text:
    STATE OF MONTANA, Plaintiff and Respondent, v. MYRON JAMES BELGARDE Defendant and Appellant.
    No. 96-124.
    Submitted on Briefs September 11, 1997.
    Decided June 16, 1998.
    1998 MT 152.
    55 St.Rep. 590.
    962 P.2d 571.
    289 Mont. 287.

      See C.J.S. Constitutional Law§ 1053.

      For Appellant: Jack H. Morris, Whitehall.
    For Respondent: Joseph P. Mazurek, Attorney General, Pamela P. Collins, Assistant Attorney General, Helena; Valerie Wilson, Jefferson County Attorney, Boulder.
   JUSTICE NELSON

delivered the Opinion of the Court.

¶1 Defendant Myron Belgarde (Belgarde) appeals from the sentence and judgment of the Fifth Judicial District Court, Jefferson County, entered after a jury convicted him of driving while under the influence of alcohol, as well as from the District Court’s denial of both his motion to dismiss and motion to suppress. We affirm.

¶2 We restate the following issues on appeal:

¶3 1. Did the District Court err in denying Belgarde’s motion to dismiss for the State’s failure to preserve exculpatory evidence in the form of a videotape made at the time of his arrest?

¶4 2. Did the District Court err by denying Belgarde’s motion to suppress statements he made at the time of his arrest and prior to being given his Miranda warnings?

¶5 3. Is Belgarde entitled to a new trial due to the State’s alleged failure to disclose a document contained in the court record?

FACTUAL AND PROCEDURAL BACKGROUND

¶6 On May 29,1995, Officer Mitch Tuttle, a Montana Highway Patrol Officer, was on patrol in Jefferson County, near Boulder, Montana. At approximately 2:45 a.m., Officer Tuttle was traveling south on Interstate 15 towards Boulder when he observed Belgarde traveling north at a high rate of speed. Officer Tuttle activated his radar unit and obtained a speed of 82 miles per hour. In response, Officer Tuttle drove through the median, activated his overhead lights and pursued Belgarde for almost four miles; however, Belgarde did not slow down or stop. After Officer Tuttle activated his siren, Belgarde stopped and pulled his vehicle over to the side of the road at an angle so that the vehicle’s left rear corner failed to clear the fog line and remained in the lane of traffic.

¶7 Upon approaching Belgarde, Officer Tuttle noticed the smell of alcohol. Concerned that Belgarde was driving while under the influence of alcohol, Officer Tuttle asked Belgarde to come back to the patrol car. Belgarde took a seat in the front of the patrol car where Officer Tuttle further noticed that Belgarde had bloodshot eyes and slurred speech. Officer Tuttle administered the Horizontal Gaze Nystagmus test (HGN test) which Belgarde failed. After completing the HGN test, Officer Tuttle arrested Belgarde and transported him to the Jefferson County Sheriffs Department.

¶8 Upon arrival at the Jefferson County Sheriffs Department, Officer Tuttle drove the patrol car into the “sally port,” or garage, and the door shut behind him. Officer Tuttle exited the patrol car, retrieved Belgarde from the passenger side and escorted him to the entrance of the jail facility. In the booking area, Belgarde failed to perform the walk-and-turn test and refused to perform the one-legged stand test. After reading to Belgarde Montana’s implied consent advisory form, Officer Tuttle asked Belgarde to take a breath test, which Belgarde refused to do. Subsequently, Officer Tuttle read Belgarde his Miranda rights which Belgarde refused to waive, responding that he wished to have an attorney present.

¶9 The Jefferson County Sheriff’s Department has video cameras to record activities occurring in both the sally port and the booking area. A video camera is activated when a patrol car enters the sally port and records when someone exits the patrol car and proceeds to the door of the booking area. After leaving the sally port area, a second camera, located in the booking area, is to be activated by a Sheriff’s Department employee. Here, the sally port videotape of Belgarde, which showed him exiting Officer Tuttle’s patrol car and walking behind the car into the booking area, was erased except for a one or two-second recording of the patrol car in the sally port. Furthermore, the video camera in the booking area was never activated, and, consequently, Belgarde was not videotaped during the booking process.

¶10 Belgarde was charged in Justice Court with driving a motor vehicle while under the influence of alcohol (DUI) in violation of § 61-8-401, MCA; driving with a suspended license in violation of § 61-5-212, MCA; and operating a motor vehicle without current liability insurance in violation of § 61-6-301, MCA. Represented by counsel, Belgarde entered pleas of not guilty to all charges and requested a jury trial. Thereafter, Belgarde filed various motions including a motion to dismiss his DUI charge because the State failed to preserve exculpatory evidence in the form of a videotape made during the booking process and a motion to suppress any statements made prior to being advised of his Miranda rights. Additionally, Belgarde changed his plea to guilty for the charges of driving with a suspended license and driving without liability insurance. Subsequently, the Justice Court granted Belgarde’s motion to dismiss his DUI charge because he was denied exculpatory evidence.

¶11 The State appealed the Justice Court’s order dismissing Belgarde’s DUI charge to the Fifth Judicial District Court, Jefferson County, where Belgarde requested a jury trial and renewed his motion to dismiss and his motion to suppress. On January 29,1996, following briefing and a hearing, the District Court denied a number of pretrial motions including Belgarde’s motion to dismiss and his motion to suppress. Subsequently, a jury trial was held on January 31, 1996, and Belgarde was found guilty of DUI, in violation of § 61-8-401, MCA. Thereafter, the District Court sentenced Belgarde to six months imprisonment in the Jefferson County Jail, with all but thirty days suspended, imposed numerous fees and conditions, and stayed imposition of his sentence pending appeal. From the District Court’s sentence and judgment as well as the court’s denial of both his motion to dismiss and motion to suppress, Belgarde appeals.

DISCUSSION

¶12 1. Did the District Court err in denying Belgarde’s motion to dismiss for the State’s failure to preserve exculpatory evidence in the form of a videotape made at the time of his arrest?

¶13 The District Court denied Belgarde’s motion to dismiss his DUI charge holding that the State was under no duty to make a videotape in the booking room, and, further, that Belgarde failed to show what, if any, exculpatory evidence had been destroyed. A district court’s grant or denial of a motion to dismiss in a criminal case is a question of law which we review de novo. State v. Brander (1996), 280 Mont. 148, 151, 930 P.2d 31, 33.

¶14 Citing State v. Swanson (1986), 222 Mont. 357, 722 P.2d 1155, Belgarde argues that the District Court erred by denying his motion to dismiss his DUI charge. Belgarde concedes that the State had no duty to assist him in obtaining exculpatory evidence. Nonetheless, Belgarde asserts that, just as in State v. Halter (1989), 238 Mont. 408, 777 P.2d 1313, the court should have granted his motion because the State violated his due process rights by failing to preserve videotaped evidence of his demeanor during the booking process.

¶15 The State responds that the State had no duty to videotape Belgarde’s booking process, and, therefore, the failure to do so did not violate Belgarde’s due process rights. The State further responds that Belgarde does not assert and no evidence exists that the erasure of the videotape of Belgarde in the sally port of the Sheriff’s Department was done deliberately; that the videotape was material; or that he was prejudiced by the erasure. Therefore, the State argues that the District Court properly denied Belgarde’s motion to dismiss. We agree.

¶16 A criminal defendant has a constitutional right to obtain exculpatory evidence and denial of this right is a violation of due process. State v. Sadowski (1991), 247 Mont. 63, 79, 805 P.2d 537, 546. Nevertheless, this right is only a personal right, and, therefore, police officers are not required to take initiative or even assist the defendant with procuring evidence on his own behalf. Sadowski, 247 Mont. at 79, 805 P.2d at 546. However, while the police do not have an affirmative duty to gather exculpatory evidence, the police may not frustrate or hamper an accused’s right to obtain exculpatory evidence. State v. Heth (1988), 230 Mont. 268, 272, 750 P.2d 103, 105. We further explained in Heth:

Only a deliberate or intentional suppression of exculpatory evidence is a per se violation of due process. To amount to a denial of due process, negligently suppressed evidence must be vital to the defense. It must be more than a mere suppression, in that the defense must show the evidence was material and of substantial use. Finally, the evidence must be exculpatory meaning it “[w]ould have tended to clear the accused of guilt, to vitiate a conviction.” Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215; State v. Patterson (1983), 203 Mont. 509, 512-13, 662 P.2d 291, 293.

Heth, 230 Mont. at 272, 750 P.2d at 105.

¶ 17 Here, the sally port videotape of Belgarde, which showed him exiting Officer Tuttle’s patrol car and walking behind the car into the booking area, was erased except for a one or two-second recording of the patrol car in the sally port. Furthermore, the video camera in the booking area was never activated, and, consequently, Belgarde was not videotaped in the booking room. Therefore, the issue in the case at bar involves both the State’s failure to “preserve” evidence as well as the State’s failure to “gather” evidence. That is, police officers at the Sheriffs Department failed to “preserve” evidence when they erased the videotaped recording of Belgarde in the sally port, and, furthermore, they failed to “gather” evidence when they failed to activate the videotape camera in the booking room during Belgarde’s booking process. We explained the significance of this distinction in Heth.

¶18 Heth was arrested for drunk driving. During his booking process, police officers activated a videotape camera but failed to turn on the volume. Heth, 230 Mont. at 269-70, 750 P.2d at 104. Relying on State v. Swanson (1986), 222 Mont. 357, 722 P.2d 1155, Heth argued that he was denied due process because the audio portion of the tape may have contained exculpatory evidence providing him with a valid defense to the charge of drunk driving, and, therefore, the District Court erred in denying his motion to dismiss. Heth, 230 Mont. at 270, 750 P.2d at 104. In response, we explained that while Swanson stood for the proposition that an accused has a constitutional right to obtain exculpatory evidence, Swanson did not stand for the proposition that police officers had a duty to assist in gathering exculpatory evidence for an accused. Heth, 230 Mont. at 271, 750 P.2d at 104.

