                                No. 87-278
               IN THE SUPREME COURT OF THE STATE OF MONTANA
                                   1988


EUGENE T. OLMSTEAD, Personal
Representative of the Estate
of Ione Olmstead, Deceased,
              Plaintiff and Appellant,
       -vs-
STEVEN E. HUBERT,
              Defendant and Third-Party
              Defendant,
       and
MILBANK MUTUAL INSURANCE COMPANY,
              Intervenor, Third-Party Plaintiff
              and Respondent,
       -VS-

UNITED PACIFIC INSURANCE COMPANY,
              Third-Party Defendant and Appellant.


APPEAL FROM:    District Court of the Eleventh Judicial District,
                In and for the County of Flathead,
                The Honorable Michael Keedy, Judge presiding.
COUNSEL OF RECORD:
       For Appellant:
                Murphy, Robinson, Heckathorn & Phillips; I. James
                Heckathorn, Kalispell, Montana
                Murray, Kaufman, Vidal & Gordon; James E. Vidal,
                Kalispell, Montana
       For Respondent:
                Warden, Christiansen, Johnson & Berg; Gary R. Christ-
                iansen, Kalispell, Montana
                M. Dean Jellison, ~alispell, Montana


                                   Submitted on Briefs: Nov. 13, 1987
                                     Decided:   February 18, 1988
Mr. Justice R. C. McDonough delivered the Opinion of the
Court.

     The plaintiff was involved in a four vehicle accident.
Two vehicles were insured, one was uninsured.        Olmstead
settled with the insured drivers and brought an action
against the third, Steven E. Hubert, to establish liability
in order to recover on his uninsured motorist coverage. The
District Court, Eleventh Judicial District, Flathead County,
Montana, entered summary judgment against Olmstead holding
that Hubert was not an uninsured motorist. We affirm.
     The four vehicles involved in this accident were insured
as follows:

     Hansen, Vehicle No. 1, United Pacific
     Hubert, Vehicle No. 2, no insurance
     Olmstead, Vehicle No. 3, Milbank
     Schwartz, Vehicle No. 4, United Pacific
Hansen's vehicle went off icy U.S. Highway 93 at night.
Hubert stopped to help and attached a chain between the two
vehicles.   Olmsteads' vehicle was proceeding south when it
struck the Hubert vehicle.    The Schwartz vehicle was also
proceeding south when it struck the Olmstead vehicle, which
again struck the Hubert vehicle.     Eugene Olmstead and his
wife, Ione, were both injured. Olmstead settled with United
Pacific, relative to Hansen and Schwarts, and reserved claims
against Hubert.   Olmstead made a claim under his uninsured
motorist coverage.    Milbank refused to provide coverage,
asserting that Hansen was "using" the Hubert vehicle because
of the towing and the Hansen vehicle was insured so Hubert
was not an uninsured motorist.    The District Court agreed.
The issues on appeal are: 1) whether the vehicle operated by
Steven E. Hubert was an uninsured vehicle on the date in
question; and 2) does Hansen's insurer owe Hubert a duty to
defend?
     Olmstead contends that Hubert was uninsured because he
had no insurance for the operation of his own vehicle or his
use of Hansen's vehicle. Olmstead argues that the mere fact
that Hansen purchased insurance to cover himself in the use
of any automobile does not insulate Hubert as the owner and
operator of an uninsured motor vehicle, from his own
negligence and liability.
     Section 33-23-201, MCA, governs uninsured motorist
coverage :

     (1) No motor vehicle liability policy insuring
    against loss resulting from liability imposed by
    law for bodily injury or death suffered by any
    person arising out of the ownership, maintenance,
    or use of a motor vehicle may be delivered or
    issued for delivery in this state, with respect to
    any motor vehicle registered and principally
    garaged in this state, unless coverage is provided
    therein or supplemental thereto, in limits for
    bodily injury or death set forth in 61-6-103, under
    provisions   filed with    and   approved by    the
    commissioner, for the protection of persons insured
    thereunder who are legally entitled to recover
    damages from owners or operators of uninsured motor
    vehicles because of bodily injury, sickness, or
    disease, including death, resulting therefrom,
    caused by an accident arising out of the operation
    or use of such vehicle. An uninsured motor vehicle
    is a land motor vehicle, neither the ownership, nor
    the maintenance, nor the use of which is insured or
    bonded for bodily injury liability at the time of
    the accident.
Here we have an uninsured motor vehicle towing an insured
motor vehicle. The towing of one vehicle by another falls
under the definition of use.     "When the accident at issue
occurred, ABT Towing and Jarvis were towing the insured auto,
and were therefore 'using' the auto in such a fashion as to
invoke   coverage.   Under   similar   circumstances,   a   clear
    majority of jurisdictions find that a 'use' is occurring and
    that liability coverage applies."   Westfield Ins. v. Aetna
    Life   Casualty Co. (Ariz. 1 9 8 7 ) , 739 P.2d 218, 220.
           &

         The Hansen vehicle was using the Hubert vehicle.
    Section 33-23-201, MCA, provides that an uninsured motor
    vehicle is one the use of which is not insured at the time of
    the accident. Hansen's use of Hubert's vehicle was covered
    by his insurance issued by United Pacific.             The policy
    provided "We will pay damages for which any insured person is
    legally liable          .      .
                               arising out of the ownership,
    maintenance or use of a private passenger car.    . ..    Insured
    person as used in this part means: 2. Any person using your
    insured car. "    Hubert does not qualify as an uninsured
    motorist because the use of his vehicle was insured by
    Hansen's policy.
         Hansen's policy with United Pacific provides coverage
    for "any person using your insured car". The policy provides
    "We will pay damages for which any insured person is legally
    liable.      .    .
               . We will defend any claim or suit asking for
    these damages.        . . ."
                            Hubert was using Hansen's automobile,
    so in accordance with the policy language United Pacific owes
    a duty to defend. Affirmed.




    We Concur:             /


.    //        Chief Justice       /   Y
Justices
