insurance. After their death, Wamsleys’ two of the children, six Corey and Jeffrey Wamsley, were appointed Representatives co-Personal Wamsleys’ Estate. accident, After the the ¶4 Estate obtained Montana The counsel. $50,000.00 Estate received from Progressive, the representing coverage limits of policy. Stanton’s Because the damages from amount, accident exceeded this the Estate sought additional payment from Nodak under three UIM policies held by Wamsleys prior policies their death. The provided UIM coverage in the amount $100,000.00 per insured, for each vehicle Wamsleys covered. The owned a total of three vehicles terms, covered under these one of which Chrysler Voyager was the minivan which Wamsleys driving were August 8, on 2002. The other two garaged vehicles were in North Dakota at the time of the allowed, accident. If stacking of these policies permit would the Estate to $600,000.00 seek a total of in UIM claims. In December 2002 the Estate’s counsel notified Nodak of its intent demand, At the time of this we were policies.

to stack all three UIM decided, considering, yet Hardy Progressive Specialty but had not v. Co., Hardy 67 P.3d 892. At Ins. 2003 MT issue 33-23-203, MCA, a statute constitutionality passed was the of § Legislature prohibited stacking policies. of UIM litigation pending The Estate’s Montana counsel notified Nodak likely find the statute and stated her belief that we would stacking and allow the of UIM claims. As a settlement unconstitutional $400,000.00 accept the Estate offered to from Nodak proposal, claims for the full amount of exchange dropping its UIM $600,000.00. $200,000.00 7, 2003, the Estate for UIM April paid On Nodak However, involved in the accident.

coverage Chrysler on the minivan remaining dispute obligation Nodak continued to its to stack the two 18, 2003, overturning 33- April Hardy, UIM On we decided policies. 23-203, MCA, policies of UIM was allowed Hardy, 38,45. Immediately public policy. in Montana as a matter of ¶¶ issued, Hardy provide after the Estate restated its demand Nodak totaling amount remaining policies, under the two UIM payment 28,2004, after $400,000.00. response April The Estate deadline of set against it file suit Nodak. Counsel for Nodak which it stated would matter, study graciously time which the Estate requested more it was still May On Nodak informed Estate granted. demand, complete further time to its investigating requested its investigation. truth, declaratory judgment to seek a preparing In Nodak was claims. On June Nodak Dakota on the Estate’s UIM

North Dakota. County, action in District Court in Kidder North initiated an Wamsleys’ UIM could not sought policies a declaration that children Wamsleys’ surviving law. The be stacked under North Dakota “courtesy” A notice of this lawsuit was named as defendants. were 6, 2003. by the Estate’s counsel on June received underway in the Meanwhile, was also litigation on this matter On County, in Gallatin Montana. Eighteenth Judicial District Court sought to stack 23,2003, against the Estate filed suit June $400,000.00 compensatory seeking recovery policies, the UIM ofthe damages for violations damages. sought punitive The Estate also Act, 1006, MCA. through 33-18-101 Montana Unfair Trade Practices §§ by filing 2003, in the Montana action July 23, responded Nodak On to M. pursuant Personal Jurisdiction” Appearance “Limited to Contest 2003, partial 13, the Estate moved August R. Civ. P. 12. On 14,2003, August On Nodak summary judgment stacking on its claims. the outcome of its stay pending filed a motion to the Estate’s motion action in North Dakota. declaratory judgment 7, 2003, stay On while Nodak’s motion to was under October consideration, the Dakota District Court ruled that North North applied declaratory judgment Dakota law would be in Nodak’s action. brought ruling this to the District Court’s attention in the 5, Montana action. On held November District Court Montana argument stay oral on Nodak’s motion to and denied it. subsequently Notably, partial summary on November Nodak moved for Court, judgment arguing in the Montana District for the first time the personal jurisdiction District Court lacked over it and that North apply argued Dakota law should to the Estate’s claims. Nodak also required grant District Court in Montana was Dakota North credit, ruling full faith and and that collateral estoppel barred litigating Estate from its UIM claims in Montana. On November argument the District Court held oral previous on Estate’s summary judgment on stacking. day motion the issue of That same District Court it had personam jurisdiction ruled over that the Estate policies was allowed to stack the UIM as a matter of law, refusing to accredit the rulings North Dakota on choice effect of law. days later, 19,2003, Five on November after the Montana District

Court already stacking claims, had ruled on the Estate’s the North granted summary judgment Dakota District Court to Nodak obligated day, it was not to stack the UIM The policies. next summary District Court in Montana denied motion for partial Nodak’s judgment, ruling North Dakota law did not to the Estate’s claims in Montana and that the claims were not barred collateral estoppel. Subsequently, Nodak moved the court to reconsider stay its denial of partial summary judgment. Nodak’s motions to 27, 2004, January On the District Court denied motion to Nodak’s reconsider. Court, September On the North Dakota over Supreme Justice, dissenting upheld

one the North Dakota District Court’s declaratory judgment, finding applied that North Dakota law stacking. UIM claims and did not Nodak Mut. Ins. Co. v. allow (N.D. 2004). Wamsley, On September N.W.2d judgment rendering District Court in Montana entered an order $700,000.00. On against the Estate of Lester Stanton the amount of 2,2004, notice on obtaining serving December after partial summary the Estate moved for in the parties, judgment all $400,000.00 UIM and sought entry amount of for its claims of final 54(b). judgment pursuant response, to M. R. Civ. P. In opposed Nodak summary the Estate’s motion and filed another cross-motion for judgment, again arguing Supreme the North Dakota Court’s given should be full faith decision and credit. Nodak’s again motions were denied. appeal

Other issues not relevant to current continued to be 2, 2005, Court. On argued September raised and before the District parties entered into mediation in this matter and subsequently both Stipulation Regarding Judgment. entered into a Final Pursuant thereto, 9, 2005, on November the District Court entered final $400,000.00, judgment against Nodak the sum of and certified the 54(b). judgment pursuant timely as final to M. R. Civ. P. appealed.