¶19 Pointing out that a difference existed between “gathering” and “preserving” exculpatory evidence, we explained that the police officers in Swanson failed to properly “preserve” the exculpatory evidence of Swanson’s blood alcohol level that he had procured through an independent blood test after his DUI arrest and thereby denied Swanson due process. Heth, 230 Mont. at 271, 750 P.2d at 104-05. In contrast, we explained that the police officers’ administration of video and audio testing in Heth constituted “gathering” evidence, and, therefore, because the police officers did not have a duty to “gather” exculpatory evidence on Heth’s behalf, they did not violate Heth’s right to due process by failing to turn on the volume. Heth, 230 Mont. at 272, 750 P.2d at 105. Just as in Heth, the police officers at the Jefferson County Sheriff’s Department did not have a duty to gather exculpatory evidence for Belgarde. See Heth, 230 Mont. at 271, 750 P.2d at 104-05. Therefore, their failure to activate the video camera in the booking area to record Belgarde during his booking process did not violate Belgarde’s due process rights.

¶20 Furthermore, Belgarde’s due process rights were not violated when the police officers at the Jefferson County Sheriff’s Department erased a videotaped recording of Belgarde in the sally port. In this regard, Belgarde’s reliance on Halter to support his argument that the State violated his due process rights by failing to preserve exculpatory evidence is misplaced. In Halter, the District Court dismissed with prejudice charges against Halter of felony theft and illegal branding of a red Limousine bull due to the State’s failure to preserve exculpatory evidence when the subject bull had been sold and slaughtered before Halter’s expert witness could inspect its brands. Halter, 238 Mont. at 411-12, 777 P.2d at 1315. In an affidavit filed with Halter’s motion to dismiss, Halter’s expert witness stated that if he had inspected a skin sample from the subject bull prior to its destruction, he could have aged the brand and determined if the brand in question was placed on the bull during time periods when Halter was not in possession of the bull. Halter, 238 Mont. at 410-11, 777 P.2d at 1315.

¶21 On appeal, we explained:

“Whatever the duty the Constitution imposes on the States to preserve evidence, that duty must be limited to [evidence] that might be expected to play a significant role in the suspect’s defense. To meet this standard of constitutional materiality, [see United States v. Agurs (1976), 427 U.S. 97, 109-10, 96 S.Ct. 2392, 2400, 49 L.Ed.2d 342], evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.”

Halter, 238 Mont. at 412, 777 P.2d at 1316 (quoting California v. Trombetta (1984), 467 U.S. 479, 488-89, 104 S.Ct. 2528, 2534, 81 L.Ed.2d 413, 422).

¶22 We affirmed the District Court’s grant of Halter’s motion to dismiss, concluding that the evidence destroyed had exculpatory value which was apparent prior to destruction of the evidence; that Halter could not obtain comparable evidence by other reasonably available means; and that an expectation existed that the lost evidence would play a significant role in Halter’s defense. Halter, 238 Mont. at 413, 777 P.2d at 1316. Additionally, we concluded that the slaughter of the bull was not the intentional or deliberate purpose of the State but that the State was negligent in preserving evidence. Furthermore, given that the bull was not on Halter’s land for long periods of time and that the bull was finally discovered in another person’s cow herd, we also determined that “the preservation of the bull was as critical to the State’s case to obtain a conviction as it was to the defendant to obtain an acquittal[,]” and, therefore, we distinguished the case from other cases such as Heth. Halter, 238 Mont. at 413, 777 P.2d at 1316.

¶23 Unlike in Halter, Belgarde has failed to show that the sally port videotape erased by the Jefferson County Sheriffs Department was exculpatory. As the State explained during the hearing on this motion, the videotape would only have shown Belgarde exit Officer Tuttle’s patrol car and walk to the booking area without incident. Furthermore, Belgarde could obtain comparable evidence by other reasonably available means. That is, Officer Tuttle was available as a witness to testify concerning Belgarde’s actions and demeanor in the sally port. Finally, Belgarde has failed to show that this videotaped evidence of his actions and demeanor in the sally port would play a significant role in his defense. Therefore, although the State was negligent in failing to preserve the videotaped evidence of Belgarde in the sally port, we conclude that Belgarde’s due process rights were not violated. Accordingly, we affirm the District Court’s denial of Belgarde’s motion to dismiss.

¶24 2. Did the District Court err by denying Belgarde’s motion to suppress statements he made at the time of his arrest and prior to being given his Miranda warnings?

¶25 The statements at issue in Belgarde’s motion to suppress were referenced by Officer Tuttle in his Arrest Report. After explaining that Belgarde failed the HGN test, Officer Tuttle wrote:

I TOLD HIM THAT I THOUGHT HE WAS TO [sic] INTOXICATED TO BE SAFELY OPERATING A MOTOR VEHICLE. I PLACED HIM UNDER ARREST FOR DRIVING OR BEING IN ACTUAL PHYSICAL CONTROL OF A MOTOR VEHICLE WHILE UNDER THE INFLUENCE OF ALCOHOL. HE ADMITTED TO ME THAT HE WAS “TO [sic] DRUNK.” HE SAID HE WAS TRYING TO GET TO HIS DADS [sic] HOUSE IN JEFFERSON CITY. HE SAID, “I DIDN’T THINK I COULD MAKE IT TO WHITEHALL.” I ASSUMED HE WAS REFERRING TO HIS INTOXICATED STATE OF MIND. I TRANSPORTED MR. BELGARDE TO THE JEFFERSON COUNTY SHERIFF’S OFFICE FOR D.U.I. PROCESSING. THE ENTIRE WAY TO THE SHERIFF’S OFFICE MR. BELGARDE ADMITTED THAT HE WAS TOO DRUNK TO DRIVE, BUT HE WANTED ME TO CUT HIM SOME SLACK. I TOLD HIM SEVERAL TIMES THAT I COULD NOT.

¶26 After briefing and hearing arguments concerning these statements, the District Court denied Belgarde’s motion to suppress. “We review a district court’s denial of a motion to suppress to determine whether the court’s findings of fact are clearly erroneous and whether those findings were correctly applied as a matter of law.” State v. Steinmetz, 1998 MT 114, ¶10, [288 Mont. 527, ¶10], 961 P.2d 95 ¶10 (citing State v. Widenhofer (1997), [286 Mont. 341], 950 P.2d 1383, 1386). The United States Supreme Court has ruled that, unless the proper Miranda warnings have been given, the states may not use confessions or admissions resulting from a “custodial interrogation” which the Court defined as “questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way.” Miranda v. Arizona (1966), 384 U.S. 436, 444, 86 S.Ct. 1602, 1612, 16 L.Ed.2d 694, 706.

¶27 Relying on Miranda and Rhode Island v. Innis (1980), 446 U. S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297, Belgarde argues that the District Court erred by denying his motion to suppress his statements to Officer Tuttle that he was “too drunk to drive” which were made after his arrest but before he was read his Miranda rights. The State responds that no “custodial interrogation” occurred, and, therefore, the District Court properly denied Belgarde’s motion to suppress.

¶28 Here, as the State concedes, Belgarde was in custody at the time he made the statements at issue — Officer Tuttle had arrested him for DUI and was transporting him to the Jefferson County Sheriff’s Department. However, no evidence suggests that Belgarde’s statements were made in response to questions asked by Officer Tuttle. Rather, Belgarde simply volunteered the information that he was too drunk to drive in an attempt to request that Officer Tuttle “cut him some slack.” Consequently, we conclude that although Belgarde was in custody, no “custodial interrogation” occurred, and, therefore, his right against self-incrimination under the Fifth Amendment to the United States Constitution was not violated.

¶29 Furthermore, Belgarde relies on Innis to argue that his statements should be suppressed because Officer Tuttle engaged in the “functional equivalent” of express questioning. This argument is raised for the first time on appeal. “It is axiomatic that a party may not change the theory on appeal from that advanced in the district court.” State v. Smith (1996), 276 Mont. 434, 442, 916 P.2d 773, 778 (quoting State v. Henderson (1994), 265 Mont. 454, 458, 877 P.2d 1013, 1016). Therefore, we decline to address this argument. Accordingly, we affirm the District Court’s denial of Belgarde’s motion to suppress.

¶30 3. Is Belgarde entitled to a new trial due to the State’s alleged failure to disclose a document contained in the court record?

¶31 On appeal, Belgarde argues that he is entitled to a new trial based on “newly discovered evidence” and that prior to this new trial, the District Court should hold a hearing to determine an appropriate sanction under § 46-15-329, MCA, for the State’s alleged discovery violation. Belgarde asserts that the State failed to disclose Officer Tuttle’s affidavit of probable cause and his arrest report attached as an exhibit thereto, both signed by Officer Tuttle on May 29,1995, and contained within the Justice and District Court record. Belgarde contends that these documents contain “critical evidence” on the issue of whether sobriety tests were administered to him.

¶32 We agree with the State that Belgarde is not entitled to a new trial. In State v. Gollehon (1995), 274 Mont. 116, 906 P.2d 697, we explained that under § 46-16-702(2), MCA, a motion for new trial must be filed within 30 days following a verdict or finding of guilty and that no statutory extensions of time are provided. Gollehon, 274 Mont. at 118, 906 P.2d at 699. Here, Belgarde’s guilty verdict was entered on January 31,1996. On May 14,1996,104 days after entry of the jury verdict, Belgarde filed a motion with this Court to stay appeal and remand to the District Court for further proceedings; however, he failed to file a motion for a new trial with the District Court itself. We subsequently denied his motion on June 11,1996.

¶33 Notwithstanding that his case was on appeal, Belgarde could have timely filed a motion for a new trial in the District Court, the predicate for his relief, in addition to filing a motion to stay appellate proceedings with this Court. However, Belgarde only filed a motion to stay his appeal and to remand to the District Court for further proceedings — 104 days after the jury verdict was entered. This clearly was untimely as well as procedurally incorrect. Furthermore, neither judicially created exception to the 30-day filing requirement enunciated in State v. Barrack (1994), 267 Mont. 154, 882 P.2d 1028, and State v. Perry (1988), 232 Mont. 455, 758 P.2d 268, applies in this case. Moreover, the “critical evidence” which Belgarde asserts he just now discovered has been filed in the Justice Court and District Court record throughout the proceedings. Therefore, this is not a situation where the State suppressed evidence or failed to disclose evidence. Rather, Belgarde simply failed to look through the public record. ¶34 We hold that Belgarde’s motion for a new trial is time-barred. Furthermore, because the State has not made any discovery violations, Belgarde’s request that we remand this case to the District Court for a hearing to determine appropriate sanctions under § 46-15-329, MCA, is also denied.

