Wamsley v. NODAK MUTUAL INSURANCE COMPANY

delivered the Opinion of the Court.

¶1 On June 23,2003, Appellees Corey Jay Wamsley and Jeffrey Alan Wamsley, in their capacities as co-Personal Representatives of the Estate of Alan and Sharon Wamsley (Estate), filed suit against Appellant Nodak Mutual Insurance Company (Nodak) in the Eighteenth Judicial District. The Estate sought compensation for damages from an August 2002 automobile accident near Bozeman, Montana, in which their parents, Alan and Sharon Wamsley (Wamsleys), were killed. In its suit, the Estate sought to “stack,” or combine the coverage of, three underinsured motorist (UIM) policies *469issued to the Wamsleys by Nodak. Nodak disputed its obligation to stack these three policies.

¶2 After lengthy legal proceedings, on November 9,2005, the District Court rendered a stipulated judgment against Nodak pursuant to M. R. Civ. P. 54. In its order, the District Court held the Estate could stack all three UIM policies, and rendered final judgment against Nodak in the amount of $400,000.00. On appeal, Nodak challenges this order as well as the District Court’s denials of its motion to stay, its motions for summary judgment, its motion to reconsider, and a grant of summary judgment to the Estate on the issue of stacking. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 Although complicated, the facts and chronology in this case are not in dispute. On August 8, 2002, the Wamsleys were traveling eastbound in a Chrysler Voyager minivan on Interstate 90 near Bozeman, Montana. Lester Stanton, a Montana resident, was traveling westbound on the opposite side of Interstate 90 at the same time. Stanton was highly intoxicated and passed out while driving. As a result, he crossed the highway meridian and collided with the Wamsleys’ minivan. The impact from the crash spun the Wamsleys’ vehicle into a motor home which was traveling behind it on Interstate 90. The Wamsleys and Stanton were all killed. The Wamsleys had been residents of North Dakota and insured with Nodak, a North Dakota-based insurance carrier. Stanton was insured by an Idaho-based insurance carrier, Progressive Specialty Insurance. After their death, two of the Wamsleys’ six children, Corey and Jeffrey Wamsley, were appointed co-Personal Representatives of the Wamsleys’ Estate.

¶4 After the accident, the Estate obtained Montana counsel. The Estate received $50,000.00 from Progressive, representing the coverage limits of Stanton’s policy. Because the damages from the accident exceeded this amount, the Estate sought additional payment from Nodak under three UIM policies held by the Wamsleys prior to their death. The policies provided UIM coverage in the amount of $100,000.00 per insured, for each vehicle covered. The Wamsleys owned a total of three vehicles covered under these terms, one of which was the Chrysler Voyager minivan which the Wamsleys were driving on August 8, 2002. The other two vehicles were garaged in North Dakota at the time of the accident. If allowed, the stacking of these policies would permit the Estate to seek a total of $600,000.00 in UIM claims.

¶5 In December 2002 the Estate’s counsel notified Nodak of its intent *470to stack all three UIM policies. At the time of this demand, we were considering, but had not yet decided, Hardy v. Progressive Specialty Ins. Co., 2003 MT 85, 315 Mont. 107, 67 P.3d 892. At issue in Hardy was the constitutionality of § 33-23-203, MCA, a statute passed by the Montana Legislature which prohibited the stacking of UIM policies. The Estate’s Montana counsel notified Nodak of this pending litigation and stated her belief that we would likely find the statute unconstitutional and allow the stacking of UIM claims. As a settlement proposal, the Estate offered to accept $400,000.00 from Nodak in exchange for dropping its UIM claims for the full amount of $600,000.00.

¶6 On April 7, 2003, Nodak paid the Estate $200,000.00 for UIM coverage on the Chrysler minivan involved in the accident. However, Nodak continued to dispute its obligation to stack the two remaining UIM policies. On April 18, 2003, we decided Hardy, overturning § 33-23-203, MCA, and holding that stacking of UIM policies was allowed in Montana as a matter of public policy. Hardy, ¶¶ 38,45. Immediately after Hardy issued, the Estate restated its demand that Nodak provide payment under the remaining two UIM policies, an amount totaling $400,000.00. The Estate set a response deadline of April 28,2004, after which it stated it would file suit against Nodak. Counsel for Nodak requested more time to study the matter, which the Estate graciously granted. On May 20, 2003, Nodak informed the Estate it was still investigating its demand, and requested further time to complete its investigation.

