Gary Lowe, individually and on behalf of all individuals of the class similarly situated v. Trinity Universal Insurance Company

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GARY LOWE, individually and on behalf
of all individuals of the class similarly
situated,
Plaintiff - Appellant,
v.
TRINITY UNIVERSAL INSURANCE
COMPANY,
Defendant - Appellee.
No. 13-35620
D.C. No. 2:13-cv-00008-DLC
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, Chief District Judge, Presiding
Submitted June 4, 2015**
Seattle, Washington
Before: O’SCANNLAIN, EBEL***, and McKEOWN, Circuit Judges.
FILED
JUN 08 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable David M. Ebel, Circuit Judge for the U.S. Court of
Appeals for the Tenth Circuit, sitting by designation.

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Gary Lowe appeals from the district court’s grant of Trinity Universal
Insurance Company’s (“Trinity”) motion to dismiss for failure to state a claim.
I
Montana law permits insurers to prohibit the stacking of insurance coverage
limits1—regardless of the number of vehicles covered—if the premium rates (i)
have been filed with the insurance commissioner and (ii) “actuarially reflect the
limiting of coverage separately to the vehicles covered by the policy.” Mont. Code
Ann. § 33–23–203(1)(c).
In Parish v. Morris, 278 P.3d 1015 (Mont. 2012), the Montana Supreme
Court upheld an anti-stacking provision nearly identical to the one in Trinity’s
policy at issue here. Id. at 1016–17, 1020. Specifically, the Court found that the
anti-stacking provision complied with the actuarial requirement of
§ 33–23–203(1)(c) because the insureds paid only one premium for underinsured
motorist coverage, regardless of the number of vehicles covered by the policy. Id.
at 1019.
1To “stack” means to add the coverage limit of one vehicle to the coverage
limit of another vehicle. For instance, if the policy’s stated coverage limit is
$5,000 and the insured has two cars covered by the policy, stacking would permit
the insured to recover up to $10,000. See Parish v. Morris, 278 P.3d 1015, 1017
n.1 (Mont. 2012).
2

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Here, Trinity’s policy included an anti-stacking provision and charged Lowe
one premium for medical coverage, regardless of the number of vehicles covered
by the policy. Thus, under Parish, the anti-stacking provision in Trinity’s policy
met the actuarial requirement of § 33–23–203(1)(c). As it is undisputed that
Trinity filed its rates with the commissioner, the policy’s anti-stacking provision is
valid under the statute. Thus, the district court did not err in granting Trinity’s
motion to dismiss. See Shroyer v. New Cingular Wireless Servs., 622 F.3d 1035,
1041 (9th Cir. 2010) (noting that “to survive a motion to dismiss, a complaint must
contain sufficient factual matter to state a facially plausible claim to relief” (citing
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009))).
II
Lowe filed a motion to certify two questions to the Montana Supreme Court.
First, Lowe requests certification as to the validity of the anti-stacking
provision. Because Mont. Code Ann. § 33–23–203(1)(c) and Parish establish that
an anti-stacking provision is valid under Montana law when the rates have been
filed with the insurance commissioner and the insurer charges only one premium
regardless of the number of vehicles covered by the policy, certification would be
inappropriate. Mont. R. App. P. 15(3)(b).
3

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Second, Lowe requests certification as to whether the filed rate doctrine
applies. Because the district court expressly declined to apply the filed rate
doctrine when evaluating the validity of the anti-stacking provision, certification to
the Montana Supreme Court would similarly be inappropriate. Mont. R. App. P.
15(3)(a).
III
The district court’s judgment granting Trinity’s motion to dismiss is
AFFIRMED.2
2Lowe’s motion to certify questions to the Montana Supreme Court, filed on
October 21, 2013, is denied as moot.
4

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