CAROLYN S. OSTBY, Magistrate Judge.
Plaintiff Shadya Jarecke's ("Jarecke") Complaint alleges two claims against Defendant American National Property and Casualty Co. ("ANPAC"). Count 1 alleges a violation of Montana's Unfair Trade Practices Act ("UTPA"), §§ 33-18-201 et seq., for failure to properly pay underinsured motorist ("UIM") coverage benefits. Count 2 alleges that ANPAC acted with malice. See Complaint (ECF 4)
Pending are the parties' cross motions for partial summary judgment. For the reasons discussed below, the Court will grant ANPAC's motion and deny Jarecke's motion.
This action arose after Jarecke was injured in a motor vehicle collision with underinsured motorist Billie Jo Scheetz ("Scheetz") on June 29, 2012, in Billings, Montana. Jarecke's Complaint alleges that "ANPAC received information from which it knew that its asserted limits of $250,000 were fully exposed and consumed by the value of [Jarecke's] loss." ECF 4 at 2.
ANPAC provided insurance coverage to Jarecke and her parents,
The relevant facts surrounding the UIM limits dispute are as follows.
On August 29, 2007, the Montana Commissioner of Securities and Insurance ("Insurance Commissioner") sent an advisory memorandum notifying motor vehicle liability insurers that they could avoid stacking "if the premiums charged for the coverage by the insurer actuarially reflect the limiting of coverage separately to the vehicles covered by the Policy and the premium rates have been filed with the [C]ommissioner." ECF 30-1 at 1. The Insurance Commissioner provided insurers with instructions for filing rates for UIM and other coverages. ANPAC responded by submitting its actuarially approved UIM rates to the Insurance Commissioner. The Insurance Commissioner later notified ANPAC that ANPAC was substantially in compliance with MCA § 33-23-203 respecting its filings for non-stacked UIM rates.
Jarecke's parents first applied for automobile insurance with ANPAC on December 18, 2007. At the time, her parents were the only policy holders and insured two vehicles with ANPAC — a 1997 Ford Expedition and a 1994 Ford F-250 truck. The insurance application allowed them to elect to purchase UIM coverage in various per person and per accident limits. The application provided:
ECF 31-1 (emphasis added). The Jareckes signed the specific coverage selection on the application.
The Jareckes' policy contains a limitation on UIM coverage and prohibits stacking, providing:
ECF 31 at 4.
The vehicle Jarecke was driving at the time of the June 29, 2012 collision with Scheetz, a 1998 Nissan Pathfinder, was added to the Jareckes' policy on April 26, 2011. The UIM premium for the Jarecke policy before the addition of this third vehicle was $77, and the premium remained at $77 after the vehicle was added. The UIM premium for the policy period that began following the addition of this third vehicle to the Jarecke policy remained at $77.
Jarecke settled her claims against Scheetz for the $50,000 limits of Scheetz's policy. ANPAC has paid Jarecke $6,000 under the Medical Payments Coverage provision of the Jareckes' policy. And ANPAC advanced $50,000 in UIM benefits to Jarecke before she filed this action in state court on September 12, 2013. ANPAC removed the case to this Court on November 12, 2013. As noted, Jarecke alleges that ANPAC violated Montana's UTPA and acted with malice. Her Complaint seeks compensatory damages, punitive damages, and a declaration that the applicable UIM limits are $750,000. The UIM declaration request is the only subject of the parties' pending cross motions for partial summary judgment.
ANPAC argues that the UIM limits under its policy with Jarecke are $250,000 rather than stacked limits of $750,000, as Jarecke claims in her Complaint. ANPAC's Br. in Support of its Mtn. for Partial Summary Judgment (ECF 28) at 2. ANPAC argues that the UIM limits do not stack because: (1) the Jarecke family paid a single premium for UIM coverage, id. at 4-7; (2) ANPAC's policy and filings with Montana's Insurance Commissioner comply with MCA § 33-23-203, Montana's socalled "anti-stacking" statute, id. at 3-4, 10-11; and (3) the Jarecke's "insurance application and policy unambiguously and conspicuously placed [them] on notice that UIM policy limits would not stack[,]" id. at 2, 4-7, 11-13.