¶7 In truth, Nodak was preparing to seek a declaratory judgment in North Dakota on the Estate’s UIM claims. On June 4, 2003, Nodak initiated an action in District Court in Kidder County, North Dakota. Nodak sought a declaration that the Wamsleys’ UIM policies could not be stacked under North Dakota law. The Wamsleys’ surviving children were named as defendants. A “courtesy” notice of this lawsuit was received by the Estate’s counsel on June 6, 2003.

¶8 Meanwhile, litigation on this matter was also underway in the Eighteenth Judicial District Court in Gallatin County, Montana. On June 23,2003, the Estate filed suit against Nodak and sought to stack the UIM policies, seeking recovery of $400,000.00 in compensatory damages. The Estate also sought punitive damages for violations of the Montana Unfair Trade Practices Act, §§ 33-18-101 through 1006, MCA. On July 23, 2003, Nodak responded in the Montana action by filing a “Limited Appearance to Contest Personal Jurisdiction” pursuant to M. R. Civ. P. 12. On August 13, 2003, the Estate moved for partial *471summary judgment on its stacking claims. On August 14,2003, Nodak filed a motion to stay the Estate’s motion pending the outcome of its declaratory judgment action in North Dakota.

¶9 On October 7, 2003, while Nodak’s motion to stay was under consideration, the North Dakota District Court ruled that North Dakota law would be applied in Nodak’s declaratory judgment action. Nodak brought this ruling to the District Court’s attention in the Montana action. On November 5, the District Court in Montana held oral argument on Nodak’s motion to stay and subsequently denied it.

¶10 Notably, on November 11, Nodak moved for partial summary judgment in the Montana District Court, arguing for the first time the District Court lacked personal jurisdiction over it and that North Dakota law should apply to the Estate’s claims. Nodak also argued the District Court in Montana was required to grant the North Dakota ruling full faith and credit, and that collateral estoppel barred the Estate from litigating its UIM claims in Montana. On November 14, the District Court held oral argument on the Estate’s previous summary judgment motion on the issue of stacking. That same day the District Court ruled it had in personam jurisdiction over Nodak and that the Estate was allowed to stack the UIM policies as a matter of law, in effect refusing to accredit the North Dakota rulings on choice of law.

¶11 Five days later, on November 19,2003, after the Montana District Court had already ruled on the Estate’s stacking claims, the North Dakota District Court granted summary judgment to Nodak holding it was not obligated to stack the UIM policies. The next day, the District Court in Montana denied Nodak’s motion for partial summary judgment, ruling that North Dakota law did not apply to the Estate’s stacking claims in Montana and that the claims were not barred by collateral estoppel. Subsequently, Nodak moved the court to reconsider its denial of Nodak’s motions to stay and partial summary judgment. On January 27, 2004, the District Court denied Nodak’s motion to reconsider.

¶12 On September 13, 2004, the North Dakota Supreme Court, over one dissenting Justice, upheld the North Dakota District Court’s declaratory judgment, finding that North Dakota law applied to the UIM claims and did not allow stacking. Nodak Mut. Ins. Co. v. Wamsley, 687 N.W.2d 226 (N.D. 2004). On September 30, 2004, the District Court in Montana entered an order rendering judgment against the Estate of Lester Stanton in the amount of $700,000.00. On December 2,2004, after obtaining this judgment and serving notice on *472all parties, the Estate moved for partial summary judgment in the amount of $400,000.00 for its UIM claims and sought an entry of final judgment pursuant to M. R. Civ. P. 54(b). In response, Nodak opposed the Estate’s motion and filed another cross-motion for summary judgment, again arguing that the North Dakota Supreme Court’s decision in Nodak should be given full faith and credit. Nodak’s motions were again denied.

