author: Justice Beth Baker delivered the Opinion of the Court. Justice Laurie McKinnon, concurring.

text:
    U.S. SPECIALTY INSURANCE COMPANY, Plaintiff and Counter-Defendant, v. The ESTATE OF Darrell L. WARD and the Estate of Mark Melotz, Defendants.
    The Estate of Darrell L. Ward, Counter-Claimant, v. U.S. Specialty Insurance Company, Counter-Defendant.
    OP 18-0373
    Supreme Court of Montana.
    Submitted on Briefs: December 19, 2018 Decided: March 26, 2019
    For Plaintiff and Counter-Defendant: Randall G. Nelson, Nelson Law Firm, P.C., Billings, Montana
    For Defendant and Counter-Claimant Estate of Darrell L. Ward: Cory R. Laird, Robert T. Bell, Reep, Bell, Laird & Jasper, P.C., Missoula, Montana
    For Defendant Estate of Mark Melotz: Timothy E. Dailey, Milodragovich, Dale & Steinbrenner, P.C., Missoula, Montana
    For Amicus Curiae Aviation Insurance Association: James E. Ramsey, Cooling & Herbers, P.C., Kansas City, Missouri, Jacqueline T. Lenmark, Keller Law Firm, P.C., Helena, Montana
   Justice Beth Baker delivered the Opinion of the Court.

¶1 The United States District Court for the District of Montana certified a question to this Court to address the Estate of Darrell L. Ward's third-party claim to stacked liability limits in an aircraft insurance policy that covered multiple aircraft. We accepted the question and have reformulated it pursuant to M. R. App. P. 15(4) as follows:

Is the Estate of Darrell L. Ward entitled to stack the limits of liability coverage for three separate aircraft under the terms of an insurance policy issued to the pilot of an aircraft in which Ward was a passenger at the time it crashed?

¶2 We conclude that the answer to the reformulated question is no.

PROCEDURAL AND FACTUAL BACKGROUND

¶3 Mark Melotz was piloting his aircraft, FAA Number N9936T, with Darrell Ward as a passenger. The plane crashed, and both Melotz and Ward were killed. At the time of the accident, Melotz insured N9936T and two other aircraft under one insurance policy issued by U.S. Specialty Insurance Company ("USSIC"). Melotz paid a separate premium for each aircraft.

¶4 The policy's applicable coverage provision provides as follows:

1. What We Cover
We will pay damages you , and anyone we protect, are legally required to pay for bodily injury or property damage caused by an occurrence during the policy period.
...
e. Coverage DL covers bodily injury to passengers and others and property damage in a combined limit of liability for each occurrence which includes a lower limit for each passenger .
The most we will pay for bodily injury to each passenger is shown in item 6DL opposite "each person". The most we will pay for all bodily injury and property damage is shown in item 6DL opposite "each occurrence".

The policy identifies each aircraft on the coverage identification page in item 6 with a $100,000 limit for "each person," and a $1,000,000 limit for "each occurrence," as follows:

?

The policy defines an "occurrence" as "a sudden event ... involving the aircraft during the policy period, neither expected nor intended by you , that causes bodily injury ."

¶5 Following Ward's death, USSIC paid Ward's Estate $100,000-the per-passenger limit for bodily injury claims involving N9936T. The Estate argued that it was entitled to stack the coverage of each aircraft's per-passenger limit, for a total of $300,000. USSIC filed a declaratory judgment action in the United States District Court for the District of Montana, seeking a declaration that it was under no duty or obligation to pay more than $100,000 to Ward's Estate under the terms of the policy and that USSIC's aircraft policy coverage for passengers cannot be stacked. The Estate and USSIC submitted cross-motions for summary judgment. The U.S. District Court certified to this Court the question of stacking insurance coverage limits in aviation cases.

STANDARD OF REVIEW

¶6 M. R. App. P. 15(3) permits this Court to answer a question of law certified to it by another qualifying court. Our review of a certified question is "purely an interpretation of the law as applied to the agreed facts underlying the action." N. Pac. Ins. Co. v. Stucky , 2014 MT 299, ¶ 18, 377 Mont. 25, 338 P.3d 56 (internal citation omitted).

DISCUSSION

¶7 The interpretation of an insurance contract is a question of law. Fisher v. State Farm Mut. Auto. Ins. Co. , 2013 MT 208, ¶ 11, 371 Mont. 147, 305 P.3d 861. General rules of contract law apply to insurance policies. Kilby Butte Colony, Inc. v. State Farm Mut. Auto. Ins. Co. , 2017 MT 246, ¶ 10, 389 Mont. 48, 403 P.3d 664. "When interpreting an insurance contract, we accord the usual meaning to the terms and the words used, and we construe them using common sense." Fisher , ¶ 13 (citing Modroo v. Nationwide Mut. Fire Ins. Co. , 2008 MT 275, ¶ 23, 345 Mont. 262, 191 P.3d 389 ). An insurance contract is ambiguous if it is "reasonably subject to two different interpretations." Fisher , ¶ 15 (internal citations omitted). Whether a provision of an insurance contract is "reasonably susceptible to two different interpretations" is determined from "the viewpoint of a consumer with average intelligence, but untrained in the law or insurance business." Fisher , ¶ 15 (internal citations omitted). A provision is not ambiguous "just because a claimant says so or just because the parties disagree as to [its] meaning." Fisher , ¶ 15 (internal citations omitted).

¶8 The USSIC policy provides coverage in a "combined limit of liability for each occurrence which includes a lower limit for each passenger ." The Coverages and Limits of Liability table states, "The most we will pay under each coverage we provide is shown below for each aircraft." The policy defines aircraft as the aircraft shown on the Coverage Identification Page of the policy, where N9936T and two other aircraft are listed. The limit of liability for each aircraft is $100,000 for each passenger, up to a combined limit of $1,000,000 for each occurrence. An occurrence is a "sudden event ... involving the aircraft ... that causes bodily injury ." (Bold emphasis in original; italicized emphasis added). The policy does not define the word "involving," but a common-sense reading of that term makes plain that it refers to the aircraft that is a part of the sudden event that caused bodily injury. See Involve, Oxford English Dictionary (Compact ed. 1971) ("to enfold, envelop, entangle, include"). The aircraft that was part of the crash resulting in Ward's and Melotz's deaths was N9936T. Although the word "aircraft" could refer to either the singular or the plural, the provision must be read as a whole. See Farmers All. Mut. Ins. Co. v. Holeman , 1998 MT 155, ¶ 25, 289 Mont. 312, 961 P.2d 114. Reading the entire clause, it is unambiguous that the aircraft must be "involved" to be part of an occurrence.

¶9 An unambiguous insurance provision is enforced unless the provision violates public policy or is against good morals. Fisher , ¶ 25. Having determined that the USSIC policy unambiguously includes only the aircraft that is part of the sudden event, we next consider the Estate's argument that public policy requires the stacking of the third-party liability coverage. "As a general rule, the Montana public policy is prescribed by the legislature through its enactment of statutes." Hardy v. Progressive Specialty Ins. Co. , 2003 MT 85, ¶ 32, 315 Mont. 107, 67 P.3d 892 (citing Duck Inn, Inc. v. Mont. St. Univ. , 285 Mont. 519, 523-24, 949 P.2d 1179, 1182 (1997) ).

¶10 Insurance provisions that violate express statutes are contrary to public policy and void. Fisher , ¶ 25. There is no Montana statute that applies specifically to aviation policies. Section 33-23-203(1), MCA, pertains to the stacking of coverage limits on "motor vehicle liability policies." Montana law defines both motor vehicle and aircraft. " 'Motor vehicle' means a vehicle propelled by its own power and designed primarily to transport persons or property on the highways of the state." Section 33-23-204(1)(a), MCA. " 'Aircraft' means a contrivance used or designed for navigation of or flight in the air." Section 67-1-101(4), MCA. Section 33-23-203, MCA, by its terms does not apply to aircraft liability policies. Indeed, Montana does not statutorily regulate aviation insurance in any manner. Compare with, e.g. , Haw. Admin. R. § 19-17.1-8 (Hawaii law requires those persons renting hangar space at public airports to maintain general liability insurance); Md. Code Ann., Trans. § 5-1002 (Maryland law requires liability insurance for aircraft used for commercial purposes). Further, the aircraft liability insurance requirements set forth by Congress apply only to air carriers and charter air carriers, not to general aviation aircraft. 49 U.S.C. § 41112. Enactments of the Montana Legislature and Congress offer no guidance setting forth public policy regarding stacking of general aviation policies because neither has a statute governing the issue. No express statutes apply to the USSIC insurance policy, and it thus does not contravene any public policy set by statute.

¶11 As we observed in Fisher , ¶ 33, when there is no statute guiding the applicable policy, insurance provisions still may be against public policy and therefore void. We have, for example, voided insurance policies' subrogation clauses when they required the insured to reimburse contractual medical payments ("med-pay") benefits from their settlements with a third-party tortfeasor. See, e.g. , Youngblood v. Am. States Ins. Co. , 262 Mont. 391, 397, 866 P.2d 203, 206 (1993) ; Allstate Ins. Co. v. Reitler , 192 Mont. 351, 356, 628 P.2d 667, 670 (1981). We also have voided provisions that render coverage "illusory" by defeating coverage for which the insurer has received valuable consideration. Hardy , ¶¶ 38, 40 (citing Bennett v. State Farm Mut. Auto. Ins. Co. , 261 Mont. 386, 389, 862 P.2d 1146, 1148 (1993) ). In Hardy , the insured purchased a motor vehicle policy that provided $50,000 per person in underinsured motorist coverage for three separate vehicles. Hardy , ¶ 8. Due to an offset in the contract and Montana's minimum mandatory coverage requirements, the insured's coverage would be offset by at least $25,000 in practically all circumstances. Hardy , ¶ 17. Thus, in nearly all conceivable situations the insurer's promise to pay up $50,000 would not be honored. Hardy , ¶ 28. This Court held that since the insurer would hardly, if ever, provide the insured with the amount of coverage she thought that she purchased, the coverage was illusory. Hardy , ¶ 29.