ISSUES appeal We restate the issues on as follows: by concluding Issue One: Did the District Court err it had jurisdiction in Montana? personal over Nodak Did the District Court its it Issue Two: abuse discretion when stay legal proceedings in pending denied Nodak’s motion to declaratory judgment the outcome of Nodak’s action in North Dakota? Issue Three: Did the District Court err in that Montana the Estate’s claims? applied law concluding Issue Four: Did the District Court err in the Estate policies presented could stack the UIM when the Estate no evidence of policies that the could be stacked? expectation reasonable err by refusing Issue Five: Did the District Court to accord under the preclusive rulings effect to the from North Dakota courts Faith Credit clause to the United States Constitution? Full of collateral estoppel preclude

Issue Six: Does the doctrine litigating Estate from its UIM claims Montana? courts principles comity require

Issue Seven: Do the Montana in this rulings Supreme defer to the from the North Dakota Court case? OF

STANDARD REVIEW novo, grant summary judgment a district court’s de “We review moving using party the standard established M.R.Civ.P. 56. The genuine of a issue of material fact and must establish the absence entitlement as a matter of law.” Russell v. Masonic Home Inc., 351, 9, 147 MT 334 Mont. P.3d ¶ ¶ ¶ Mont. satisfied, non-moving may Once has been raise party this burden genuine issue of material fact substantial evidence presenting Russell, essential to one or more elements in the case. 9. We review ¶ a district they court’s conclusions of law to determine whether or not Russell, are correct. 9.¶ We review district court orders related to trial administration

matters, stay, such as a motion to under the abuse of discretion Johnson, Eatinger 99, 105-06, 887 231, 235 standard. v. 269 Mont. P.2d (1994). “The test for abuse of discretion whether the trial court acted arbitrarily or exceeded the bounds of reason resulting substantial injustice.” English, 23, 50, 140 State v. 2006 MT omitted). P.3d 50 (quotation

DISCUSSION Issue One: Did the District Court err by concluding it had personal jurisdiction over Nodak in Montana? The District Court concluded Nodak waived the defense of lack of

personal jurisdiction, jurisdiction and submitted to the of the District Court, by voluntary its appearance hearing 5, at the on November 2003, by failing and to properly argue the merits of this defense as 2(a). required by M. R. Civ. P. 12 and M. Unif. Dist. Ct. R. First,

maintains this was error. argues it is not “found” in Montana pursuant 4B(1), to M. R. Civ. P “long Montana’s arm” jurisdiction statute, and that subjecting jurisdiction it to personal Second, due process. offends Nodak asserts its “limited 23,2003, appearance” July on preserved personal the defense of lack of jurisdiction, permitting argue Nodak to it at a unspecified later date. Thus, its participation hearing in the November 5 did not waive the defense. The Estate counters that the “limited appearance” longer is no Montana, available in appearance and that such an simply is treated as a motion to Accordingly, dismiss under M. R. Civ. P. 12. the District Court was correct to deem the motion to be without merit since Nodak argue days failed to or brief it within five pursuant to M. Unif. Dist. Ct. 2(a). R. agree right argue We Estate that Nodak waived its personal jurisdiction.

the defense of lack of correctly The District Court effectively noted that M. R. Civ. P. 12 has abolished distinction Kniss, “general” “special” appearances. between Semenza v. 2005 115, 17, 1203, MT (quoting 122 P.3d 17

474 238, 243, P.2d Co., 190 Mont. Ry. v. S.W. Knoepke (1980)). a effectively treated as in Montana appearance” A “limited jurisdiction. See Foster personal to dismiss for lack of Rule 12 motion Inc., 193 Mont. 630 P.2d Apiaries, Apiaries, Inc. v. Hubbard (1981). 2(a), raising this party Unif. Dist. Ct. R. a 1213, 1215 Under M. its motion. supporting argue file brief or days five a defense has motion will be party to the risk its subjects Failure to do so 2(b). precisely R. That is what merit. M. Unif. Dist. Ct. deemed without Rule 12 was in effect a appearance” “limited here. Nodak’s happened personal jurisdiction, of lack of argue did not the merits motion. Nodak issue, three and a half months roughly until specific or even raise the interim other presented and in the appearance, it filed its initial after circumstances, Under these the District Court. arguments merit. finding the Rule 12 motion without Court did not err District Nodak’s correctly also determined The District Court voluntary constituted proceedings in the court participation 4B(2), waiving the defense of lack P. thus under M. R. Civ. appearance District admitting jurisdiction personal jurisdiction 4B(2) “[¡jurisdiction may acquired be provides that M. R. Civ. P. Court. voluntary in an appearance ... any person courts over by our attorney, or through or personally, either by any person action stated officer, employee.” or As we agent through any other authorized (1991), act “any Ukra, Mont. 804 P.2d Spencer v. general appearance, constitutes a the case as in court recognizes intention, appearance contrary general in the face of a declared even or seeking, taking, from the defendant may by implication arise cause beneficial to himself in the step proceeding to some or agreeing only the contesting than one other plaintiff, and detrimental 433, 804 P.2d at 382 246 Mont. at Spencer, the court.” jurisdiction of added). argued could have omitted, emphasis (quotation power of subjecting itself to personal jurisdiction without omitted) Semenza, (quotation Court, not to. but chose District without jurisdiction may argue personal lack of (stating party that a of general power to the “subject [it] argument will concern that such sought Instead Nodak response.”). solely because the court stay on the in its motion to the District Court relief from affirmative from the seeking relief filing motions comity. By of principles of basis [Nodak] ... other, grounds non-jurisdictional Court “on District company the court over jurisdiction of authority and admitted the at 160. 193 Mont. 630 P.2d at Apiaries, Foster and the case.” it had concluding did not err District Court we find the Because ¶28 personal jurisdiction rationales, over Nodak under foregoing we do challenges not reach the other Nodak raises to the District Court’s rulings on this issue. Issue Two: Did the District Court abuse

¶29 its discretion when it stay legal denied Nodak’s motion to proceedings pending in Montana the outcome ofNodak’s declaratory judgment action in North Dakota? argues the District Court’s stay denial of its motion to constituted an abuse of discretion. Nodak asserts the District Court stayed should proceedings have in Montana until the North declaratory judgment Dakota was decided. Nodak maintains that comity required notions of this result litigation because the was “first- filed” in disagree. North Dakota. We State, In v. Simmons (1983), 670 P.2d 1372 we

defined “comity’ as law,

not a rule of practice, but one of convenience, expediency. It does of not its own force compel a particular course of action. Rather, it is an expression of one entirely voluntary state’s decision defer policy may another. Such a decision be perceived promoting as uniformity decision, as encouraging harmony among participants system a co-operative federalism, merely or as expression of hope reciprocal advantages in some future case in which the interests of the forum are more critical.

