author: MR. JUSTICE HUNT MR. JUSTICE GULBRANDSON, MR. JUSTICE WEBER,

text:
    STATE OF MONTANA, Plaintiff and Appellant, v. MICHAEL KEVIN GEE, Defendant and Respondent.
    No. 85-615.
    Submitted on Briefs June 24, 1986.
    Decided Aug. 11, 1986.
    Rehearing Denied Sept. 11, 1986.
    723 P.2d 934.

      Mike Greely, Atty. Gen., Helena, A. Michael Salvagni, Co. Atty., Marty Lambert, Deputy Co. Atty., Bozeman, for plaintiff and appellant.
    Bolinger & Foster, K. Robert Foster, Bozeman, for defendant and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

The State appeals from the order of the Gallatin County District court granting Gee’s motion to dismiss for lack of jurisdiction.

We affirm.

The issue on appeal is whether the District Court erred in granting Gee’s motion to dismiss the charge against him of driving under the influence of alcohol, third offense, for lack of jurisdiction because he had only one prior DUI conviction as an adult.

On March 7, 1981, Gee was charged with DUI in Gallatin County Justice Court. He pled guilty. Gee was 16 years old at the time. On May 9, 1982, Gee was charged with DUI in Bozeman City Court. He again pled guilty. He was 18 years old at that time. On December 19, 1984, Gee was arrested for DUI. An information was filed with the District Court charging Gee with driving under the influence of alcohol, third offense.

The District Court granted Gee’s motion to dismiss the information. The court based its order upon the language of Section 61-12-601, MCA. That statute states:

“(1) The district courts and the justices’ courts of the state and the municipal and city courts of cities and towns shall have concurrent original jurisdiction in all proceedings concerning the unlawful operation of motor vehicles by children under the age of 18 years.

“(2) Whenever, after a hearing before the court, it shall be found that a child under the age of 18 years has unlawfully operated a motor vehicle, the court may:

“(a) impose a fine, not exceeding $50, provided such child shall not be imprisoned for failure to pay such fine;

“(b) revoke the driver’s license of such child, or suspend the same for such time as may be fixed by the court; and “(c) order any motor vehicle owned or operated by such child to be impounded by the probation officer for such time, not exceeding 60 days, as shall be fixed by the court. However, if the court shall find that the operation of such motor vehicle was without the consent of the owner, then such vehicle shall not be impounded.”

In its order, the District Court stated:

“Under Montana law a minor who commits a vehicular offense, including the offense of DUI, is found to be guilty of unlawful operation of motor vehicles under Section 61-12-601, MCA. The minor is not found to be guilty of the principle offense charged.”

Since Gee’s first offense was a violation of Section 61-12-601, MCA, the court found that Gee had only one prior conviction as an adult under Section 61-8-401, MCA. Therefore, Gee’s current charge is DUI, second offense. The District Court lacks jurisdiction to hear a charge of DUI, second offense. State v. Heine (1976), 169 Mont. 25, 544 P.2d 1212. So the court granted Gee’s motion to dismiss.

The State makes two main arguments on appeal. First, that Section 61-12-601, MCA, is unconstitutionally vague as a criminal statute because it does not establish a crime, but merely provides the forum where other traffic crimes found in the Montana Code Annotated shall be prosecuted if a juvenile driver is involved, and the penalties that the court may impose. We disagree. The statute is not unconstitutionally vague for failure to adequately describe prohibited conduct. To determine what conduct is prohibited one must simply look to the principal traffic offense charged. That does not make the statute unconstitutionally vague. The Montana Youth Court Act, Section 41-5-101, et. seq., MCA, is similar. A delinquent youth is defined at Section 41-5-103(12), MCA, as a youth:

“(a) who has committed an offense which, if committed by an adult, would constitute a criminal offense.”

If a juvenile is charged with burglary, he is not found guilty of the offense charged, but is found to be a delinquent youth. In order to determine whether a juvenile is a delinquent youth or a youth in need of supervision, it is necessary to refer to an underlying criminal statute. That does not make the Youth Court Act unconstitutional.

Similarly, Section 61-12-601, MCA, establishes the offense of unlawful operation of a motor vehicle by a minor. That statute establishes the jurisdiction of the courts and the penalties which can be imposed. The statute is not deficient merely because one must look to other statutes to determine whether the minor has unlawfully operated a motor vehicle. Section 61-12-601, MCA, is not unconstitutional.