¶12 The policy at issue here does not fall under either of these situations. There is no subrogation clause at issue, nor is the coverage illusory, because the Estate received the maximum benefits of the applicable coverage for the involved aircraft. Melotz paid a premium to cover each aircraft, with benefits limited to $100,000 per passenger and $1,000,000 per occurrence. The policy allowed simultaneous coverage for pilots other than Melotz if they met the Open Pilot Warranty for the named aircraft. The occurrence at issue involved only one insured aircraft. The Estate received the full per-passenger benefit from the involved aircraft's policy. Not allowing the three coverages to be stacked therefore does not render the coverage illusory.

¶13 The Estate argues that the reasonable expectations doctrine requires that USSIC honor the combined coverages Melotz purchased because it charged multiple premiums for multiple coverages. Melotz adds that he had an expectation that the liability coverage purchased for N9936T would be commensurate with all premiums he paid, and because he paid multiple premiums the coverages therefore should be stacked. The " 'reasonable expectations doctrine' mandates that, unless the terms of an insurance policy 'clearly demonstrate an intent to exclude coverage,' an insurance buyer's 'objectively reasonable expectations' regarding the nature of the policy 'should be honored notwithstanding the fact that a painstaking study of the policy would have negated those expectations.' " Lenz v. FSC Secs. Corp. , 2018 MT 67, ¶ 29, 391 Mont. 84, 414 P.3d 1262 (quoting Giacomelli v. Scottsdale Ins. Co. , 2009 MT 418, ¶ 42, 354 Mont. 15, 221 P.3d 666 ). The reasonable expectations doctrine is public policy-based. It requires "liberal construction of insurance contracts in favor of coverage when the policy language is such that 'an ordinary, objectively reasonable person ... would fail to understand' that the policy technically does not provide the coverage at issue or where 'circumstances attributable to'

the insurer would cause 'an ordinary, objectively reasonable person' to believe that the coverage exists." Lenz , ¶ 29 (quoting Bailey v. Lincoln Gen. Ins. Co. , 255 P.3d 1039, 1048-49 (Colo. 2011) ). Under the principle of reasonable expectations, the terms of insurance policies are construed in their plain, ordinary, and popular sense. Appleman on Insurance Law & Practice § 4254 (Richard B. Buckley ed., 2011).

¶14 Whether a claimant has a reasonable expectation to stack insurance coverage depends on the plain, ordinary language of the policy and the status of the claimant. In Chilberg v. Rose , 273 Mont. 414, 419, 903 P.2d 1377, 1380 (1995), we held that a claimant could not stack uninsured motorist coverage on three policies because he did not qualify as an insured under two of the policies.

Chilberg was injured when the vehicle in which he was a passenger was in an accident. Chilberg , 273 Mont. at 415, 903 P.2d at 1378. The vehicle was covered under a policy that provided coverage for medical expenses and for bodily injury caused by uninsured motorists. Chilberg , 273 Mont. at 415, 903 P.2d at 1378. At the time of the accident, the owner also had separate insurance policies on two other vehicles for which he paid separate premiums. Chilberg , 273 Mont. at 415, 903 P.2d at 1378. The three separate policies covered the "named insured" or "any other person while occupying [the] insured car." Chilberg , 273 Mont. at 417, 903 P.2d at 1379. Chilberg alleged that he was entitled to stack the coverages of all three vehicles. Chilberg , 273 Mont. at 415, 903 P.2d at 1378. This Court held that Chilberg did not have a reasonable expectation of coverage under the three policies because he did not qualify as an insured for two of the policies; he was neither the named insured nor a passenger in the other two vehicles. He was therefore not entitled to stack the policies. Chilberg , 273 Mont. at 418, 903 P.2d at 1380. The public policy rationale underlying stacking, "namely prohibiting insurers from defeating coverage which the insured reasonably expected," is not served by stacking the policies when the claimant is not an insured. Chilberg , 273 Mont. at 419, 903 P.2d at 1380.

¶15 We followed similar reasoning in Lierboe v. State Farm Mutual Automobile Insurance Company , 2003 MT 174, 316 Mont. 382, 73 P.3d 800. Lierboe suffered physical injury as a result of an automobile collision. The vehicle Lierboe was driving was covered by a policy that provided med-pay coverage. Lierboe , ¶ 7. Lierboe also had an interest in a corporation that had separate insurance policies providing med-pay coverages for two pickup trucks. Neither truck was involved in the accident. Lierboe , ¶ 8. One truck's policy expressly provided that there was no med-pay coverage for bodily injury "sustained while occupying or through being struck by a vehicle owned or leased by you or any other relative, which is not insured under this coverage." Lierboe , ¶ 12 (emphasis omitted). The truck policy therefore expressly excluded coverage for vehicles not insured under the truck policy. Lierboe did not qualify as an insured under the truck policy because she was not occupying the truck when the accident occurred, and she therefore could not stack the med-pay coverage. Lierboe , ¶ 19. This Court later reaffirmed that Lierboe applies when "a claimant seeks to stack coverages from a vehicle she does not own and from an insurance policy she did not purchase." State Farm Mut. Auto. Ins. Co. v Gibson , 2007 MT 153, ¶ 22, 337 Mont. 509, 163 P.3d 387.

¶16 In contrast, we have held that an insured claimant has a reasonable expectation to recover up to the limits for which the insurer receives separate premiums when the coverage is personal to the insured. Bennett v. State Farm Mut. Auto. Ins. Co. , 261 Mont. 386, 389-90, 862 P.2d 1146, 1149-50 (1993). Bennett was a pedestrian struck by an underinsured motorist. She was insured at the time under two separate State Farm motor vehicle policies. Bennett , 261 Mont. at 387-88, 862 P.2d at 1147. This Court looked to the plain language of the policies to determine what the insured reasonably could expect to recover. Bennett , 261 Mont. at 389-90, 862 P.2d at 1148-49. The insurer paid the limits of one policy. It argued that the underinsured motorist protection of the other policy could not be stacked because an insured cannot reasonably expect that buying a policy on a second car increases the limits of the coverage on the car she already has insured. Bennett , 261 Mont. at 389, 862 P.2d at 1148. This Court noted that State Farm's argument "might be persuasive," but for the clear and unambiguous language of the insurance policy: "We will pay damages for bodily injury an insured is legally entitled to collect from the owner or driver of an underinsured motor vehicle." Bennett , 261 Mont. at 389, 862 P.2d at 1148. The statement made the coverage personal to the insured because it was not dependent upon the insured occupying an insured vehicle. Bennett , 261 Mont. at 389, 862 P.2d at 1148. From the plain language of the policy, the insured therefore "could reasonably expect to recover damages up to the limit of both policies under which she was an insured and for which separate premiums had been paid." Bennett , 261 Mont. at 389-90, 862 P.2d at 1148.

¶17 Relying on Bennett , we clarified in Holeman that a passenger in a covered automobile is entitled to stack underinsured motorist coverages, even if he didn't pay the premiums, when he was an "insured" under the policy. Holeman , ¶¶ 42-44. Holeman was a passenger in an insured vehicle involved in an accident, and the premiums were paid by the owner of the vehicle. Holeman , ¶¶ 7, 11. For purposes of underinsured motorist and med-pay coverage as defined in the policy, Holeman was an "insured." Holeman , ¶ 11. The policy provided that the insurer is required to pay "all sums the 'insured' is legally entitled to recover." Holeman , ¶ 12. This Court reaffirmed that "the justification for stacking lies not in who has paid for the extra protection, but rather that the protection has been purchased," and "the benefits flow to all persons insured." Holeman , ¶ 39 (quoting Sayers v. Safeco Ins. Co. , 192 Mont. 336, 340, 628 P.2d 659, 662 (1981) ). Regardless whether the claimant had any reasonable expectation to coverage when he did not purchase the policy at issue, he undisputedly qualified as an insured under the terms of the policy by virtue of his occupancy in the insured vehicle. Holeman , ¶ 44. Despite the apparent inapplicability of the reasonable expectations doctrine, we applied the public policy considerations set forth in Bennett to permit the claimant to stack the underinsured motorist coverages because he was an "insured" as defined in the policy. Holeman , ¶ 44.

¶18 The Estate argues that liability coverage under the aircraft policy is, for "all intents and purposes, 'personal and portable,' " and stacking should be allowed. The Estate maintains that since the liability policy "followed" Melotz to newly acquired aircraft, temporary substitute aircraft, and aircraft that he did not own, it was personal and portable. In Jacobson v. Implement Dealers Mutual Insurance Company , 196 Mont. 542, 547-48, 640 P.2d 908, 912 (1982), we discussed uninsured motorist coverage as being personal to the insured, explaining that there is no requirement the insured be occupying an insured vehicle. We reasoned that when coverage is personal to the insured, there is no connection to the "automobile listed on the policy." Jacobson , 196 Mont. at 547-48, 640 P.2d at 912. This is the principle we applied in Bennett to extend coverages to the insured pedestrian. The liability benefits at issue here, in contrast, require a connection with the "involved" aircraft listed on the policy. USSIC's policy provides that liability coverage extends only to damage or injury sustained when an aircraft is involved in an occurrence. Although the insured Melotz would have coverage for an occurrence when piloting some other aircraft, the policy would cover bodily injury to a third party only when that aircraft was involved in an occurrence. The policy requires a connection between an occurrence and the involved aircraft to cover bodily injury. Because the liability coverage is tied to the involvement of a particular aircraft, it is not reasonable to expect that the policy would pay more than the limits provided for that aircraft.

