author:
JUSTICE LEAPHART JUSTICE NELSON
      JUSTICE ERDMANN 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. 95-425.
    Submitted June 25, 1996.
    Heard: May 28, 1996.
    Rehearing Denied October 24, 1996.
    Decided September 25, 1996.
    53 St.Rep. 904.
    278 Mont. 274.
    924 P.2d 1315.

      For Appellant: Robert Savage; Habedank, Cumming, Best & Savage, Sidney (argued for Farmers Alliance).
    For Respondent: Donald D. Sommerfeld; Towe, Ball, Enright, Mackey & Sommerfeld, Billings (argued for Kristi Holeman, Personal Representative).
    For Amicus: Peter F. Habein; Crowley, Haughey, Hanson, Toole & Dietrich, Billings (argued for Mountain West Farm Bureau Mutual Insurance Company); Susan P. Roy; Garlington, Lohn & Robinson, Missoula (argued for Alliance of American Insurers); Gene R. Jarussi; Jarussi & Bishop, Billings (argued for Montana Trial Lawyers Association).
   JUSTICE LEAPHART

delivered the Opinion of the Court.

The United States District Court for the District of Montana, Billings Division, has certified the following question to this Court pursuant to Rule 44, M.R.App.P. We answer the certified question “no.”

The certified question is:

Section 33-23-203, MCA, prohibits the stacking of the uninsured motorist coverage available under a policy of motor vehicle liability insurance. Does Section 33-23-203, MCA, prohibit the stacking of the medical payment coverage and the underinsured motorist coverage available under a policy of motor vehicle liability insuranee where a premium is charged for coverage of each motor vehicle listed within that policy?
In the insurance policy at issue, a premium is charged on each motor vehicle listed within the policy for medical payment coverage and a premium is charged on each motor vehicle listed within the policy for underinsurance coverage. The premium for the underinsured motorist coverage is included as part of the premium for the uninsured motorist coverage.

In its Order Certifying Question to the Supreme Court of Montana, the District Court submitted a statement of agreed facts. The facts that this Court finds dispositive of the question are as follows:

4. That, at approximately 0450 hours, on November 9, 1991, a vehicle insured by the Plaintiff under the policy issued to Wade and Diana Brown, namely a 1971 Ford pickup with VIN F10GKL66406, being driven by Lori Watson, in which Scott Hankel and Gary Lee Leonard were passengers, was involved in a one-vehicle accident in Jefferson County, Montana, on Interstate 90 at milepost 233.4, 15.6 miles west of Whitehall, Montana.
5. Subsequent thereto, at approximately 0510 hours, at [sic] 1983 Ford pickup truck, VIN 1FTHF26L5DPA15458, owned by Darrel M. Storey and driven by Darrel Maynard Storey, Jr., was traveling east on Interstate 90 when the driver lost control of the vehicle as he attempted to slow for the accident scene and went into a sideskid. The Storey vehicle struck the right rear comer of the trailer attached to the subject 1971 Ford pickup, VIN F10GKL66406. Such contact pushed the trailer into the ditch and onto its left side. The Storey vehicle then rapidly rotated. Mr. Leonard’s coat became entangled on the hitch of the Storey pickup which caused Mr. Leonard to be dragged under the Storey vehicle until after it went backwards into the ditch on the south side of the road. Mr. Leonard died as a result of the injuries sustained.
6. The Storey vehicle was insured by State Farm Auto Insurance Company under Policy No. 138 6224-405-226 and State Farm subsequently paid out its policy limits under the liability portion of its policy limits in the amount of $25,000.
7. Prior to signing a Release, the Estate of Gary Lee Leonard made demand upon Plaintiff for the uninsured (underinsured) motorist coverage and auto medical payment coverage provided for in the Business Auto Policy of Wade and Diana Brown.
8. Plaintiff has refused to make any payments of uninsured (underinsured) motorist coverage and auto medical payment coverage to the heirs and/or Estate of Gary Lee Leonard, deceased.

Answering the question certified by the United States District Court requires this Court to construe § 33-23-203, MCA. In construing a statute, “the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted.” Section 1-2-101, MCA. The rules of statutory construction require the language to be construed according to its plain meaning. Stratemeyer v. Lincoln County (1996), [276 Mont. 67], 915 P.2d 175, 178 (citing Clarke v. Massey (1995), 271 Mont. 412, 416, 897 P.2d 1085, 1088). If the language is clear and unambiguous, then no further interpretation is required; we will resort to legislative history only if the intent cannot be determined from the plain wording of the statute. Clarke, 897 P.2d at 1088. Where the intention of the legislature can be determined from the plain meaning of the words used in a statute, the courts may not go further and apply other means of interpretation. Clarke, 897 P.2d at 1088 (citing Tongue River Elec. Coop. v. Montana Power Co. (1981), 195 Mont. 511, 515, 636 P.2d 862, 864).

The question certified is a narrow one. We are asked only to determine whether § 33-23-203, MCA, prohibits the stacking of “optional” coverages — here, the medical payments and underinsurance coverages. We do not consider whether the terms of the insurance contract prohibit stacking. Rather, our analysis is confined to an interpretation of § 33-23-203, MCA. Accordingly, this Court’s recent decision in Chilberg v. Rose (1995), 273 Mont. 414, 903 P.2d 1377, is not controlling in this case as Chilberg is a multiple policy case and does not interpret § 33-23-203, MCA. In addition, we note that Sayers v. Safeco Ins. Co. of America (1981), 192 Mont. 336, 628 P.2d 659, cited with approval in Chilberg, is contrary to § 33-23-203, MCA, as Sayers approved the stacking of uninsured motorist coverage under a single policy. Thus, under § 33-23-203, MCA, Sayers is no longer good law because under the terms of § 33-23-203, MCA, stacking of uninsured motorist coverage for multiple vehicles insured under a single policy is expressly prohibited unless the policy specifically provides otherwise. Section 33-23-203, MCA, provides:

(1) Unless a motor vehicle liability policy specifically provides otherwise, the limits of insurance coverage available under any such policy, including the limits of liability under uninsured motorist coverage, must be determined as follows, regardless of the number of motor vehicles insured under the policy:
(a) the limit of insurance coverage available for any one accident is the limit specified for the motor vehicle involved in the accident;
(b) if no motor vehicle insured under the policy is involved in the accident, the limit of insurance coverage available for any one accident is the highest limit of coverage specified for any one motor vehicle insured under the policy; and
(c) the limits of coverage specified for each motor vehicle insured under the policy may not be added together to determine the limit of insurance coverage available under the policy for any one accident.
(2) A motor vehicle liability policy may also provide for other reasonable limitations, exclusions, or reductions of coverage which are designed to prevent duplicate payments for the same element of loss.

From the language of the statute, it is clear that “stacking” is not allowed “unless a motor vehicle liability policy specifically provides otherwise.” It is equally clear that the “anti-stacking” provisions of the statute apply to a “motor vehicle liability policy’ (MVLP). The term MVLP is defined in § 33-23-204(2), MCA, as “any policy of automobile or motor vehicle insurance against liability now or hereafter required under Title 61, chapter 6, parts 1 and 3.” (Emphasis added.)

The dissenters argue that § 33-23-204(2), MCA, refers to required “policies” rather than required “coverages.” It makes no sense, however, to discuss “policies” in a vacuum. Apolicy of insurance is nothing more than the coverages which are provided within the policy. In § 33-23-204(2), MCA, the legislature was obviously correlating the anti-stacking statutes with the fact that policies with specific types of coverage are required by Title 61, chapter 6, parts 1 and 3. In particular, the per person, per vehicle and property damage coverages mandated by § 61-6-103(2), MCA.

In interpreting § 33-23-204(2), MCA, three points are apparent; it is directed at insurance against liability. Secondly, it is directed at insurance coverage which is “required” by law; and finally, it is concerned with liability insurance which is not only required, but is required by both part 1 and part 3. There are only three variations of insurance coverage which meet the above criteria; that is, liability coverage which is required by both the MVSRA and the Motor Vehicle Liability Act. Those three coverages are the per person, per vehicle and property damage coverages which are required by § 61-6-103(2), MCA, and which are incorporated into the Motor Vehicle Liability Act by § 61-6-301, MCA. Unlike the third-party coverage mandated by MVSRA and the Motor Vehicle Liability Act, underinsurance and medical payment do not qualify as insurance against liability. Rather, underinsurance and medical pay coverage are designed to protect the first party insured. Furthermore, there is nothing in MVSRA, the Motor Vehicle Liability Act or Title 33, chapter 23, MCA, which would “require” underinsurance and medical pay coverage. To the contrary, the MVSRA specifically excludes coverages which are in excess of the required per person, per vehicle and property damage coverage.