Simmons, (citations 289, 670 206 Mont. at P.2d at 1385 quotations omitted). The Ninth Circuit has described the “first to file” rule on which

Nodak relies as

a generally recognized doctrine of comity ... permits a district jurisdiction court to decline over an action when complaint involving the parties same already issues has been filed in another [T]his district.... “first rigid to file” rule is not a or rule inflexible to be mechanically applied, but rather is to be applied with a view to the judicial dictates of sound administration. Medtronic, (9th

Pacesetter Systems, Inc., Inc. v. 678 F.2d 94-95 Cir. 1982) (citations omitted).

When reviewing involving decision the “first to file” appeal rule on discretion, “an ample degree of appropriate for disciplined and experienced judges, must be left to the lower courts.” Pacesetter omitted). Systems, Inc., (quotation 678 F.2d at 95 Here, the District Court adhered to the judicial dictates of sound 476

administration and did not abuse its discretion when it denied Nodak’s stay. Clearly, motion to Montana and North Dakota both have in resolving stacking interests the UIM claims at issue. The North Supreme Dakota Court has stated North Dakota’s interest governing relationship between a North Dakota insured and North Nodak, Dakota insurer. 687 N.W.2d at 234. Montana has a number of First, important interests as well. Montana has a well-established practice applying occurring Montana law to automobile accidents Co., E.g., Kemp within its borders. v.Allstate Ins. 183 Mont. 20, 102, (1979); Co., 601 P.2d 24 Mitchell v. State Farm Ins. 2003 MT 20-21, 20-21, 703, Also, in 68 P.3d 20-21. ¶¶ ¶¶ ¶¶ injured party may bring against Montana an a suit the tortfeasor and sought. the insurance in one action when UIM are company coverages Ct., e.g., Eighth See State Mont. ex. rel. Gadbaw v. Mont. Jud. Dist. 127, ¶¶19-25, 316 19-25, 75 MT Mont. P.3d 19-25. ¶¶ ¶¶ occurred in Montana and the was a Because accident tortfeasor resident, proper Montana the claim arose here and Montana is the status, rights, legal forum within which to “settle the and other Nodak, at 235 underlying relations action.” N.W.2d J., (Maring, dissenting). stacking Choice of and the issue are law making critical in these final determinations and are well within County. By judicial competency of the District Court Gallatin trying denying stay, simply Nodak’s motion to the District Court was these claims. prevent “piecemeal litigation” respect needless Nodak, J., (stating “by (Maring, dissenting) 687 N.W.2d at 235 Dakota], action North we deciding declaratory judgment [in Additionally, provide Nodak fails to encourage piecemeal litigation.”). any injustice evidence that substantial resulted from the District Instead, the motion. the District Court’s decisions Court’s denial of Its actions were not example judicial were an of sound administration. resulting in arbitrary “exceed[] and did not the bounds of reason injustice.” English, substantial Moreover, out, points exception as the Estate there is an filing” simply an act offorum- party’s

“first to file”rule where a “first (9th Alltrade, Inc., v. Uniweld Prod. 946 F.2d shopping. Inc. 1991). in this case is a Cir. Nodak’s rush to the North Dakota courts it apparently of such conduct. Nodak believed paradigmatic example on the a more result in the North Dakota courts get would favorable delay lull in the issue, sought and therefore stacking UIM advantage in order to secure an of the Montana case commencement circumstances, Nodak’s invocation of Under such there. See 6-7. ¶¶ “comity”rings Accordingly, hollow. we conclude the District Court did by denying stay not abuse its discretion Nodak’s motion to proceedings. Issue Three: Did the District Court err in that Montana applied law to the Estate’s claims? Nodak maintains the District Court erred when it concluded applied stacking law to the Estate’s UIM claims. Nodak application

asserts that an of analysis the choice of law from the (Second) (1971) Restatement Laws leads to §§ of Conflict of the conclusion that North Dakota apply law should to the Estate’s essence, claims. In Nodak argues the UIM claims concern a North Dakota insurance only transaction to which North Dakota law should apply and that Montana’s relationship solely is limited to the fact that the accident occurred here. The relevant sections of the provide Restatement as follows:

§ 188. Governing Law in Absence of Effective Choice of by Law the Parties

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

(2) (see In the absence of an effective choice of law the parties 187), the contacts to § be taken into account in applying principles of 6 to determine the applicable law to an issue § include:

(a) the place contracting, of

(b) the place negotiation contract, (c) place performance,

(d) subject contract, the location of the matter of the and (e) domicil, residence, nationality, place incorporation place parties. of business of the

These contacts are to according be evaluated to their relative importance respect with to the particular issue.

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

transaction and the in event the local law of the applied. other state will be Principles 6. Choice-of-Law

(1) court, subject restrictions, A to constitutional will follow a statutory directive of its own state on choice of law.

(2) directive, there is no such Where the factors relevant to the applicable.] [Not choice of law include .... The Estate contends the District Court apply was correct Particularly,

Montana law to the Estate’s claims. points the Estate (1993) Co., Youngblood v. Am. States Ins. 866 P.2d 203 Kemp proposition long for the that Montana has applied Montana occurring law to automobile accidents within its borders. The Estate analysis also claims the conflicts applied we under the Restatement Mitchell to the points conclusion that Montana law controls. argues distinguishable Mitchell is on its facts and does not instant case. Mitchell, analyzed In we a claim similar to the one before us now. case, injured