¶13 Other issues not relevant to the current appeal continued to be raised and argued before the District Court. On September 2, 2005, both parties entered into mediation in this matter and subsequently entered into a Stipulation Regarding Final Judgment. Pursuant thereto, on November 9, 2005, the District Court entered final judgment against Nodak in the sum of $400,000.00, and certified the judgment as final pursuant to M. R. Civ. P. 54(b). Nodak timely appealed.

ISSUES

¶14 We restate the issues on appeal as follows:

¶15 Issue One: Did the District Court err by concluding it had personal jurisdiction over Nodak in Montana?

¶16 Issue Two: Did the District Court abuse its discretion when it denied Nodak’s motion to stay legal proceedings in Montana pending the outcome of Nodak’s declaratory judgment action in North Dakota?

¶17 Issue Three: Did the District Court err in holding that Montana law applied to the Estate’s stacking claims?

¶18 Issue Four: Did the District Court err in concluding the Estate could stack the UIM policies when the Estate presented no evidence of a reasonable expectation that the policies could be stacked?

¶19 Issue Five: Did the District Court err by refusing to accord preclusive effect to the rulings from the North Dakota courts under the Full Faith and Credit clause to the United States Constitution?

¶20 Issue Six: Does the doctrine of collateral estoppel preclude the Estate from litigating its UIM claims in Montana?

¶21 Issue Seven: Do principles of comity require the Montana courts to defer to the rulings from the North Dakota Supreme Court in this case?

STANDARD OF REVIEW

¶22 “We review a district court’s grant of summary judgment de novo, using the standard established by M.R.Civ.P. 56. The moving party must establish the absence of a genuine issue of material fact and *473entitlement to judgment as a matter of law.” Russell v. Masonic Home of Mont. Inc., 2006 MT 286, ¶ 9, 334 Mont. 351, ¶ 9, 147 P.3d 216, ¶ 9. Once this burden has been satisfied, the non-moving party may raise a genuine issue of material fact by presenting substantial evidence essential to one or more elements in the case. Russell, ¶ 9. We review a district court’s conclusions of law to determine whether or not they are correct. Russell, ¶ 9.

¶23 We review district court orders related to trial administration matters, such as a motion to stay, under the abuse of discretion standard. Eatinger v. Johnson, 269 Mont. 99, 105-06, 887 P.2d 231, 235 (1994). “The test for abuse of discretion is whether the trial court acted arbitrarily or exceeded the bounds of reason resulting in substantial injustice.” State v. English, 2006 MT 177, ¶ 50, 333 Mont. 23, ¶ 50, 140 P.3d 454, ¶ 50 (quotation omitted).

DISCUSSION

¶24 Issue One: Did the District Court err by concluding it had personal jurisdiction over Nodak in Montana?

¶25 The District Court concluded Nodak waived the defense of lack of personal jurisdiction, and submitted to the jurisdiction of the District Court, by its voluntary appearance at the hearing on November 5, 2003, and by failing to properly argue the merits of this defense as required by M. R. Civ. P. 12 and M. Unif. Dist. Ct. R. 2(a). Nodak maintains this was error. First, Nodak argues it is not “found” in Montana pursuant to M. R. Civ. P 4B(1), Montana’s “long arm” jurisdiction statute, and that subjecting it to personal jurisdiction in Montana offends due process. Second, Nodak asserts its “limited appearance” on July 23,2003, preserved the defense of lack of personal jurisdiction, permitting Nodak to argue it at a later unspecified date. Thus, its participation in the November 5 hearing did not waive the defense. The Estate counters that the “limited appearance” is no longer available in Montana, and that such an appearance is simply treated as a motion to dismiss under M. R. Civ. P. 12. Accordingly, the District Court was correct to deem the motion to be without merit since Nodak failed to argue or brief it within five days pursuant to M. Unif. Dist. Ct. R. 2(a).