The MVSRA, § 61-6-103(8), provides as follows:

Any policy which grants the coverage required for a motor vehicle liability policy may also grant any lawful coverage in excess of or in addition to the coverage specified for a motor vehicle liability policy, and the excess or additional coverage is not subject to the provisions of this part. With respect to a policy which grants the excess or additional coverage, the term “motor vehicle liability policy” applies only to that part of the coverage which is required by this section.

As Justice Erdmann’s dissent points out, the above provision specifically refers to coverage which is required “by this section.” Although “this section” refers to the MVSRA, the Motor Vehicle Liability Act has also incorporated those same “coverage” requirements; $25,000 because of bodily injury to any one person, $50,000 for bodily injury in any one accident, and $10,000 for property damage. There is nothing in the Motor Vehicle Liability Act which would suggest that the liability coverage requirements incorporated from MVSRA are any broader than those required under MVSRA. Since MVSRA specifically does not require any excess or additional coverage such as underinsurance, it is reasonable to conclude that the Motor Vehicle Liability Act likewise treats medical pay coverage and underinsurance as in “excess” or in addition to the coverages which are specifically required by both Acts in question. Title 61, chapter 6, parts 1 and 3.

As medical payment coverage and underinsured motorist coverage .are “excess or additional coverage” which are not required under either the MVSRA or the Motor Vehicle Liability Act, we determine that these coverages are not part of the MVLP under § 33-23-204(2), MCA. Accordingly, the prohibition against stacking required coverages in § 33-23-203, MCA, does not apply to underinsurance and medical payment coverage.

This Court has recognized that “Montana has no statutory insurance requirement concerning underinsured motorists.” Grier v. Nationwide Mut. Ins. Co. (1991), 248 Mont. 457, 458-59, 812 P.2d 347, 349. While coverage in excess of the minimum amounts mandated by § 61-6-103(2), MCA, and additional coverages such as comprehensive, underinsured, medical payments, or towing may be purchased by the insured, the mandate of Title 61, chapter 6, part 1, MCA, and the term MVLP apply only to the third-party liability coverage required by § 61-6-103(2)(b), MCA.

Section 33-23-201, MCA, requires that the insurer offer first-party, uninsured motorist coverage in the same amounts as required for third-party coverage under § 61-6-103, MCA. The distinction between the uninsured motorist coverage and the third-party coverage is that by rejecting the uninsured coverage the insured may waive the first-party uninsured coverage benefitting himself, but he cannot waive the minimum liability coverages benefitting the third-party. Importantly, however, in the absence of the insured affirmatively rejecting the coverage, the policy is issued with the 'uninsured motorist coverage. Accordingly, under Montana’s statutory scheme the minimum third-party liability coverages under § 61-6-103(2)(b), MCA, and the minimum first-party, uninsured motorist coverage under § 33-23-201, MCA, are required coverages.

Section 33-23-203, MCA, initially references the MVLP and coverage available under such a MVLP policy and continues: “including the limits of liability under uninsured motorist coverage.” This latter inclusion of uninsured motorist coverage was necessary because uninsured motorist coverage is not required as part of the MVLP. Uninsured motorist coverage is, nonetheless, a coverage which is required by § 33-23-201, MCA, subject to rejection by the insured. Accordingly, we determine that the “anti-stacking” provision of § 33-23-203, MCA, applies only to those coverages required under the MVLP or § 33-23-201, MCA.

Farmers Alliance argues that the “available coverage” language in § 33-23-203, MCA, is broader than the required coverages and that the statute includes underinsurance coverage. We reject this argument. The only insurance coverage available under both part 1 and part 3, as the MVLP has been restrictively defined by the legislature, is the minimum third-party coverage required by § 61-6-103(2)(b), MCA. This definition of “available coverage” follows because the term MVLP does not encompass any other “excess” or additional coverage. Section 61-6-103(8), MCA. The limits of coverage available under any such policy must refer to the required third-party minimum coverages, required under both parts 1 and 3 of Title 61, chapter 6. Furthermore, “uninsured motor vehicle” is defined in § 33-23-201, MCA, which provides that “[a]n uninsured motor vehicle is a land motor vehicle, the ownership, the maintenance, or the use of which is not insured or bonded for bodily injury liability at the time of the accident.” This definition does not include “underinsured motor vehicle” within its terms.

Although Farmers Alliance asserts that this Court’s opinion in Grier holds that underinsured coverage is part of the uninsured motor vehicle coverage, we determine that Grier is distinguishable. Our holdings in Grier were based upon an interpretation of the policy language and are not controlling as a matter of statutory construction. In Grier, we stated that “under these circumstances, the “under-insured” coverage is part of the uninsured motor vehicle coverage.” Our holding, however, was prefaced with the caveat “under these circumstances.” We recognized that the “unique fashion” of the Grier policy was determinative. We noted that “the insurance policy in this case [Grier] is set up in a unique fashion ... the “underinsured” motorist provision is part of the section on uninsured motorist coverage ... there is no separate policy section providing for underinsured motor vehicle coverage.” Grier, 812 P.2d at 349. In addition, we noted that “the declarations page makes no mention whatsoever of under-insured motor vehicle coverage.” Grier 812 P.2d at 349. Most importantly, we were interpreting the language of the Grier policy — not the statute. Here, however, our conclusion is based on § 33-23-203, MCA. Further, unlike the policy at issue in Grier, the instant policy sets forth the underinsurance coverage on the declarations page. We determine that Grier is not determinative on this issue as it interpreted the insurance contract, not § 33-23-203, MCA.

The legislature has mandated that motor vehicle liability policies provide two types of coverage: coverage for injury to third-parties, Title 61, chapter 6, parts 1 and 3, and first party coverage for uninsured motorists, § 33-23-201, MCA. Likewise, the legislature has provided that, absent contractual language to the contrary, such required coverages cannot be “stacked” when numerous vehicles are insured under one policy. Section 33-23-203, MCA. The question of whether excess or additional coverages, such as underinsurance coverage, can be stacked was left as a matter of policy interpretation.

Accordingly, we answer the certified question in the negative. Section 33-23-203, MCA, does notprohibit the stacking of the medical payment coverage and the imderinsured 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.

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

JUSTICE NELSON

specially concurs.

I concur in our answer to the certified question. In doing so, I also agree with Justice Gray that the statutes at issue are neither a model of clarity nor do they track well. If anything, that is an understatement. As demonstrated by the Court’s opinion and by the dissents, reasonable interpretations lead to diametrically opposed results. Whether one interpretation is more “absurd” than the other is more a function of perception than it is logic.

One thing, however, is obvious: if the legislature wanted to prohibit the stacking of underinsured and med-pay coverage, it could have simply said so in § 33-23-203, MCA. It had no trouble saying that with respect to uninsured coverage. It could have used an equally simple, clear and unambiguous approach to underinsured and med-pay coverage. The fact is it did not, and we are, thus, left with the task of trying to make sense out of a mishmash of overlapping statutes, adopted and amended at different times and, with one possible exception, absent any clear unifying rationale.

That possible exception is, as our opinion points out, where the legislature has explicitly or implicitly mandated third-party or first-party coverage, it has clearly prohibited stacking, absent agreement between the insurer and the insured. Where, on the other hand, it has not statutorily mandated coverage in one fashion or another, the legislature has not clearly prohibited stacking.

Finally, I note that, if in discharging our task of statutory interpretation, the majority has erred on the side of the insured, then, our opinion is at least consistent with this Court’s historical approach in numerous other insurance cases wherein we have enforced Montana’s strong public policy favoring coverage where either the policy language or the law was not clear. See Leibrand, v. Nat. Farmers Union (1995), 272 Mont. 1, 6, 898 P.2d 1220, 1223; Wellcome v. Home Ins. Co. (1993), 257 Mont. 354, 358, 849 P.2d 190, 192-93; Head v. Central Reserve Life (1993), 256 Mont. 188, 200, 845 P.2d 735, 742.

JUSTICE ERDMANN

dissenting.

I respectfully dissent.

Initially, it is important to note that in its discussion of the certified question, the majority has omitted Agreed Fact No. 3 contained in the Order Certifying Question, which’provides:

That on or about May 31,1991, Plaintiff issued to Wade and Diana Brown, the named insured and parents of Scott Hankel, a policy of auto insurance, a true, correct, and complete copy of which is marked “Exhibit A” attached hereto and incorporated herein by reference.

Thus, although the certified question from the Federal District Court is somewhat narrow, it is also clear that both the parties and the Federal District Court contemplated that this Court address the certified question with reference to and in the context of the provisions of the specific insurance policy in this case. While resolution of the certified question requires an analysis of the language of § 33-23-203, MCA, such an analysis should not be in a vacuum separate and apart from the policy involved in the case.