¶19 The plain language of the USSIC policy and the Estate's status do not entitle it to a reasonable expectation of stacked liability coverage. The policy defines passenger as "any person who is in the aircraft or getting in or out of it." Coverage is limited to the aircraft involved in the crash. As a passenger in N9936T, Ward was an insured under that policy only. Ward did not have a connection to the other two aircraft because he was not a passenger in either of those aircraft and he was not an insured. The policy states that "the most" USSIC will pay per passenger is $100,000 for each occurrence. Similar to Lierboe and Chilberg , the plain language of the policy makes clear that the aircraft not involved in an accident are not part of the occurrence and coverage for those aircraft is not available for that accident. Ward was not an insured and did not have a reasonable expectation of benefits for additional aircraft owned by Melotz that were not "involved" in the crash.

¶20 Finally, the Estate of Melotz does not have a reasonable expectation under the plain language of the policy that Ward is entitled to stack the coverages. Unlike in Holeman , although Melotz paid premiums for three separate polices, Ward was not an "insured" under Melotz's policies for the uninvolved aircraft. And Melotz did not seek benefits under the policy's "liability to others"

coverage. Melotz did not have a reasonable expectation that a third party would be entitled to stack coverages for which that party was not an insured. Melotz paid for coverage that would pay liability damages for bodily injury caused by an occurrence with a separate coverage limit for each aircraft. Any expectation that a passenger would recover more than the $100,000 limit for the aircraft involved in a crash is not objectively reasonable under a common-sense reading of the policy. See Fisher , ¶¶ 13, 22.

CONCLUSION

¶21 The plain, unambiguous language of the contract limits the coverage to the aircraft that is involved in an accident. There is no statute or public policy that mandates payment of the cumulative coverage for separate aircraft in an aviation liability insurance policy that does not provide for such payment. We hold that Melotz's USSIC policy is not subject to stacking of its passenger liability coverages, and we therefore answer "no" to the reformulated certified question.

We Concur:

MIKE McGRATH, C.J.

JAMES JEREMIAH SHEA, J.

JIM RICE, J.

LAURIE McKINNON, J.

DIRK M. SANDEFUR, J.

INGRID GUSTAFSON, J.

Justice Laurie McKinnon, concurring.

¶22 I agree with the Court's conclusion that the language of the insurance contract limits liability coverage to the aircraft that is involved in an accident. I also agree that the provisions of § 33-23-203, MCA, do not apply to aircraft or airplanes and, further, that Montana does not statutorily regulate aviation insurance in any manner. Normally, Montana's public policy "is prescribed by the legislature through its enactment of statutes." Fisher , ¶ 25. There being no legislatively determined public policy relating to aviation insurance, the Court turns to its precedent prohibiting anti-stacking of first-party motor vehicle coverages to explain why there is no stacking of aviation third-party liability coverage. Assuming our precedent declaring the public policy in the context of motor vehicle insurance is likewise appropriate to determine public policy for aviation insurance, the Court nonetheless fails to clearly ground its rationale on the fundamental distinction between first-party insurance coverage and third-party liability coverage. I write separately to address this important distinction upon which I would address the certified question.

¶23 This Court has required the stacking of vehicle insurance coverage when the claimant is within the specific policy's definition of "insured" and when the claimant is a first party seeking to stack "personal and portable" coverages for which the claimant paid separate premiums. The instances in which this Court has required the stacking of motor vehicle coverages, despite the policies' terms providing otherwise, have been limited to first-party claimants seeking to stack uninsured motorist, underinsured motorist, and medical payment coverages. See Hardy , ¶ 42 ; Ruckdaschel v. State Farm Mut. Auto. Ins. Co. , 285 Mont. 395, 399, 948 P.2d 700, 703 (1997), superseded by statute as stated in Lierboe v. St. Farm Mut. Auto. Ins. Co. , 350 F.3d 1018, 1020 (9th Cir. 2003) ; Bennett , 261 Mont. at 388-89, 862 P.2d at 1148-49 ; Jacobson , 196 Mont. at 548, 640 P.2d at 912. The Court has never stacked third-party liability coverage because, unlike first-party coverages, third-party liability coverage is not "personal and portable." Importantly, the Court permits first-party coverages to be stacked based on the rationale that insurers may not defeat coverage that first-party insureds paid valuable consideration for and reasonably expect. On the other hand, third parties who are not named insureds have not paid for coverage and have no reasonable expectation that they should be able to stack various coverages paid for by the first party. Accordingly, this Court has never allowed stacking of third-party liability coverages. See Lierboe , ¶ 19 ;

Chilberg , 273 Mont. at 418, 903 P.2d at 1380 ; Gibson , ¶ 22. The Court noted in Chilberg that the public policy rationale behind stacking was not furthered where the party who would receive the stacked coverage was not the insured who paid the premiums. Chilberg , 273 Mont. at 419, 903 P.2d at 1380. There is no illusory coverage when a third party is prohibited from stacking liability coverages because a third party has no reasonable expectation that he will be able to stack liability coverages of other vehicles not involved in the accident.

¶24 In my opinion, the Court does not sufficiently address this fundamental distinction between first-party insurance coverage and third-party liability coverage. The distinction, together with a consideration of the policy's language, permits us to easily answer the certified question as presented. An insurer may not prohibit stacking when doing so would defeat coverage for which an insured paid valuable consideration. Here, the Estate of Darrell L. Ward, a third-party claimant, seeks to stack liability coverages that Melotz purchased for aircraft not involved in the accident. Because the Estate is a third-party claimant, not a named insured under the policy, it is not entitled to stack liability coverages Melotz, the first-party insured, purchased for other aircraft not involved in the accident at issue. Additionally, to the extent The Estate of Melotz, as a first party, asserts that liability coverage for aircraft not involved in the accident should be stacked with coverage purchased for N9936T, the clear language of the policy defeats any reasonable expectation that Melotz is entitled to stack coverages. The policy clearly states that liability coverage is connected only to the named aircraft. I would have determined that the certified question presented by the United States District Court does not need reformulating, as it correctly identifies the third-party nature of the Estate's claim. I otherwise concur with the Court's analysis and its ultimate holding.

      "General aviation" refers to aviation that is neither military aviation nor commercial aviation conducted pursuant to certification under 49 U.S.C. § 41102.

      Under N9936T, the Open Pilot Warranty provides coverage for "[a]ny pilot having logged a minimum of 300 hours total time and 10 hours in the same make and model as [that] aircraft" is covered under the policy. Each of the other insured aircraft carried its own requirements for pilot qualifications.


source: Caselaw Access Project

author: Justice Ingrid Gustafson delivered the Opinion of the Court. Justice Laurie McKinnon, dissenting.

license: Public Domain

text:
    Charles S. LUCERO, as Personal Representative of the Estate of Markkaya Jean Gullett, on Behalf of the Heirs and Estate of Markkaya Jean Gullett, Plaintiff and Appellee, v. FORD MOTOR COMPANY, a Delaware corporation, Defendant and Appellant, and The Goodyear Tire & Rubber Company, an Ohio Corporation; The Kelly-Springfield Tire Corporation, a Maryland Corporation; Lloyd's Tire Service, a Washington Corporation; Tires Plus, Inc., a Montana Corporation; and Does 1 through 10, Defendants.
    DA 18-0629
    Supreme Court of Montana.
    Submitted on Briefs: April 17, 2019 Decided: July 2, 2019
    For Appellant: Ian McIntosh, Marcia Davenport, Crowley Fleck, PLLP, Bozeman, Montana, Vaughn A. Crawford, Snell & Wilmer, Phoenix, Arizona
    For Appellee: Daniel P. Buckley, Buckley Law Office, PC, Bozeman, Montana, Dennis P. Conner, Keith D. Marr, James Robert "JR" Conner, Conner & Marr, PLLP, Great Falls, Montana
   Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1 Defendant Ford Motor Company (Ford) files an interlocutory appeal challenging the Eighth Judicial District Court's denial of its motion to change venue. We affirm.

¶2 This Court restates the issue on appeal as follows:

Whether the county in which a decedent's personal representative resides is a proper venue in survival and wrongful death actions pursuant to § 25-2-122(2), MCA.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 On May 22, 2015, Markkaya Gullett (Decedent), a resident of Mineral County, Montana, died of injuries suffered when her 1996 Ford Explorer lost stability and rolled into a ditch in Mineral County. Charles Lucero is the personal representative of Decedent's estate.

¶4 On May 2, 2018, Lucero filed suit against Ford in Cascade County, Montana, on behalf of Decedent and her heirs. The complaint alleges three claims against Ford: strict liability for design defects; strict liability for failure to warn; and negligence. The estate seeks compensatory and punitive damages against Ford. Additionally, the complaint alleges strict liability for design defects and failure to warn, and negligence against Goodyear Tire and Rubber Company, Kelly-Springfield Tire Corporation, and Lloyd's Tire Service, and negligence against Tires Plus, Inc. (Tires Plus).

¶5 On July 6, 2018, Ford filed a motion to dismiss for lack of personal jurisdiction, or, in the alternative, a motion for change of venue pursuant to § 25-2-201(1) and (3), MCA. On August 31, 2018, Tires Plus joined Ford's motion to change venue. Ford requested that venue be changed to Mineral or Missoula County, Montana. Tires Plus requested that venue be changed to Mineral or Sanders County, Montana.

¶6 On October 10, 2018, the District Court denied Ford's motion to dismiss for lack of personal jurisdiction, and denied Ford's motion to change venue. Ford petitioned this Court for a writ of supervisory control to determine whether Montana has specific personal jurisdiction over Ford, and filed an interlocutory appeal asking this Court to determine whether Cascade County is a proper venue under Montana law. On May 21, 2019, this Court accepted supervisory control and concluded that Montana has specific personal jurisdiction over Ford in this case. Ford Motor Co. v. Mont. Eighth Judicial Dist. Court , 2019 MT 115, ¶ 1, 395 Mont. 478, 443 P.3d 407. We presently consider Ford's interlocutory appeal regarding its motion for a change of venue.

