## Facts

- Becky J. Hern was killed in June 1992 while riding as a passenger on a motorcycle driven by her uninsured fiancé.
- Becky lived with her parents, Ardell and Robert Hern, at the time of her death.
- Becky had a separate auto policy providing $300,000 in uninsured-motorist (UM) coverage.
- Ardell and Robert had a Safeco multi-vehicle auto policy insuring four vehicles with UM limits stated as $500,000 per vehicle.
- Safeco took the position that the Safeco policy provided a total UM maximum of $500,000 rather than $500,000 per covered vehicle.
- In March 1993, the Herns entered a structured settlement with Safeco and the other insurer valued at about $355,398.
- After later Montana decisions disapproved certain anti-stacking limitations, the Herns sued Safeco seeking stacked UM limits ($500,000 × 4 = $2,000,000) and asserting improper handling of the claim and settlement.
- The district court granted summary judgment to the Herns on stacking, struck Safeco defenses (including statute of limitations, accord and satisfaction, and payment and release), and denied Safeco’s summary-judgment motion.
- A jury awarded about $3.8 million in survival and wrongful-death damages; the district court limited recovery to the $2,000,000 policy limits plus interest and denied a new trial.

## Issues

1. Whether the district court erred in granting summary judgment to the Herns on stacked UM coverage, denying Safeco’s motion, and striking Safeco’s affirmative defenses.
2. Whether the district court abused its discretion by instructing the jury to award the estate survival damages for household services and “loss of ability to pursue an established course of life.”
3. Whether the district court abused its discretion by instructing the jury on parental loss-of-consortium damages.
4. Whether the district court abused its discretion by using a special verdict form permitting apportionment among damage categories.
5. Whether the district court erred by permitting recovery above $2,000,000 through the addition of interest.

## Decision

- The Montana Supreme Court affirmed in part and reversed in part, remanding for further proceedings consistent with its opinion.
- The court affirmed summary judgment that the Safeco UM limits were stackable across four covered vehicles, making $2,000,000 available.
- The court affirmed striking Safeco’s asserted defenses of statute of limitations, accord and satisfaction, and payment and release under the case-specific circumstances.
- The court affirmed the loss-of-consortium instruction and the use of a special verdict form.
- The court reversed in part on survival damages, concluding the challenged instructions improperly expanded or overlapped survival damages with wrongful-death categories.
- The court modified the approach to interest to prevent interest from operating as an improper enlargement of the UM coverage obligation beyond the $2,000,000 limits.

## Legal Principles

- UM limits in a multi-vehicle policy may be stacked when the policy’s structure and controlling Montana law do not permit an insurer to impose an unlawful single-cap limitation inconsistent with stated per-vehicle limits.
- Trial courts may strike affirmative defenses where their assertion is legally unavailable under governing Montana rules and the facts of the insurer-insured relationship and settlement posture support preclusion.
- Survival damages are limited to losses the decedent could have recovered had she lived; wrongful-death damages compensate survivors for their own losses, and courts must prevent duplicative awards between these remedies.
- Loss-of-consortium damages for parents may be submitted to the jury in a wrongful-death case if the instructions correctly state Montana law and avoid overlap with other damage categories.
- Special verdict forms are within the trial court’s discretion and may be used to separate and clarify distinct categories of damages in complex cases.
- Interest may be recoverable in addition to policy limits in appropriate circumstances, but it cannot be applied in a way that effectively substitutes for additional UM coverage beyond the legally available policy limits.

## Conclusion

The court upheld stacking of Safeco’s UM limits to $2,000,000 and approved the trial court’s use of consortium instructions and a special verdict form, but it required correction of survival-damages instructions to prevent overlap with wrongful-death damages and limited the addition of interest so it did not function as an expansion of the UM coverage limits.


Hern v. Safeco Ins. Co. of Ill., 125 P.3d 597 (Mont. 2005)