After narrowing an already narrow certified question, the majority embarks on a strained statutory construction analysis to reach its ultimate result. The majority correctly sets forth the rules upon which this Court relies when construing a statute. If the statutory language is clear and unambiguous, then no further interpretation is required. Clarke v. Massey (1995), 271 Mont. 412, 416, 897 P.2d 1085, 1088. Where the intention of the Legislature can be determined from the plain meaning of the words used in a statute, the courts may not go further and apply any other means of interpretation. Clarke, 897 P.2d at 1088 (citing Tongue River Elec. Coop. v. Montana Power Co. (1981), 195 Mont. 511, 515, 636 P.2d 862, 864). Under this framework, I would hold that the clear language of § 33-23-203, MCA, prohibits the stacking of underinsured motorist and medical payment coverages.

Section 33-23-203(1), MCA, provides that:

Unless a motor vehicle liability policy specifically provides otherwise, the limits of insurance coverage available under any such policy, including the limits of liability under uninsured motorist coverage, must be determined as follows, regardless of the number of motor vehicles insured under the policy:
(a) the limit of insurance coverage available for any one accident is the limit specified for the motor vehicle involved in the accident;
(c) the limits of coverage specified for each motor vehicle insured under the policy may not be added together to determine the limit of insurance coverage available under the policy for any one accident.

The majority opinion focuses on the term “motor vehicle liability policy” (MVLP) as it is used in § 33-23-203(1), MCA. As noted by the majority, MVLP is defined in § 33-23-204(2), MCA, as any policy required under Title 61, Chapter 6, Parts 1 and 3. The majority opinion ignores the reference to Part 3 and improperly imposes the restricted definition of MVLP in Part 1 to § 33-23-203, MCA.

It is important to understand the different purposes of Parts 1 and 3 of Title 61, Chapter 6, MCA, which are referenced in § 33-23-204(2), MCA. Part 1 is the Motor Vehicle Safety-Responsibility Act (MVSRA) which was enacted to require that drivers who have had an accident involving a motor vehicle, or drivers who have an outstanding unsatisfied judgment against them as the result of a motor vehicle accident, provide proof of financial responsibility. Proof of financial responsibility requires proof of an MVLP as defined in § 61-6-103, MCA. See Boldt v. State Farm Mutual Auto Ins. Co. (1968), 151 Mont. 337, 443 P.2d 33.

Section 61-6-103, MCA, defines MVLP for purposes of the MVSRA and provides, in pertinent part, as follows:

(1) A “motor vehicle liability policy”, as the term is used in this part, means an owner’s or operator’s policy of liability insurance, certified as provided in 61-6-133 or 61-6-134 as proof of financial responsibility and issued, except as otherwise provided in 61-6-134, by an insurance carrier duly authorized to transact business in this state, to or for the benefit of the person named therein as insured.
(2) The owner’s policy of liability insurance must:
(b) insure the person named therein and any other person, as insured, using any motor vehicle or motor vehicles with the express or implied permission of the named insured, against loss from the liability imposed by law for damages arising out of the ownership, maintenance, or use of the motor vehicle or motor vehicles within the United States of America or the Dominion of Canada, subject to limits exclusive of interest and costs, with respect to each motor vehicle, as follows:
(i) $25,000 because of bodily injury to or death of one person in any one accident and subject to said limit for one person;
(ii) $50,000 because of bodily injury to or death of two or more persons in any one accident; and
(iii) $10,000 because of injury to or destruction of property of others in any one accident.
(8) Any policy which grants the coverage required for a motor vehicle liability policy may also grant any lawful coverage in excess of or in addition to the coverage specified for a motor vehicle liability policy, and the excess or additional coverage is not subject to the provisions of this part. With respect to a policy which grants the excess or additional coverage, the term “motor vehicle liability policy” applies only to that part of the coverage which is required by this section.

(Emphasis added.)

The majority relies on subsection (8) to conclude that since under-insured motorist and medical payment coverages are not included in subsection (2)(b), they are not part of an MVLP under § 33-23-203(1), MCA. If the majority was only construing .§ 61-6-103, MCA, they would be correct in their interpretation. However, in the present case the Federal District Court has requested our interpretation of § 33-23-203, MCA. When several statutes apply to a given situation, this Court’s job is to adopt a construction that will give effect to all. Section 1-2-101, MCA; See also Schuman v. Bestrom (1985), 214 Mont. 410, 693 P.2d 536.

The definition of MVLP in § 61-6-103(1), MCA, applied by the majority to § 33-23-203, MCA, is restricted by its own terms to Part 1 of Chapter 6 and to only those policies certified under §§ 61-6-133 or -134, MCA, for individuals who are required to provide proof of financial responsibility. See § 61-6-131, MCA. The language of § 61-6-103(8), MCA, reasonably construed, means that the strict requirements of the MVSRA apply to the liability coverage required by subsection (2)(b), but not to the additional or excess coverages available in a policy certified for a “bad driver.”

This construction is further supported by reviewing Part 3 of Chapter 6 which contains the mandatory liability limits for all Montana drivers. As noted, § 33-23-204(2), MCA, defines MVLP as any policy required under Title 61, Chapter 6, Parts 1 and 3: Policies can be issued under either Part 1 or Part 3 and the two parts are independent. See Transamerica Ins. Co. v. Royle (1983), 202 Mont. 173, 656 P.2d 820.

Part 3 of Chapter 6 references and incorporates only the liability limits contained in § 61-6-103, MCA, and the remaining provisions of the MVSRA are not incorporated into Part 3. If, therefore, a policy is issued under Part 3, it is not subject to the provisions of Part 1. See Boldt, 443 P.2d at 35-36; Transamerica, 656 P.2d at 822-23. The facts included with the certified question do not reflect that the policy was issued under Part 1, and it is apparent from the policy itself that it was issued under Part 3.1 therefore believe the majority’s conclusion that the definition of MVLP in the MVSRA applies in its entirety to § 33-23-203, MCA, is in error and ignores the reference to Part 3 in § 33-23-204(2), MCA.

In my view § 61-6-136(1), MCA, conclusively establishes that the Legislature intended the definition of MVLP in the MVSRA apply only to policies issued under the MVSRA:

Other policies not affected. (1) This part [part 1] shall not be held to apply to or affect policies of automobile insurance against liability which may now or hereafter be required by any other law or this state ....

Here the policy was issued under Part 3 and the restrictive definition of MVLP in Part 1 clearly was not intended to apply to policies issued under the part requiring mandatory liability limits for all drivers.

Even if an MVLP under § 33-23-203, MCA, was as limited as the majority holds, the clear language of § 33-23-203, MCA, still leads to the conclusion that the statute prohibits stacking of underinsured motorist and medical pay coverages. Section 33-23-203(1), MCA, provides that stacking is prohibited for insurance coverage “available under any such [MVLP] policy.” (Emphasis added.) The Legislature did not prohibit stacking for insurance coverage “required” by the policy, which according to the majority is only the liability limits found in § 61-6-103(2)(b), MCA, but rather, prohibited stacking for coverages “available” under the policy.

Under the plain language of § 33-23-203, MCA, stacking of both medical payment and underinsured motorist coverages is prohibited since both were “available” under the policy. Where the language of a statute is plain, unambiguous, and certain, the function of the court is simply to ascertain and declare what is in terms or substance contained therein, and not to insert what has been omitted or omit what has been inserted. Section 1-2-101, MCA. See also Reese v. Reese (1981), 196 Mont. 101, 637 P.2d 1183.

Further, the majority’s conclusion that an MVLP policy, as it is used in § 33-23-203, MCA, is limited to the $25,000/$50,000/ $10,000 requirements of § 61-6-103(2)(b), MCA, is simply not consistent with the other language of § 33-23-203, MCA. Section 33-23-203(1), MCA, provides that stacking is prohibited for insurance coverage “available under any such [MVLP] policy including limits of liability under uninsured motorist coverage.” (Emphasis added.) Under the majority’s interpretation, an MVLP includes only the financial limitations found in § 61-6-103(2)(b), MCA. Clearly, uninsured motorist coverage is not required by that provision, but is specifically recognized by the Legislature as being available under an MVLP.

In an effort to avoid this clear statutory language, the majority concludes that uninsured coverage is required coverage. Uninsured coverage, to the degree it is required, is not required by Part 1 of Chapter 6, Title 61, MCA, but rather by § 33-23-201, MCA. The language in § 61-6-103(8), MCA, relied upon by the majority, clearly states that when a policy grants coverage in excess of the coverage required by an MVLP, the term MVLP “applies only to that part of the coverage which is required by this section.” (Emphasis added.) Since uninsured coverage is not required by § 61-6-103, MCA, the majority’s logic breaks down.

