                                                                            FILED
                           NOT FOR PUBLICATION                               JUN 08 2015

                                                                         MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                        U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


GARY LOWE, individually and on behalf            No. 13-35620
of all individuals of the class similarly
situated,                                        D.C. No. 2:13-cv-00008-DLC

              Plaintiff - Appellant,
                                                 MEMORANDUM*
 v.

TRINITY UNIVERSAL INSURANCE
COMPANY,

              Defendant - Appellee.


                   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.



        *
             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.
      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.




      1
        To “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
      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
      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




      2
      Lowe’s motion to certify questions to the Montana Supreme Court, filed on
October 21, 2013, is denied as moot.

                                          4