¶26 We agree with the Estate that Nodak waived its right to argue the defense of lack of personal jurisdiction. The District Court correctly noted that M. R. Civ. P. 12 has effectively abolished the distinction between “general” and “special” appearances. Semenza v. Kniss, 2005 MT 268, ¶ 17, 329 Mont. 115, ¶ 17, 122 P.3d 1203, ¶ 17 (quoting *474Knoepke v. S.W. Ry. Co., 190 Mont. 238, 243, 620 P.2d 1185, 1187 (1980)). A “limited appearance” in Montana is effectively treated as a Rule 12 motion to dismiss for lack of personal jurisdiction. See Foster Apiaries, Inc. v. Hubbard Apiaries, Inc., 193 Mont. 156, 160, 630 P.2d 1213, 1215 (1981). Under M. Unif. Dist. Ct. R. 2(a), a party raising this defense has five days to file a supporting brief or argue its motion. Failure to do so subjects that party to the risk its motion will be deemed without merit. M. Unif. Dist. Ct. R. 2(b). That is precisely what happened here. Nodak’s “limited appearance” was in effect a Rule 12 motion. Nodak did not argue the merits of lack of personal jurisdiction, or even raise the specific issue, until roughly three and a half months after it filed its initial appearance, and in the interim presented other arguments to the District Court. Under these circumstances, the District Court did not err in finding the Rule 12 motion without merit.

¶27 The District Court also correctly determined Nodak’s participation in the court proceedings constituted a voluntary appearance under M. R. Civ. P. 4B(2), thus waiving the defense of lack of personal jurisdiction and admitting the jurisdiction of the District Court. M. R. Civ. P. 4B(2) provides that “[¡jurisdiction may be acquired by our courts over any person ... by the voluntary appearance in an action by any person either personally, or through an attorney, or through any other authorized officer, agent or employee.” As we stated in Spencer v. Ukra, 246 Mont. 430, 804 P.2d 380 (1991), “any act which recognizes the case as in court constitutes a general appearance, and even in the face of a declared contrary intention, a general appearance may arise by implication from the defendant seeking, taking, or agreeing to some step or proceeding in the cause beneficial to himself and detrimental to the plaintiff, other than one contesting only the jurisdiction of the court.” Spencer, 246 Mont. at 433, 804 P.2d at 382 (quotation omitted, emphasis added). Nodak could have argued personal jurisdiction without subjecting itself to the power of the District Court, but chose not to. Semenza, ¶ 17 (quotation omitted) (stating that a party may argue lack of personal jurisdiction without concern that such argument will “subject [it] to the general power of the court solely because of the response.”). Instead Nodak sought affirmative relief from the District Court in its motion to stay on the basis of principles of comity. By filing motions seeking relief from the District Court “on other, non-jurisdictional grounds ... [Nodak] admitted the authority and jurisdiction of the court over the company and the case.” Foster Apiaries, 630 P.2d at 1215, 193 Mont. at 160.

¶28 Because we find the District Court did not err in concluding it had *475personal jurisdiction over Nodak under the foregoing rationales, we do not reach the other challenges Nodak raises to the District Court’s rulings on this issue.

¶29 Issue Two: Did the District Court abuse its discretion when it denied Nodak’s motion to stay legal proceedings in Montana pending the outcome of Nodak’s declaratory judgment action in North Dakota?

¶30 Nodak argues the District Court’s denial of its motion to stay constituted an abuse of discretion. Nodak asserts the District Court should have stayed the proceedings in Montana until the North Dakota declaratory judgment was decided. Nodak maintains that notions of comity required this result because the litigation was “first-filed” in North Dakota. We disagree.

¶31 In Simmons v. State, 206 Mont. 264, 670 P.2d 1372 (1983), we defined “comity’ as

not a rule of law, but one of practice, convenience, and expediency. It does not of its own force compel a particular course of action. Rather, it is an expression of one state’s entirely voluntary decision to defer to the policy of another. Such a decision may be perceived as promoting uniformity of decision, as encouraging harmony among participants in a system of co-operative federalism, or as merely an expression of hope for reciprocal advantages in some future case in which the interests of the forum are more critical.

Simmons, 206 Mont. at 289, 670 P.2d at 1385 (citations and quotations omitted).