Finally, the phrase “including the limits of liability under uninsured motorist coverage” in § 33-23-203, MCA, also demonstrates that the Legislature intended that the stacking prohibition apply to coverages other than those required by § 61-6-103(2)(b), MCA, and uninsured motorist coverage. The term “including” is not a limiting term, but instead is used as an illustrative device. A number of courts have held that the term “including” used in similar contexts is not all-inclusive. See Phelps Dodge Corp. v. National Labor Relations Bd. (1941), 313 U.S. 177, 61 S. Ct. 845, 85 L. Ed. 1271; Federal Land Bank of St. Paul v. Bismarck Lumber Co. (1941), 314 U.S. 95, 62 S. Ct. 1, 86 L. Ed. 65; Schwab v. Ariyoshi (Haw. 1977), 564 P.2d 135; Connerty v. Metropolitan Dist. Comm’n (Mass. 1986), 495 N.E.2d 840; Cumberland Reclamation v. Secretary Dep’t of Interior (6th Cir. 1991), 925 F.2d 164. See also 2A C. Sands, Sutherland Statutory Construction § 47.23 at 194 (4th ed. 1984).

This Court’s prior decisions in this area are admittedly confusing and the majority adds to that confusion by distinguishing several cases that clearly apply to this situation. The majority attempts to distinguish this case from Grier v. Nationwide Mutual Insurance Co. (1991), 248 Mont. 457, 812 P.2d 347, on the basis that in Grier we .interpreted the policy, while here we are restricted to interpreting the statute. As noted earlier, I believe the majority has improperly narrowed the issue presented by the Federal District Court to exclude any consideration of the policy language. By referencing the policy provisions in the certified question and by attaching a copy of the policy to the certified question, both the Federal District Court and the parties intended that we consider the provisions of the policy in responding to the question.

In Grier, the underinsured motorist coverage was part of the policy section on uninsured motorist coverage and there was no separate policy section for underinsured coverage. We also noted that the declarations page made no mention of underinsured coverage. We concluded that under those circumstances, the underinsured coverage was part of the uninsured coverage. In this case, however, the underinsured coverage is also part of the uninsured coverage provision and there is no separate section in the policy for underinsured coverage. While the declaration page does reference underinsured coverage, it specifies that there is no separate premium for underinsured coverage as it is included in the uninsured coverage premium, which was the rationale relied upon in Grier.

Therefore, under the rationale of Grier, the underinsured coverage in the policy in question is clearly part of the uninsured coverage and stacking is specifically prohibited by § 33-23-203, MCA.

The majority also distinguishes this Court’s recent decision in Chilberg v. Rose (1995), 273 Mont. 414, 903 P.2d 1377, on the grounds that Chilberg was a multiple policy case and did not interpret § 33-23-203, MCA. In Chilberg there were multiple policies since the same insurance company issued separate policies for each vehicle rather than insuring all the vehicles in one policy, as was done in this case. The decision in Chilberg was not dependent on the fact that multiple policies were involved, but rather on the fact that Chilberg, like Leonard in this case, was a stranger to the insurance policies, not being the named insured or a family member. Having never paid any premiums on the policies, nor having any knowledge the policies even existed prior to the accident, this Court ruled that Chilberg should not be able to stack the separate underinsured coverage limits. Chilberg, 903 P.2d at 1380. Like Chilberg, Leonard had no “reasonable expectation” of coverage and, under the rationale of Chilberg, his estate should not be allowed to stack underinsured coverage.

In summary, the majority’s strained and restrictive construction of MVLP as used in § 33-23-203, MCA, is contrary to the clear language of the statute and does not take into account the context in which the statute was written. Under the majority opinion, the only stacking prohibited under § 33-23-203, MCA, is for the liability limits for policies issued under the MVSRAfor “bad drivers” and uninsured motorist coverage. Since stacking has never been applied to liability coverages, the only type of coverage in Montana for which stacking is prohibited is now uninsured motorist coverage. The plain language of the statute is simply not that narrow.

The practical result of the majority’s decision is absurd. Since the majority opinion recognizes the prohibition against the stacking of uninsured coverage limits, if Leonard had been struck and killed by a driver with no liability insurance at all, stacking would not be allowed and the maximum his estate could have recovered under the policy would be $50,000. Under the majority’s interpretation, however, since the driver who struck Leonard had the minimum limits, the vehicles under the policy can be stacked and Leonard’s estate is entitled to $350,000. Statutes should be read and construed so as to avoid absurd results if a reasonable construction can avoid it. See Christenot v. State (1995), 272 Mont. 396, 901 P.2d 545; Darby Spar, Ltd. v. Department of Revenue (1985), 217 Mont. 376, 705 P.2d 111.

I would therefore answer the certified question presented to this Court in the affirmative and hold that § 33-23-203, MCA, prohibits the stacking of medical payment coverage and underinsured motorist coverage.

JUSTICE GRAY,

dissenting.

I respectfully dissent from the Court’s opinion. While I think the Court does a relatively creditable job of attempting to mesh statutes which simply do not track well, I am unable to join in its analysis.

Plainly stated, the question before us is whether the anti-stacking provision contained in § 33-23-203(1), MCA, is limited to liability coverages required by law or applies to all coverages contained in a vehicle insurance policy. The Court concludes that the statute prohibits only the stacking of required liability coverages, as the Court creatively defines such coverages. It is my view that, while the statute is not a model of clarity, the legislature’s intent to more broadly prohibit stacking is apparent therein. On that basis, I would answer the certified question in the affirmative.

The Court begins with the “motor vehicle liability policy” (MVLP) language contained in § 33-23-203, MCA, and looks first to § 33-23-204, MCA, for a definition of that term; that definition is stated as “any policy of automobile or motor vehicle insurance against liability now or hereafter required under Title 61, chapter 6, parts 1 and 3.” I agree that this appears to be a rational starting point.

Moreover, I generally agree with the Court’s interpretation that the definition of MVLP contained in § 33-23-204, MCA, addresses the third-party per person, per vehicle and property damage liability coverages required by Title 61, chapter 6, parts 1 and 3. Finally, I agree that the first-party med pay and underinsurance coverages at issue in this case are not liability coverages within the definitional parameters of MVLP contained in § 33-23-204, MCA.

That said, it is important to recall that our resolution of the certified question before us turns on the proper interpretation of § 33-23-203, MCA, rather than § 33-23-204, MCA. In my view, it is the Court’s attempt to force feed the § 33-23-204, MCA, definition of MVLP into § 33-23-203(1), MCA, that results in a legally flawed and logically inconsistent analysis which disregards the actual language used by the legislature in § 33-23-203(1), MCA.

Inserting the § 33-23-204, MCA, definition of MVLP into § 33-23-203(1), MCA, produces the following rough reading of the first pertinent portion of that statute: “the limits of liability coverage required by Title 61, chapter 6, parts 1 and 3 ... cannot be stacked.” The problem I have with such a reading is that the legislature did not use language even approximating such a reading; it clearly used different words, and words clearly at odds with the Court’s interpretation, in § 33-23-203(1), MCA. What the legislature said is that the limits of “insurance coverage available” cannot be stacked. It is my view that, if the legislature had intended to limit the anti-stacking provision to “liability coverage required by law,” it could and would have done so. It did not.

A more reasonable interpretation of § 33-23-203(1), MCA, is that the legislature intended precisely what it said: to prohibit stacking of any and all “insurance coverage available” in an automobile insurance policy, including the med pay and underinsurance coverages at issue here. In that regard, I conclude that neither the definition contained in § 33-23-204, MCA, nor that contained in § 61-6-103, MCA, is logically transferable to the ‘limits of insurance coverage available” language contained in § 33-23-203(1), MCA. Therefore, while the general rule contained in § 1-2-107, MCA, is that definitions contained in one part of the Montana Code Annotated are applicable to the same word or phrase wherever it occurs, I would apply the ' exception to that rule also contained in § 1-2-107, MCA, and conclude in this case that “a contrary intention plainly appears” with regard to inserting definitions of MVLP into § 33-23-203(1), MCA.

This conclusion is further buttressed by the remaining — and, in my view, largest — barrier to the Court’s interpretation of § 33-23-203(1), MCA. The critical portion of the statute reads “the limits of insurance coverage available under any such policy, including the limits of liability under uninsured motorist coverage. ...” With the Court’s definition of “such policy” inserted, the statute reads “the limits of coverage required under Title 61, chapter 6, parts 1 and 3 [the $25,000/$50,000/$10,000 amounts of third-party liability coverage] including the limits of liability under uninsured motorist coverage.”