¶7 The facts necessary to determine whether Cascade County is a proper venue are as follows. The rollover and Decedent's death occurred in Mineral County. Decedent resided in Mineral County. Lucero resides in Cascade County. Lucero filed his complaint in Cascade County. Ford is a Delaware company with its principal place of business in Dearborn, Michigan. Ford sells cars and trucks in all fifty states and has thirty-six dealerships in Montana. Ford's registered agent is in Missoula County. Tires Plus is a Montana corporation with its principal place of business in Sanders County.

STANDARD OF REVIEW

¶8 "A district court's decision to transfer venue because the complaint was not filed in the proper county (i.e., under § 25-2-201(1), MCA ) is a conclusion of law," which this Court reviews de novo. BNSF Ry. Co. v. State ex rel. Dep't of Envtl. Quality , 2010 MT 46, ¶ 7, 355 Mont. 296, 228 P.3d 1115.

¶9 A district court's decision to transfer venue to promote the convenience of the witnesses and the ends of justice (i.e., under § 25-2-201(3), MCA ) is discretionary. BNSF Ry. Co. , ¶ 7. Unlike a decision made pursuant to § 25-2-201(1), MCA, a discretionary decision made pursuant to § 25-2-201(3), MCA, is not subject to interlocutory appeal. BNSF Ry. Co. , ¶ 11.

DISCUSSION

Whether the county in which a decedent's personal representative resides is a proper venue in survival and wrongful death actions pursuant to § 25-2-122(2), MCA.

¶10 A district court must grant a motion to change venue "when the county designated in the complaint is not the proper county." Section 25-2-201(1), MCA. Therefore, the dispositive issue is whether Cascade County is a proper venue pursuant to Montana's venue statutes, such that the District Court correctly denied Ford's motion to change venue.

¶11 Pursuant to Montana's venue statues, venue may be proper in more than one county. Section 25-2-115, MCA. The Montana Legislature has enacted specific venue statutes applicable to certain types of claims. Farmers Union Ass'n v. Paquin , 2009 MT 305, ¶ 7, 352 Mont. 390, 217 P.3d 74. The venue statute applicable to tort claims is § 25-2-122, MCA. Section 25-2-122(2), MCA, states:

[I]f the defendant is a corporation incorporated in a state other than Montana, the proper place of trial for a tort action is:
(a) the county in which the tort was committed;
(b) the county in which the plaintiff resides; or (c) the county in which the corporation's resident agent is located, as required by law.

"[A]n action brought in any such county is brought in a proper county." Section 25-2-115, MCA.

¶12 In an action involving multiple defendants, "a county that is a proper place of trial for any defendant is proper for all defendants." Section 25-2-117, MCA ; Farmers Union Ass'n , ¶ 8. A defendant in an action involving multiple defendants may file a motion to change venue only when the venue "is not a proper place of trial for any of the defendants." Section 25-2-117, MCA. "The right to move for a change of venue under § 25-2-117, MCA, applies only if the action is filed in a county that is a proper place of trial for none of the defendants." Farmers Union Ass'n , ¶ 12. Therefore, a district court may not grant a motion to change venue pursuant to § 25-2-201(1), MCA, where any defendant is an out-of-state corporation, the action arises in tort, and the action is brought in a proper county pursuant to § 25-2-122(2)(a)-(c), MCA. Sections 25-2-115, -117, MCA.

¶13 The parties do not dispute that § 25-2-122(2), MCA, governs this case. Ford is a corporation incorporated in a state other than Montana and Lucero brought survival and wrongful death claims against Ford, which sound in tort. Likewise, neither party disputes that Lucero, as the Decedent's personal representative, is the named plaintiff in this matter.

¶14 "An action must be prosecuted in the name of the real party in interest." M. R. Civ. P. 17(a)(1). In an action for wrongful death, "the personal representative of the decedent's estate may maintain an action for damages against the person causing the death." Section 27-1-513, MCA. The personal representative is the proper party to maintain a wrongful death action. M. R. Civ. P. 17(a)(1)(A) expressly states that executors "may sue in their own names" without joining decedents.

¶15 Ford argues that "the county in which the plaintiff resides" means the county in which the Decedent resided before her death. Section 25-2-122(2)(b), MCA, unambiguously employs the terms "plaintiff" and "resides" in the present tense. The Decedent can no longer bring these claims on her own behalf, nor does she reside anywhere in the present tense. Had the Legislature intended to relate venue to the county where a deceased tort victim resided prior to death, it could have inserted the term decedent into the statutory language. It did not. This Court will "not insert omitted terms into a statute." See Montco v. Simonich , 285 Mont. 280, 287, 947 P.2d 1047, 1051 (1997).

¶16 Lucero is the plaintiff in this action, in whose county of residence venue is proper pursuant to § 25-2-122(2), MCA. Based on the plain language of § 25-2-122(2), MCA, Lucero may properly bring a survival and wrongful death action against Ford in: (a) Mineral County, where the rollover and Decedent's death occurred; (b) Cascade County, where Lucero resides; and (c) Missoula County, where Ford's agent is located. Lucero filed survival and wrongful death claims against Ford in Cascade County, his county of residence, which is a proper venue pursuant to § 25-2-122(2)(b), MCA. The District Court may not grant Ford's motion to change venue pursuant to § 25-2-201(1), MCA, because Ford is an out-of-state corporation, Lucero brought a tort action against Ford, and Cascade County is a proper venue pursuant to § 25-2-122(2)(b), MCA. See §§ 25-2-115, -117, MCA. Therefore, the District Court properly denied Ford's motion to change venue.

CONCLUSION

¶17 Venue is proper in Cascade County. The District Court properly denied Ford's motion to change venue pursuant to § 25-2-201(1), MCA, because Lucero, the named plaintiff in this proceeding, properly brought a survival and wrongful death action against Ford in Cascade County pursuant to § 25-2-122(2)(b), MCA.

¶18 Affirmed.

We concur:

MIKE McGRATH, C.J.

DIRK M. SANDEFUR, J.

JAMES JEREMIAH SHEA, J.

BETH BAKER, J.

Justice Laurie McKinnon, dissenting.

¶19 I easily track the Court's plain-language approach: in a wrongful death action, a decedent's personal representative "may maintain an action for damages" against the defendant, § 27-1-513, MCA ; the personal representative may sue in his or her "own name," M. R. Civ. P. 17(a)(1)(A) ; and venue is proper in "the county in which the plaintiff resides," § 25-2-122(2)(b), MCA. Because the personal representative is the lawsuit's named plaintiff, his residential county is a proper venue.

¶20 However, this Court cannot read statutes in a vacuum; we must read them in relationship to one another. "In the construction of a statute, ... [w]here there are several provisions or particulars, such a construction is, if possible, to be adopted as will give effect to all." Section 1-2-101, MCA. After considering other statutes involving wrongful death actions and personal representatives, I find the Court's approach overly simplistic and ultimately disagree with its conclusion that a personal representative's residential county is an appropriate venue option under § 25-2-122(2)(b), MCA. I, accordingly, dissent.

¶21 Section 72-3-604, MCA, provides that "a personal representative of a decedent domiciled in this state at death has the same standing to sue and be sued in the courts of this state and the courts of any other jurisdiction as the decedent had immediately prior to death ."

(Emphasis added.) The plain language of § 72-3-604, MCA, confines the personal representative's lawful authority to file suits only in the courts where the decedent could have filed "immediately prior to death." There is no statute, court precedent, or other mechanism that expands the personal representative's authority or capacity to file suits on behalf of a decedent and that includes circumstances both unrelated to the decedent or the underlying facts which have arisen after her death. A personal representative is not the real party in interest; his "[c]apacity to sue ... is determined by appropriate statutory provisions." See M. R. Civ. P. 17(b). As it applies to a wrongful death action, § 72-3-604, MCA, provides a personal representative with the capacity to sue and limits his authority under § 25-2-122(2)(b), MCA, to bringing the lawsuit in a venue where the decedent could have immediately prior to death.

¶22 A personal representative stands in the decedent's shoes. In re Estate of Kindsfather , 2005 MT 51, ¶ 31, 326 Mont. 192, 108 P.3d 487 (explaining In re Estate of Long , 804 N.E.2d 1176, 1181 (Ind. Ct. App. 2004) ). To further emphasize the limited scope of the personal representative's authority, § 72-3-604, MCA, particularizes that a personal representative simply "has the same standing" as the decedent; he does not have greater or different rights than those the decedent would have had. Section 72-3-604, MCA (emphasis added); see, e.g. , dck Worldwide Holdings, Inc. v. CH SP Acquisition LLC , 2015 MT 225, ¶ 33, 380 Mont. 215, 355 P.3d 724 ("The assignee obtains no greater rights against the account debtor than the assignor." (citation omitted)).

¶23 The Court's conclusion that a personal representative's residential county is an appropriate venue under § 25-2-122(2)(b), MCA, bestows upon the personal representative different rights than those the decedent would have: it permits the personal representative to file a wrongful death action in the personal representative's residential county, which, in cases like this one, was not the decedent's residential county. However, as the majority points out, § 25-2-122(2)(b), MCA, uses the present-tense terms "plaintiff" and "resides." Such language is not practically applied in a wrongful death action, where a decedent can no longer bring her own claims as the "plaintiff" and where a decedent no longer "resides" anywhere. Because the personal representative has the same standing to sue as the decedent and because the personal representative cannot have different rights than the decedent would have had, I would conclude that § 25-2-122(2)(b), MCA, does not confer venue in wrongful death cases. Such an interpretation of § 25-2-122(2)(b), MCA, ensures that the personal representative does not have rights the decedent would not have had. See § 72-3-604, MCA.