¶35 Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HUNT, TRIEWEILER and LEAPHART concur.


source: Caselaw Access Project

author: JUSTICE TRIEWEILER

license: Public Domain

text:
    IN RE MARRIAGE OF JON ENGEN, Petitioner and Appellant, and DIANA LYNN BROGGER ENGEN, Respondent, Respondent, and Cross-Appellant.
    No. 97-442.
    Submitted on Briefs April 2, 1998.
    Decided June 18, 1998.
    1998 MT 153.
    55 St.Rep. 595.
    961 P.2d 738.
    289 Mont. 299.

      See C.J.S. Divorce § 521.
    For Appellant: Rienne M. McElyea; Berg, Lilly, Andriolo & Tollefsen, P.C.; Bozeman.
    For Respondent: Kent M. Kasting; Kasting, Combs & Kauffman; Bozeman.
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

¶1 The petitioner, Jon Engen, filed a petition for dissolution of his marriage to the respondent, Diana Engen, in the District Court for the Eighteenth Judicial District in Gallatin County. Following a nonjury trial, the District Court divided the couple’s property by a decree of dissolution based on its findings of fact and conclusions of law. Jon appeals from the District Court’s property distribution. We affirm in part and reverse in part the judgment of the District Court, and remand this case to the District Court for entry of judgment consistent with this opinion.

¶2 Jon presents three issues on appeal:

¶3 1. Did the District Court err when it awarded Diana one-half the value of the condominium which was purchased during the marriage with proceeds from the sale of a home in Norway which was given to Jon before the couple’s marriage?

¶4 2. Did the District Court err when it awarded Diana one-half of a set of Norwegian dishes which were acquired before and during the marriage?

¶5 3. Did the District Court err when it declined to enforce a premarital property agreement which had been executed by Jon and Diana?

FACTUAL BACKGROUND

¶6 Jon Engen and Diana Lynn Brogger met in the early 1980s while they attended Montana State University in Bozeman. After their graduation in 1983, they moved to Norway, where Jon was born and raised, with the expectation that they would marry and possibly live there.

¶7 Jon’s Norwegian grandfather built a home in Norway in 1930 and lived there until shortly before his death in the mid-1980s. Jon’s mother inherited an interest in the home and used her savings to purchase the remaining interests in the home from the remaining heirs. She then gave the home to Jon.

¶8 While Jon and Diana were in Norway, Jon had an agreement prepared, in the Norwegian language, which provided that the home was Jon’s separate property. Diana signed the agreement on March 2, 1984, and it was filed with the court where the property was located.

¶9 Diana contends that at the time the agreement was executed, her understanding of the Norwegian language was elementary and that she did not understand the effect of the document she had executed. Jon testified that he interpreted the agreement to Diana, line-by-line, and that she indicated her understanding of the document’s effect before she signed it.

¶10 Jon and Diana moved back to Montana in May 1984 and were married in August 1984 in Poison, near Diana’s home. They then returned to Bozeman to live.

¶11 Jon owned the home in Norway from the time that it was given to him until it was sold in 1994. During that time, no marital income was invested in the home. Maintenance of the home and taxes were paid for by the rent that the home generated. Jon’s father, who continued to reside in Norway, took care of the home when it was necessary to do so.

¶12 Jon’s degree was in engineering and he worked at various jobs as an engineer following the couple’s marriage. Diana had a degree in geographical planning, and also worked at a variety of jobs. In 1989, Diana returned to MSU to take courses which would enable her to pass the examination for certified public accountants. During the following three years that she attended school, she worked part-time.

¶13 Jon’s work was also interrupted periodically during the marriage by training for the U.S. Olympic Nordic Ski Team for which he competed in 1988,1992, and 1994. However, from 1988 until the couple’s separation in 1995, Jon was the primary income producer for the household.

¶14 In 1994, Jon’s home in Norway was sold for approximately $100,000. The proceeds were deposited in a bank account in Norway in Jon’s name. The title to the home had also been held in Jon’s name alone.

¶15 Jon and Diana acquired very little property during their marriage. Most of the District Court’s property division is uncontested. The primary asset that was purchased was a condominium located in Bozeman. The condominium was purchased in November 1994 for $112,500. At the time of trial, the value had appreciated to $115,000. The deed indicated that Jon and Diana held the condominium as joint tenants. However, the primary source of funds for the purchase was the money received from the sale of Jon’s home in Norway. Jon had $92,450 transferred from his account in Norway to joint accounts held by the couple in Ronan and Bozeman, where $82,669.69 of that amount was combined with a $30,000 loan from Jon’s parents to make the purchase. The promissory note to Jon’s parents is dated November 30, 1994.

¶ 16 Jon and Diana lived together in the condominium from November 1994 until their separation on July 1,1995. Jon filed a petition for dissolution on July 19,1995. The District Court entered a temporary order in September 1995, which allowed Diana to live in the condominium, where she remained until September 1996.

¶ 17 Jon testified that when he purchased the condominium, he had no intention of relinquishing his sole ownership of the proceeds from the sale of the house he had been given in Norway, and that he and Diana had no conversation about joint ownership of the condominium. He testified that the documents indicating joint ownership were just part of the paperwork that was executed at the time of the real estate closing without any real forethought.

¶18 Diana agreed that she was not on the title to the property in Norway and that she had never contributed, either financially or otherwise, to its maintenance or appreciation. She agreed that the purchase of the condominium was made with the proceeds from the sale of the Norway home, but testified that it was her understanding that she and Jon would own the condominium together.

¶19 During the six to seven months that the couple occupied the condominium during their marriage, Diana testified that she “kept it up,” but acknowledged that she had not invested money in its maintenance, nor made any other improvements, other than to hang some drapes. Any increase in the value of the condominium seems to have resulted from a general increase in the value of real property in the area, rather than improvements made by either Jon or Diana.

¶20 At the time of trial, Jon and Diana had annual incomes of $18,000 and $19,000, respectively.

¶21 The District Court found that Jon owned the home in Norway prior to the marriage and that he transferred the proceeds from its sale in 1994 to the couple’s joint bank accounts in Montana. The District Court concluded as a matter of law that Jon’s “transfer of [his] premarital funds to the parties’ joint account and the subsequent purchase of the condominium in [their] joint names ... constituted a gift of one half interest in [the condominium] from [Jon] to [Diana].” It held that Jon was precluded from claiming the condominium was not part of the marital estate by the fact that he commingled his separate funds with the couple’s joint funds. It awarded Jon the condominium, but ordered him to pay Diana $42,500, or one-half of the couple’s equity in the condominium.

¶22 In addition, the District Court declined to reach the issue of whether the premarital agreement was binding. It based its conclusion on its finding that Jon permitted his separate property to be commingled and, therefore, that the parties’ premarital intentions were irrelevant.

¶23 Finally, the District Court concluded that the couple should “equally divide the 8-12 place settings of Norwegian porcelain dishes” which it found “were received for the most part as wedding gifts to both parties.”

¶24 On May 1,1997, the District Court entered its decree of dissolution.

ISSUE 1

¶25 Did the District Court err when it awarded Diana one-half the value of the condominium which was purchased during the marriage with proceeds from the sale of a home in Norway which was given to Jon before the couple’s marriage?

¶26 We review a district court’s division of marital property to determine whether the findings on which it relied are clearly erroneous. See In re Marriage of Stufft (1996), 276 Mont. 454, 459, 916 P.2d 767, 770. If the findings are not clearly erroneous, we will affirm the distribution of property unless the district court abused its discretion. See Stufft, 276 Mont. at 459, 916 P.2d at 770; In re Marriage of Hogstad (1996), 275 Mont. 489, 496, 914 P.2d 584, 588; In re Marriage of Smith (1995), 270 Mont. 263, 267-68, 891 P.2d 522, 525. In a marriage dissolution proceeding, the test for an abuse of discretion is whether the district court acted arbitrarily without employment of conscientious judgment or exceeded the bounds of reason resulting in substantial injustice. See In re Marriage of Meeks (1996), 276 Mont. 237, 242, 915 P.2d 831, 834.

¶27 • Without citing to authority, the District Court concluded that because Jon’s separate money, which was received in exchange for preacquired, gifted property, passed through a joint account to purchase a condominium that was jointly titled, Jon gifted one-half of his separate property to Diana. Diana contends that this result finds support in our prior decision in Bloom v. Bloom (1968), 150 Mont. 511, 437 P.2d 1. However, Bloom was decided in 1968, and Montana’s version of the Uniform Marriage and Divorce Act, which applies to this case, became effective on January 1,1976. In our decisions since that date, we have uniformly held that the manner in which title is held does not control the disposition of preacquired, gifted, or inherited property, or the proceeds from such property. See In re Marriage of Fitzmorris (1987), 229 Mont. 96, 745 P.2d 353; In re Marriage of Snyder (1986), 220 Mont. 262, 714 P.2d 556; Morse v. Morse (1977), 174 Mont. 541, 571 P.2d 1147.

¶28 Section 40-4-202, MCA, now sets forth the guidelines for distribution of property as part of a marriage dissolution and provides in relevant part as follows:

(1) In a proceeding for dissolution of a marriage ... the court, without regard to marital misconduct, shall... finally equitably apportion between the parties the property and assets belonging to either or both, however and whenever acquired and whether the title thereto is in the name of the husband or wife or both.... In dividing property acquired prior to the marriage; property acquired by gift, bequest, devise, or descent; property acquired in exchange for property acquired before the marriage or in exchange for property acquired by gift, bequest, devise, or descent; the increased value of property acquired prior to marriage; and property acquired by a spouse after a decree of legal separation, the court shall consider those contributions of the other spouse to the marriage, including:
(a) the nonmonetary contribution of a homemaker;
(b) the extent to which such contributions have facilitated the maintenance of this property; and
(c) whether or not the property division serves as an alternative to maintenance arrangements.

(Emphasis added.)