Whether or not one agrees with the Court’s creative interpretation that uninsured motorist coverage is actually required by § 33-23-201, MCA, and I do not, an inconsistency results on the face of § 33-23-203(1), MCA, when both the Court’s definition of MVLP and the “including” clause are considered. It is clear that nothing in Title 61, chapter 6, parts 1 and 3, requires uninsured motorist coverage; the Court’s own analysis makes that clear in pointing out that the § 33-23-204, MCA/Title 61 required coverages are third-party per person, per vehicle and property damage liability coverage. It is equally clear that the “including” clause refers back to what preceded it in the statute — “such policy” — defined by the Court as the § 33-23-204, MCA, definition of MVLP. The “including” clause simply cannot broaden, by any rule of logic, grammar or law of which I am aware, the statutory definition of MVLP which the Court has inserted into the statute.

For these reasons, it is my view that the Court’s analysis is flawed. Amore reasonable reading of § 33-23-203(1), MCA, requires a conclusion that the legislature intended to prohibit the stacking of all coverages contained in an automobile insurance policy insuring more than one vehicle. I invite the legislature to revisit the statutes addressed in this case by both the Court and the dissenting opinions with an eye toward clarifying statutes which simply do not mesh well under any analysis.

I dissent.

      . The majority relies on § 1-2-107, MCA, as authority to apply the definition of MVLP in the MVSRAin Title 61 to the anti-stacking statute in Title 33. Section 1-2-107, MCA, provides, however, that the definition of a phrase in one part of the code may be applied to the same phrase in another part “except where a contrary intention plainly appears.” Here, the plain language of § 61-6-103(1), MCA, restricts the definition of MVLP “as the term is used in this part” and then only for policies certified under §§ 61-6-133, -134, MCA. It would be difficult to envision a clearer expression of legislative intent. The Legislature intended that the definition of MVLP in § 61-6-103(1), MCA, be restricted to the MVSRA.

      . Policies issued under the MVSRA (Part 1) contain a number of restrictions not found in policies issued under the mandatory liability provision (Part 3). For instance, under the MVSRA the liability of the insurer is absolute after an accident occurs and there are restrictions as to cancellation and increasing premiums. See § 61-6-103(6)-(7), MCA.

      . In Kemp v. Allstate Ins. Co. (1979), 183 Mont. 526, 535, 601 P.2d 20,25, this Court, in a stacking case predating § 33-23-203, MCA, held that: “Montana’s uninsured motorist statute is not mandatory, in the sense that the insured has the right to reject in writing such coverage in policies issued in Montana.” The majority’s holding in this case that uninsured motorist coverage is required coverage is in direct conflict with our holding in Kemp.

      . See Allstate Insurance Company v. Skorupa (1993), 13 Mont.Fed.Rep. 355, which addressed the issue of stacking liability policies and concluded that this Court has clearly recognized a distinction between liability coverage and uninsured motorist coverage citing Jacobson v. Implement Dealers Mut. Ins. Co. (1982), 196 Mont. 542, 640 P.2d 908, and Chaffee v. United States Fid. & Guar. Co. (1979), 181 Mont. 1, 591 P.2d 1102.


source: Caselaw Access Project

author: JUSTICE NELSON

license: Public Domain

text:
    TIMOTHY J. WHALEN, d/b/a SHANNON ROSE APARTMENTS, Plaintiff and Appellant, v. JOHN LEWIS TAYLOR, Defendant, Respondent, and Cross Appellant.
    No. 95-540.
    Submitted on Briefs May 2, 1996.
    Rehearing Denied October 24, 1996.
    Decided September 26, 1996.
    53 St.Rep. 914.
    278 Mont. 293.
    925 P.2d 462.

      For Appellant: John A. Hauf, Hauf & Forsythe, Billings.
    For Respondent: Elizabeth Halverson, Montana Legal Services, Billings.
   JUSTICE NELSON

delivered the Opinion of the Court.

Plaintiff, Timothy J. Whalen, (Whalen) initiated this suit in Justice Court for possession of rental property, damages, and attorney fees. Following a trial de novo, the District Court for the Thirteenth Judicial District, Yellowstone County, entered judgment for Defendant, John Lewis Taylor, (Taylor) and awarded Taylor damages and possession of property. From that judgment, Whalen appeals and Taylor cross appeals. We affirm in part, reverse in part and remand.

We address the following issues on appeal:

1. Does substantial evidence support the District Court’s finding that Taylor did not abandon the apartment, but that Whalen locked out Taylor in violation of § 70-24-411, MCA?

2. Did Whalen violate §§ 70-24-202 and 70-24-403, MCA, by including a prohibited provision in the rental agreement?

3. Is Taylor entitled to attorney fees under § 70-24-442, MCA, because he prevailed at every stage of the litigation?

4. Did the District Court properly expedite discovery matters and the trial schedule pursuant to § 70-24-427, MCA?

FACTUAL AND PROCEDURAL BACKGROUND

Whalen owns and personally manages the Shannon Rose Apartments located at 703 North 32nd Street in Billings, Montana. Whalen is an attorney, a former legislator, and has owned the Shannon Rose Apartments since 1985. He has used the same rental agreement since 1985. Taylor is a 48-year-old man who works as a janitor in Billings.

On June 23, 1994, Whalen rented an apartment to Taylor under a month-to-month written rental agreement that Whalen had copied from a 1978 Montana Law Review article. Under the agreement, Taylor agreed to pay rent on the first of each month and to pay a security deposit of $250. The rental agreement contained a provision stating that “ [acceptance of a refund of all or a portion of the deposit by Tenant shall constitute a full and final release of Landlord from any claims of Tenant of any nature whatsoever.”

Over the course of the tenancy, Taylor habitually made late rental payments; however, Whalen always accepted those payments. In June 1995, Taylor was again late with the rent payment. In response, Whalen served Taylor a three-day notice to quit by slipping it under Taylor’s door on June 7,1995. On June 13,1995, the parties verbally agreed to extend the time for payment of the rent to June 16, 1995, the date Taylor expected his next paycheck. However, Taylor did not pay the rent by June 16, 1995, and Whalen gave him no additional notice to quit.

Taylor’s paycheck did not arrive on June 16, 1995; however, a co-worker delivered it to Taylor at his apartment on June 17, 1995. Taylor did not pay Whalen the rent during the day on June 17,1995, and when Taylor arrived home that evening he found that Whalen had changed the locks to his apartment. Whalen had in fact changed the locks after 5:00 p.m. on June 17,1995. When Taylor arrived home, he tendered the June rent, but Whalen refused to accept it. Taylor then requested possession of the apartment, but Whalen refused because of the delinquent rent. At Taylor’s request, Whalen did go back into Taylor’s apartment and retrieve some of Taylor’s clothing. They then made arrangements for Taylor to retrieve the rest of his possessions the next day. Taylor moved into the Esquire Motor Inn that night. In early July, 1995, Whalen moved into the apartment.

On June 22, 1995, Whalen filed a complaint in Justice Court, Yellowstone County, for possession of the premises, money damages and attorney fees. Taylor counterclaimed for possession, money damages and attorney fees. Taylor prevailed on all claims in Justice Court. On September 13,1995, Whalen filed a Notice of Appeal to the Montana Thirteenth Judicial District Court, Yellowstone County. After both attorneys moved to substitute two different judges, trial was finally set for October 27, 1995. On October 17, 1995, Whalen served discovery requests on Taylor and the District Court ordered that Taylor answer Whalen’s discovery requests by October 23,1995.

Following a trial de novo, the District Court entered judgment for Taylor, awarding him money damages and possession of the rental property. From this judgment, Whalen appeals and Taylor cross appeals.

DISCUSSION

1. Does substantial evidence support the District Court’s finding that Taylor did not abandon the apartment, but that Whalen locked out Taylor in violation of § 70-24-411, MCA?

Our review of a district court’s findings of fact is set forth as follows:

This Court reviews the findings of a trial court sitting without a jury to determine if the court’s findings are clearly erroneous. Rule 52(a), M.R.Civ.R A district court’s findings are clearly erroneous if they are not supported by substantial credible evidence, if the trial court has misapprehended the effect of the evidence, or if a review of the record leaves this Court with the definite and firm conviction that a mistake has been committed.

Solem v. Chilcote (1995), 274 Mont. 72, 76, 906 P.2d 209, 211-12 (quoting YA Bar Livestock Company v. Harkness (1994), 269 Mont. 239, 887 P.2d 1211).

The Montana Residential Landlord and Tenant Act of 1977 (MRLTA) limits a landlord’s recovery of possession of property. See § 70-24-428, MCA. As provided under MRLTA, “[e]xcept in the case of abandonment, surrender, or as permitted in this chapter, a landlord may not recover or take possession of the dwelling unit by action or otherwise....” Section 70-24-428, MCA. Thus, a landlord may take possession of a dwelling unit only under three circumstances: 1) abandonment; 2) surrender; or 3) as permitted in MRLTA. This case deals only with Taylor’s alleged abandonment and Whalen’s unauthorized actions.

