In accordance with M. R. App. P. 15, the U.S. District Court for the District of Montana has certified to this Court the following question of law, which has arisen in that court's Cause No. CV-11-69-GF-SEH:
Does Montana law prohibit an insurer from exercising its rights of subrogation to seek payment from the separate property damage coverage of the liable third-party's automobile insurance for the discrete amounts paid by the insurer for property damage where:
(a) the insured has suffered both bodily injury and property damage in an accident;
(b) the insurer's property damage payments were made under separate, optional collision coverage for physical damage to the insured's vehicle;
(c) the amounts sought from the liable third-party's automobile insurance are covered by separate property damage liability coverage that is not exhausted by the amounts sought by subrogation;
(d) the insured has been fully compensated by payment from his insurer for the property damage loss--including all costs associated with the property damage loss--and made whole as to the property damage loss that he insured as a result of the accident; and
(e) the insured contends he has not been made whole from the separate, personal injury liability coverage of the liable third-party's automobile insurance and the underinsured motorist coverage of his own automobile insurance policy?
This Court accepts the certified question on the relevant facts set forth in the Federal District Court's certification of the question. In accordance with M. R. App. P. 15(4), we reserve any determination whether to reformulate the question pending full consideration of the issue. We will answer the question in due course following briefing.
IT IS ORDERED that the parties shall, in accordance with the Montana Rules of Appellate Procedure, prepare, file, and serve briefs addressing the certified question set forth above, with the opening brief of the Plaintiff to be filed first within 30 days after the date of this Order. Thereafter, additional briefing shall proceed in accordance with the Montana Rules of Appellate Procedure.
The Clerk is directed to provide copies of this Order to all counsel of record for the parties in U.S. District Court Cause No. CV-11-69-GF-SEH, District of Montana, and to the Clerk of Court for ...