¶29 Section 40-4-202, MCA, provides for equitable distribution of property regardless of the formal manner in which title to the property is held and specifies that in order to be equitable, the distribution of preacquired, gifted, or inherited property, or its proceeds, must take into consideration the nonacquiring spouse’s contributions to the property’s maintenance. We have previously construed this provision to mean that regardless of who holds title, preacquired or gifted property need not be included in the marital estate unless the nonacquiring spouse contributed to its preservation or appreciation. In that event, we have held that the nonacquiring spouse is entitled to an equitable share of the appreciated or preserved value which is attributable to his or her efforts. See Smith, 270 Mont. 263, 891 P.2d 522; In re Marriage of Bradshaw (1995), 270 Mont. 222, 891 P.2d 506; In re Marriage of Smith (1994), 264 Mont. 306, 871 P.2d 884; In re Marriage of Rock (1993), 257 Mont. 476, 850 P.2d 296; In re Marriage of Keedy (1991), 249 Mont. 47, 813 P.2d 442; In re Marriage of Gallagher (1991), 248 Mont. 100, 809 P.2d 579; In re Marriage of Luisi (1988), 232 Mont. 243, 756 P.2d 456; In re Marriage of Fitzmorris (1987), 229 Mont. 96, 745 P.2d 353; In re Marriage of Herron (1980), 186 Mont. 396, 608 P.2d 97.

¶30 In several cases, we have specifically dealt with arguments that the form of the title by which property was held conferred a distributive interest in that property on a nonacquiring spouse. However, we found those arguments unpersuasive. For example, in Morse we held that the fact that a wife had quit-claimed property to her husband prior to the dissolution was not determinative of how that property should be distributed pursuant to what is now § 40-4-202, MCA. See Morse, 174 Mont. at 544-45, 571 P.2d at 1149.

¶31 In Snyder, the husband had an interest in a family farm and a home before the marriage. He exchanged his interest in the family farm for a note made payable to his wife and him as tenants in common and he invested the proceeds from the sale of his home in another home in which the title was held jointly with his wife. The district court distributed the note and the majority of the equity in the couple’s home to the husband. The wife contended that the note should have been included in the marital estate because it was owned by them in common and that based on the manner in which the home was titled, the husband had gifted her a one-half interest in the home. However, referring to § 40-4-202, MCA, we held that:

The question of title is not controlling under this statute. Morse v. Morse (1977), 174 Mont. 541, 545, 571 P.2d 1147, 1149. In Morse, we upheld a property division in which the District Court did not give controlling weight to the fact that the wife quitclaimed certain property to the husband during the marriage. In a similar manner, we conclude that the District Court here was not required to give controlling weight to the tenancy in common form of ownership in its distribution of the promissory note.
... She claims that the husband gifted her with a one-half interest in the marital home, and argues that the fact that the home is owned jointly by the parties is evidence of the gift. She contends that she should therefore be awarded one-half of the home’s value.
As we have pointed out, Montana’s statutory scheme for disposition of marital property does not give controlling importance to the way in which title to the property is held. Rather, the district court is to make an equitable division of the property, considering the factors set out in § 40-4-202, MCA.

Snyder, 220 Mont. at 264-66, 714 P.2d at 557-58.

¶32 Likewise, in Fitzmorris, the major assets acquired by the parties during the marriage were held in joint tenancy. However, because the purchase of these assets was financed by stock owned separately by the wife prior to marriage, they were not divided equally by the court. On appeal, the husband contended that the conversion of his wife’s separately owned stock to property held in joint tenancy constituted an irrevocable gift to him and, on that basis, that the property purchased should have been divided equally. However, we held:

Even before the passage of the Uniform Marriage and Divorce Act, Montana recognized the rule that title does not control the distribution of marital assets. See Morse v. Morse (1977), 174 Mont. 541, 545, 571 P.2d 1147, 1149. Presently, § 40-4-202, MCA, embodies the same rule by mandating that the court divide assets equitably “whether the title thereto is in the name of the husband or wife or both.” Thus, the lower court properly refused to base its decision on the fact that the parties held the property as joint tenants.

Fitzmorris, 229 Mont. at 99, 745 P.2d at 355.

¶3 3 We held in Fitzmorris that as opposed to title, the proper factors for the court to consider in its distribution of that couple’s assets were the source of the assets and the parties’ contributions to those assets during the marriage.

¶34 Based on our prior decisions in Morse, Snyder, and Fitzmorris, we conclude that the District Court erred when it based distribution of the condominium solely on the form in which title was held, rather than on a consideration of the source of the funds with which the condominium was purchased and the parties’ contributions to the maintenance of the condominium after it was purchased. We conclude that when those factors are properly taken into consideration, as they must be pursuant to § 40-4-202, MCA, the condominium is Jon’s separate property; that nothing done by Diana during the short period of time that the couple owned the condominium during the marriage contributed to its appreciation; and that the condominium should therefore have been distributed to Jon.

¶35 This conclusion necessarily follows from the prior cases in which we have applied § 40-4-202, MCA, to preacquired, gifted, or inherited property.

¶36 For example, in Herron we held that the district court erred when it divided property owned by that couple equally when, in fact, the sources for most of the property were gifts from Mrs. Herron’s father. Even though that property had been given to the Herrons j ointly, we concluded that because Mrs. Herron’s father had done so to provide for his daughter, “[t]he property should be considered as principally gifts to Mrs. Herron.” Herron, 186 Mont. at 402, 608 P.2d at 100. We then held that:

If none of the value of the property is a product of contribution from the marital effort, the District Court can justifiably find that the non-acquiring spouse has no interest in the property.
... Both parties here should share equally in the portion of the value of the gift property attributable to contribution from the marriage and appreciation during the marriage. The Herrons should not, however, share equally in the total value of the property since the marital assets came to the marriage principally as gifts for Mrs. Herron’s benefit.

Herron, 186 Mont. at 404-05, 608 P.2d at 101-02.

¶37 Herron is the seminal case interpreting § 40-4-202, MCA, as it relates to preacquired, gifted, or inherited property. However, we have applied the general principle established in Herron, with some refinement, on numerous occasions.

¶38 In Fitzmorris, we relied on Herron to conclude that the husband had no interest in stock acquired by his wife prior to marriage when the stock, in fact, declined in value during the marriage. We held that obviously none of the value was due to his contributions. See Fitzmorris, 229 Mont. at 99, 745 P.2d at 354. InLuisi, we held that because the nonacquiring spouse had not contributed significantly to the maintenance of his wife’s inheritance during the marriage, the district court was justified when it excluded her inheritance from the marital estate. See Luisi, 232 Mont. at 245, 756 P.2d at 458. We treated preacquired property the same in Gallagher, 248 Mont. at 103, 809 P.2d at 581. In Keedy, where the issue was whether a nonacquiring spouse had an interest in baseball cards collected by her husband both before and during the couple’s marriage, we held that:

In considering the factors presented in § 40-4-202(1), MCA, it becomes apparent that the value of the premarital cards is not properly a part of the marital estate. ...
However, the appreciation in value of the cards, including the premarital cards, properly could be included in the marital estate under § 40-4-202(1), MCA, if the evidence supported spousal contribution to that appreciated value.

Keedy, 249 Mont. at 50, 813 P.2d at 444.

¶39 In Bradshaw, based on facts similar to those in this case, we held that a nonacquiring spouse had no interest in a preacquired home. We stated:

In the instant case, the court specifically found that Daniel purchased the home with his own funds before the couple married and he paid for all mortgage and insurance payments as well as taxes associated with the home. Michelle did not make any substantial contributions to the home monetarily or as a homemaker. The court also found that the increase in the value of the house was entirely due to the general inflation of home values in the Missoula area. Under subsection (a) and (b) of § 40-4-202, MCA, Michelle would not be entitled to any portion of the equity in the house because she made no contributions to the maintenance and value of the property.
Considering § 40-4-202, MCA, and our case law interpreting that statute, we determine that the District Court should have properly concluded that Michelle was not entitled to any share of the equity in the house. We hold that the District Court erred in awarding a share of the equity in the house to Michelle and accordingly, we reverse on this issue.

Bradshaw, 270 Mont. at 230, 891 P.2d at 511.

¶40 In Smith, we very clearly held that “[t]he court cannot distribute to the non-acquiring spouse property acquired prior to the marriage or acquired by gift, bequest, devise, or descent when there is no evidence that the spouse made any contribution to those assets in any form.” Smith, 264 Mont. at 312, 871 P.2d at 888.

¶41 Whether we have included preacquired, gifted, or inherited property in the marital estate and held that it must be distributed to the spouse to whom it was given or by whom it was preacquired (e.g., Herron), or simply held that it is not part of the marital estate (e.g., Luisi and Keedy), we have consistently treated it differently than property acquired during a marriage through the joint efforts of the couple.

¶42 In this case, the condominium, which was purchased by Jon and occupied by Jon and Diana during their marriage, was acquired in exchange for property acquired by gift before the marriage, and there is no evidence that the small amount by which it appreciated was due to any contribution by Diana to its maintenance. Nor is there any evidence that the fifty percent share of the equity in the condominium which was distributed to Diana was distributed to her in lieu of maintenance. We therefore conclude that the District Court abused its discretion when it ordered that Jon pay to Diana $42,500 which represented one-half of the equity in the Bozeman condominium. We reverse that part of the District Court’s decree and direct that on remand Jon should be awarded the full value of the condominium.

ISSUE 2

¶43 Did the District Court err when it awarded Diana one-half of a set of Norwegian dishes which were acquired before and during the marriage?

¶44 Jon contends that the District Court erred when it awarded Diana half of the Norwegian dishes that they accumulated. He contends that he owned the majority of the dishes prior to their marriage and that the dishes have more sentimental value to him than they do to Diana.

¶45 However, the evidence of how the dishes were acquired is disputed. Although Jon contends that he bought most of the dishes prior to the marriage when he lived in Norway, and that the remainder were wedding gifts or gifts from his family, Diana testified that Jon owned only a few pieces prior to their marriage, and that most were either purchased by them together or received by both of them as wedding gifts.

¶46 The District Court is in the best position to resolve conflicting testimony, and we will not substitute our judgment for the District Court’s findings when, as in this case, those findings are based, to a large extent, on the credibility of the witnesses. See In re Marriage of Boyer (1995), 274 Mont. 282, 288, 908 P.2d 665, 668. We conclude that there was substantial evidence to support the District Court’s finding that the dishes “were received for the most part as wedding gifts to both parties,” and that the District Court’s finding about the acquisition of the dishes was not clearly erroneous.

¶47 We decline to engage in an analysis of “who deserves the dishes more” based on sentimental attachment, but conclude instead that no abuse of discretion has been shown based on the District Court’s equal division of the Norwegian dishes.

¶48 For these reasons, we affirm that part of the District Court’s decree which divided the Norwegian dishes equally.