This Court has defined abandonment as “the absolute relinquishment of the premises consisting of the tenant’s act or omission and intent to abandon.” Johnston v. American Reliable Ins. (1992), 253 Mont. 253, 258, 833 P.2d 176, 180 (wherein we held that landlord’s one phone call concerning tenant’s whereabouts was not enough evidence to show tenant’s abandonment). In an earlier case, this Court did find evidence of abandonment. Napier v. Adkison (1984), 209 Mont. 163, 678 P.2d 1143. While we decided Napier prior to adopting the formal definition of abandonment in Johnston, we evaluated similar evidence to determine whether the tenants had abandoned the premises. In Napier, when the tenants did not make the rental payment on time, the landlord repeatedly stopped by the tenants’ rental unit, but never found the tenants there. Furthermore, the landlord found that the tenants’ left their dogs unattended on the premises. Finally, the landlord called the tenants’ daughter who stated she did not know where her parents were. All of this evidence clearly supported the District Court’s conclusion that the tenants had abandoned their rental unit. Unlike Napier, the evidence in the case before us on appeal does not indicate that Taylor abandoned his apartment.

Taylor lived consistently in his apartment for over one year. Despite his habitual lateness in paying the rent, Taylor always made arrangements with Whalen for payment. When Taylor was again late with payment of his June 1995 rent, he made arrangements with Whalen to pay the rent on June 16, 1995, when Taylor expected his paycheck to arrive. However, because his paycheck did not arrive on time, Taylor did not meet the June 16th deadline. Instead, Taylor tendered the June rent the following evening after he had received and cashed his paycheck.

In response to Taylor’s failure to pay rent on June 16,1995, Whalen changed the locks to Taylor’s apartment after 5:00 p.m. on June 17, 1995, claiming that Taylor had abandoned the premises. However, later that same evening, Taylor arrived at his apartment and upon meeting Whalen tendered the June rent. Further, after Whalen declined to accept the rent, he refused to allow Taylor access to the apartment to collect his belongings inside.

Nothing in the evidence indicates “absolute relinquishment” of the apartment by Taylor. Taylor kept his belongings in the apartment. He contacted Whalen as to the delinquent June rent and asked for more time to pay, showing his intention to continue to live there. Further, Taylor did ultimately tender the June rent on the same day that Whalen changed the locks to Taylor’s apartment. Based on these facts, Taylor lacked an intent to abandon and he committed no act or omission to indicate abandonment of his apartment. See Johnston, 833 P.2d at 180. We hold that substantial evidence supports the District Court’s conclusion that Taylor did not abandon his apartment, but rather that he intended to pay the rent and continue to live there.

As noted, a landlord’s recovery of possession is limited to three circumstances: abandonment, surrender, or as permitted under MRLTA. Here, Taylor did not abandon his apartment and the parties have raised no issue concerning surrender. Therefore, Whalen’s only other option under § 70-24-428, MCA, was to pursue a permitted course of action under MRLTA, that is, a proper eviction procedure. A proper eviction procedure for a tenant’s failure to pay rent is set forth in §§ 70-24-422(2)(a), 70-24-108 and 70-24-427, MCA. If a tenant does not pay rent when due, a landlord must give the tenant written notice indicating that rent must be paid within three days or the landlord intends to terminate the rental agreement. Sections 70-24-422(2)(a) and 70-24-108, MCA. If the tenant still does not pay, the landlord may terminate the rental agreement and bring an action for possession. Sections 70-24-422(2)(a) and 70-24-427, MCA. Whalen failed to follow this procedure.

While Whalen had provided Taylor with a three-day notice to quit based on Taylor’s failure to pay the June 1995 rent, he subsequently extended the time for compliance. When Taylor did not pay the June rent by the extended deadline, Whalen did not provide Taylor with another notice to quit, nor did he bring an action for possession. Instead, Whalen resorted to a self-help procedure of changing the locks to Taylor’s apartment. In fact, Whalen did not bring suit against Taylor until June 22,1995, five days after he had changed the locks. Section 70-24-427, MCA, authorizes courts, not landlords, to resolve disputes over possession of rental property. Consequently, when Whalen locked out Taylor, he resorted to an extrajudicial eviction procedure in violation of § 70-24-428, MCA, and wrongfully excluded Taylor from his apartment. Whalen, therefore, is liable under § 70-24-411, MCA.

If wrongfully excluded, a tenant has two concurrent remedies under § 70-24-411, MCA. First, a tenant may recover possession or terminate the rental agreement. Additionally, a tenant may recover an amount not more than three months’ periodic rent or treble damages, whichever is greater. Section 70-24-411, MCA. Here, Taylor requested possession of his apartment and elected to prove his rent amount and requested that the District Court treble that amount. We hold that the District Court properly awarded both remedies.

Whalen contends thatneither remedy under § 70-24-411, MCA, was proper in this case. First, Whalen argues the provision in § 70-24-411, MCA, that allows for trebling of rent or damages is intended as a penalty and is therefore punitive in nature. As a result, Whalen contends that Taylor must meet proof requirements for punitive damages under § 27-1-221, MCA. We disagree. As a specific statute, § 70-24-411, MCA, takes priority over any general statute that is inconsistent with it. Section 1-2-102, MCA. See also, Sage v. Rogers (1993), 257 Mont. 229, 848 P.2d 1034. Therefore, § 70-24-411, MCA, takes priority over § 27-1-221, MCA. Accordingly, Taylor had the option to choose between three months’ periodic rent or treble damages, whichever was greater. See § 70-24-411, MCA. Taylor requested three months’ periodic rent, and the District Court properly awarded it.

Second, Whalen argues that the District Court’s awarding possession of the apartment to Taylor is an inappropriate remedy in this case. Whalen presently occupies the apartment. Whalen claims that if Taylor gains possession then Whalen will promptly give Taylor thirty days’ notice of termination of the tenancy as allowed under MRLTA. Again, notwithstanding this line of reasoning, § 70-24-411, MCA, allows a wrongfully excluded tenant to choose possession or termination of a rental agreement in addition to money damages. Under the facts and circumstances of this case, the District Court did not commit reversible error by awarding a remedy which the statute specifically authorizes.

Based on the foregoing, we affirm the District Court on this issue and hold that Whalen is liable under § 70-24-411, MCA, and that the District Court properly awarded Taylor both remedies under § 70-24-411, MCA.

Finally, after the District Court’s Judgment of November 1, 1995, Whalen filed a homestead exemption on November 6,1995, for his property because he had taken up residence in the apartment. Whalen argues that this filing should exempt him from the specific remedies awarded to Taylor under § 70-24-411, MCA. However, Whalen cites no authority for his proposition. Therefore, we decline to further address his argument absent his setting forth persuasive legal authority on which to base such a decision.

2. Did Whalen violate §§ 70-24-202 and 70-24-403, MCA, by including a prohibited provision in the rental agreement?

We review a district court’s conclusion of law to determine if the court’s interpretation of the law is correct. Solem, 906 P.2d at 212.

The rental agreement that Whalen selected and used contains the following provision:

Acceptance of a refund of all or a portion of the deposit by Tenant shall constitute a full and final release of Landlord from any claims of Tenant of any nature whatsoever.

In Solem, we considered an identical rental agreement provision and held that such language is prohibited and violates § 70-24-202( 1), MCA, and we affirmed the District Court’s award of damages pursuant to § 70-24-403(2), MCA. Solem, 906 P.2d at 209. Clearly, § 70-24-202(1), MCA, makes unlawful any agreement to waive or forego rights or remedies under MRLTA. Further, § 70-24-403(2), MCA, provides that if a party purposely uses a rental agreement containing provisions known by him to be prohibited, then the other party may recover, in addition to his actual damages, an amount up to three months’ periodic rent.

In the case at bar, it is clear that the rental agreement provision in question is prohibited and violates § 70-24-202(1), MCA. Solem, 906 P.2d at 213-14. It is equally clear that Whalen purposely used a rental agreement with prohibited provisions and he may be liable for an amount up to three months’ periodic rent. Section 70-24-403(2), MCA. Here, Whalen is not only a landlord, but a practicing attorney and former legislator. He had used this rental agreement for ten years, knew its contents and personally chose to use it when he rented to Taylor. Further, he intended the rental agreement to be legal and enforceable, citing its provisions in his suit against Taylor. Moreover, Taylor had no legal counsel when he signed the agreement and no way to determine whether or not the agreement was legal. Therefore, the District Court erred in finding that Whalen did not believe that the rental agreement contained any illegal or unlawful provisions.