Jarecke argues that the $250,000 UIM limits under the ANPAC policy should stack, but not in the amount of $750,000 — that is, $250,000 for each of the three vehicles covered under the ANPAC policy, as she claimed in her Complaint. Rather, she now argues that the UIM limits should be $450,000, which amount reflects policy limits of 1.8 times the UIM policy limits of $250,000. Jarecke's Combined Br. in Opposition to ANPAC's Mtn. and in Support of Jarecke's Mtn. for Partial Summary Judgment (ECF 33) at 5-6. Jarecke argues that the UIM limits should stack at 1.8 times the UIM policy limits of $250,000 because: (1) ANPAC charged more than a single premium for UIM coverage by using a "multiplier scheme" that actually resulted in a premium charged for 1.8 vehicles, id. at 4-6, 8-10; (2) ANPAC's single premium per policy, which is actually based on 1.8 vehicles rather than on a single vehicle, provides "illusory coverage" in violation of wellestablished Montana law that voids anti-stacking policy provisions as contrary to public policy, id. at 12-13; and (3) it is irrelevant whether Jarecke accepted an insurance policy with anti-stacking provisions because, under Montana law, "[i]f ANPAC charged more than a single premium, its coverage stacks and any contrary provision is void[,]" id. at 12-13.
In reply, ANPAC argues that:
Finally, Jarecke argues that: (1) "the Insurance Commissioner's acceptance of ANPAC's multiplier enhanced premium is immaterial to the legal issue — or for that matter any factual issue — before the Court. . . [because] [t]he Commissioner does not have the jurisdiction and authority to declare the rights and responsibilities of the parties to an insurance contract[,]" Jarecke's Reply Br. (ECF 42) at 2; (2) "even eight years after it employed the multiplier from 2004 to capture the average of 1.8 vehicles per policy, the increased premium from that multiplier was never backed out of ANPAC's UIM premium scheme and remained in effect in the 2012 policy[,]" id. at 2-3; and (3) ANPAC provided illusory coverage which is prohibited under Montana law, so the UIM limits should stack, id. at 3.
"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). Material facts are those which may affect the outcome of the case. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute as to a material fact is genuine if there is sufficient evidence for a reasonable fact-finder to return a verdict for the nonmoving party. Id.
The party moving for summary judgment bears the initial burden of identifying those portions of the pleadings, discovery, and affidavits that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Where the opposing party will have the burden of proof at trial, the moving party need only point out that there is an absence of evidence to support the nonmoving party's case. Id.
When parties file cross-motions for summary judgment, as here, the Court must consider each motion on its own merits. Fair Housing Council of Riverside County, Inc. v. Riverside Two, 249 F.3d 1132, 1136 (9th Cir. 2001). The fact that both parties have moved for summary judgment does not vitiate the Court's responsibility to determine whether disputed issues of material fact are present. Id.
The parties here agree that the determination of whether ANPAC's UIM limits stack is a question of law for the Court to decide. ECF 28 at 8, 38 at 10.
Montana's "anti-stacking" statute provides the following limitation of liability under a motor vehicle liability policy:
MCA § 33-23-203(1)(c).
Here, there is no dispute that ANPAC filed its premium rates with the commissioner. Also, as noted, the parties do not dispute that ANPAC charged the Jareckes one premium for UIM coverage, regardless of the number of vehicles covered, beginning from the time the Jareckes first applied for automobile insurance with ANPAC on December 18, 2007. The declarations pages for all of the policy periods during which the Jareckes have insured vehicles with ANPAC have been made part of the record. ECF 31-4. The following shows the coverage periods, the single UIM premium charged (for coverage limits of $250,000 per person and $500,000 per accident), and number of vehicles insured, with occasional changes indicated:
ECF 31-4.