ISSUE 3

¶49 Did the District Court err when it declined to enforce a premarital property agreement which had been executed by Jon and Diana?

¶50 Our conclusion that the District Court erred by distributing to Diana one-half of the value of the condominium purchased with the proceeds from Jon’s preacquired property makes it unnecessary to decide this issue. Therefore, we decline to address it.

¶51 Finally, Diana claims a right to attorney fees and costs incurred on appeal. She urges this Court to abandon the current standard which requires a showing that an appeal is “frivolous and unwarranted” and adopt a new standard which would provide attorney fees and costs to the party who prevails on appeal. However, regardless of the standard we apply, Diana would not be entitled to attorney fees because she has not prevailed on the principal issue raised on appeal. Therefore, we decline to consider, at this time, a new standard for the award of attorney fees.

¶52 We affirm in part and reverse in part the judgment of the District Court and remand to the District Court for entry of judgment consistent with this opinion.

CHIEF JUSTICE TURNAGE, JUSTICES LEAPHART, REGNIER and NELSON concur.


author: JUSTICE REGNIER JUSTICE GRAY,

text:
    FARMERS ALLIANCE MUTUAL INSURANCE COMPANY, a Kansas Insurance Corporation, Plaintiff and Appellant, v. KRISTI HOLEMAN, Personal Representative of the Estate of Gary Lee Leonard, Deceased, Defendant and Respondent.
    No. 97-313.
    Heard January 6, 1998.
    Submitted January 6, 1998.
    Decided June 18, 1998.
    1998 MT 155.
    55 St.Rep. 601.
    961 P.2d 114.
    289 Mont. 312.

      See C.J.S. Insurance § 1703.
    For Appellant: Robert J. Savage (argued); Habedank, Cumming, Best & Savage; Sidney.

      For Respondent: Donald D. Sommerfeld (argued); Towe, Ball, Enright, Mackey & Sommerfeld; Billings.
    For Amici Curiae: Susan P. Roy (argued) and Steven R. Brown; Garlington, Lohn & Robinson; Missoula (for Alliance of American Insurers); John J. Richardson (argued); Beck Law Offices; Bozeman (for Montana Trial Lawyers).
   JUSTICE REGNIER

delivered the opinion of the Court.

¶1 The United States District Court for the District of Montana, Billings Division, has certified to this Court two questions, the adjudication of which the court deemed necessary for resolution of the declaratory judgment action pending before it. The United States District Court set forth the questions as follows:

¶2 1. The estate of Gary Lee Leonard, an insured under the Farmers Alliance Mutual Insurance Company policy at issue in this case, settled for policy limits of $25,000 with the driver of the underinsured motor vehicle, Darrel Storey, Jr., which struck and killed Leonard. In exchange for the money, the estate released the underinsured motor vehicle driver, his heirs, executors, administrators, agents, and assigns, and all other persons, firms or corporations liable, or who might be claimed to be liable. Under the policy at issue, Farmers Alliance is required to pay, with respect to underinsured motorist coverage, all sums the insured is legally entitled to recover as compensatory damages from the owner or driver of an underinsured motor vehicle. Does the release place the estate of Gary Lee Leonard in the position of being no longer legally entitled to recover compensatory damages from the owner or driver of the underinsured motor vehicle and thus bar the estate from recovering pursuant to the underinsured motorist provisions of the Farmers Alliance policy?

¶3 2. Can the underinsured motorist coverages and auto medical payments coverages be stacked under the Farmers Alliance policy at issue in this case, where multiple vehicles are insured under one policy where a premium is charged for coverage of each motor vehicle listed within the policy?

¶4 For the reasons discussed below, we answer the first question in the negative. We hold the critical question is whether Leonard’s estate was legally entitled to recover damages from the driver of the underinsured vehicle at the time of the accident, and thus conclude the release in question does not bar Leonard’s estate from seeking recovery of underinsured motorist benefits pursuant to the underinsured motorist provisions of the Farmers Alliance policy.

¶5 Because we answer question number one in the negative, we in turn address the second certified question in its entirety. For the reasons discussed below, we answer question number two in the affirmative, and conclude the underinsured motorist coverages and auto medical payments coverages may be stacked under the Farmers Alliance policy at issue in this case because the insured paid separate premiums for each insured vehicle.

FACTUAL BACKGROUND

¶6 We take the following relevant facts from those recited by the Federal District Court in its certification order:

¶7 On or about May 31,1991, Farmers Alliance issued an automobile insurance policy to Wade and Diana Brown, the named insureds and parents of Scott Hankel. On November 9, 1991, a Ford pickup truck insured by Farmers Alliance under the policy issued to Wade and Diana Brown, driven by Lori Watson, in which Scott Hankel and Gary Lee Leonard were passengers, was involved in a one-vehicle accident on Interstate 90,15.6 miles west of Whitehall, Montana.

¶8 Approximately twenty minutes thereafter, a pickup driven by Darrel Storey, Jr., was traveling east on Interstate 90 when Storey lost control of the vehicle as he attempted to slow for the accident scene. The Storey vehicle skidded and struck the right rear corner of the trailer attached to the Watson pickup. The resulting collision pushed the trailer into the ditch and onto its left side. The Storey vehicle rapidly rotated. Gary Lee Leonard’s coat became entangled on the hitch of the Storey vehicle which caused Leonard to be dragged under the Storey vehicle until after it went backward into a ditch on the side of the road. Leonard died as a result of the injuries he sustained.

¶9 The Storey vehicle was insured by State Farm which paid out its policy limits under the liability portion of its policy in the amount of $25,000. In exchange for the money, Leonard’s estate released “Storey, his heirs, executors, administrators, agents, and assigns, and all other persons, firms or corporations liable, or who might be claimed to be liable ....”

¶10 Prior to signing the release, Leonard’s estate made demand upon Farmers Alliance for the underinsured motorist coverage and auto medical payments coverage provided for in the Business Auto Policy of Wade and Diana Brown. Farmers refused to pay under any provision of the policy.

¶11 This action was filed by Farmers Alliance against Eristi Holeman as personal representative of the estate of Gary Lee Leonard seeking a declaration of non-coverage for claims made by the estate under the auto medical payments and underinsured motorist provisions of the insurance policy issued by Farmers Alliance. Gary Lee Leonard is an insured for purposes of underinsured motorist coverage and auto medical payments coverage under the policy at issue.

¶12 Under the policy at issue Farmers Alliance is required to pay, with respect to underinsured motorist coverage, “all sums the ‘insured’ is legally entitled to recover as compensatory damages from the owner or driver of an ‘[underinsured] motor vehicle.’ ” Moreover, under the policy Farmers Alliance is required to pay, with respect to auto medical payments “reasonable expenses incurred for necessary medical and funeral services to or for an ‘insured’ who sustains ‘bodily injury’ caused by an ‘accident.’ ”

¶13 The policy at issue also states:

Regardless of the number of covered “autos”, “insureds”, premiums paid, claims made or vehicles involved in the “accident”, the most [Farmers Alliance] will pay for all damages resulting from any one “accident” is the LIMIT OF INSURANCE for [UNDERINSURED] MOTORISTS COVERAGE [and AUTO MEDICAL PAYMENTS COVERAGE] shown in the Declarations.

¶14 Holeman claims Farmers Alliance is required to “stack” the underinsured motorist coverages and the auto medical payment coverages of the policy at issue to provide $300,000 of underinsured motorist coverage and $12,000 of medical payment coverage.

¶15 On summary judgment in the federal District Court, Farmers Alliance argued, in part, that because the estate of Gary Lee Leonard settled with and released the driver of the underinsured vehicle which struck Leonard, the estate is barred from seeking underinsured motorist coverage under the Farmers Alliance policy because it is no longer legally entitled to recover compensatory damages from the underinsured motorist. Farmers Alliance also argued that the policy specifically prohibits stacking.

QUESTION 1

¶16 Does the release place the estate of Gary Lee Leonard in the position of being no longer legally entitled to recover compensatory damages from the owner or driver of the underinsured motor vehicle and thus bar the estate from recovering pursuant to the underinsured motorist provisions of the Farmers Alliance policy?

¶17 Farmers Alliance argues that, because Holeman entered into a general release with Storey, the third-party tort-feasor in this case, she cannot recover underinsured motorist benefits pursuant to the terms of the Farmers Alliance policy. In support of its argument, Farmers Alliance preliminarily asserts that its liability to an insured for underinsurance motorist benefits is derivative of the liability of the third-party tort-feasor. Because of the derivative nature of this coverage, Farmers Alliance argues, Holeman’s decision to settle with Storey and release him from liability precludes her from recovering underinsured motorist benefits.

¶18 Farmers Alliance notes that, with respect to liability for underinsured motorist benefits, its policy provides that Farmers Alliance “will pay all sums the ‘insured’ is legally entitled to recover as compensatory damages from the owner or driver of an ‘underinsured motor vehicle.’ ” After Holeman settled with Storey and released him from liability, Farmers Alliance maintains, she was no longer “legally entitled to recover” damages from Storey, and was thus precluded from recovering underinsured motorist benefits pursuant to the express terms of the Farmers Alliance policy.

¶ 19 Farmers Alliance relies on a number of cases in which courts in other jurisdictions have interpreted similar policy language and recognized that, because underinsured coverage is derivative of the tort-feasor’s liability, an insured who releases a tort-feasor, in effect releases the insurer. Spivey v. Lowery (N.C. Ct. App. 1994), 446 S.E.2d 835, 837 (recognizing an underinsurance motorist carrier’s “liability is derivative of the tort-feasor’s liability,” and concluding plaintiff who released third-party tort-feasor was precluded from asserting a claim against the carrier); Buchanan v. Buchanan (N.C. Ct. App. 1986), 350 S.E.2d 175, 176 (holding defendant insurance company’s liability for underinsured motorist benefits is derivative in nature and concluding an insured who settled with and released a third-party tort-feasor was precluded from recovering underinsured motorist benefits); Nationwide Mut. Ins. Co. v. Nacchia (Del. 1993), 628 A.2d 48, 52-53; Darby v. Mathis (Ga. Ct. App. 1994), 441 S.E.2d 905, 908.

