Bain v. Gleason, 86-113

• Decision Date: 21 October 1986
• Docket Number: No. 86-113,86-113
• Court: Montana Supreme Court
• Parties: Mary Helen BAIN and Allyn M. Bain, husband and wife, Plaintiffs and Appellants, v. Daniel G. GLEASON, Farmers Insurance Exchange, a reciprocal or interinsurance exchange, Defendants and Respondents.

Page 1153

726 P.2d 1153

223 Mont. 442

Mary Helen BAIN and Allyn M. Bain, husband and wife Plaintiffs and Appellants, v. Daniel G. GLEASON, Farmers Insurance Exchange, a reciprocal or interinsurance exchange, Defendants and Respondents.

No. 86-113.

Supreme Court of Montana.

Submitted on Briefs June 19, 1986.

Decided Oct. 21, 1986.

Anderson, Edwards & Molloy, Donald W. Molloy, Billings, for plaintiffs and appellants.

Poore, Roth & Robinson, C. Richard Anderson, Butte, for defendants and respondents.

SHEEHY, Justice.

Mary Helen Bain had a claim for injuries received by her through the negligence of Daniel P. Gleason, a driver insured by Farmers Insurance Exchange (Farmers). Mary Helen's husband, Allyn W. Bain had a claim for damages against Daniel P. Gleason for Allyn's loss of consortium through the injuries to his wife. Farmers' applicable motor vehicle liability insurance policy contains provisions defining limited coverage for "each person" injured in any one occurrence and for "each occurrence." Allyn made claim before the District Court, Third Judicial District, Powell County, that his claim for consortium was separately covered by Farmers' policy of insurance issued to Gleason. The District Court held that Mary Helen's claim for her damages and Allyn's claim for consortium, were together subject to the "each person" limitation of the insurance policy. We affirm.

At the time of the incident wherein Mary Helen was injured, Daniel P. Gleason's father additionally insured with Farmers two other motor vehicles owned by the father. Daniel Gleason lived with his father, in the same residence, but Daniel owned the vehicle he was driving when he injured Mary Helen, and Daniel separately insured his motor vehicle with Farmers. Allyn and Mary Helen claim additional coverage extends to them by virtue of the provisions of the father's other two policies. The District Court held not and again, we affirm.

I.

On May 24, 1983, Mary Helen Bain was assisting a stranded motorist on Green House Road near Deer Lodge, Montana. Mary Helen was pouring gas from a gas can into the tank of the stranded automobile as Daniel Gleason drove his 1970 Ford on the same road. Gleason drove his Ford into the back of the stranded automobile trapping Mary Helen Bain between the cars.

As a result of the collision and being struck by Gleason's Ford, Mary Helen Bain was severely injured. She suffered broken legs, a broken pelvis, and as a result of her injuries, her left leg was amputated.

At the time of the collision, Daniel Gleason was living with his parents in Deer Lodge, Montana. Farmers Insurance Group had issued three policies of insurance covering motor vehicles owned by occupants of that same household. One policy of insurance was issued to Daniel Gleason and covered the 1970 Ford automobile which he was driving when he collided with Mary Helen. A second policy was issued to Patrick Gleason, Daniel's father, covering Patrick's 1973 Corona. The third policy was issued also to the father, Patrick Gleason, to insure Patrick's 1981 Buick Skylark.

Each of the insurance policies provided bodily injury coverage in the amount of $25,000 per person, and $50,000 per occurrence. The terms of the three insurance policies were the same, except for the named insureds and the vehicles covered.

Daniel Gleason was admittedly negligent in driving his 1970 Ford into the back of the stranded car trapping Mary Helen Bain between the cars.

Mary Helen's medical expenses at the time this case was submitted to the District Court exceeded $20,000. She continues to incur medical expenses and will incur them for the balance of her life.

Farmers Insurance Group has paid $25,000 to Mary Helen and Allyn Bain, individually and as husband and wife. It is the position of Farmers that the $25,000 payment is the full extent of and the limit of its liability under the policy issued to Daniel Gleason on May 24, 1983. Mary Helen and Allyn contend that under the terms of the three policies, they are entitled to the maximum amount of insurance available.

II.

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

III.

Is the husband's claim for consortium here subject to the "each person" limit of liability provided in Farmers' policy issued to Daniel Gleason?

There is no shortage of cases in which this question has been presented to different courts. Without burdening this opinion with long citations, it is enough to say that the cases can be found by reference to the Annotation,Construction and Application of Provision in Liability Policy Limiting the Amount of Insurer's Liability to One Person, 13 A.L.R.3d. 1228 (1967 & Supp.1986). See also 5A Words and Phrases, "Bodily Injury" (1968 & Supp.1986). The great majority of the decided cases have held that the consortium claim is included within the "each person" limitation. The reasons given for the decisions however are not always uniform, since they depend on the language of the policy before the respective courts, and the applicable statutes of the state involved may have different terms. We therefore determine to examine for ourselves this question in the light of the insurance policy provisions now before us, and of our applicable statutes.

Since Montana has a mandatory motor vehicle liability insurance law, we first look to the terms of the mandatory insurance statutes to determine what they require, and then to the terms of the insurance policy to find whether the insurance policy complies with the mandatory law. Following that, we will look to the terms of the insurance policy to determine if under the policy, irrespective of the mandatory insurance law, coverage is extended to a consortium claim beyond that provided for in the "each person" provision.

Section 61-6-301, MCA, provides in pertinent part:

(1) Every owner of a motor vehicle ... shall continuously provide insurance against loss resulting from liability imposed by law for bodily injury or death or damage to property suffered by any person caused by maintenance or use of a motor vehicle ... in an amount not less than that required by 61-6-103....

The referred-to statute, Sec. 61-6-103, MCA, contains the following pertinent provisions:

(2) Such owner's policy of liability insurance shall:

* * *

(b) insure the person named therein and any other person, as insured, using any such motor vehicle ... against loss from the liability imposed by law for damages arising out of the ownership, maintenance, or use of such motor vehicle ... subject to limits exclusive of interest and costs, with respect to each such motor vehicle, as follows:

(i) $25,000 because of bodily injury to or death of one person in any one accident and subject to said limit for one person;

(ii) $50,000 because of bodily injury to or death of two or more persons in any one accident; ....

Our statutes do not define "bodily injury" for this subject.

We turn now to the terms of the insurance policy issued by Farmers to Daniel Gleason. It provides:

... the Company ... agrees ...:

To pay all damages the insured becomes legally obligated to pay because of:

(A) bodily injury to any person ...

* * *

LIMITS OF LIABILITY

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

* * *

Bodily Injury means bodily injury, sickness or disease, including death at any time resulting therefrom, sustained by a person.

Damages with respect to Coverage A [bodily injury Coverage] includes damages for care and loss of services.

Plainly it is the public policy of this State, under Sec. 61-6-301, MCA, and Sec. 61-6-103, MCA, that every owner of a motor vehicle operated in Montana must procure a policy of insurance which continuously provides coverage up to the limits set forth in the two statutes. The provisions of the two statutes are a part of every policy of motor vehicle insurance issued in this State under the mandatory law and if the provisions of the insurance policy countermand or diminish the statutory requirements, the policy nevertheless will be considered to provide the statutory requirements. Farmers recognizes this because in each of its policies of insurance it provides that "[p]olicy terms which conflict with the statutes of the state wherein this policy is issued are hereby amended to conform to such statutes."

In this...