¶24 Further, the question of proper venue is, most fundamentally, guided by fairness to the defendant. Howard v. Dooner Labs., Inc. , 211 Mont. 312, 315-16, 688 P.2d 279, 280 (1984). "The venue statutes should not be interpreted to give a plaintiff the right to choose a forum based on fortuitous fact[s] ...." Howard , 211 Mont. at 317, 688 P.2d at 281. Concluding that venue is not proper under § 25-2-122(2)(b), MCA, based on the personal representative's residential county is fairest to out-of-state defendants because, otherwise, a decedent's estate could manipulate venue and shop for a preferred forum by choosing a specific personal representative because he resides in a selected county.

¶25 Montana law provides Lucero with the authority to bring a wrongful death claim on Gullett's behalf, but it does not bestow upon Lucero greater or different rights that Gullett did not have herself. In this wrongful death action, § 25-2-122(2)(b), MCA, cannot be utilized to confer proper venue-venue may be found proper under the other subsections of § 25-2-122(2), MCA. Because venue in Cascade County is not otherwise proper, I would reverse the District Court's order denying Ford's motion to change venue.

Justice Jim Rice joins in the dissenting Opinion of Justice McKinnon.

      Section 25-2-201(3), MCA, additionally states that a court must, on motion, change the place of trial "when the convenience of witnesses and the ends of justice would be promoted by the change." Ford filed a motion to change venue pursuant to § 25-2-201(1) and (3), MCA, which the District Court denied. The District Court's discretionary decision, made pursuant to § 25-2-201(3), MCA, is not subject to interlocutory appeal. See BNSF Ry. Co. , ¶¶ 7, 11. This Court considers de novo only whether Cascade County is a proper county pursuant to § 25-2-201(1), MCA.

      Pursuant to § 25-2-122(1), MCA, the proper place of trial for a tort involving Tires Plus, a Montana Corporation, is:
      (a) the county in which the defendants or any of them reside at the commencement of the action; or
      (b) the county in which the tort was committed.
      However, this proceeding involves multiple defendants, including Ford, which is an out-of-state corporation. Therefore, any "county that is a proper place of trial for" Ford is a proper place of trial for Tires Plus. See § 25-2-117, MCA.


text:
    STATE of Montana, Plaintiff and Appellee, v. Billy Clayton REEVES III, Defendant and Appellant.
    DA 18-0084
    Supreme Court of Montana.
    Submitted on Briefs: May 15, 2019 Decided: July 2, 2019
    For Appellant: Chad Wright, Appellate Defender, Moses Okeyo, Assistant Appellate Defender, Helena, Montana
    For Appellee: Timothy C. Fox, Montana Attorney General, Damon Martin, Assistant Attorney General, Helena, Montana, Kirsten H. Pabst, Missoula County Attorney, Caitlin Williams, Deputy County Attorney, Missoula, Montana
   Justice Ingrid Gustafson delivered the Opinion of the Court.

¶1 Appellant Billy Clayton Reeves III (Reeves) appeals the order of the Fourth Judicial District Court, Missoula County, denying his Motion to Dismiss based on a finding that law enforcement had the requisite particularized suspicion to initiate a traffic stop. We reverse.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 On the afternoon of January 14, 2017, Missoula County Sheriff's Deputy Tyler Terrill (Deputy Terrill) noticed a vehicle in a brewery parking lot. The driver of the vehicle was later identified as Reeves. From the hotel parking lot across the street, Deputy Terrill watched Reeves leave his parking space and navigate toward the exit of the brewery parking lot. At the same time, Deputy Terrill drove his patrol vehicle toward the exit of the hotel parking lot. Although the two parking lot exits are somewhat offset across from each other, they essentially form a four-way intersection with the through street, Trumpeter Way. Deputy Terrill arrived at the intersection just before Reeves, giving Deputy Terrill the right of way; however, Deputy Terrill did not take that right of way or indicate to Reeves to proceed into the intersection. According to Deputy Terrill, upon making eye contact from across the intersection, Reeves exhibited a "deer-in-the-headlights" facial expression.

¶3 After waiting 8-10 seconds at the intersection, Reeves activated his turn signal. Another 2-4 seconds later, he made a legal left-hand turn onto an icy Trumpeter Way, passing directly in front of Deputy Terrill. Deputy Terrill then initiated a traffic stop, informing Reeves, "the reason I stopped you is that you didn't use your turn signal before that intersection. In a business district, you have to have it at least 100 feet before the intersection." Deputy Terrill later conceded that Reeves' conduct did not constitute a traffic violation. Deputy Terrill also conceded the brewery parking lot did not provide Reeves with a 100-foot approach in which to signal prior to the intersection.

¶4 When he approached Reeves' vehicle, Deputy Terrill noted a strong odor of alcohol. After Reeves refused the standardized field sobriety tests and the breathalyzer test, Deputy Terrill took Reeves to the hospital for a blood draw. A subsequent analysis indicated Reeves' blood alcohol content was over twice the legal limit to drive.

¶5 On April 26, 2017, Reeves filed a Motion to Dismiss in Missoula County Justice Court (Justice Court), claiming Deputy Terrill lacked the particularized suspicion required to initiate a traffic stop. On August 23, 2017, the Justice Court granted his motion. The State appealed to the Fourth Judicial District Court (District Court). On November 13, 2017, Reeves filed a Motion to Dismiss, again claiming Deputy Terrill lacked particularized suspicion. The District Court denied his motion after finding Deputy Terrill had particularized suspicion. Following a nonjury trial, the District Court entered judgment against Reeves for Aggravated Driving Under the Influence-Third Offense in violation of § 61-8-465, MCA. Reeves now appeals the District Court's order finding Deputy Terrill had the requisite particularized suspicion to initiate a traffic stop. We reverse.

STANDARD OF REVIEW

¶6 A district court's finding that particularized suspicion exists is a question of fact, which we review for clear error. State v. Gill , 2012 MT 36, ¶ 10, 364 Mont. 182, 272 P.3d 60 (citation omitted). A finding is clearly erroneous if it is not supported by substantial evidence, if the lower court has misapprehended the effect of the evidence, or if our review of the record leaves us with the firm conviction that a mistake has been made. Gill , ¶ 10.

DISCUSSION

¶7 The Fourth Amendment to the United States Constitution and Article II, Section 11 of the Montana Constitution protects persons against unreasonable searches and seizures, including unjustified traffic stops. State v. Elison , 2000 MT 288, ¶ 15, 302 Mont. 228, 14 P.3d 456. To justify a traffic stop, law enforcement must have a particularized suspicion that the occupant of the vehicle is committing, has committed, or will commit an offense. § 46-5-401(1), MCA.

¶8 In order for the State to establish particularized suspicion it must show: 1) objective data from which experienced law enforcement can make certain inferences; and 2) a resulting suspicion that the occupant of a certain vehicle is or has been engaged in wrongdoing or was a witness to criminal activity. State v. Gopher , 193 Mont. 189, 194, 631 P.2d 293, 296 (1981). Inarticulable hunches are not objective data that meet this burden, and traffic stops based on such are not justified. State v. Reynolds , 272 Mont. 46, 49, 899 P.2d 540, 542 (1995) (citation omitted).

¶9 In the present case, Deputy Terrill suspected Reeves was driving under the influence. The only issue is whether there was objective data available to Deputy Terrill to support that suspicion. We conclude there was not.

¶10 The State argues the totality of the following facts and inferences constitute objective data to support Deputy Terrill's suspicion: 1)

Reeves was leaving a brewery parking lot, which suggests he had consumed alcohol; 2) Reeves exhibited a deer-in-the-headlights facial expression, which suggests he was panicked to see law enforcement; 3) Reeves waited 10-14 seconds before exiting the parking lot, which suggests his decision-making ability was impaired; and 4) Reeves failed to activate his turn signal in advance of the exit, which suggests he was trying to avoid being stopped by determining which direction Deputy Terrill was turning. We disagree. Nothing about Reeves' conduct could have objectively indicated to Deputy Terrill that, of all the drivers leaving the brewery parking lot, Reeves-in particular-was driving under the influence.

¶11 While law enforcement are not required to be certain their suspicions are correct, their suspicions must be particularized as to the person being stopped. Section 46-5-401, MCA ; State v. Farabee , 2000 MT 265, ¶ 19, 302 Mont. 29, 22 P.3d 175 (citation omitted). Without objective data to support Deputy Terrill's suspicion of Reeves, that suspicion must necessarily have been based on guesswork or inarticulable hunches. Terry v. Ohio , 392 U.S. 1, 22, 88 S. Ct. 1868, 1879, 20 L.Ed.2d 889 (1968) (citing Beck v. Ohio , 379 U.S. 89, 96-97, 85 S. Ct. 223, 229, 13 L.Ed.2d 142 (1964) ). Neither of which can support particularized suspicion. Reynolds , 899 P.2d at 542 (citation omitted). To hold otherwise would expose virtually any driver leaving a location where alcohol is sold or consumed-no matter the manner in which he or she is driving-to the burdens of unreasonable stops.

¶12 In Reynolds , we held a "possible traffic violation combined with no other objective data" cannot support particularized suspicion for a DUI. Reynolds , 899 P.2d at 543. Law enforcement thought Reynolds might be driving too fast for the road conditions, and after observing Reynolds wait 7-10 seconds at a subsequent intersection, law enforcement initiated a stop. Reynolds , 899 P.2d at 543. We held Reynold's conduct was neither illegal nor consistent with a person driving under the influence, and therefore it could not be the requisite objective data to support a particularized suspicion that he was driving under the influence. Reynolds , 899 P.2d at 543.

¶13 The State's attempt to distinguish Reynolds from the present case does not persuade us. The State argues that Reeves' conduct provided Deputy Terrill with a "logical string of observable events" that was not available to law enforcement in Reynolds . The facts and inferences identified by the State are entirely consistent with a law-abiding person driving in a safe and prudent manner. See Reynolds , 899 P.2d at 543. Simply attaching inferences of nefariousness to such facts does not persuade us that Deputy Terrill had objective data to support his suspicion. When the only basis for suspecting a specific person of wrongdoing is inferences that could be drawn from the conduct of virtually any law-abiding person, the resulting suspicion cannot, by definition, be particularized. See Reynolds , 899 P.2d at 543. Such inferences, when based on nothing more than inarticulable hunches, are not the building blocks of particularized suspicion but rather subject drivers to the perils of profiling and other impermissible motives for initiating traffic stops.