In that Plaintiff Mitchell was an automobile accident Montana, At time he living working Montana. was but parents’ policies was insured under his issued in California. To cover accident, damages from the Mitchell tried to parents’ stack his UIM they policies, although garaged covered vehicles in California at the sought time of the accident. Mitchell to apply Montana law to his him, stacking against holding claims. The District Court ruled that applied. California law At issue on appeal before this Court was govern whether California or Montana law would the determination of Mitchell’s claims. In analysis applied resolving Mitchell we outlined the to be when questions began by noting

conflicts of laws under the Restatement. We that under our in prior Phillips Corp., decisions v. Gen. Motors 2000 55, 298 Lombardi, MT 995 P.2d Mont. and Casarotto v. 268 (1994), apply Mont. 886 P.2d we would the Restatement (Second) Mitchell, Conflict of Laws to Mitchell’s claims. 16. We stated ¶ careful, that in approach step-by- we would the Restatement “criteria a fashion, Mitchell, step misapplication to avoid of the law.” 17. ¶ 188(2) analysis Accordingly, conducting before under and §§ 193, our first task was to determine “whether Montana law addressed 6(1).” concerning policy pursuant the choice of law Mitchell’s ... to § 6(1) Mitchell, “requires 18. We noted that of Restatement § ¶ determining applicable first look to relevant state law when court to “ 28-3-102, MCA, Mitchell, provides ‘[a] 21. also noted that law.” We ¶ § interpreted according usage contract is to be to the law in where [sic]1 or, performed place performance, it is to be if it does not indicate a of ” according usage place to the law and of the where it is made.’ MCA). Mitchell, 28-3-102, (quoting From this we concluded that ¶ § provide “unless terms of insurance contract otherwise... where designates any an insurance contract the place performance of to be arises, state performance where a claim occurs where the insured (citation omitted). Mitchell, judgment.” Linking obtains these analyses follows, together logically “[i]t we held the place of performance the place is also where an insured is entitled to receive benefits, incurred expenses, has accident related or is entitled to judgment.” Mitchell, premise 20. On this concluded we Montana was place performance of of the contract because working

Mitchell was in Montana living at the time of the accident; the underinsured tortfeasor’s vehicle was insured in Montana; Mitchell’s medical expenses Montana; were incurred in Mitchell settled [tortfeasors’] with the insurers for the policy limit giving Montana; rise to underinsured in motorist claim judgment concerning the accident paid will be rendered and in Montana.

Mitchell, While the slightly Mitchell, facts this case differ from those in analysis

the choice of comparable. notes, laws As Nodak Wamsleys were residents of North Dakota and had none of the Montana contacts that the Plaintiff had in Mitchell. Nodak also 188(2) provides thorough analysis factor-based under and 193 of § § Restatement, why analysis shows favors the application of North Dakota law. Yet Nodak fails to the careful “step-by- step” approach applied we skips analysis Mitchell and over the 6(1) under required Restatement which is proceeding § before 188(2). the general analysis result, factor-based As a § operation 28-3-102, MCA, overlooks the and our Mitchell to the effect that place one must first determine the performance of the insurance contract. language contrary, place performance Absent of an

insurance benefits, contract is “where an insured is entitled to receive has incurred accident expenses, judgment.” related or is entitled to portion 28-3-102, MCA, actually The of cited in Mitchell reads as follows: “A interpreted according usage place contract is to be to the law and of the where it is to added.) performed (Emphasis he ....”

Mitchell, analysis 20. The factor-based described the Restatement play only into after it has been determined that the contract comes designate place performance. not a of If Montana is determined does no under the place performance, analysis to be the of then further required. Restatement factors is Here, performance of of insurance place is Nodak’s nearly The UIM in this case contain identical policies

contracts. boilerplate language policies policies to the at issue Mitchell. Both America, coverage the area of to include “the United States of specify Rico; Puerto or Canada.” Nodak’s possessions; its territories distinguish here from in Mitchell attempt policies those correctly out that the endorsement section unavailing. points Nodak Coverage-North “Underinsured policies of the entitled Motorist territory But specify coverage Dakota” does not a of for UIM claims. Further, coverage. neither does it state a limitation of such policy of the itself entitled “Part C-Underinsured Motorist provision Coverage” clearly adopts territory coverage specified as of the area its latter provision specifies in “Part F-General Provisions.” This the UIM territory coverage policy, including of for the entire limited territory coverage a more provisions, and does not indicate any coverage for UIM claims. Absent limitations of in the endorsement territory policy, nothing policies to the UIM in the indicates the UIM America, its coverage to be other than “the United States of Rico; possessions; territories and Puerto or Canada.” damages accident occurred and the Montana is where the Estate, injury action filed personal arose. It is site Stanton, the Montana judgment against the forum in which an order of tortfeasor, Moreover, already has has been rendered. See 12. $200,000.00 claims the Estate’s paid the Estate in UIM submitted Therefore, did not in Montana. we conclude the District Court counsel stacking and apply should to the err in Montana law coverage issues before us. concluding err in the Estate Issue Four: Did the District Court no presented the UIM when the Estate evidence policies

could stack could be stacked? expectation policies a reasonable UIM Hardy does not argues apply our decision to, failed Hardy required, under the Estate is but claims here because they would be able Wamsleys expectation had a reasonable prove they paid policies although all three coverage UIM under seek Hardy further maintains that for each. Nodak separate premium Wamsleys charged premiums must show the were the Estate 481 coverages, they for stacked UIM a paid premium coverage for they did not receive. argues The Estate that Nodak

¶47 raises this issue for the first time. agree. We A review of the record shows ample opportunity Nodak had theory present Thus, to to District the Court but failed to do so. out of fairness to the District Court we will appeal not consider it on Young, for the first time. Timis v. 63, 8, 18, 8, 2001 MT 305 Mont. ¶ ¶ 1122, 22 P.3d 8.¶ Issue Five: Did the District by Court err refusing to accord

preclusive rulings effect to the from the North Dakota courts under the Full Faith and Credit clause to the United States Constitution? Const, argues the Full Clause, Faith and Credit U.S. art. IV, 1, required the District Court grant preclusive § effect to the North rulings Dakota on choice of stacking. law and Nodak asserts rulings judicata those were res to issues by raised the Estate Montana, and that the District Court erred in granting not them full faith and credit. points out that the North Dakota District Court ruled on choice of law on October 7,2003, prior several weeks the ruling Montana District Court’s applying Montana law to the Estate’s In response, claims. the Estate maintains the District Court did not err required because the judicata elements res are not particular, satisfied. In argues Estate Wamsleys’ children, that the appeared who in the North action, Dakota were not in privity with argues Estate. The Estate also full faith required and credit is not recognition this case because rulings North Dakota would impermissibly litigation interfere with the in Montana and Montana’s important interests in this matter. Const, clause, The Full Faith and 1, Credit IV, U.S art. states §