The State’s second argument is that the District Court’s dismissal violates the policy of the Montana habitual traffic offender laws, Sections 61-11-201, et. seq., MCA. Section 61-11-201, MCA, states:

“This part is predicated upon the belief and philosophy that innocent drivers and other innocent passengers and pedestrians have a constitutional right to live, free from fear of death or injury from habitual traffic offenders. Further, it is the purpose of this part to reduce the number of motor vehicle accidents in this state and to provide greater safety to the motoring public and others by denying to the habitual traffic offenders the privilege of operating a motor vehicle upon the public streets and highways of this state.”

The State argues that this statute makes no distinction between juvenile and adult drivers, and making such a distinction would frustrate the purpose of the habitual traffic offender laws. The habitual traffic offender laws provide for the accumulation of points upon conviction for traffic offenses. A conviction for driving under the influence of alcohol is 10 points. Section 61-11-203(2)(d), MCA. A conviction for unlawful operation of a motor vehicle by a minor results in the accumulation of only 2 points. Section 61-11-203(2) (1), MCA. An accumulation of 30 points results in revocation of the offender’s license for 3 years. Section 61-11-211, MCA. Thus, concludes the State, allowing a juvenile to be found guilty under Section 61-12-601, MCA, resulting in the accumulation of only 2 points violates the purpose of the habitual traffic offender law.

We do not agree. The purpose expressed in Section 61-11-201, MCA, can be accomplished under the penalty provisions of Section 61-12-601(2)(b), MCA. Under that statute, the court may “revoke the driver’s license of such child, or suspend the same for such time as may be fixed by the court.” Under Section 61-12-601, MCA, the minor’s driver’s license can be revoked or suspended prior to the accumulation of 30 points.

Further, Section 61-12-601, MCA, does not contain the mandatory jail provisions applicable to adults convicted under Section 61-8-401, MCA. The absence of incarceration is consistent with the philosophy expressed throughout Montana law to attempt to rehabilitate youthful offenders, not punish them. Under Section 61-12-601(2)(a), MCA, the court has the power to “impose a fine, not to exceed $50, provided such child shall not be imprisoned for failure to pay such fine.” (Emphasis added.) One purpose of the Youth Court Act declared in Section 41-5-102(2), MCA, is:

“(2) to remove from youth committing violations of the law the element of retribution and to substitute therefor a program of supervision, care, rehabilitation, and, in appropriate cases, restitution as ordered by the youth court.”

The legislature is attempting to treat youthful offenders differently than adult offenders. A conviction under Section 61-8-401, MCA, as urged by the State, would result in jail time for the youth. This conflicts with the emphasis placed by the legislature on rehabilitation as opposed to retribution when youthful offenders are involved.

We agree with the interpretation of the District Court that a minor who commits a vehicular offense is guilty of unlawful operation of a motor vehicle under Section 61-12-601, MCA. That statute is not unconstitutionally vague because one must refer to other vehicular offense statutes to determine whether the minor engaged in unlawful operation of a motor vehicle. Further, finding that a youth has violated Section 61-12-601, MCA, upholds the policy of the habitual traffic offender law, and is consistent with the philosophy found throughout Montana Law of emphasizing rehabilitation over retribution.

The order of the District Court is affirmed.

MR. JUSTICES HARRISON, SHEEHY and MORRISON concur.

MR. JUSTICE GULBRANDSON,

dissenting:

I respectfully dissent.

Contrary to the declarations in the majority opinion, the State does not argue that Section 61-12-601, MCA, is unconstitutional. The State’s position is that the section does not establish a criminal offense, and it was only when the District Court ruled that it established a crime did the constitutional infirmity of vagueness arise.

The record is clear that the defendant entered a plea of guilty to DUI (Section 61-8-401, MCA) in Gallatin County Justice Court on March 7, 1981, one month prior to his seventeenth birthday, and that he pled guilty as an adult to DUI on May 9, 1982. The present DUI offense occurred December 19, 1984, which date is within the five-year period contemplated by Section 61-8-714 (3), MCA.

The Justice Court, on March 7, 1981, had jurisdiction to accept the plea of guilty and was only limited in the punishment it could impose under Section 61-12-601, MCA.