Whalen violated MRLTAby unlawfully excluding Taylor from his apartment and by using a rental agreement that contained a prohibited provision. Both of these violations call for treble damage awards. See §§ 70-24-411 and 70-24-403, MCA. However, two separate awards of treble damages should not be imposed upon Whalen absent a clear legislative direction to that effect. Under these circumstances, in the absence of any clear legislative mandate for the cumulative imposition of penalties, we conclude that the provisions of MRLTA are adequately served when only one treble damage award is imposed, despite the two separate violations of the Act.

On this issue, we remand for further proceedings consistent with this opinion and for entry of judgment for treble damages in favor of Taylor.

3. Is Taylor entitled to attorney fees under § 70-24-442, MCA, because he prevailed at every stage of the litigation?

A District Court may award reasonable attorney fees, along with costs and necessary disbursements, to the prevailing party in whose favor final judgment is rendered. Section 70-24-442, MCA. The District Court found that Taylor prevailed on all claims except the issue concerning the prohibited provision in the rental agreement, and thus, the court did not award Taylor attorney fees. Absent an abuse of the lower court’s discretion, this Court will not reverse the lower court’s decision concerning attorney fees. Sage, 848 P.2d at 1042.

However, on appeal, we have held that the provision in the rental agreement discussed in Issue 2 is unlawful, and the District Court must enter judgment on this issue in favor of Taylor. Consequently, Taylor is now the prevailing party on all issues, and, in the court’s discretion, may be entitled to an award of attorney fees, costs and necessary disbursements. See § 70-24-442, MCA.

Whalen debates the appropriateness of awarding attorney fees to legal services or pro bono attorneys. However, the propriety of these awards has already been decided. See In re Marriage of Malquist (1994), 266 Mont. 447, 880 P.2d 1357 (wherein we held that legal services and pro bono attorneys were eligible under § 40-4-110, MCA, to receive awards of attorney fees). Just as in Malquist, no reason exists here to exclude legal service attorneys from an award of attorney fees. First, under § 70-24-442, MCA, the District Court is given discretion to award attorney fees in landlord/tenant cases to a prevailing party. Second, and more broadly, in order to provide equal access to justice for all, the award of attorney fees to individuals represented by legal services or pro bono attorneys is required. As we stated in Malquist:

Presumably, if Montana Legal Services Association and pro bono attorneys can recoup from the non-indigent litigant those fees and costs for which he or she would, otherwise, be liable under the statute, that organization and those attorneys will be financially better able to provide more legal services to the increasing numbers of indigent litigants who need such services. Moreover, non-indigent litigants who might be encouraged to simply “run up the other party’s bill” with vexatious conduct and frivolous court proceedings, might be less inclined to do so knowing that the court has the statutory discretion to award the indigent party’s attorney fees and costs against the offending party.

Malquist, 880 P.2d at 1364.

Based on the same policy reasons as set forth in Malquist, we conclude that an attorney's status does not affect eligibility for attorney fee awards under § 70-24-442, MCA. Accordingly, we remand this issue of attorney fees to the District Court for reconsideration and further proceedings consistent with this opinion.

In so holding, we acknowledge that the United States Congress has prohibited the Legal Services Corporation from providing financial assistance to any person or entity that claims, or collects and retains, attorney fees. Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriation Act, 1996, Pub. L. No. 104-134, § 504(a)(13), 110 Stat. 1321,1321-53, -55 (1996) (hereinafter “the Act”). We note that this prohibition only applies to claims for which a person or entity begins to provide legal assistance on or after April 26, 1996, the date of enactment of the Act. Section 508(b)(3), 110 Stat. at 1321-57 to -58. In this case on appeal, Montana Legal Services began providing legal assistance to Taylor in June 1995, well before the enactment of the Act. Therefore, in this case, we conclude that the Act would not prohibit an award of attorney fees to Montana Legal Services should the District Court exercise its discretion to make such an award.

4. Did the District Court properly expedite discovery matters and the trial schedule pursuant to § 70-24-427, MCA?

We review a district court’s ruling concerning granting or denying discovery for abuse of discretion. In re Marriage of Smith (1995), 270 Mont. 263, 271, 891 P.2d 522, 527. A district court is in a better position than this Court to supervise the day to day operations of pretrial discovery. Smith, 891 P.2d at 527.

Whalen initiated this action and now contends that the District Court committed reversible error when it failed to allow proper time for discovery and failed to issue sanctions against Taylor for requesting an expedited hearing. We disagree. Whalen sought possession of the apartment. Claims for possession of property under MRLTA are controlled by § 70-24-427, MCA, which mandates an expedited trial schedule as follows:

70-24-427. Landlord’s remedies after termination — action for possession. (1) If the rental agreement is terminated, the landlord has a claim for possession and for rent and a separate claim for actual damages for any breach of the rental agreement.
(2) An action filed pursuant to subsection (1) in a court must be heard within 20 days after the tenant’s appearance or the answer date stated in the summons. If the action is appealed to the district court, the hearing must be held within 20 days after the case is transmitted to the district court.
(3) The landlord and tenant may stipulate to a continuance of the hearing beyond the time limit in subsection (2) without the necessity of an undertaking.
(4) In a landlord’s action for possession filed pursuant to subsection (1), the court shall rule on the action within 5 days after the hearing.

Whalen insists that § 70-24-427, MCA, provides a landlord, not a tenant, the right to an expedited trial. Therefore, he contends that Taylor perpetrated sanctionable conduct by requesting an expedited hearing. This argument is not persuasive. An action for possession must be heard within 20 days under the mandate of § 70-24-427(2), MCA, unless both the landlord and tenant stipulate to a continuance, as allowed by § 70-24-427(3), MCA. Taylor’s attorney requested that the District Court expedite the trial for possession as required by § 70-24-427(2), MCA. Taylor and his attorney should not be sanctioned for demanding precisely what the statute authorizes. Therefore, the District Court was correct in not imposing sanctions.

Further, it is within the District Court’s discretion to mate discovery rulings. Whalen filed a Notice of Appeal to District Court on September 13, 1995. However, because both parties moved to substitute two different judges, it was not until September 28, 1995, that the case was assigned. Further, due to the court’s full calendar, the trial was set more than 20 days after the case was transmitted. Despite these delays, the District Court ordered trial set for October 27, 1995. Whalen did not serve discovery requests on Taylor until October 17, 1995. In an effort to expedite this claim for possession, the District Court ordered that Taylor answer Whalen’s discovery requests by October 23,1995. The District Court made these rulings in compliance with § 70-24-427, MCA. Therefore, we hold that the District Court did not abuse its discretion, but, rather, that the District Court properly limited the time and extent of discovery to expedite this claim for possession.

We affirm in part, reverse in part and remand for further proceedings consistent with this opinion.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, ERDMANN and LEAPHART concur.


author: JUSTICE HUNT CHIEF JUSTICE TURNAGE,

text:
    JOHN COBB, Plaintiff and Respondent/Cross-Appellant, v. STATE OF MONTANA, Defendant and Appellant/Cross-Respondent.
    No. 96-327.
    Submitted on Briefs July 18, 1996.
    Decided September 26, 1996.
    53 St.Rep. 920.
    278 Mont. 307.
    924 P.2d 268.

      For Appellant: Joseph P. Mazurek, Attorney General, Kimberly A. Kradolfer, Assistant Attorney General, Helena; Garth Jacobson, Office of the Secretary of State, Helena.
    For Respondent: John Cobb, Augusta.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellant State of Montana (State) appeals the decision of the First Judicial District Court, Lewis and Clark County, enjoining the secretary of state from presenting to the electors an official ballot containing the legislative referendum known as Senate Bill 37, which sought to amend the Montana Constitution to eliminate the office of secretary of state. On July 18, 1996, this Court issued an order affirming the judgment of the District Court, a copy of which is appended. This opinion explains the reasons for that order.

The 1995 session of the Montana Legislature passed Senate Bill 37 as a referendum to be presented to the electorate during the November 1996 general election. The referendum sought to amend the Montana Constitution to eliminate the office of secretary of state. In its final form, the measure provided that all but three of the duties of the office of secretary of state were to be transferred to the Lieutenant Governor. Two of the remaining duties would be transferred to other officials, due to legislative concern that assigning them to the Lieutenant Governor would concentrate too much power in the Governor’s office.

However, one of the duties which is constitutionally assigned to the secretary of state was overlooked. Article IV, Section 7(3) of the Montana Constitution provides:

If [an] election on an initiative or referendum properly qualifying for the ballot is declared invalid because the election was improperly conducted, the secretary of state shall submit the issue to the qualified electors at the next regularly scheduled statewide election unless the legislature orders a special election.

Senate Bill 37 did not provide for the deletion of this section from the constitution, nor did it provide for the transfer of this particular duty to another office.

Following the passage of Senate Bill 37 by the legislature, Representative John Cobb filed suit to prevent the secretary of state from submitting the referendum to the electorate. Representative Cobb alleged that the injunction should be granted because the bill’s title and statements of implication were unclear and misleading, and because the bill violated the one bill-one subject rule.