that “Full Faith and Credit shall given be public each State to the Acts, Records, judicial Proceedings every other State.” Pursuant clause, Congress to this the first 1738, enacted 28 U.S.C. which specifies properly judicial authenticated proceedings are to be given national effect. The United Supreme States explained Court has “animating purpose” of this clause “was to alter the status of independent foreign several states as sovereignties, ignore each free to obligations created under the or by judicial laws proceedings ofthe others, and to make them integral parts of single throughout a nation remedy upon just obligation might right, be demanded as of irrespective origin.” state of its by Baker v. Thomas General 222, 232, 118 (1998) Corp., Motors 522 U.S. 657, S. Ct. (quotation 663 omitted). Accordingly, judgment State, “[a] final in one if rendered adjudicatory authority subject matter and

a court with over persons governed by judgment, qualifies recognition throughout for Baker, 233, the land.” 522 U.S. at 118 S. Ct. at 663-64. recognized obligation We have that “the full faith and credit owed judgments exacting. judgment final A final rendered a state full faith and credit in the courts of court is entitled to its sister states.” Bett, 326, 39, v. 1998 MT 970 P.2d Carr ¶ ¶ “ terms, every full practical ‘generally requires 39. In faith and credit give judicata State to to a at least the res effect which ” Carr, in the State which rendered it.’ judgment would be accorded Duke, Ct. (quoting v. 375 U.S. S. Durfee (1963)). Moreover, no the full faith public policy exception there is Carr, due from 45. Full judgments jurisdiction. and credit another may policies faith and credit demand “submission ... even to hostile State, judgment practical [of] reflected in the of another because the Baker, 233, system of the federal ....” 522 U.S. at 118 S. Ct. operation omitted). at 664 Thus in Carr we held that Montana was (quotation grant Wyoming judgment to full faith and credit to a “even required the the contravenes the assuming underlying judgment public law Carr, 45; Crutcher, See 496 policy E.g. of Montana.” also Finstuen v. ¶ (10th 2007) (holding requires F.3d 1139 Cir. that full faith and credit already recognize adoption by couple Oklahoma to a same sex though specifically formalized in another state even Oklahoma statute prohibits adoptions public policy grounds). such on analysis The first in this is to determine whether the step judicata in Dakota is res judgment the North District Court satisfy Montana, sought.2 the full faith and credit is To action in where Montana, must be judicata following the res criteria in the elements (2) “(1) same; parties privies or their must be the satisfied: (3) same; subject matter the action must be the the issues must be (4) same, subject-matter; to the same and must relate subject- in reference to the capacities persons of the must be same and to the them.” Lane v. Mont. Fourth Jud. matter issues between 23, 55, 23, 819, Ct., 2003 MT 316 Mont. 68 P.3d ¶ Dist. matter, requires full faith and credit a sister state As a technical we note that initially- judicata give judgment it in the State which to the res effect would have Carr, appropriate judgment. Accordingly, it would be more rendered the declaratory judicata analysis under North Dakota law because the conduct the res However, parties argued judicata have res under was issued there. both substantively judicata law, alleged party the res criteria differ Montana between Montana and neither has and North Dakota. omitted). one, identity The contends element number (quotation Estate in case. parties privies, or their is not satisfied in the previously concept ‘privy1 As we have stated “the of a judgment applies legally context of a to one whose interest has been represented similarly privies at trial. We have defined as those who are identified so connected estate or blood or law as be and, by consequently, the same interest affected with each other Inc., litigation.” Plumbing Heating, Holtman v. 4-G’s & (1994). Here, 872 P.2d the record shows that Wamsleys’ in privity legal children and the Estate are because their represented similarly interests in this matter are the same and were Dakota, Wamlseys’ argued in both forums. In North children claims, Dakota to their UIM against applying North law and the same position taken in Montana. The Wamsleys’ was Estate children advancing arguments and the Estate had the same interest those potential because of the benefit to both the Estate and the children if they were allowed to stack UIM claims. The fact that a conflict of might develop interest later between the children and the Estate not significant because, event, money here in either more would be Wamsleys’ available to either the Estate or the surviving children if the UIM claims Additionally, could be stacked. we note that the same attorney appeared Montana, in North Dakota and arguing same position reasons, agree basic in both forums. For these we with Nodak privity requirement judicata that the of res is satisfied. Accordingly, agree we with Nodak that the basic elements of res

judicata rulings. seem to be satisfied the North Dakota If full faith rulings, and credit were to be accorded the North Dakota then theoretically after October the District Court in Montana compelled would be North Dakota law to the Estate’s However, unquestioning claims. of full faith and credit application problematic. in this case is arguments against granting The Estate advances two other full First,

faith and credit in this case careful consideration. which deserve argues rulings granted the Estate the North Dakota should not be full faith in they greatly public policy and credit because offend However, is basis stacking. appropriate favor of this not rule, because, general as a upon which to refuse full faith and credit judgment regardless must be afforded full faith and credit of how Carr, However, greatly public policy it offends the of Montana. argument against granting the Estate full faith and advances second credit do find compelling. which we argues rulings The Estate the North Dakota are not full due faith they impermissibly

and credit because interfere with the Montana connection, litigation. In this it repeating bears that these two cases courts, proceeded simultaneously two state with competing rulings being weeks, sought and obtained within days, sometimes of each another. Unlike the classic involving entry situation of judgment prior one court to the commencement of the ensuing case in another, we are faced here affairs; indeed, with an anomalous state of cited no precedent addressing has how and even whether full faith and credit is due under such against circumstances. It is backdrop analyze that we declining whether District Court erred in rulings to accord the North Dakota full faith and credit. Full faith and credit due judgment from a sister state not

automatic. The Full Faith and Credit clause “is not an inexorable and unqualified scope command. It leaves some for state control within its peculiarly borders of affairs which are its own ... [and] there are limits to the extent to which policy may the laws and of one state be subordinated to those of Hwy. another.” Pink v. A.A.A. 314 U.S. Exp., 201, 210, (1941); Hunt, 62 S. Ct. Magnolia Petroleum Co. v. 430, 438, (1943), 208, 213, 320 U.S. 64 S. Ct. overruled on other grounds by Co., Light Thomas v. Wash. Gas 448 U.S. 100 S. Ct. (“we (1980), assume ... that the command of the Constitution all-embracing, may statute is not and that there exceptional be judgment may cases in which the of one state not override the laws another....”). Thus, policy the United States Supreme Court has held that Full Faith “[t]he and Credit Clause does not £astate compel to substitute the statutes of other for its dealing states own statutes ” subject with a matter concerning competent legislate.’ which it is Baker, (quoting 522 U.S. at 118 S. Ct. at 663 Employers Pacific Commn., Ins. Co. v. Indust. Accident 306 U.S. 59 S. Ct. (1939)). Similarly, Supreme has Court denied the enforcement injunctions purport of anti-suit to control a court’s actions commanding another state. “Orders action or inaction have been denied enforcement in a they purported sister State when province an official act within the exclusive accomplish of that other litigation ordering State or over which the State had no interfered added). 235, 118 authority.”Baker, 522 U.S. at S. Ct. at 665 (emphasis (Second) This view is echoed the Restatement Laws § of Conflicts of 103 cited the Estate.

