Ruth R. Morris; v. the Estate of Storrs M. Bishop, Iii

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RUTH R. MORRIS; et al.,
Plaintiffs-Appellants,
v.
THE ESTATE OF STORRS M. BISHOP,
III,
Defendant,
and
PROGRESSIVE NORTHWESTERN
INSURANCE COMPANY,
Defendant-Appellee.
No. 16-35973
D.C. No. 2:16-cv-00006-SEH
MEMORANDUM
and ORDER*
Appeal from the United States District Court
for the District of Montana
Sam E. Haddon, District Judge, Presiding
Submitted July 31, 2019**
San Francisco, California
FILED
AUG 22 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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Before: HAWKINS, TASHIMA, and GRABER, Circuit Judges.
Appellants seek a declaration that they are entitled to recover based on the
combined, or “stacked,” liability coverage limits for all three motor vehicles Appellee
insured under Storrs M. Bishop III’s insurance policy (the “Policy”). Appellee filed
a counterclaim for declaratory relief, and both parties moved for summary judgment.
Appellants now appeal the adverse grant of summary judgment in Appellee’s favor.
We have jurisdiction under 28 U.S.C. § 1291 and affirm.
1. Under Montana law, the starting point for an analysis regarding stacking
of motor vehicle liability coverage is Montana Code Annotated section 33-23-203,
which “defers to the provisions of the subject policy.” Cross v. Warren, 435 P.3d
1202, 1207 (Mont. 2019). Here, the Policy’s anti-stacking provisions are identical to
those the Montana Supreme Court recently found to “specifically and unambiguously”
foreclose stacking in Cross. See id. 1207–08. Because “public policy considerations
do not require judicial voiding” of anti-stacking provisions as applied to liability
2

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coverage, those provisions must be enforced. Id. at 1209. Thus, Appellants are not
entitled to stacked liability coverage.1
2. Appellant’s motion for judicial notice [Dkt. #22] is granted.
AFFIRMED.
1Appellants’ acquisition of an assignment of rights under the Policy is irrelevant
because the assignment does not make the liability coverage they seek “personal and
portable,” and thus does not require judicial voiding of the otherwise unambiguous
anti-stacking provisions. See id. at 1209 (holding that “liability coverage is tied to a
particular vehicle’s use and is not personal and portable); see also id. at 1212 n.1
(McKinnon, J., concurring) (recognizing that liability coverage “does not become
personal or portable through an assignment”).
3

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