¶32 The Ninth Circuit has described the “first to file” rule on which Nodak relies as

a generally recognized doctrine of ... comity which permits a district court to decline jurisdiction over an action when a complaint involving the same parties and issues has already been filed in another district.... [T]his “first to file” rule is not a rigid or inflexible rule to be mechanically applied, but rather is to be applied with a view to the dictates of sound judicial administration.

Pacesetter Systems, Inc. v. Medtronic, Inc., 678 F.2d 93, 94-95 (9th Cir. 1982) (citations omitted).

When reviewing a decision involving the “first to file” rule on appeal “an ample degree of discretion, appropriate for disciplined and experienced judges, must be left to the lower courts.” Pacesetter Systems, Inc., 678 F.2d at 95 (quotation omitted).

¶33 Here, the District Court adhered to the dictates of sound judicial *476administration and did not abuse its discretion when it denied Nodak’s motion to stay. Clearly, Montana and North Dakota both have interests in resolving the UIM stacking claims at issue. The North Dakota Supreme Court has stated North Dakota’s interest in governing the relationship between a North Dakota insured and North Dakota insurer. Nodak, 687 N.W.2d at 234. Montana has a number of important interests as well. First, Montana has a well-established practice of applying Montana law to automobile accidents occurring within its borders. E.g., Kemp v. Allstate Ins. Co., 183 Mont. 526, 533, 601 P.2d 20, 24 (1979); Mitchell v. State Farm Ins. Co., 2003 MT 102, ¶¶ 20-21, 315 Mont. 281, ¶¶ 20-21, 68 P.3d 703, ¶¶ 20-21. Also, in Montana an injured party may bring a suit against the tortfeasor and the insurance company in one action when UIM coverages are sought. See e.g., State of Mont. ex. rel. Gadbaw v. Mont. Eighth Jud. Dist. Ct., 2003 MT 127, ¶¶19-25, 316 Mont. 25, ¶¶ 19-25, 75 P.3d 1238, ¶¶ 19-25. Because the accident occurred in Montana and the tortfeasor was a Montana resident, the claim arose here and Montana is the proper forum within which to “settle the rights, status, and other legal relations in that underlying action.” Nodak, 687 N.W.2d at 235 (Maring, J., dissenting). Choice of law and the issue of stacking are critical in making these final determinations and are well within the judicial competency of the District Court in Gallatin County. By denying Nodak’s motion to stay, the District Court was simply trying to prevent needless “piecemeal litigation” with respect to these claims. Nodak, 687 N.W.2d at 235 (Maring, J., dissenting) (stating that “by deciding the declaratory judgment action [in North Dakota], we encourage piecemeal litigation.”). Additionally, Nodak fails to provide any evidence that substantial injustice resulted from the District Court’s denial of the motion. Instead, the District Court’s decisions were an example of sound judicial administration. Its actions were not arbitrary and did not “exceed[] the bounds of reason resulting in substantial injustice.” English, ¶ 50.

¶34 Moreover, as the Estate points out, there is an exception to the “first to file” rule where a party’s “first filing” is simply an act of forum-shopping. Alltrade, Inc. v. Uniweld Prod. Inc., 946 F.2d 622, 628 (9th Cir. 1991). Nodak’s rush to the North Dakota courts in this case is a paradigmatic example of such conduct. Nodak apparently believed it would get a more favorable result in the North Dakota courts on the UIM stacking issue, and therefore sought to lull a delay in the commencement of the Montana case in order to secure an advantage there. See ¶¶ 6-7. Under such circumstances, Nodak’s invocation of *477“comity” rings hollow. Accordingly, we conclude the District Court did not abuse its discretion by denying Nodak’s motion to stay the Montana proceedings.

¶35 Issue Three: Did the District Court err in holding that Montana law applied to the Estate’s stacking claims?