¶14 The State's reliance on State v. Trombley , 2005 MT 174, 327 Mont. 507, 116 P.3d 771 ; City of Missoula v. Cook , 2001 MT 237, 307 Mont. 39, 36 P.3d 414 ; and State v. Elison , 2000 MT 288, 302 Mont. 228, 14 P.3d 456 is misplaced. These cases are consistent with our holding in Reynolds . In each case, law enforcement observed legal conduct in conjunction with other objective data that supported a particularized suspicion that the defendant was engaged in wrongdoing. Such objective data is wholly absent from the present case.

¶15 In Trombley we held that a legal U-turn supported particularized suspicion when observed in conjunction with other unsafe driving maneuvers. Trombley , ¶ 8. Law enforcement observed Trombley execute a legal U-turn but subsequently straddle the center line, drift over the fog line, and fail to signal while changing lanes. Trombley , ¶ 10. The subsequent conduct was a manifest pattern of unsafe driving and was consistent with a person driving under the influence. Trombley , ¶ 10. This pattern constituted the requisite objective data to support a particularized suspicion that Trombley was driving under the influence. Trombley , ¶ 10.

¶16 Unlike in Trombley , Reeves exhibited no unsafe driving behaviors and Deputy Terrill concedes Reeves did not commit any traffic violations. There is nothing to suggest Reeves' conduct was similarly unsafe or consistent with a person driving under the influence as in Trombley . Reeves left his parking space, navigated the parking lot without incident, stopped at the intersection, and waited a prudent amount of time-given the icy conditions and Deputy Terrill's failure to seize the right of way-before signaling and executing a lawful left-hand turn. This conduct was safe, prudent, and not consistent with a person driving under the influence.

¶17 In Cook we held a late-night and exceptionally delayed stop at a flashing red light constituted the requisite objective data to support a particularized suspicion. Cook , ¶ 16. Specifically, law enforcement observed Cook's vehicle waiting at a flashing red light in an otherwise empty intersection. Cook , ¶ 9. The officer stopped behind Cook and, after waiting nearly 20 seconds, honked at him to proceed. Cook , ¶ 9. Cook waited yet another 10 to 15 seconds before entering the intersection. Cook , ¶ 9. In deciding Cook , we held that despite the legality of the conduct, the excessive length of the delay combined with the delay occurring shortly after the bars closed constituted the requisite objective data to support a particularized suspicion that Cook was engaged in wrongdoing. Cook , ¶¶ 14-15.

¶18 Distinguishable here, the length of Reeves' delay was only a small fraction of the delay in Cook . Reeves' stop occurred in the middle of the afternoon, hours before bars closed. The intersection was not empty in that Deputy Terrill had arrived to it prior to Reeves such that Reeves would reasonably expect to cede the right of way to Officer Terrill. Reeves' delay may well have been influenced by Deputy Terrill's failure to claim the right of way. If-as we held in Reynolds -the mere presence of law enforcement at the intersection could "have an unnerving effect on a driver's normal driving routine," then law enforcement having but failing to claim the right of way at an icy intersection could also have such an effect.

¶19 In Elison we held that, under certain circumstances, a driver's attempt to avoid being stopped by law enforcement can constitute the objective data needed to support particularized suspicion. Elison , ¶ 21. Specifically, after being informed that Elison might possess marijuana, the officer located Elison driving behind his patrol vehicle. Elison , ¶ 7. To initiate a traffic stop, the officer attempted to get behind Elison by slowing his patrol vehicle to allow Elison to pass. Elison , ¶ 7. This attempt was unsuccessful as Elison repeatedly slowed his own vehicle and changed lanes to stay behind the patrol vehicle. Elison , ¶ 7. The officer was only able to initiate a stop after forcing Elison to pass him by completely stopping his patrol vehicle. Elison , ¶ 7. This evasive conduct, in conjunction with the possible possession of marijuana, was objective data to support a particularized suspicion that Elison was engaged in wrongdoing.

¶20 Neither Reeves initial act (i.e., leaving the brewery parking lot) nor the subsequent allegedly-evasive conduct (i.e., delaying activation of his turn signal) are sufficiently analogous to Elison to provide Deputy Terrill with particularized suspicion justifying a traffic stop. The State argues the initial act of leaving a brewery, like possible marijuana possession in Elison , supports the inference that a person doing so has a motive to avoid being stopped by law enforcement. We disagree. Simply leaving a brewery is not illegal, immoral, or suspect, and cannot-without any other objective data-logically support the inference that doing so gives a person a motive to avoid being stopped. See Reynolds , 899 P.2d at 543.

¶21 Furthermore, Reeves' conduct after noticing Deputy Terrill is distinguishable from Elison's conduct. Elison executed a series of objectively evasive maneuvers that could support the inference that Elison was attempting to avoid being stopped. Elison , ¶ 7. On the other hand, Reeves' delay was not a series of any kind; he was delayed in activating his turn signal. It was a single act and could readily be explained by Deputy Terrill's failure to claim his right of way. To further dispel the inference that Reeves was attempting to avoid being stopped, we note that, when confronted with the choice between turning right or turning left, Reeves choose the direction that brought him directly in front of Deputy Terrill.

¶22 Reeves committed no traffic violations and his driving behaviors were entirely consistent with a law-abiding person driving in a safe and prudent manner. His "deer-in-the headlight" look provided Deputy Terrill with no additional information indicative of a person driving under the influence. Under the circumstances of this case we are left with the firm conviction that a mistake has been made. See Gill , ¶ 10. Deputy Terrill did not have objective data available to him to support a particularized suspicion that Reeves was committing, had committed, or was about to commit an offense. The traffic stopped was not justified pursuant to § 46-5-401, MCA.

CONCLUSION

¶23 Because the traffic stop was not justified under § 46-5-401, MCA, we reverse the District Court's denial of Reeves' Motion to Dismiss and remand to the District Court to vacate Reeves' conviction and dismiss with prejudice the charge against him.

We concur:

MIKE McGRATH, C.J.

JAMES JEREMIAH SHEA, J.

DIRK M. SANDEFUR, J.

JIM RICE, J.


author: Chief Justice Mike McGrath delivered the Opinion of the Court. Justice Laurie McKinnon, dissenting.

text:
    Zackary Jay BUGLI, Tracy Bugli, Wade Cox and Charlene Cox; and Violet Cox, as Trustee of the Cox Family Trust, Petitioners and Appellants, v. RAVALLI COUNTY, a Political Subdivision of the State of Montana, Respondent and Appellee.
    DA 18-0509
    Supreme Court of Montana.
    Submitted on Briefs: April 3, 2019 Decided: July 9, 2019
    For Appellants: Martin S. King, Jesse C. Kodadek, Worden Thane, P.C., Missoula, Montana
    For Appellee: William E. Fulbright, Ravalli County Attorney, Daniel Browder, Deputy County Attorney, Hamilton, Montana
   Chief Justice Mike McGrath delivered the Opinion of the Court.

¶1 Zackary Bugli, Tracy Bugli, Wade Cox, Charlene Cox, and Violet Cox (Landowners) appeal from a Twenty-First Judicial District Court order denying Landowners' Verified Petition for a Writ of Review & Injunctive Relief. We affirm.

¶2 This Court restates the issue on appeal as follows:

Whether the District Court abused its discretion by denying Landowners' petition for a writ of review on the basis that Landowners failed to show the Board exceeded its jurisdiction in the proceedings related to Landowners' petition to abandon a portion of Hughes Creek Road.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 This dispute concerns where Hughes Creek Road, a county road built in 1900, ends and private property begins. Hughes Creek Road begins at its junction with West Fork Road near the confluence of Hughes Creek and the West Fork of the Bitterroot River. Landowners, relying on a map created in 1965 (1965 Map), assert that the county portion of Hughes Creek Road extends roughly nine miles. The Ravalli County Board of County Commissioners (Board) found that Hughes Creek Road extends roughly twelve miles, and that the historical record, taken as a whole, contradicts the 1965 Map.

The Historical Record

¶4 Hughes Creek Road was built in 1900 to access mining claims held by the Woods Placer Mining Company. The petition creating the county road and an entry in an early road plat book reflect that Hughes Creek Road commenced near the post office in Alta, Montana, and ran east along Hughes Creek for "about twelve miles." Ravalli County (County) initially maintained the full length of Hughes Creek Road with a four-horse team and a County-owned grader. The historical record further evidences that the United States Forest Service (USFS) constructed a trailhead at the end of the road.

¶5 In 1965, the County and USFS entered into an agreement for the maintenance of Hughes Creek Road. The 1965 Map, created in conjunction with the 1965 road maintenance agreement, depicted the end of the county road at the western end of Mining Survey 5883, roughly nine miles from its junction with West Fork Road. In 1981, the County and USFS amended the 1965 maintenance agreement, for which the 1965 Map was created. The amended maintenance agreement stated that Hughes Creek Road was twelve miles long, with 8.4 miles graded and 3.4 miles primitive. The agreement was again amended in 2010, stating Hughes Creek Road was 11.8 miles long, with 7.8 miles graded and 4 miles primitive.

¶6 In the late 1970s, landowners erected a locked gate across Hughes Creek Road at roughly nine miles from the road's junction with West Fork Road, consistent with the point depicted by the 1965 Map as the end of the county road.

¶7 In 1982, landowners on Hughes Creek Road, including Landowners and their predecessors in interest, petitioned the Board for abandonment of the road beyond the gate. The Board denied the petition, found that Hughes Creek Road extended 11.8 miles and provided access to a USFS trailhead and federally-managed public lands, and ordered the gate removed.