¶20 Holeman views this coverage differently. She asserts that underinsurance coverage is not purely derivative of a third-party tort-feasor’s liability, but instead arises from an insurer’s contractual relationship with the insured. In support of her argument, Holeman points to the case of Turlay v. Farmers Insurance Exchange (Or. 1971), 488 P.2d 406, 412, in which the Oregon Supreme Court determined that Oregon’s contract statute of limitations applied to an insured’s action against an insurer for uninsured motorist benefits. In so holding, the court concluded that “the liability of the insurer is based on its contract with the insured, and any claim of the insured also is governed by the contract.” Turlay, 488 P.2d at 412. See also Kalhar v. Transamerica Ins. Co. (Or. Ct. App. 1994), 877 P.2d 656, 660 (recognizing that “[a] claim for uninsured motorist benefits exists solely by reason of the coverage provided by the insurance policy; an insurer’s liability for the tort of another is created by contract.”). Holeman thus argues the source of Farmers Alliance’s liability in the present case lies not with the tort committed by Storey or with any special relationship between Farmers Alliance and Storey, but with the terms of the insurance contract itself. Because her claim arises from the insurance contract’s coverage provisions, Holeman contends, the fact that she settled with Storey and agreed to release him from liability does not now prohibit her from seeking underinsured motorist benefits pursuant to the terms of the policy at issue.

¶21 Although we too recognize that underinsured motorist coverage is, to an extent, of a derivative nature, we conclude an insurer’s liability for underinsured motorist benefits in any given case arises from the terms of the insurance contract, and its contractual relationship with its insured. See, e.g., Vega v. Farmers Ins. Co. of Oregon (Or. 1996), 918 P.2d 95, 97 (recognizing the inherently derivative nature of claims for underinsured motorist coverage, but concluding “the liability of an insurer for failure to provide such coverage is based on its contract with the insured, not on the uninsured driver’s negligent act”). Thus, in the present case, we turn to the terms of the contract at issue to determine whether the release signed by Holeman precludes her from recovering underinsured motorist benefits from Farmers Alliance. Therefore, we must determine whether that portion of the policy which obligates Farmers Alliance to “pay all sums the ‘insured’ is legally entitled to recover as compensatory damages from the owner or driver of an ‘underinsured motor vehicle,’ ” requires that Holeman be able to demonstrate she was entitled to compensatory damages from Storey at the time of the accident, or at the time she filed her claim for underinsured motorist benefits.

¶22 Holeman urges this Court to look to the contract itself and construe the phrase, “legally entitled to recover,” in a manner consistent with the remaining terms of the insurance policy, as well as with the public policy of this State. So construed, Holeman asserts, that portion of the policy which obligates Farmers Alliance to “pay all sums the ‘insured’ is legally entitled to recover as compensatory damages from the owner or driver of‘an underinsured motor vehicle,’ ” requires only that she be able to establish she was entitled to compensatory damages at the time of the accident in order to recover underinsured motorist benefits.

¶23 Holeman first argues the terms of the policy itself required her to exhaust, presumably by judgment or settlement, Storey’s liability policy before she could recover underinsured motorist benefits. Holeman contends her entitlement to seek underinsurance benefits matured only after she recovered under Storey’s liability policy, and asserts that, in reaching a settlement with Storey, she did just as the Farmers Alliance policy required. Holeman focuses on that section of the policy’s underinsurance endorsement which provides as follows:

If this insurance provides a limit in excess of the amount required by the applicable law where a covered “auto” is principally garaged, we will pay only after all liability bonds or policies have been exhausted by judgments or payments.

¶24 Holeman argues the foregoing contractual provision precluded her from seeking indemnification from Farmers Alliance until she had received full payment under Storey’s liability policy. Holeman also points to a number of other provisions to further support her argument that, in settling with Storey, she was in fact complying with Farmers Alliance’s attempt to condition its liability for underinsured motorist benefits upon the exhaustion of Storey’s liability policy. For example, Holeman notes the policy defines an underinsured motor vehicle as one “to which a liability bond or policy applies at the time of an ‘accident’ but the amount paid under that bond or policy to the ‘insured’ is not enough to pay the full amount the insured is legally entitled to recover as damages.” (Emphasis added.) Holeman also points to that portion of the uninsured motorist endorsement which states “[t]he amount of any damages shall be reduced by all sums paid by or for anyone who is legally responsible, including all sums paid under the Coverage Part’s LIABILITY COVERAGE.” Holeman argues it is clear from the foregoing provisions that Farmers Alliance not only anticipated, but attempted to require, that she exhaust all other applicable liability policies before asserting a claim for underinsured motorist benefits.

¶25 In construing the phrase, “legally entitled to recover,” we will read the insurance policy as a whole, and will if possible, reconcile its various parts to give each meaning and effect. Fitzgerald v. Aetna Ins. Co. (1978), 176 Mont. 186, 192, 577 P.2d 370, 373 (citing Aleksich v. Mutual Benefit Health & Accident Ass’n (1945), 118 Mont. 223, 164 P.2d 372). Furthermore, “in determining the contract’s purpose and intent, we [will] examine the contract as a whole, giving no special deference to any specific clause.” Nimmick v. State Farm (1995), 270 Mont. 315, 321, 891 P.2d 1154, 1158. We will construe any ambiguities contained in the insurance policy against the insurer. Leibrand v. National Farmers Union Property and Casualty Co. (1995), 272 Mont. 1, 6, 898 P.2d 1220, 1223 (citing Bauer Ranch, Inc. v. Mountain West Farm Bureau (1985), 215 Mont. 153, 156, 695 P.2d 1307, 1309); Wellcome v. Home Ins. Co. (1993), 257 Mont. 354, 356, 849 P.2d 190, 192. An “[a]mbiguity exists only when the contract taken as a whole in its wording or phraseology is reasonably subject to two different interpretations.” Canal Ins. Co. v. Bunday (1991), 249 Mont. 100, 105, 813 P.2d 974, 977. We have held that “the question of ambiguity is examined from the viewpoint of a consumer with average intelligence but not trained in the law or insurance business.” Leibrand, 272 Mont. at 10, 898 P.2d at 1225.

¶26 As noted above, Farmers Alliance suggests the phrase, “legally entitled to recover,” mandates that Holeman be presently able to demonstrate her entitlement to damages from Storey in order to recover underinsured motorist benefits. Interpreted as suggested by Farmers Alliance, that portion of the policy requiring that Holeman demonstrate her legal entitlement to compensatory damages from Storey would clearly conflict with the policy’s additional requirement that Holeman exhaust all applicable liability policies prior to recovering underinsured motorist benefits. For example, the policy would appear to, on the one hand, require that Holeman preserve her cause of action against Farmers Alliance, while on the other hand, mandate that she settle with Storey’s insurer. In light of Farmers Alliance’s agreement to pay underinsured motorist benefits “only after all liability bonds or policies have been exhausted by judgments or payments,” we conclude it was reasonable for Holeman to believe that she could not have sought indemnification from Farmers Alliance until she had first settled with Storey, thereby exhausting the liability portion of his insurance policy. Moreover, as Holeman notes, the policy in question defines an underinsured motor vehicle as one “to which a liability bond or policy applies at the time of an ‘accident’ but the amount paid under that bond or policy to the ‘insured’ is not enough to pay the full amount the insured is legally entitled to recover as damages.” (Emphasis added.)

¶27 By its terms, the policy thus suggests that Farmers Alliance will consider a vehicle underinsured only if an amount has already been paid under an applicable liability bond or policy. Because review of the contract as a whole indicates Farmers Alliance sought to condition its liability for underinsured motorist benefits upon the exhaustion of Storey’s liability policy, we conclude it cannot now escape that liability based on Holeman’s attempts to comply with the policy by settling with Storey. As demonstrated by the foregoing, the contractual interpretation suggested by Farmers Alliance would place the policy’s various provisions in conflict, thereby giving rise to an ambiguity. Bound as we are to interpret the insurance policy as a whole and to construe any ambiguities against the insurer, we conclude the policy requires that Holeman demonstrate she was entitled to compensatory damages from Storey, not at the time of her claim for underinsured motorist benefits, but at the time of the accident. That Holeman has released Storey from liability does not preclude her from establishing, in a separate action against Farmers Alliance, fault and damages on the part of Storey.

¶28 Based on the foregoing, we answer the first question certified to us in the negative, and hold the release in question does not place the insured in the position of being no longer legally entitled to recover compensatory damages from the owner or driver of the underinsured motor vehicle and thus does not bar the estate from recovering pursuant to the underinsured motorist provisions of the Farmers Alliance policy.

QUESTION 2

¶29 Can the underinsured motorist coverages and auto medical payments coverages be stacked under the Farmers Alliance policy at issue in this case, where multiple vehicles are insured under one policy where a premium is charged for coverage of each motor vehicle listed within the policy?

¶3 0 Having answered the first certified question in the negative, we will accordingly address the second certified question in its entirety. In so doing, we turn first to the question of whether the underinsured motorist coverages may be stacked under the Farmers Alliance policy at issue in this case.

A. Stacking of underinsured motorist coverages

¶31 Asking that we answer the second certified question in the negative, Farmers Alliance first argues we ought to honor the terms of the policy, which expressly prohibit Holeman from stacking underinsured motorist coverages in the present case. Pointing to our decision in Farmers Alliance Mutual Insurance Co. v. Holeman (1996), 278 Mont. 274, 281, 924 P.2d 1315, 1320 (hereinafter Holeman I), Farmers Alliance argues we must look to the terms of the policy itself to determine whether Holeman can stack the underinsured motorist coverages contained therein.

¶32 In Holeman I, we interpreted § 33-23-303, MCA, and concluded that statute “does not prohibit the stacking of the medical payment coverage and the undennsured motorist coverage available under a policy of motor vehicle liability insurance where a premium is charged for coverage of each motor vehicle listed within that policy.” Holeman I, 278 Mont. at 282, 924 P.2d at 1320. We recognized that the Montana Legislature had instead left “[t]he question of whether excess or additional coverages, such as underinsurance coverage, can be stacked... as amatter of policy interpretation.” Holeman I, 278 Mont. at 281, 924 P.2d at 1320. Relying on our determination that the permissibility of stacking underinsurance coverages is “a matter of policy interpretation,” Farmers Alliance argues that whether Holeman may stack the underinsured motorist coverages at issue in the present case depends solely upon the terms of the policy.