This Court, in State of Montana ex rel. Lloyd Scott Maier v. The City Court of Billings (Mont. 1983), [203 Mont. 443,] 662 P.2d 276, 40 St. Rep. 560, stated:

“The provisions of Section 61-12-601, MCA, are therefore exclusive as to jurisdiction of traffic offenses involving minors, and youth courts in this state are granted no jurisdiction of such traffic law violations.”

Maier, 662 p.2d at 281.

It is my opinion that the legislature, by excluding traffic violations from the Youth Court Act (Section 61-12-601, MCA) and by opening a youth’s traffic records to public inspection (Section 41-5-602, MCA) has indicated a legislative intent that juvenile drivers be subject to the same responsibilities as adult drivers, although imprisonment is not allowed as punishment for juvenile traffic offenders.

The majority, by ruling that DUI offenses (no matter how many) committed by a juvenile may not be considered in the application of Section 61-8-714(3), MCA, in the prosecution of an adult charged with DUI, in my view, is undermining the policy of the habitual traffic offender law which it claims to be upholding.

Once again, because of judicial decision, the legislature will be faced with the responsibility of declaring the public policy of this State with regard to the prosecution of DUI offenses under Section 61-8-714(3), MCA, and the accumulation of traffic conviction points under Section 61-11-203(2)(d), MCA.

I would reverse the order of the District Court.

MR. JUSTICE WEBER,

dissenting:

I concur in the foregoing dissent of Mr. Justice Gulbrandson.

The code section relating to the revocation of driving privileges for habitual traffic offenders is presently contained in Sections 61-11-201 to -215. This was enacted as Chapter No. 362 in the 1974 Legislative Session. As enacted, the title stated that it was an act relating to habitual traffic offenders providing for a system of conviction points leading to revocation of driving privileges. As appears from a review of the Act, the essential element is that it affords a means of taking away the license to drive of a person who has demonstrated his apparent indifference for the safety and welfare of others and his disrespect for the laws of Montana and disregard of the orders of courts. See Section 61-11-202, MCA, for the legislative intent. I believe it is readily possible to give effect to the Act by taking away a driver’s license without contradicting the other penalties provided in Section 61-12-601 and 61-8-401, MCA. I agree with Justice Gulbrandson in noting that the Act does not suggest any reason why the indifference of a driver to the safety and welfare of others is any different for a minor offender than for an adult. In fact, a minor indicates a greater disregard and disrespect for the laws of the state when he consumes alcohol, which is illegal for a person his age, and therefore more accurately fits within the group of persons whom the Legislature intended to control.

The defendant pleaded guilty to DUI (Section 61-8-401, MCA) in justice court while 16 years of age. Under Section 61-11-203, MCA, “conviction” includes a finding of guilt by duly constituted judicial authority as a result of a plea of guilty. It clearly appears that the 16-year-old’s plea of guilty constitutes such a conviction. I would therefore conclude that there is a basis under these statutes for the determination by the court whether the defendant was a habitual traffic offender who should be required to surrender his driver’s license. I would therefore reverse the Order of the District Court.

MR. CHIEF JUSTICE TURNAGE, concurs in the foregoing dissents of MR. JUSTICE GULBRANDSON and MR. JUSTICE WEBER.


source: Caselaw Access Project

author: MR. JUSTICE HUNT MR. JUSTICE GULBRANDSON,

license: Public Domain

text:
    JACK BREWINGTON, Claimant and Appellant, v. BIRKENBUEL, INC., Employer, and Employers’ Fire Insurance Co., Dependant and Respondent.
    No. 85-87.
    Submitted on Briefs March 13, 1986.
    Decided Aug. 12, 1986.
    Rehearing Denied Sept. 9, 1986.
    723 P.2d 938.

      Utick & Grosfield, Andrew J. Utick, Helena, for claimant and appellant.
    William L. Baillie, Great Falls, for defendant and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

Jack Brewington appeals a Workers’ Compensation Court order which ruled that he is permanently partially disabled and awarded him 400 weeks of indemnity benefits under Section 29-71-706, MCA. The issues on appeal are: (1) whether the lower court erred in ruling that appellant is not permanently totally disabled; (2) whether the lower court erred in awarding appellant 400 weeks of indemnity benefits rather than 500 weeks, the statutory maximum; and, (3) whether the lower court erred in failing to increase appellant’s award by 20% under Section 39-71-2907, MCA, because of respondent’s allegedly unreasonable delay or refusal in paying benefits. We reverse and remand.