From this evidence, it is undisputed that ANPAC charged a single premium for UIM coverage for all vehicles listed in the policy. Also, it is undisputed that the UIM premium that ANPAC charged the Jareckes both before and after the addition of the 1998 Nissan Pathfinder remained the same. And the premiums ANPAC charged for the UIM coverage "actuarially reflect the limiting of coverage separately to the vehicles covered by the policy" so as to fall within MCA § 33-23-203(1)(c)'s restriction on adding limits of coverage together. This conclusion is bolstered by the deposition testimony of Robert Penick, ANPAC's vice president of personal lines pricing and an actuary, who testified respecting ANPAC's calculation of UIM coverage premiums as follows:
ECF 34-1 at 9 (Penick Depo., p. 29, ll. 9-25; p. 30, ll. 1-4).
Jarecke has not presented evidence that rebuts Penick's testimony. Also, Jarecke has presented neither direct evidence nor evidence from which a reasonable inference could be drawn that ANPAC charged anything but a single premium for UIM coverage for all vehicles listed in the policy or that the premiums ANPAC charged for the UIM coverage fail to actuarially reflect the limiting of coverage separately to the vehicles covered by the policy.
Also, because ANPAC charged a single premium for UIM coverage for all vehicles listed in the policy, the cases upon which Jarecke relies in maintaining UIM coverage limits should stack are unpersuasive. In each case, the Montana Supreme Court addressed a situation in which an insurance company charged separate premiums for each insured vehicle. See Dakota Fire Ins. Co. v. Oie, 968 P.2d 1126, 1135 (Mont. 1998); Farmers Alliance Mut. Ins. Co. v. Holeman, 961 P.2d 114, 124-25 (Mont. 1998); Ruckdaschel v. State Farm Mut. Auto. Ins. Co., 948 P.2d 700, 702 (Mont. 1997); and Bennett v. State Farm Mut. Auto. Ins. Co., 862 P.2d 1146, 1149 (Mont. 1993). Thus, these decisions are inapposite to this case.
Here, ANPAC charged only one premium for UIM coverage regardless of the number of vehicles insured. Accordingly, this case is markedly similar to Parish v. Morris, 278 P.3d 1015, 1019-20 (Mont. 2012). In Parish, plaintiffs had two vehicles insured on a policy with their insurance company. Their policy included uninsured motorist ("UM") coverage. Following an accident with an uninsured motorists, plaintiffs sought to stack the UM coverage provided in their policy. The insurer refused, so plaintiffs sued seeking a declaratory judgment. The Montana Supreme Court affirmed the district court's grant of summary judgment in favor of the insurer concluding that the insurer charged only one premium for UM coverage and the unambiguous policy language made it clear that stacking would not be permitted. 278 P.3d at 1018-20. As the foregoing discussion demonstrates, the same is true in this case.
As noted, however, Jarecke's principal argument is that ANPAC has applied since 2004 — and continues to apply — an impermissible "multiplier" to determine the amount of the single premium that it charges so that the premium is actually more than what the consumer would pay for UIM coverage for a single vehicle. Because of this "multiplier," Jarecke argues, ANPAC charges more than a single premium, its coverage stacks, and any contrary policy provisions are void. The Court is not persuaded.
Jarecke has failed to present evidence to support her position. As Penick's deposition testimony demonstrates, ANPAC did not use in 2012 and does not presently use the 1.8 number of vehicles per policy:
ECF 34-1 at 9 (Penick Depo., p. 31, ll. 22-25; p. 32, ll. 1-6).
Also, in an affidavit filed in support of ANPAC's motion for partial summary judgment, Penick explained:
ECF 30 (Affidavit of Robert Penick) at ¶¶ 7, 15, 16, and 17.
Jarecke has presented no evidence to rebut this evidence or to support her "multiplier" scheme argument. Nor has Jarecke presented any pertinent Montana legal authority supporting application of such a fractional "multiplier" under these facts. Thus, the Court must deny her motion for partial summary judgment. And based on the foregoing, the Court will grant ANPAC's motion for partial summary judgment that the UIM limits available to Jarecke for the June 29, 2012, collision are $250,000.
For the reasons discussed above, IT IS ORDERED that ANPAC's motion (ECF 27) is GRANTED and the UIM limits available to Jarecke for the June 29, 2012, collision are $250,000.
Jarecke's motion (ECF 32) is DENIED.