¶33 The policy at issue clearly purports to prohibit an insured from stacking underinsured motorist benefits, providing in pertinent part that:

D. LIMIT OF INSURANCE
1. Regardless of the number of covered “autos,” “insureds,” premiums paid, claims made or vehicles involved in the “accident,” the most we will pay for all damages resulting from any one “accident” is the LIMIT OF INSURANCE for [UNDERINSURED] MOTORISTS COVERAGE shown in the Declarations.

¶34 Although we determined in Holeman I, that the permissibility of stacking underinsured coverages is “a matter of policy interpretation,” we did not have occasion to address the validity of the anti-stacking provisions contained in the policy at issue. To answer the question before us, we must begin where we left off in Holeman I, and determine whether the policy’s anti-stacking provisions are indeed valid, or void as against the public policy of this State. In so doing, we will address each of Farmers Alliance’s two remaining arguments in turn.

¶35 Relying on our decision in Grier v. Nationwide Mutual Insurance Co. (1991), 248 Mont. 457, 812 P.2d 347, Farmers Alliance argues, as it did before this Court in Holeman I, that the policy’s underinsured motorist coverage is actually part of the policy’s uninsured motorist coverage, the stacking of which is clearly prohibited by § 33-23-203, MCA. More specifically, Farmers Alliance asserts that because the underinsured motorist provision in the instant policy is contained within the section governing uninsured motorist coverage, the underinsured coverage is actually a part of the uninsured motorist coverage, and as such cannot be stacked in light of § 33-23-203, MCA.

¶36 In Holeman I, we rejected the precise argument presently advanced by Farmers Alliance. Although our sole task in Holeman I was to interpret the anti-stacking language of § 33-23-203, MCA, rather than the terms of the policy itself, we nevertheless proceeded to distinguish the policy at issue in Grier from the one in the present case. For example, we noted that “unlike the policy at issue in Grier, the instant policy sets forth the underinsurance coverage on the declarations page.” Holeman I, 278 Mont. at 281, 924 P.2d at 1319. In accordance with our decision in Holeman I, we determine that the policy at issue in Grier differs substantively from the one at issue in the present case, and thus conclude that Grier does not control our analysis.

¶37 Finally, Farmers Alliance argues Holeman cannot stack underinsured motorist coverages because Leonard qualified as an insured only by virtue of his occupancy in the insured vehicle. Because Leonard was not a named insured who bought and paid for the policy at issue, Farmers Alliance asserts, he could not reasonably expect to share in the expanded coverage afforded by the stacking of underinsured motorist benefits. Farmers Alliance relies on a number of cases from various jurisdictions in support of its argument that there exists a material distinction between a named insured who has purchased and paid for an insurance policy, and an individual who qualifies as an insured only by virtue of his or her occupancy in an insured vehicle at the time of an accident.

¶38 For example, Farmers Alliance points to the case of Ohio Casualty Insurance Co. v. Stanfield, (Ky. 1979), 581 S.W.2d 555, in which the Kentucky Supreme Court distinguished between a first class of individuals who are named insureds and thereby “protected regardless of their location or activity from damages caused by injury inflicted by an uninsured motorist,” and a second class of insureds whose “protection is confined to damages from injury inflicted by an uninsured motorist while they are ‘occupying an insured highway vehicle.’ ” Ohio Casualty, 581 S.W.2d at 557. Recognizing that a first class, named insured may reasonably expect that “his payment of an additional premium will result in increased coverage for those falling within the definition of the ‘named insured,’ ” the court held that the named insured in that case could stack the uninsured motorist coverages contained in his own insurance policy. Ohio Casualty, 581 S.W.2d at 559 (quoting Lambert v. Liberty Mut. Ins. Co. (Ala. 1976), 331 So. 2d 260, 263). In concluding that the insured could not stack the uninsured coverages contained within his employer’s policy, however, the court determined the defendant was a second class insured as to that policy, and could not reasonably expect to share in the broader coverage afforded a first class insured since he did not pay for the additional coverage involved. Ohio Casualty, 581 S.W.2d at 559.

¶39 Holeman responds that this Court has already established that there exists no material distinction between a first class named insured who pays premiums on a policy, and a second class insured who qualifies as such only by virtue of his or her occupancy in an insured vehicle. More specifically, Holeman points to our decision in Sayers v. Safeco Insurance Co. (1981), 192 Mont. 336, 340, 628 P.2d 659, 662, in which we held that, where the plaintiff qualified as an insured as defined by the policy, we had “no reason to distinguish between persons insured and policyholders who have actually paid the premiums.” Instead, we concluded that “[t]he justification for stacking lies not in who has paid for the extra protection, but rather that the protection has been purchased,” and held that “[t]he benefits flow to all persons insured.” Sayers, 192 Mont. at 340, 628 P.2d at 662.

¶40 Pointing to our decision in Chilberg v. Rose (1995), 273 Mont. 414, 903 P.2d 1377, Farmers Alliance argues we have since recognized a distinction between named insureds and those who qualify as insureds only by virtue of their occupancy in an insured vehicle. In Chilberg, the plaintiff was injured while riding in a car owned by Jay Dean and insured through Mid-Century Insurance Company. Chilberg, 273 Mont. at 415, 903 P.2d at 1378. At the time of the accident, Dean had three cars insured under separate policies through Mid-Century. Chilberg, 273 Mont. at 415, 903 P.2d at 1378. The plaintiff sought to stack the uninsured motorist and medical benefits provided for in all three policies. Chilberg, 273 Mont. at 415, 903 P.2d at 1378. We held the plaintiff was not entitled to stack those coverages on the grounds that he did “not qualify as an insured under the two disputed policies because he was not occupying the cars insured under the two disputed policies.” Chilberg, 273 Mont. at 417, 903 P.2d at 1379. We noted that “Chilberg was a passenger who neither had ‘reasonable expectations’ of coverage under the policy nor did he qualify as an insured spouse or family member under more than one policy.” Chilberg, 273 Mont. at 418, 903 P.2d at 1380.

¶41 Although we recognized that the plaintiff in Chilberg was an occupant who had no “reasonable expectations” of coverage under all three policies, we prohibited stacking on the primary grounds that the plaintiff did not qualify as an insured under the two other Mid-Century policies. In the present case, there is only one policy at issue. In its certification order, the United States District Court clarified that “Gary Lee Leonard is an insured for purposes of underinsured motorist coverage and auto medical payments coverage under the policy at issue.” As we noted in Sayers, benefits for which the insurer has received valuable consideration “flow to all persons insured.” As an insured, Leonard was thus entitled to share in the benefits for which Farmers Alliance had received valuable consideration. Sayers, 192 Mont. at 340, 628 P.2d at 662. Whether Leonard qualified as an insured because he purchased and paid for the policy at issue, or by virtue of his occupancy in the insured vehicle is immaterial. The fact is, Leonard was an “insured” under the terms of the policy, and as such was entitled to the same coverage afforded any insured.

¶42 To identify the scope of that coverage, and to determine whether Leonard, as an insured, was entitled to stack the underinsured motorist coverages contained within the policy, we turn for guidance to our decision in Bennett v. State Farm Mutual Automobile Insurance Co. (1993), 261 Mont. 386, 862 P.2d 1146. In Bennett, we held that “[a]n ‘other insurance’ clause that prohibits stacking of underinsured motorist coverage provided by separate policies from the same insurer is void as against Montana public policy.” Bennett, 261 Mont. at 390, 862 P.2d at 1149. In so doing, we recognized the public policy that “an insurer may not place in an insurance policy a provision that defeats coverage for which the insurer has received valuable consideration,” and wrote that “[t]he purpose of underinsured motorist coverage is to provide a source of indemnification for accident victims when the tort-feasor does not provide adequate indemnification.” Bennett, 261 Mont. at 389, 862 P.2d at 1148. We then concluded that “the public policy considerations that invalidate contractual ‘anti-stacking’ provisions in an uninsured motorist endorsement also support invalidating those provisions in an underinsured motorist endorsement.” Bennett, 261 Mont. at 389, 862 P.2d at 1148.

¶43 Although arguably distinguishable from the case at hand, Bennett nevertheless governs our analysis in the present case. For example, although there were two separate insurance policies at issue in Bennett, but only one at issue in the present case, we conclude that distinction is immaterial. Furthermore, as amicus notes, we based our decision in Bennett, not only on public policy considerations, but also on the doctrine of reasonable expectations. More specifically, we noted that because underinsured motorist coverage generally “does not depend on the insured person occupying an insured vehicle,” the insured in that case “could reasonably expect to recover damages up to the limit of both policies under which she was an insured and for which separate premiums had been paid.” Bennett, 261 Mont. at 389, 862 P.2d at 1148. Moreover, we stated that “Montana citizens should have a reasonable expectation that when they purchase separate policies for underinsured motorist coverage, they will receive adequate compensation for losses caused by an underinsured motorist, up to the aggregate limits of the policies they have purchased.” Bennett, 261 Mont. at 390, 862 P.2d at 1149.

¶44 We have recognized, however, that status as an insured, and any connected underinsured motorist coverage, may indeed depend upon occupancy in an insured vehicle. See Chilberg, 273 Mont. at 418, 903 P.2d at 1380. Particularly in light of our holding in Chilberg, it is certainly arguable that Leonard may have had no reasonable expectation of expanded coverage because he did not purchase the policy at issue, but instead qualified as an insured by virtue of his occupancy in an insured vehicle. Despite the apparent inapplicability of the reasonable expectations doctrine in the present case, however, we conclude that the overriding public policy considerations upon which we relied in Bennett mandate that Holeman be permitted to stack the underinsured motorist coverages present in this case.

¶45 Worth addressing at this juncture is the assertion by amicus for the Alliance of American Insurers regarding the effect of the 1997 amendments to the anti-stacking provisions of § 33-23-303, MCA. In 1997, the Montana Legislature enacted Senate Bill 44, thereby amending § 33-23-303, MCA, with the purpose of prohibiting the stacking of all coverages in automobile insurance policies. The present version of § 33-23-303, MCA, thus purports to preclude the stacking of underinsured motorist coverages. Amicus argues that when the Montana Legislature amended § 33-23-303, MCA, to preclude all stacking, it established and defined the public policy of this State. Amicus asserts that “[i]n order to avoid premium increases which may result from” claims of stacking in multi-vehicle policies under underinsured and medical payment coverages, “this Court should recognize that the public policy embodied in Senate Bill 44 does not carry an effective date.” In light of the amendments to § 33-23-303, MCA, amicus asks that we revisit the determination we made in Bennett that the public policy of this State supports the stacking of underinsured motorist coverages when separate premiums have been paid.