Appellant is 61 years of age, with an eighth grade education, and since 1960 has generally worked as a millwright, welder or carpenter. He also worked as a supervisor in a Missoula paper mill and he has worked for very short periods of time in other supervisory positions. These other supervisory jobs lasted only two or three days but details on how long he worked as a supervisor in the paper mill are lacking.

In December 1974, appellant suffered a compensable injury during the course of his employment with Birkenbuel, Inc. Due to the collapse of some scaffolding, appellant fell twelve feet to the ground landing on his right hand and shoulder. Appellant was able to work for some time after his accident although he experienced pain and difficulties with his coordination. Appellant stopped working for three weeks in March 1975 because of his injury but he resumed working thereafter. Due to the injury, appellant suffered substantial pain in his neck, shoulder and arm. After working through 1975, 1976 and part of 1977, appellant suffered another industrial accident in July 1977 in which he sawed off the tips of two fingers on his left hand. Appellant has never worked since the second accident. Any disability he has from the second injury is not at issue in the instant case.

Dr. Nelson, appellant’s treating physician, first examined appellant in August 1977. Dr. Nelson diagnosed appellant as having brachial plexus neuritis, bilaterally, but greater on the right side. Brachial plexus neuritis is an inflammation of the nerves in the neck and shoulders which may be brought on by direct blows or other injuries. Dr. Nelson later made an additional diagnosis of appellant as having thoracic outlet syndrome; i.e. a kinking or pinching of the artery and nerve as the shoulder and arm are elevated. These problems stem from appellant’s 1974 accident. The doctor stated that appellant’s condition had stabilized, and his healing period was over by October 1982. On September 7, 1982, appellant was examined by Dr. Cahill at the request of the respondent. Dr. Cahill agreed with Dr. Nelson’s diagnosis.

In January, 1984, appellant described his health problems stemming from his 1974 accident. He stated that he had problems with his neck and if it was cold or if he bent over a lot, his neck would lock and he had a lot of pain; that he had pain all the time in his shoulder, ranging from pain “like a toothache” most of the time to a burning sensation at other times; that he had pain all the time, and no coordination most of the time, in his right arm; that any physical work make his arm and shoulder worse; and that he could do woodworking for about IV2 hours before his right arm hurt him and he was required to stop.

Dr. Nelson testified at deposition that appellant’s arm and shoulder injuries prevent him from doing laborious work; that is, “overhand, overhead, climbing, lifting, prolonged, repetitive usage of the arm and shoulder to any degree of strength.” The doctor also recommended no prolonged bending by appellant or even long-distance driving. Dr. Nelson had no objections to appellant attempting to work as a foreman or supervisor. He stated that appellant should be in a “sedentary” occupation, which he described as something educative or supervisory or something appellant could take periodic breaks from if he had to do repetitive physical work. Dr. Nelson recommended vocational training for appellant as long as it would outfit him for light work. The doctor rated appellant’s disability as a 10% impairment of the whole body. Dr. Cahill agreed with Dr. Nelson’s impairment rating and conclusion that appellant was limited to a sedentary-type occupation.

After quitting work after his second accident, appellant attempted to secure work as a supervisor with several Lewistown construction firms and as a welding instructor. The construction firms indicated that he would have to be a working foreman and he felt he was physically unable to handle such a position. Appellant apparently did not inquire into many jobs which could be classified as “sedentary” because, as he stated, he would not accept any job unless he could earn $1,000 a month. He concluded that he could probably enter a retraining program and find work if he could stay close to his wife, who is going blind. Respondent hired National Rehabilitation Consultants to work with appellant to improve his employment chances. Appellant declined the services of the rehabilitative consultants and admitted that he did so because he had decided to try and obtain a lump sum settlement of his Workers’ Compensation benefits, and because acceptance would have required him to travel far from Lewistown and his ailing wife.

Respondent accepted liability for appellant’s first injury and initially paid him temporary total disability benefits. Respondent paid these benefits until February 1983. In January 1983, National Rehabilitation Consultants advised respondent that appellant had refused their services. Within a month, respondent stopped paying appellant temporary total disability benefits and began paying appellant lesser benefits for permanent partial disability. At the time of this change, respondent had reports from Dr. Nelson and Dr. Cahill which stated that appellant had reached his maximum point of recovery and could return to sedentary-type work.