¶36 Nodak maintains the District Court erred when it concluded Montana law applied to the Estate’s UIM stacking claims. Nodak asserts that an application of the choice of law analysis from the Restatement (Second) of Conflict of Laws §§ 188, 193 (1971) leads to the conclusion that North Dakota law should apply to the Estate’s stacking claims. In essence, Nodak argues the UIM claims concern a North Dakota insurance transaction to which only North Dakota law should apply and that Montana’s relationship is limited solely to the fact that the accident occurred here. The relevant sections of the Restatement provide as follows:

§ 188. Law Governing in Absence of Effective Choice of Law by the Parties

(1) The rights and the duties of the parties with respect to an issue in contract are determined by the local law of the state which, with respect to that issue, has the most significant relationship to the transaction and the parties under the principles stated in § 6.

(2) In the absence of an effective choice of law by the parties (see § 187), the contacts to be taken into account in applying the principles of § 6 to determine the law applicable to an issue include:

(a) the place of contracting,

(b) the place of negotiation of the contract,

(c) the place of performance,

(d) the location of the subject matter of the contract, and

(e) the domicil, residence, nationality, place of incorporation and place of business of the parties.

These contacts are to be evaluated according to their relative importance with respect to the particular issue.

§ 193. Contracts of Fire, Surety or Casualty Insurance The validity of a contract of fire, surety or casualty insurance and the rights created thereby are determined by the local law of the state which the parties understood was to be the principal location of the insured risk during the term of the policy, unless with respect to the particular issue, some other state has a more significant relationship under the principles stated in § 6 to the *478transaction and the parties, in which event the local law of the other state will be applied.

§ 6. Choice-of-Law Principles

(1) A court, subject to constitutional restrictions, will follow a statutory directive of its own state on choice of law.

(2) Where there is no such directive, the factors relevant to the choice of law include .... [Not applicable.]

¶37 The Estate contends the District Court was correct to apply Montana law to the Estate’s claims. Particularly, the Estate points to Youngblood v. Am. States Ins. Co., 262 Mont. 391, 866 P.2d 203 (1993) and Kemp for the proposition that Montana has long applied Montana law to automobile accidents occurring within its borders. The Estate also claims the conflicts analysis we applied under the Restatement in Mitchell points to the conclusion that Montana law controls. Nodak argues Mitchell is distinguishable on its facts and does not apply to the instant case.

¶38 In Mitchell, we analyzed a claim similar to the one before us now. In that case, Plaintiff Mitchell was injured in an automobile accident in Montana. At the time he was living and working in Montana, but was insured under his parents’ policies issued in California. To cover damages from the accident, Mitchell tried to stack his parents’ UIM policies, although they covered vehicles garaged in California at the time of the accident. Mitchell sought to apply Montana law to his stacking claims. The District Court ruled against him, holding that California law applied. At issue on appeal before this Court was whether California or Montana law would govern the determination of Mitchell’s stacking claims.

¶39 In Mitchell we outlined the analysis to be applied when resolving conflicts of laws questions under the Restatement. We began by noting that under our prior decisions in Phillips v. Gen. Motors Corp., 2000 MT 55, 298 Mont. 438, 995 P.2d 1002, and Casarotto v. Lombardi, 268 Mont. 369, 886 P.2d 931 (1994), we would apply the Restatement (Second) Conflict of Laws to Mitchell’s claims. Mitchell, ¶ 16. We stated that we would approach the Restatement “criteria in a careful, step-by-step fashion, to avoid misapplication of the law.” Mitchell, ¶ 17.

¶40 Accordingly, before conducting an analysis under §§ 188(2) and 193, our first task was to determine “whether Montana law addressed the choice of law concerning Mitchell’s ... policy pursuant to § 6(1).” Mitchell, ¶ 18. We noted that § 6(1) of the Restatement “requires a court to first look to relevant state law when determining applicable law.” Mitchell, ¶ 21. We also noted § 28-3-102, MCA, provides that “ ‘[a] *479contract is to be interpreted according to the law in [sic]1 usage where it is to be performed or, if it does not indicate a place of performance, according to the law and usage of the place where it is made.’ ” Mitchell, ¶ 19 (quoting § 28-3-102, MCA). From this we concluded that “unless the terms of the insurance contract provide otherwise... where an insurance contract designates the place of performance to be any state where a claim arises, performance occurs where the insured obtains judgment.” Mitchell, ¶ 20 (citation omitted). Linking these analyses together we held “[i]t logically follows, that the place of performance is also the place where an insured is entitled to receive benefits, has incurred accident related expenses, or is entitled to judgment.” Mitchell, ¶ 20. On this premise we concluded Montana was the place of performance of the contract because

Mitchell was working and living in Montana at the time of the accident; the underinsured tortfeasor’s vehicle was insured in Montana; Mitchell’s medical expenses were incurred in Montana; Mitchell settled with the [tortfeasors’] insurers for the policy limit giving rise to the underinsured motorist claim in Montana; and judgment concerning the accident will be rendered and paid in Montana.