¶8 In 1984, the County filed suit seeking removal of two gates across Hughes Creek Road and a temporary restraining order for their removal. While the District Court orally denied the County's request for a temporary restraining order, the case was later dismissed by stipulation, and no final judgment was entered. Bugli v. Ravalli Cty. , 2018 MT 177, ¶¶ 4, 12, 392 Mont. 131, 422 P.3d 131 ( Bugli I ).

¶9 Landowners' current gate obstructs Hughes Creek Road at roughly 8.5 miles from its junction with West Fork Road, whereas the 1965 Map depicts the end of the County Road at roughly nine miles.

Due to their reliance on the 1965 Map, Landowners acknowledged their gate obstructed four-tenths of a mile of the county portion of Hughes Creek Road.

Landowners' 2016 Petition for Abandonment

¶10 On, July 25, 2016, Landowners petitioned the Board to abandon the four-tenths of a mile of Hughes Creek Road between their gate and the exact point depicted by the 1965 Map. Landowners did not want to move their gate or create a new turnaround. Landowners asserted that abandonment affected only the landowners listed in the petition, and that the road, according to the 1965 Map, did "not reach or touch any public land in the area subject to abandonment." As such, the provisions of § 7-14-2615(3), MCA, were inapplicable.

The Board's Denial of Landowners' 2016 Petition for Abandonment

¶11 Upon receipt of Landowners' petition, the Board appointed road viewers and reviewed their report. On January 25, 2017, the Board held a public hearing and considered an extensive historical record, written comments, and public testimony regarding the road. At the hearing's conclusion, the Board made findings of fact and conclusions of law, including that the county portion of Hughes Creek Road was no less than 11.8 miles long and the locked gate was an encroachment on the County's road. The Board additionally found that the portion of Hughes Creek Road Landowners petitioned to abandon provided access to public lands or waters. Because no other road provided substantially the same access to those public lands or waters, the Board concluded it was precluded from abandoning that portion of Hughes Creek Road pursuant to § 7-14-2615(3), MCA. The Board denied Landowners' 2016 petition for abandonment and ordered the gate removed by June 1, 2017.

Landowners' first action: Bugli I

¶12 On April 10, 2017, Landowners filed a complaint for declaratory and injunctive relief in district court. Bugli I , ¶ 6. Landowners specifically sought: (1) a declaratory judgment stating that the County's request that Landowners remove the gate and allow public access was barred by the doctrine of claim preclusion; (2) a declaratory judgment that Hughes Creek Road ended at or near the gate consistent with the 1965 Map; (3) a declaratory judgment regarding the correct construction and application of § 7-14-2615(3), MCA ; and (4) a determination that where Hughes Creek Road was private property beyond the gate, the County's actions constituted an unconstitutional taking requiring just compensation, damages, and attorney fees. Bugli I , ¶ 6. The County filed a motion to dismiss for lack of subject matter jurisdiction. On June 29, 2017, the District Court granted the County's motion.

¶13 Landowners appealed only their first and second claims to this Court, which upheld the District Court's dismissal of Landowners' complaint. Bugli I , ¶¶ 1, 6. Relying on alternative reasoning, we upheld the decision because Landowners had not satisfied the five elements of claim preclusion. Bugli I , ¶ 11. While Landowners argued that the issues in the 1984 action and Bugli I were the same, this Court disagreed, reasoning that the County brought the 1984 action to remove the gate, whereas Landowners filed suit in Bugli I to challenge the County's decision to deny their 2016 petition for abandonment. Bugli I , ¶ 11. Further, this Court held that no valid final judgment on the merits was ever entered in the 1984 case. Bugli I , ¶ 12.

¶14 In terms of Landowners' second claim requesting a declaratory judgment that Hughes Creek Road ended at or near the gate consistent with the 1965 map, this Court agreed with the District Court that re-establishing the length of Hughes Creek Road could not be done by the court without a petition for a writ of review. This Court held:

By submitting their petition to abandon the road, Landowners voluntarily chose, accepted, and submitted to the [Board's] jurisdiction and committed their road dispute to the statutory process [arising] from the statutory abandonment process, including necessary fact-finding. Landowners are now bound to that process, and cannot relitigate these issues in a separate forum.

Bugli I , ¶ 21. Landowners' proper course of action was to petition the District Court for a writ of review pursuant to § 27-25-102(2), MCA. Bugli I , ¶ 25.

The Current Issue

¶15 On July 31, 2017, while Landowners' appeal in Bugli I was still pending, Landowners filed a petition for a writ of review in District Court. In their petition, Landowners asserted that the Board exceeded its statutory jurisdiction to grant or deny Landowners' petition for abandonment by: (1) failing to consider whether claim preclusion barred the County from seeking removal of the gate; (2) determining that the county portion of Hughes Creek Road extended beyond the gate, and (3) misinterpreting § 7-14-2615(3), MCA. The District Court stayed Landowners' petition for a writ of review pending resolution of Bugli I .

¶16 On July 17, 2018, this Court issued its Opinion in Bugli I , and on July 28, 2018, the County filed a notice of issue asking the District Court to: (1) lift the stay in this case and determine the issues; (2) deny Landowners' petition for a writ of review; (3) grant the County's motion to dismiss Landowners' claim preclusion argument with prejudice; (4) grant the County's motion for order regarding the Board's authority and findings; and (5) dissolve or set a show cause hearing on the stipulated temporary restraining order.

¶17 On August 9, 2018, the District Court issued the order lifting the stay on the proceedings and denied Landowners' petition for a writ of review and accompanying application for preliminary injunction on the basis that the Board did not exceed its jurisdiction. The District Court determined that oral argument was unnecessary based on its review of the record from the 2016 abandonment proceeding and Bugli I . Additionally, the District Court denied the County's motion to dismiss Landowners' claim preclusion argument as moot and denied the County's motion for an order regarding the Board's authority and findings.

¶18 Landowners appeal.

STANDARD OF REVIEW

¶19 A district court's decision to grant or deny a petition for a writ of review is discretionary. Section 27-25-102(2), MCA. In determining whether to grant or deny a petition for a writ of review, a district court's review of a tribunal or board's decision is limited to whether the tribunal or board exceeded its jurisdiction. Section 27-25-102(2), MCA. A district court's review "cannot be extended further than to determine whether the inferior tribunal, board, or officer has regularly pursued the authority of such tribunal, board, or officer." Section 27-25-303, MCA. A district court cannot employ a writ of review to correct errors made by a tribunal or board acting within its jurisdiction. Burnt Fork Citizens Coalition v. Board of Cty. Comm'rs , 287 Mont. 43, 50, 951 P.2d 1020, 1025 (1997) (citing Buffalo v. Thiel , 213 Mont. 280, 284, 691 P.2d 1343, 1345 (1984) ).

¶20 This Court reviews a district court's grant or denial of a petition for writ of review for an abuse of discretion. Schaefer v. Egeland , 2004 MT 199, ¶ 11, 322 Mont. 274, 95 P.3d 724. A district court abuses its discretion when it acts arbitrarily without conscientious judgment or exceeds the bounds of reason. Schaefer , ¶ 11. This Court reviews a district court's findings of fact for clear error and conclusions of law for correctness. Constitutional questions are reviewed by this Court de novo. State v. Edmundson , 2014 MT 12, ¶ 12, 373 Mont. 338, 317 P.3d 169.

DISCUSSION

¶21 Whether the District Court abused its discretion by denying Landowners' petition for a writ of review on the basis that Landowners failed to show the Board exceeded its jurisdiction in the proceedings related to Landowners' petition to abandon a portion of Hughes Creek Road.

¶22 This matter came before the District Court as a petition for a writ of review. "The purpose of a writ of review is to determine whether [a lower tribunal, board, or officer exercising judicial functions] exceeded its jurisdiction." Schaefer , ¶ 10. A district court may grant a writ of review when (1) a board exercising judicial functions has exceeded the jurisdiction of the board, and (2) there is no appeal or, in the judgment of the court, any plain, speedy, and adequate remedy. Schaefer , ¶ 10 (citing § 27-25-102(2), MCA ).

¶23 The dispositive issue is whether the Board exceeded its jurisdiction. This Court must therefore determine whether the Board's denial of Landowners' petition and conclusion that the county road extended beyond Landowners' locked gate constitutes an exercise of authority beyond the Board's jurisdiction under Montana law.

¶24 Certain Montana statutes confer jurisdiction to the Board to grant or deny petitions to establish, alter, or abandon a county road. Sections 7-5-2101, 7-14-2101(1)(a)(i), -2601 through -2604, -2615(1), (2), MCA. Section 7-14-2101(1)(a)(i), MCA, authorizes the Board to "lay out, maintain, control, and manage county roads ... within the county." "All county roads once established must continue to be county roads until abandoned or vacated by: (a) operation of law; (b) judgment of a court of competent jurisdiction; or (c) the order of the board." Section 7-14-2615(1), MCA.

¶25 It is well settled in Montana's jurisprudence that a district court does not have jurisdiction to independently order the abandonment of a county road. Bugli I , ¶ 16 ; Bd. of Cty. Comm'rs v. Dist. Ct. , 203 Mont. 44, 48, 659 P.2d 266, 268 (1983) ; Lee v. Musselshell Cty. , 2004 MT 64, ¶ 27, 320 Mont. 294, 87 P.3d 423.

¶26 Sections 7-14-2601 through -2604, MCA, describe the proper procedure to petition a board to establish, alter, or abandon a county road. Bugli I , ¶ 16. After receiving a petition satisfying the requirements set forth in §§ 7-14-2601 and -2602, MCA, "the board shall cause an investigation to be made of the feasibility, desirability, and cost of granting the prayer of the petition. The investigation shall be sufficient to properly determine the merits or demerits of the petition." Section 7-14-2603(1), MCA. Petitions requesting abandonment additionally require the board to give notice and hold a public hearing before abandonment. Section 7-14-2615(2), MCA. After considering the petition and the results of the investigation, the board shall make an entry of its decision and notify landowners adjacent to the road in question. Sections 7-14-2603(3), -2604, MCA.