The District Court concluded that the formal title of the bill was not unclear or misleading. It further concluded that the bill did not violate the one bill-one subject rule. However, the District Court concluded that the statements of implication were misleading because they did not inform the voters that one duty of the secretary of state was not transferred anywhere, or that one reference to the secretary of state remained in the constitution. In addition, the District Court determined that the referendum was faulty because its passage would leave a defect in the constitution which could not be remedied except by another election.

The State appeals this decision, and Representative Cobb cross-appeals the District Court’s determination that Senate Bill 37 is not constitutionally flawed in other respects. Because we affirm the District Court’s determination that the bill is fatally flawed for the reason given, we need not consider whether it contains other errors as well. We therefore will not consider the issues raised in the cross-appeal.

Section 3-5-302(6)(a), MCA, provides:

[A] contest of a ballot issue submitted by initiative or referendum may be brought prior to the election only if it is filed within 30 days after the date on which the issue was certified to the governor, as provided in 13-27-308, and only for the following causes:
(i) violation of the law relating to qualifications for inclusion on the ballot;
(ii) constitutional defect in the substance of a proposed ballot issue; or
(iii) illegal petition signatures or an erroneous or fraudulent count or canvass of petition signatures.

Representative Cobb brought suit within the 30 days provided and alleged that the proposed ballot issue contains a substantive constitutional defect. The District Court agreed. On appeal, the State points out that pre-election challenges to initiatives or referenda are generally viewed with disfavor. It also argues that the defect complained of is not a substantive one, and, therefore, no pre-election judicial review is allowed under § 3-5-302(6)(a), MCA.

Judicial intervention in referenda or initiatives prior to an election is not encouraged. As this Court has noted,

to effectively protect and preserve the right which Montanans have reserved to themselves to change the laws of this State through the initiative process, pre-election judicial review should not be routinely conducted.

State ex rel. Boese v. Waltermire (1986), 224 Mont. 230, 234, 730 P.2d 375, 378. The State contends that such judicial review is only proper where the initiative or referendum was not properly submitted under the election laws or where the initiative was unconstitutional on its face. State ex rel. Montana Citizens for the Preservation of Citizens’ Rights et al. v. Waltermire (1986), 224 Mont. 273, 276, 729 P.2d 1283, 1285. See also State ex rel. Montana School Board Association v. Waltermire (1986), 224 Mont. 296, 729 P.2d 1297; Boese, 730 P.2d 375. Here, improper submission of the bill was not alleged and is not an issue. Further, the District Court specifically concluded that Senate Bill 37 is not unconstitutional on its face. Under these circumstances, the State contends that pre-election judicial review is not appropriate.

Montana Citizens for the Preservation of Citizens’ Rights and the other similar cases cited by the State are not strictly on point. All are cases where this Court was asked to assume original jurisdiction over a pre-election challenge, without the issue first being addressed by a district court. Here, the matter was presented to and decided by the District Court and comes before this Court on appeal. We therefore are not determining whether assumption of original jurisdiction is appropriate. Furthermore, these cases merely list the reasons for which we have exercised original jurisdiction and granted such petitions in the past; they in no way foreclose the ability of this Court to grant relief on other grounds should sufficient reason exist to do so. Beyond that, the State’s argument ignores § 3-5-302(6)(a), MCA, which allows judicial review in cases involving a substantive constitutional defect, not just in cases where the measure is unconstitutional on its face. Representative Cobb alleged a substantive constitutional defect in the referendum. While such pre-election challenges will be closely scrutinized, they are nevertheless permitted under the plain language of § 3-5-302(6)(a), MCA.

The State nevertheless argues that the District Court erred by enjoining the presentation of Senate Bill 37 to the electorate. The State contends that § 3-5-302(6)(a), MCA, is not applicable in this case because the defect complained of is not a substantive one.

Nothing in Senate Bill 37 as presented creates an obvious constitutional problem. The problem arises not from what was included but, rather, from what was omitted. The failure of the bill to address Article IV, Section 7(3), of the Montana Constitution or to dispose of the duty contained therein would leave an obvious defect in the constitution. The bill purports to abolish the office of secretary of state but leaves one duty assigned to that office, with no provision for who must assume that duty. The State contends that this is not a substantive constitutional defect because the legislature could define the term “secretary of state” as used in Article IV, Section 7(3) and reassign the duty. It further contends that the defect could also be cured by addressing it through another referendum at a later election. The existence of such remedies, it argues, means the defect is not one of substance but only of form. We disagree.

The difference between a defect of form and a defect of substance is not dictated by the ease or availability of a remedy. As the State noted, a defect of form is “[a]n imperfection in the style, manner, arrangement, or non-essential parts of a legal instrument” while a defect of substance is “[a]n imperfection in the body or substantive part of a legal instrument” including “the omission of something which is essential to be set forth.” Black’s Law Dictionary (6th ed. 1991) at 419. We cannot construe the failure to remove a reference to and a duty of the office ostensibly abolished to be merely a problem of style or arrangement. Instead, it is exactly “the omission of something which is essential to be set forth.”

Moreover, we are not persuaded that the hypothetical remedies presented would in fact solve the problem. The State argues that the legislature can define what is meant by the term “secretary of state” as used in the constitution. The State does not, however, explain how the legislature itself could do this. The constitution may only be amended by a vote of the people. Art. XIV, Sec. 8 and 9, Mont.Const. It is unclear how the State imagines the legislature could define a term in the constitution without first presenting the matter to the people, when, as here, the definition chosen would change the effect of the section in which the term is included. In any case, it would be a futile and inconsistent exercise to abolish the office of secretary of state and then go back and attempt to define that which has just been abolished.

The State further contends, however, that the defect could by cured by presenting another referendum to the people at a later election prior to the January 1, 2001, effective date of Senate Bill 37. But this is not a guaranteed solution; if the electorate voted in favor of the first referendum but against the second, the constitutional defect would remain in place.

Affirmed.

JUSTICES GRAY, NELSON, ERDMANN, LEAPHART and TRIEWEILER concur.

CHIEF JUSTICE TURNAGE,

dissenting.

I respectfully dissent from the majority opinion. I dissented from the order of this Court on July 18,1996, in this cause and stated that the District Court should be reversed.

The people should have been allowed to vote on the constitutional amendment referred to the people through Senate Bill 37, passed in the 1995 legislative session, the substance of which would have transferred the functions of the secretary of state to the lieutenant governor, thereby eliminating the office of the secretary of state.

The merits of this proposal are not at issue. The proposal’s merits or lack of merits are matters to be decided by vote of the people. What is at issue is the right of the people to vote on a constitutional referendum — a right which the Court has denied in this matter.

In State ex rel. Harper v. Waltermire (1984), 213 Mont. 425, 691 P.2d 826, this Court declined to intervene in the referendum process where, as here, the challenge was not to a substantive defect in the text of the referendum.

Section 3-5-302(6)(ii), MCA, provides in pertinent part that “a contest of a ballot issue submitted by initiative or referendum may be brought prior to the election only ... [for] constitutional defect in the substance of a proposed ballot issue.” (Emphasis added.) Here, the defect which concerned the District Court is that one reference to a “secretary of state” will be left in Article IV, Section 7(3), of the Montana Constitution without definition. This is not a substantive defect. To the extent that it constitutes a defect at all, it is a defect of form, and it is one which the legislature has the power to cure by providing an appropriate definition.

The only omission is the failure of the legislature to define what is meant by a “secretary of state” who will perform a particular ministerial function (i.e., submitting an issue to the qualified electors at the next designated election). That is not something which must essentially be defined within the body of the Constitution itself, particularly where, as here, Article IV, Section 3 of the Montana Constitution specifically gives the legislature the power to set requirements for the administration of elections. The legislature has the ability and authority to provide definition of the term “secretary of state” as it is used in that one provision.

Clearly, the defect in the referendum language is one of form and not one of substance. In failing to recognize this fundamental principle, the majority has denied the people the right to vote on an important constitutional referendum.

I would reverse the District Court.

APPENDIX

ORDER

The State of Montana, Appellant in this case, appeals the Memorandum and Order of the First Judicial District Court, Lewis and Clark County, dated May 29, 1996, that:

1. Enjoined the Secretary of State from submitting to the electors an official ballot which includes Senate Bill 37; and
2. Enjoined the Secretary of State from delivering to the voters a voter informational pamphlet which includes Senate Bill 37.

After due consideration by this Court IT IS HEREBY ORDERED that:

The District Court’s Memorandum and Order of May 29, 1996, is affirmed.

This order is issued to expedite this Court’s decision and this Court’s full opinion will follow.

DATED this 18th day of July, 1996.