¶46 In Guiberson v. Hartford Casualty Insurance Co. (1985), 217 Mont. 279, 288, 704 P.2d 68, 74, we upheld a decision by the district court to stack uninsured motorist coverages despite the subsequent passage of a statute prohibiting the practice. We specifically recognized that, “[ajlthough the law forbids stacking now, we will not apply the law retroactively to deprive the plaintiff of coverage he was entitied to at the time of his accident.” Guiberson, 217 Mont. at 288, 704 P.2d at 74. Similarly, in the instant case, we will not apply the provisions of § 33-23-303, MCA, or the public policy it embodies, retroactively to deprive Leonard of coverage he was entitled to at the time of the accident.

¶47 Based on the foregoing, we conclude that Holeman is entitled to stack the underinsured motorist coverages contained in the Farmers Alliance policy at issue in this case, in light of the fact that multiple vehicles were insured under one policy and separate premiums were charged for coverage of each motor vehicle listed within the policy.

B. Stacking of auto medical payments coverages

¶48 Having determined that Holeman may stack the underinsured motorist coverages contained in the Farmers Alliance policy, we must next determine whether she is similarly entitled to stack the policy’s auto medical payments coverages.

¶49 In support of its argument against stacking, Farmers Alliance points to that portion of the auto medical payment coverage endorsement which provides as follows:

D. LIMIT OF INSURANCE.
1. Regardless of the number of covered “autos,” “insureds,” premiums paid, claims made or vehicles involved in the “accident,” the most we will pay for all damages resulting from any one “accident” is the LIMIT OF INSURANCE for [AUTO MEDICAL PAYMENTS COVERAGE] shown in the Declarations.

¶50 As it did in support of its argument against the stacking of underinsured motorist coverages, Farmers Alliance argues the policy itself expressly precludes an insured from stacking auto medical payment coverages. Farmers Alliance also relies on cases from other jurisdictions in which various courts have upheld similar policy provisions in the absence of a statutory mandate that insurers provide coverage for medical expenses. See, e.g., Lemoi v. Nationwide Mut. Ins. Co. (R.I. 1982), 453 A.2d 758; Pettid v. Edwards (Neb. 1976), 240 N.W.2d 344.

¶51 In light of our recent decision in the case of Ruckdaschel v. State Farm Mutual Automobile Insurance Co. (1997), 285 Mont. 395, 948 P.2d 700, we conclude otherwise, and hold that Holeman is entitled to stack the auto medical payment coverages contained within the Farmers Alliance policy at issue in this case. In Ruckdaschel, a plaintiff was walking when she was struck and injured by a vehicle. Ruckdaschel, 285 Mont. at 396, 948 P.2d at 701. At the time of the accident, the plaintiff had three separate medical payments policies issued by State Farm, for which she and her husband had paid separate premiums. Ruckdaschel, 285 Mont. at 396, 948 P.2d at 701.

¶52 Relying on our decision in Bennett, and the public policy articulated within, we held that State Farm could not rely on the language of its amendatory endorsement to deny coverage under each policy when it received a separate premium for each policy. Ruckdaschel, 285 Mont. at 397, 948 P.2d at 702. We again upheld and applied the public policy that “an insurer may not place in an insurance policy a provision that defeats coverage for which the insurer has received valuable consideration.” Ruckdaschel, 285 Mont. at 398, 948 P.2d at 702. We concluded “the District Court did not err when it held that the public policy concerns which apply in statutorily required insurance coverage contexts also apply to optional types of insurance coverage such as, in this case, medical payment coverage.” Ruckdaschel, 285 Mont. at 399, 948 P.2d at 703.

¶53 In the present case, we similarly conclude that, in light of Montana’s public policy, and because Farmers Alliance received separate premiums for each vehicle insured under the policy at issue, it cannot now rely on the policy’s exclusionary language to deny coverage.

¶54 Based on the foregoing analysis, we answer the second certified question in the affirmative, and conclude that the underinsured motorist coverages and auto medical payments coverages may be stacked under the Farmers Alliance policy at issue in this case, where multiple vehicles are insured under one policy and where a premium is charged for coverage of each motor vehicle listed within the policy.

CHIEF JUSTICE TURNAGE, JUSTICES HUNT, NELSON, TRIEWEILER and LEAPHART concur.

JUSTICE GRAY,

dissenting.

¶55 I concur in the Court’s opinion on the first certified question from the United States District Court for the District of Montana, Billings Division. I respectfully dissent from that opinion on the second certified question, which is whether certain coverages can be stacked under the policy at issue in this case.

¶56 There is no dispute that the Farmers Alliance insurance policy specifically prohibited stacking: “THE STACKING OF UNDERINSURED MOTORIST COVERAGE IS PROHIBITED....” If stacking is allowed, it must be allowed on public policy grounds which override the provisions of the insurance policy. I agree with the Court that resolution of the second certified question hinges on whether the issue is governed by Bennett, in which stacking was imposed on public policy grounds, or by Chilberg, in which this Court held that public policy did not override the terms of the insurance policy prohibiting stacking. The Court relies on Bennett. For the following reasons, it is my view that Chilberg controls.

¶57 In Bennett, the plaintiff was a named insured under one of the two insurance policies sought to be stacked, and the spouse of the named insured under the other policy. In that case, as the Court points out, we recognized the public policy that “an insurer may not place in an insurance policy a provision that defeats coverage for which the insurer has received valuable consideration.” Bennett, 261 Mont. at 389, 862 P.2d at 1148. We stated that “Montana citizens should have a reasonable expectation that when they purchase separate policies for underinsured motorist coverage, they will receive adequate compensation for losses caused by an underinsured motorist, up to the aggregate limits of the policies they have purchased.” Bennett, 261 Mont. at 390, 862 P.2d at 1149.

¶58 The plaintiff in Chilberg was injured when another vehicle hit the car in which he was a passenger. The driver of the at-fault vehicle was uninsured. The car in which Chilberg was a passenger was insured with Mid-Century Insurance, which also insured two other cars for the same owner. The owner paid separate premiums for each of the coverages provided in the three policies. Chilberg argued that the three policies should be stacked. This Court disagreed.

The public policy and rationale we restated in Bennett is not furthered by permitting Chilberg to stack the policies in the instant case. Chilberg was a passenger who neither had “reasonable expectations” of coverage under the policy nor did he qualify as an insured spouse or family member under more than one policy.

Chilberg, 273 Mont. at 418, 903 P.2d at 1380.

¶59 The same can be said in the present case. Leonard was a passenger who cannot plausibly be argued to have had “reasonable expectations” that coverages would be stacked under the vehicle owner’s insurance policy. I conclude that the “reasonable expectation” public policy justification for stacking, which we applied in Bennett but rejected in Chilberg, does not apply here. Nor did Leonard qualify as an insured spouse or family member under more than one policy. Those bases for overriding the antistacking terms of the insurance policy have no support under these facts.

¶60 In Sayers, a 1981 case involving the stackability of uninsured coverage as to a stranger to the insurance policy, this Court stated:

Safeco contends only an insured who pays the premiums for the additional coverage should be allowed to stack, citing several other jurisdictions that have so held. We are not persuaded by the authority cited. The rule of Kemp and the authorities cited therein control. Sayers was an insured as defined by the policy. Under these facts there is no reason to distinguish between persons insured and policyholders who have actually paid premiums. The justification for stacking lies not in who has paid for the extra protection, but rather that the protection has been purchased. The benefits flow to all persons insured.

Sayers, 192 Mont. at 340, 628 P.2d at 662. As this Court noted in Holeman I, 278 Mont. at 277, 924 P.2d at 1317, Sayers is no longer good law. Unlike the present case, Sayers dealt with uninsured, rather than underinsured, motor vehicle coverage, and § 33-23-203, MCA, was amended in 1997 to specifically prohibit stacking of uninsured motor vehicle insurance. Thus, Sayers has been “overruled” statutorily. The Court states, however, that the rationale underlying Sayers remains logically sound. I disagree.

¶61 The premise of Sayers, that stacking was justified because it was paid for as “extra protection,” is faulty. The “extra protection” purchased for multiple vehicles was not for the purpose of stacking, but for the multiplicity of possible drivers and passengers who might occupy the vehicles insured. In Hampton v. Allstate Ins. Co. (Ariz. 1980), 616 P.2d 78, for example, the court reasoned that it was theoretically possible that at one given moment each of several insured vehicles could be operating and be in individual accidents with uninsured motorists; each operator would then have coverage under each policy, which was the risk insured against and for which the premium had been paid. I conclude that the Sayers rationale concerning extra protection purchased does not provide a justification for overriding the terms of the insurance contract and imposing stacking.

¶62 As to whether medical payments coverage can be stacked, the majority relies on the Ruckdaschel opinion in deciding that they can. Again, I disagree. Ruckdaschel relied upon the Bennett rationale; as in Bennett, the plaintiff in Ruckdaschel was an insured who had purchased the policies under which claim was made. Under reasoning analogous to that discussed above, I conclude that public policy does not justify overriding the terms of an insurance policy to impose stacking of medical payment policy limits for a plaintiff who is a stranger to the insurance policy.

¶63 In answer to the second certified question, then, I conclude that the estate of Gary Lee Leonard is entitled to the limit of the uninsured/underinsured motorist coverage and medical payments coverage on the one particular vehicle that was involved in the accident on November 9,1991, based upon Leonard’s “occupancy” of that vehicle at the time the third-party tortfeasor struck and killed him. Therefore, I would answer the certified question “No.”

      . In our order accepting certification, we erroneously stated we would reach the second certified question only if our answer to the first question was “yes.”

      . The United States District Court substituted the term “underinsured” for “uninsured” because one of the definitions of uninsured motor vehicle in the policy is an underinsured motor vehicle.

      . The United States District Court again substituted the term “underinsured” for “uninsured” for the reasons described in Footnote No. 2.

      . The United States District Court inserted the phrase “auto medical payments coverage” because the uninsured motorists coverage endorsement and the auto medical payments coverage endorsement contain identical “limit of insurance” paragraphs.

      . See Footnote No. 3.

      . Although Sayers is no longer good law in light of the anti-stacking provisions contained in § 33-23-203, MCA, our reasoning on this issue remains sound.

      . See Footnote No. 4.