A rendered in one of the United need not State States in a State if or recognized recognition be or enforced sister such

485 of full policy faith required by is not the national enforcement interference improper it involve an with credit because would interests of the sister State. important indicates, the exception comment to the Restatement As the parameters, as precise in this rule is “rare” and its defined

represented “uncertain.” Supreme Court, remain by the United States Restatement (Second) However, there are Laws 103 cmt. a. cases of Conflict of giv[es] way credit of full to policy where “the national faith Reading & Bates of the sister Const. important interests state.” Co. v. (Tex. 1998). 702, 714 Energy Corp., App. Baker Resources 976 S.W.2d grant to Reading in the Texas Court of refused full Appeals Thus faith recognized judgment subsequently and credit to a Canadian under if it law, compelled first itself was deciding Louisiana without to Reading, law. 976 judgment enforce the Canadian under Texas S.W.2d acknowledged Appeals at 714-15. The Texas Court of its duty to recognize valid under full generally judgments Louisiana faith and credit, rejected automatically compelled but the notion that it was to in Texas give judgment simply a Canadian full faith and credit because in 976 S.W.2d recognized Reading, it was first Louisiana. at 715. The evaluating in legitimate Texas court noted its interests foreign Texas, rejected the judgment before enforcement attempt to door” via judgment “through enforce the Canadian the back Louisiana Reading, at law. S.W.2d Here, declaratory Dakota action was judgment begun North “through

in an back attempt apply North Dakota law door” in Montana, here. As potentially above, and avoid a adverse result noted graces by advantage good took obtaining Estate’s demands, buying while respond extensions to to its all the time to file 6. It is evident pre-emptive action North Dakota. See that the brought for the declaratory judgment purpose North Dakota was exercising preempting the District Court in Montana from control over dispute. agree We judicial processes necessary to resolve this simply Maring rulings Justice that the North Dakota constituted Nodak, stacking. “advisory on choice of opinion” law and N.W.2d J., in Montana (Maring, dissenting). at 236 The District Court was not rulings.3 bound those declaratory notes, sought Estate Nodak never have As the from pursuant Foreign Enforcement of

North Dakota certified in Montana Judgments to the Uniform Act, provides “[t]he Carr UEFJA 25-9-501 to MCA. As we stated in §§ enforcing foreign judgment procedural in the states framework for that have being Carr, question-for time enacted it.” 41. This raises the unresolved-as We are invocation of full faith troubled Nodak’s and credit

an attempt upon to confer District Courts in North Dakota interlocutory control over District Courts in Montana. point Nodak can to no given cases where full faith and credit has one state the power to issue declaratory judgments exerting aimed at such control over ongoing litigation in a Permitting forum state. North Dakota’s declaratory judgments to have effect over preclusive Montana courts in this case “would mean in the [North Dakota] effect that courts of can Baker, control goes [Montana].” what on the courts of 522 U.S. at omitted). 9, 236 n. 118 S. Ct. 665 n. 9 (quotation We emphasize upon that our decision here is not based the fact ¶61 that anti-stacking contrary public policy statutes are to in Montana. We there acknowledge public policy exception is no to full faith and recognize presents credit. We also this case a unique set of circumstances for which no clear rule the full faith and credit jurisprudence Baker, 245, 118 has been established. See 522 U.S. at S. J., at (Kennedy, (noting Ct. the concurring) United States Supreme exactly Court has never determined at point what “an cannot otherwise valid intrude upon process essential of ....”). Nonetheless, courts issuing outside of the State we conclude it unity would defeat the of national use full purpose forging to faith and credit to needlessly expand single cause of action into multi-state litigation. If anything, such a use of the full faith and credit clause simply legal brings the courts process, greater balkanizes state into conflict, diminishes type of state respect sovereignty Congress reasons, first envisioned. conclude the For these we District Court declining did not err in to accord full faith and credit to the competing rulings issued the North Dakota courts. estoppel preclude Issue Six: Does the doctrine of collateral

Estate from UIM in Montana? litigating its claims argues estoppel doctrine of collateral barred Estate pursuing from its UIM in Montana once the District Court in claims North ruled choice and UIM claims. Dakota had on the of law However, authority to points supports application no contemporaneous of collateral in situations where suits are estoppel unfolding. As or estoppel, preclusion, “[c]ollateral we have stated issue required any recognition declaratory judgment pay to a whether a Montana court is from a statutory pursuant requirements to the sister state which is not certified UEPJA, judgments from state or whether the full faith and credit due another statutory transcends this framework. determined litigated of an that has been reopening bars the issue 15, Baltrusch, 51, in a suit.” Baltrusch v. 2006 MT prior ¶ added). 1267, in this (emphasis 130 P.3d The suits contemporaneous, ruling North Dakota matter were The doctrine has no aspects parallel on various of the cases at times. Estate’s operate in this context and did not to bar the applicability Furthermore, collateral assuming arguendo UIM claims in Montana. here, required grant did Court not estoppel District was they Dakota full faith and credit would rulings North because impermissibly explained interfere with the Montana as above litigation our discussion Issue Five. comity Issue Seven: Do the Montana courts principles require defer Court in rulings Supreme from the North Dakota case? Lastly, comity general principles require Nodak asserts that sovereignty give

Montana to defer to the of North Dakota and effect to the North Dakota Supreme ruling disagree. Court’s in Nodak. We As comity we noted above at a state’s decision to extend to another entirely voluntary. Simmons, state is 206 Mont. at 670 P.2d at Moreover, credit, comity unlike full faith and need not be extended in cases public judicial where “it would contravene the or policy Kane, 335, 338, of the forum state.” Kane v. 198 Mont. 646 P.2d (1982) 505, omitted); 507 (quotation Oberson v. Mut. Ins. Federated Co., 329, 10, 459, 2005 MT 330 Mont. 126 P.3d 10. As our ¶ ¶ ¶ foregoing analysis suggests, comity in Montana is entitled to just matter as much as respect North Dakota. While we North Dakota’s interests in regulating relationship the between its resident insureds, weighty insurers and their of Montana has a number interests in this matter as we To the paraphrase have discussed above. Court, west, comity District should extend in all directions: east to as well as west to east.