¶27 Significantly, the board may not abandon a county road or right of way used to provide existing legal access to public land or waters, including access for public recreational use as defined in § 23-2-301(10), MCA, and as permitted in § 23-2-302, MCA, unless another public road or right-of-way provides substantially the same access. Section 7-14-2615(3), MCA. Should a petitioner disagree with the board's decision regarding abandonment, the petitioner must seek a writ of review in district court. Bugli I , ¶ 16 (citing Bd. of Cty. Comm'rs , 203 Mont. at 48, 659 P.2d at 268 ).

¶28 Landowners petitioned the Board to abandon four-tenths of a mile of Hughes Creek Road extending beyond Landowners' gate pursuant to §§ 7-14-2601 and -2602, MCA. By filing this petition to abandon, Landowners necessarily agreed that the gate encroached on a county road. The Board's investigation into the merits of Landowners' petition included appointing road viewers, holding a hearing, and considering the extensive historical record, written commentary, and public testimony regarding the road. The investigation revealed that the county portion of Hughes Creek Road extends 11.8 miles, several miles beyond Landowners' gate. The conditions precedent to the Board's jurisdiction to deny a petition for abandonment were met. Accordingly, the Board denied the petition for abandonment and ordered the removal of Landowners' gate blocking the county road pursuant to its authority under Montana law. Sections 7-14-2603(1), (3), -2604, -2615(1), (2), MCA. Ample evidence in the record supports the Board's decision.

¶29 As noted, Landowners filed a petition for a writ of review, which was denied. On appeal, Landowners specifically argue the Board exceeded its statutory jurisdiction to grant or deny Landowners' petition for abandonment by: (1) failing to consider that claim preclusion barred the County from seeking removal of the gate; (2) determining that the County portion of Hughes Creek Road extended beyond the gate, and (3) misinterpreting § 7-14-2615(3), MCA. This Court addresses each argument in turn.

¶30 The District Court correctly determined not to consider Landowners' claim preclusion argument. In Bugli I , this Court held that Landowners failed to satisfy the five elements of claim preclusion. Bugli I , ¶ 11. For the purposes of this case, the issue has been decided and the Landowners cannot prove the Board exceeded its authority to deny Landowners' petition for abandonment on that basis.

¶31 Landowners argue that the Board exceeded its jurisdiction because it created a new section of county road without following the proper statutory process for road creation, including compensation for deprivation of private property. The District Court held that Landowners failed to establish the Board improperly created an extension of Hughes Creek Road, noting the historic record to demonstrate that Landowners' argument was "unsupported" and "wholly contradicted by the record."

¶32 The historical record substantially supports the Board's conclusion that Hughes Creek Road is 11.8 miles long. While Landowners rely entirely on the 1965 Map's depiction of the end of the county road to support their argument, the record contradicts the 1965 Map's depiction. Moreover, later amendments to the maintenance agreement, for which the 1965 Map was created, state that Hughes Creek Road is 11.8 miles long, consistent with the Board's findings. The Board was within the scope of its statutory authority to deny Landowners' 2016 petition to abandon four tenths of a mile of Hughes Creek Road because substantial evidence in the historical record supported that the county road extended for several miles beyond the Landowners' gate.

¶33 While Landowners object that the Board exceeded its jurisdiction by making findings of fact about the historical route of the road, such an investigation is legally required before a Board may abandon a county road. See § 7-14-2603(1), MCA. The Board could not make an informed decision on whether to abandon the small portion of county road without considering the historical record regarding the full length of the road. The Board's findings did not create a new county road, but rather confirmed that Landowners' gate illegally blocked access to an existing county road. The record substantially supports the Board's findings regarding Hughes Creek Road.

¶34 Citing § 26-1-601(1), MCA, Landowners additionally argue for the first time on appeal that Landowners' reliance on the 1965 Map entitles them to a conclusive presumption that the 1965 Map depicts the actual end of the county road. Landowners' reliance on § 26-1-601(1), MCA, is misplaced and, as noted above, their argument fails for numerous reasons. Landowners cannot assert for the first time on appeal that their reliance on an outdated map contradicting the bulk of the historical record entitles them to a conclusive presumption that the 1965 Map represents the incontrovertible end of the county road.

¶35 Finally, Landowners argue the Board exceeded its statutory jurisdiction to grant or deny Landowners' petition for abandonment by misinterpreting § 7-14-2615(3), MCA. Section 7-14-2615(3), MCA, states:

The board may not abandon a county road or right-of-way used to provide existing legal access to public land or waters, including access for public recreational use as defined in 23-2-301 and as permitted in 23-2-302, unless another public road or right-of-way provides substantially the same access.

¶36 Landowners fail to articulate how the Board misinterpreted the statute. As stated by the District Court:

[T]he record shows that the Commissioners' stated basis for denying the petition is supported by substantial evidence. Hughes Creek Road provides legal access to thousands of acres of USFS land. Hughes Creek Road is the only county road within the Hughes Creek drainage.

Consistent with § 7-14-2615(3), MCA, the Board determined it could not legally abandon the county portion of Hughes Creek Road because it provided the only legal means for public access to the public lands and waters beyond the Landowners' locked gate. Montana law prevents private land owners from blocking public access to public lands and waters through Montana's statutory process for abandoning county roads. Section 7-14-2615(3), MCA. Section 7-14-2615(3), MCA, reflects the notion that Montana's public lands belong to the public and cannot be enjoyed or properly managed where counties have abandoned legal access points in favor of private ownership. The Board properly interpreted and complied with § 7-14-2615(3), MCA.

¶37 The Board determined that Landowners' gate illegally blocked access to an existing county road. The Board's decision thus did not deprive Landowners of any private property for public use. Accordingly, Landowners' constitutional takings and due process arguments are without merit and do not require discussion.

CONCLUSION

¶38 The District Court did not abuse its discretion when it denied Landowners' petition for a writ of review. Landowners failed to meet a statutory requirement for issuance of a writ of review; Landowners failed to show that the Board exceeded its jurisdiction.

¶39 Affirmed.

We Concur:

JIM RICE, J.

JAMES JEREMIAH SHEA, J.

INGRID GUSTAFSON, J.

BETH BAKER, J.

DIRK M. SANDEFUR, J.

Justice Laurie McKinnon, dissenting.

¶40 I would reverse the District Court's denial of the writ of mandate on the basis that the Board had statutory authority to only grant or deny the petition. The petition before the Board was to abandon four-tenths of a mile of county road. The Board exceeded its statutory authority when there was no duly filed petition to create a county road but it nonetheless found Hughes Creek Road was a county road extending nearly 12 miles. While the Board was within its authority to grant or deny the petition for abandonment respecting the four-tenths section of the road, its findings respecting the remainder of the road were not statutorily authorized. The effect of the Board's actions were that Landowners did not have the opportunity to litigate in a court the existence, location, and conditions of the road, which has long been the practice in Montana. The unusual procedural posture of this case, and this Court's decision in Bugli I that a declaratory judgment by the District Court regarding the length of the road would undermine the Board's statutory authority over the road, do not preclude an evidentiary hearing before the District Court in an action for a writ of mandate. The provisions of Title 25, MCA, relative to trials apply to writs of mandate. Section 27-25-103, MCA.

¶41 The authority of county commissioners over county roads is statutory. County commissioners have the authority to grant or deny a petition to "establish, construct, change, abandon, or discontinue any county road in the district." Section 7-14-2601(1), MCA. Section 7-14-2602, MCA, outlines the contents of the petition, including the route, the affected landowners, whether the affected landowners consented, and the probable cost of the right-of-way if there is no consent. Next, a properly filed petition requires the county commissioners to investigate "the feasibility, desirability, and cost of granting the prayer of the petition." Section 7-14-2603(1), MCA. Following notice and public hearing, county roads are only abandoned by (1) operation of law; (2) judgment of a court of competent jurisdiction; or (3) the order of the board. Section 7-14-2615(1), MCA.

¶42 Here, rather than limiting itself to its statutory authority to grant or deny the petition to abandon four-tenths of a mile of county road, the Board went further and made "findings of fact" about the road's historical route, considered maps and other evidence purportedly establishing the road extended further onto Landowners' property, and described the effect of prior county commissioners' actions and court cases. The District Court reviewed the Board's hearing and determined the evidence overwhelmingly supported the Board's conclusion that the road was nearly 12 miles long. However, while it is within the commissioners' authority to create and abandon a county road, it is not within the current commissioners' authority to adjudicate what past commissioners have done. It has long been the practice in Montana for the existence, location, and conditions of a county road to be litigated in a court. Bugli I , ¶ 20. The District Court was obligated to hear Landowners' writ as a matter of first instance in a hearing. It was not the District Court's function to determine whether the Board's determination that the road extended nearly 12 miles was supported by substantial evidence.

¶43 While the Board clearly had authority to deny the petition to abandon four-tenths of a mile of county road, in my opinion the Board exceeded its authority when it addressed the remaining miles and determined that section was a county road as well. The Board's authority is limited by statute and confined to consideration of those petitions duly brought before it. There was no petition to classify the remaining portion of the 12-mile section. If past county commissioners previously deemed it a county road, its existence, location, and condition must be determined in court through application of the rules of evidence. Those rules of trial apply to writs of mandate, § 27-25-304, MCA, just as they do to declaratory judgment actions, quiet title actions, and other hearings.

¶44 Landowners are correct that the Board exceeded its authority in making "findings of fact" and a conclusion that the county road extends nearly 12 miles. The Board's authority is statutorily derived and was limited to granting or denying the petition before it. I would reverse the District Court's denial of the writ of mandate and vacate the Board's "findings" that extend beyond the petition for abandonment.

¶45 To the extent the Court holds otherwise, I dissent.