Mitchell, ¶ 22.

¶41 While the facts in this case differ slightly from those in Mitchell, the choice of laws analysis is comparable. As Nodak notes, the Wamsleys were residents of North Dakota and had none of the Montana contacts that the Plaintiff had in Mitchell. Nodak also provides a thorough factor-based analysis under § 188(2) and § 193 of the Restatement, and shows why that analysis favors the application of North Dakota law. Yet Nodak fails to apply the careful “step-by-step” approach we applied in Mitchell and skips over the analysis under § 6(1) of the Restatement which is required before proceeding to the general factor-based analysis in § 188(2). As a result, Nodak overlooks the operation of § 28-3-102, MCA, and our holding in Mitchell to the effect that one must first determine the place of performance of the insurance contract.

¶42 Absent language to the contrary, the place of performance of an insurance contract is “where an insured is entitled to receive benefits, has incurred accident related expenses, or is entitled to judgment.” *480Mitchell, ¶ 20. The factor-based analysis described in the Restatement comes into play only after it has been determined that the contract does not designate a place of performance. If Montana is determined to be the place of performance, then no further analysis under the Restatement factors is required.

¶43 Here, Montana is the place of performance of Nodak’s insurance contracts. The UIM policies in this case contain nearly identical boilerplate language to the policies at issue in Mitchell. Both policies specify the area of coverage to include “the United States of America, its territories and possessions; Puerto Rico; or Canada.” Nodak’s attempt to distinguish the policies here from those in Mitchell is unavailing. Nodak correctly points out that the endorsement section of the policies entitled “Underinsured Motorist Coverage-North Dakota” does not specify a territory of coverage for UIM claims. But neither does it state a limitation of such coverage. Further, the provision of the policy itself entitled “Part C-Underinsured Motorist Coverage” clearly adopts as its territory of coverage the area specified in “Part F-General Provisions.” This latter provision specifies a territory of coverage for the entire policy, including the UIM provisions, and does not indicate a more limited territory of coverage for UIM claims. Absent any limitations of coverage in the endorsement to the UIM policy, nothing in the policies indicates the UIM territory of coverage to be other than “the United States of America, its territories and possessions; Puerto Rico; or Canada.”

¶44 Montana is where the accident occurred and the damages arose. It is the site of the personal injury action filed by the Estate, and the forum in which an order of judgment against Stanton, the Montana tortfeasor, has been rendered. See ¶ 12. Moreover, Nodak has already paid the Estate $200,000.00 in UIM claims submitted by the Estate’s counsel in Montana. Therefore, we conclude the District Court did not err in holding that Montana law should apply to the stacking and coverage issues before us.

¶45 Issue Four: Did the District Court err in concluding the Estate could stack the UIM policies when the Estate presented no evidence of a reasonable expectation that the policies could be stacked?

¶46 Nodak argues our decision in Hardy does not apply to the UIM claims here because under Hardy the Estate is required, but failed to, prove the Wamsleys had a reasonable expectation they would be able to seek UIM coverage under all three policies although they paid a separate premium for each. Nodak further maintains that for Hardy to apply the Estate must show the Wamsleys were charged premiums *481for stacked UIM coverages, and that they paid a premium for coverage they did not receive.

¶47 The Estate argues that Nodak raises this issue for the first time. We agree. A review of the record shows Nodak had ample opportunity to present this theory to the District Court but failed to do so. Thus, out of fairness to the District Court we will not consider it on appeal for the first time. Timis v. Young, 2001 MT 63, ¶ 8, 305 Mont. 18, ¶ 8,