CONCLUSION reasons, foregoing For the the decision of the District Court is ¶66 affirmed.

JUSTICES NELSON and MORRIS concur. RICE,

JUSTICE concurring. I concur holding with Court’s herein. Nodak has offered I are arguments substantive which believe which, issues in this compelling procedural postural but because of or litigation, personal I am not I adopt. agree able to Nodak’s

488 jurisdiction preserved defense not the District was before Court and I thus waived. concur that Court did the District not abuse its by denying request discretion Nodak’s for a comity-based stay under here, the circumstances specifically, litigation explained tactics by Court, though necessarily agree, I do not as discussed fully more we below, that have or should of “practice applying have a borders,” [our] law to automobile occurring accidents within Opinion, 33, which would a application render careful ¶ statutes and unnecessary secondary. Similarly, Restatement factors or I believe here, that the the Court as “anomalous,” circumstances described case place this within very exception general narrow rule that give full faith Dakota judgment. we and credit to the North That exception rightfully one, a narrow as we should have no interest casually dishonoring either entered elsewhere or encouraging dueling litigation And, though I am sympathetic here. of expresses the thoughts with some Justice opinion Warner his Hardy regarding issue, and the I nonetheless must concur the Court that with the merits of cannot be this issue reached because for it was raised the first time appeal. on I Finally, concur on the with Court’s merits of the issue, Three, choice of law though necessarily agree Issue I do not with entirety of analysis. adopting Since the Restatement’s formulation issues in determining Casarotto, choice of law has, my view, Court analytical approaches used inconsistent need to be resolved v. Compare or clarified. Mitchell State Farm Ins. MT 102, 20, Co., 20, 281, 2003 68 P.3d 703, (analyzing choice of law for an insurance contract automobile under § MCA, 28-3-102, place performance, of of despite the absence determining that injury occurs, is where the place performance Restatement) bypassing thereby analysis pursuant 188 of the § America, 177, 13, 19, 322 v. Inc., Burchett MT ¶¶ Mastec N. Mont. 19, 13, choice (analyzing P.3d law for an ¶¶ ¶¶ MCA, 28-3-102, employment determining contract under § performance, the contract place where does not indicate a 28-3- § MCA, may be of law is unworkable and choice determined Restatement). 188 of applying Here, the analysis right place at the but begins quickly Court’s the result

turns to in Mitchell and therefrom because the implies Montana, an occurring in the “place case involves automobile accident We wary Montana. should be performance” necessarily of must be of bright-line always imply creating whereby parties rule we injury to place of also place performance. intended be the of Such give does not effect approach original parties, an intent of the primary Further, is the concern of the which Restatement. such may, in some future case approach where Montana resident in an accident outside the state, involved dictate that we law state, other because the place performance has become place with the synonymous injury. clarify I should our believe we provide in order to a clear analytical approach law and consistent Restatement and our under the questions. statutes to these contract JUSTICE GRAY join CHIEF and DISTRICT JUDGE PHILLIPS concurring opinion in the JUSTICE RICE. WARNER, concurring

JUSTICE dissenting. and with the I concur Court in respects. disagree several I with the on seminal issue of Court whether the District required Court was principles conflict of laws previously adopted by comity and this action. This action dismiss should either be decided under North law or dismissed in Dakota deference judgment. to the North Dakota This case stems from the Hardy, unduly Court’s decision in contract, right restricts and legislature rightful denies the its making policy role in decisions. The compounded Court the problems Hardy it inherent when decided Mitchell misconstruing 28-3- 102, MCA, essentially ignoring the uniform conflict of law principles adopted which were Casarotto, Casarotto. 268 Mont. at 373-74, Now, 886 P.2d at 934. again by refusing Court errs to let Dakota questions courts decide arising North between North Dakota concerning citizens a North Dakota contract. The Court discusses seven issues. disagree 15-21.1 do not ¶¶ entirety analysis. of the Court’s I agree that the District Court did concluding err in that it personal Nodak,

not had jurisdiction over ¶ agree the District 25; I Court refusing did not err in to accord effect to the North preclusive Dakota Judgment under the Full Faith Credit Clause to the United Constitution, 61; agree States I estoppel preclude that collateral does not the Estate from litigating its Montana, claims 63. While the record is not as clear as the Court 34, considering implies, case, Nodak’s actions I conclude that Court the District did not abuse its discretion when it denied Nodak’s stay Montana proceedings motion pending outcome of the North Dakota action based Chief Justice Along on the “first to file”rule.1 with Gray Hardy, Rice, and Justice disagree Hardy. I with the result of (Rice, in Gray, is, however, J. & law C.J., dissenting). The case the in the Montana. Unless Hardy and there is no error until is overturned District Court’s Estate law that under Montana law the conclusion of could stack UIM policies. disagree I Court with hold that the District

¶74 the Court and would concluding erred in to the Estate’s applies that Montana law claims; to the alternatively, action, deferring I would dismiss this decision of Supreme North Dakota Court. 28-3-102, Section MCA, provides: usage

A contract is interpreted according to the law and be place or, performed where it if it does not indicate is to be place place of performance, usage ofthe according to the law and where it is made. The error the must law Court makes is in that Montana in

apply every time a some effect contract made elsewhere has Montana. As it when Mitchell, again says erroneously did in the Court place an automobile Montana, in is “the” happens accident Montana applicable where an Then, because performed. insurance contract is the contract is to further here, be 28-3-102 no performed pursuant to § Mitchell, analysis -underthe 40,41; required. Restatement factors is ¶¶ need 28-3-102, 20. Under the no Court’s there is interpretation § for when conflict of law principles. premise accepted, If the Court’s is there is sufficient give jurisdiction, Montana to its courts contact with contract, any is contract, The Court performed is in Montana. an truth, incorrect. In not an directive that when 28-3-102 is absolute accident happens Montana, always apply in Montana law must interpretation an applicable insurance contract. coverage The fact that policy provides an insurance automobile it is

throughout the sufficient to show United States is not alone obviously the only performed It is happens. where an accident in the parties performed intention of that it be to the contract will “a” many here, simply In a places. Montana is presented case such as place may insurance The contacts performed. contract be Montana noted relevance may at have the Court most However, are determining which these factors applies. state’s law 32,34, rule, important factor The “first to file” the Court at ¶¶ noted jurisprudence. However, agree with case I conflict of laws under the facts of this Court that it is not determinative. Stanton, closely related to the Estate’s tort against claims are only tangentially related to the Estate against contract claims the makes insurer, Wamsley’s accident happened Nodak. The fact that simply Montana is one of several be considered in factors to making But, only the decision which law should it is not the apply. factor. It is Dakota, obvious that North to this parties where the action are live, insurance, they negotiated domiciled where where contract, they paid, entered the where were premiums where the garaged, car involved was from any payment where Nodak will be made, is also a will place performed. where insurance contract be many instances, happens There are in Montana, when an accident that an by applying insurance contract should be interpreted Montana Likewise, law. law may appropriately applied be an interpreting insurance accident did contract when an not happen in Montana. my view, In the Court errs in

¶79 that courts will not consider multi-state insurance directed contacts as Restatement (Second) 193, Laws Court which the sets out § at 36. of Conflict of courts, Other interpreting to 28-3-102, statutes identical § have concluded that the law of the state insurance where an contract was made should generally apply, of rather than the law the state where an happened accident to occur. E.g. Rhody v. State Farm Mut. Co., Ins. (10th 1416, 771 1985); F.2d 1420 Cir. West Cas. Co. v. Hovaldt, Great (S.D. 198, 603 N.W.2d 201 1999); Travelers Co., Rush v. Indem. 891 (10th 1989) 267, F.2d Rhody, 270 Cir. (citing 771 F.2d 1420); at (Okla. 1991). Co., 787, Bohannan v. Allstate Ins. 820 P.2d 797 For example, Rhody, the Tenth an Circuit held that identical Oklahoma require statute did not application Oklahoma of law when an Texas, automobile insurance contract was entered in but an accident occurred in Oklahoma. The the wording court reasoned statute application place “restrict[ed] of performance of the law of of a contract to cases in which the place performance of is indicated in omitted). Rhody, the contract.” (emphasis 771 F.2d at 1420 Simply establishing coverage the United States as the area of was insufficient, view, in the Tenth Circuit’s intent place to indicate the for the performance gave to be wherever an incident occurred rise to a Rhody, claim. 771 F.2d at 1420. addressing These cases and other similar cases facts recognize parties

that the state where the contract has greater entered the a interest a having applied its own law than state that is only connected to the identical parties happenstance. situation, In an 492

Oregon interpret its own to an Supreme apply Court declined to law Michigan plaintiff insurance contract entered into in when was Oregon “place involved in an automobile accident in because the injury v. State Farm Mut. Auto. Ins. plaintiffs was fortuitous.” Davis (Or. 1973). Co., Instead, 9, 507 P.2d the court concluded it was better the law of the state with more connection to the apply Davis, 507 P.2d at 10. See contract between the insurer and insured. (W. 1988) (concluding that Saliga, also Lee v. 373 S.E.2d Va. apply interpret another state’s law should insurance contract dispute fortuity is the Virginia’s “only where West connection there”); that the accident occurred State Farm Mut. Auto. Ins. Co. v. (Fla. 2006) Roach, (declining apply 945 So. 2d Florida permanent law when the insureds were not residents of Florida conflicts-of-law jurisprudence because do into “[t]o so would throw disarray destroy stability arrangements”). in contractual employment in the context of law that recognized This Court has place performance, particular when contract does not indicate § require application 28-3-102 does not of Montana law to the Am., Inc., MT contract. See Burchett v. Mastec N. Burchett, 28-3-102 did not 93 P.3d 1247. In we concluded employment entered into the [they] “[a]t because the time

contract, it parties performed; did not know where was to be Burchett, The in this transitory by work... was nature.” contract Burchett, Wamsleys analogous. case is As in when the and Nodak contract, they performance entered the did not know that insurance thus not mandate the would occur in Montana. Section 28-3-102 does law, reasoning in application of Montana based on this Court’s own Burchett. here residents of The insurance contract at issue was between there. It was entered in

North Dakota who conduct their business in North principally garaged North Dakota and the vehicles were paid premiums insured’s their Dakota. Nodak set its rates and the virtually have and the insurance contract parties North Dakota. The “fortuity the that the accident no connection to Montana other than Considering the tort Lee, occurred 373 S.E.2d at 352. [h]ere.” only involve the against peripherally claims the makes Stanton Estate Nodak, where the insurance contract against place contract claims made, place performance, negotiated, place was where it was autos, considering insured principal location of the it becomes domicile, parties, of the place residence and of business that North the Estate’s claims obvious Dakota law should to 188(2). (Second) against Nodak. See Restatement Laws of Conflict of Further, view, my grant comity Court should to North Dakota in this instance for a reason which the Court does not mention. duty correctly The Montana Supreme right Court has the and the Still, interpret Montana citizens. law for the benefit of Montana part Montana is a of our judgments United States and the sister states are those other states. important-especially citizens of only today The Montanans are the affected Court’s decision lawyers. case, only local The refusal grant comity in this where policy directly affected, unnecessarily North Dakota impinges upon the harmonious interstate part parcel relations which are spirit co-operative Simmons, federalism. See Mont. at P.2d at 1385. There are now diametrically opposed judgments, two oneinNorth

Dakota and the other in It if Montana. remains to be seen Montana’s today decision aids pursuit payment the Estate’s of an insurance Wamsleys did not bargain for, only or litigation necessitates further between North Dakota I citizens. would defer to the North Dakota

judgment and dissent from the Court’s decision not to do so.

Case Details

Case Name: Wamsley v. NODAK MUTUAL INSURANCE COMPANY

Court Name: Montana Supreme Court

Date Published: Feb 19, 2008

Citation: 178 P.3d 102

Docket Number: DA 06-0194

Court Abbreviation: Mont.