Appellant disagreed with respondent’s decision to pay him permanent partial disability benefits and, in June 1983, he filed a petition for a hearing with the Workers’ Compensation Court claiming a right to permanent total disability benefits. The lower court held a hearing in January 1984, before a hearing examiner who disqualified himself for conflict of interest reasons and the parties stipulated that the judge could complete the case. The judge did not hear any of the testimony but rather issued his decision in January 1985 based on the record. The court concluded that appellant was 80% permanently partially disabled, based upon an impairment rating of 10% of the whole man. The court awarded appellant 400 weeks of benefits, 80% of the statutory maximum of 500 weeks. The court refused to impose a 20% penalty upon respondent. This appeal followed.

The first issue is whether the lower court erred in finding that appellant is partially rather than totally disabled. The oft-cited standard of review is that,

“Our function in reviewing a decision of the Workers’ Compensation Court is to determine whether there is substantial evidence to support the findings and conclusions of that court. We cannot substitute our judgment for that of the trial court as to the weight of evidence on questions of fact. Where there is substantial evidence to support the findings of the Workers’ Compensation Court, this court cannot overturn the decision.” (Citations omitted.)

Metzger v. Chemetron Corp. (Mont. 1984), [212 Mont. 351,] 687 P.2d 1033, 1035, 41 St.Rep. 1788, 1790; citing Nielsen v. Beaver Pond, Inc. (Mont. 1983), [203 Mont. 339,] 661 P.2d 47, 49, 40 St.Rep. 489, 491.

But we have also stated that where the Workers’ Compensation Court received the critical evidence by deposition “this Court, although sitting in review, is in as good a position as the Workers’ Compensation Court to judge the weight to be given to such record testimony, as distinguished from oral testimony, where the trial court actually observed the character and demeanor of the witnesses on the stand.” Lamb v. Missoula Imports, Inc. (Mont. 1984), [211 Mont. 360,] 684 P.2d 498, 500, 41 St.Rep. 1414, 1416; citing Jones v. St. Regis Paper Co. (1981), 196 Mont. 138, 639 P.2d 1140; and Hert v. J.J. Newberry Co. (1978), 178 Mont. 355, 584 P.2d 656. The Workers’ Compensation judge did not hear any oral testimony but decided the case on the same record that we have before us.

Appellant claims that he has a permanent total disability, which is defined at Section 39-71-116(13), MCA, as:

“[a] condition resulting from injury as defined in this chapter that results in the loss of actual earnings or earning capability that exists after the injured worker is as far restored as the permanent character of the injuries will permit and which results in the worker having no reasonable prospect of finding regular employment of any kind in the normal labor market. Disability shall be supported by a preponderance of medical evidence.”

In expanding upon the statutory definition, we adopted the following test in Metzger.

“To establish the existence of no reasonable prospect of employment in the normal labor marker, a claimant must introduce substantial credible evidence of (1) what jobs constitute his normal labor market, and (2) a complete inability to perform the employment and duties associated with those jobs because of his work-related injury. Spooner v. Action Sales, Inc., III Workers’ Compensation Court Decisions No. 85 (January 24, 1983).”

Metzger, 687 P.2d at 1035.

The Workers’ Compensation Court concluded claimant failed to meet this burden. The court placed great emphasis on the fact that claimant has worked as a foreman, and could do such work again. The court incorrectly determined that claimant’s normal labor market includes working as a foreman. As stated above, claimant’s work as a foreman was extremely limited, amounting to two or three days on each of several occasions. This does not qualify the position of foreman as part of claimant’s normal labor market. Even so, claimant contacted several construction firms and the rehabilitation services division in an attempt to secure employment as a foreman, but was unsuccessful. The only available jobs as a foreman required claimant to be a working foreman, a position claimant cannot perform.

Further, claimant testified he refused the services of a private rehabilitation firm of respondent’s choice. Although he admitted he could likely be retrained, he declined the services because acceptance would have meant moving far from Lewistown. Claimant’s wife is going blind and he testified he needed to stay close to her in order to care for her. While weight is give to claimant’s opinion that he could probably be retrained and that he voluntarily declined the services of the private rehabilitation firm, such testimony is not determinative. The medical evidence as well as claimant’s lifetime work history support the conclusion that claimant was rendered permanently totally disabled by his industrial accident.

We conclude that claimant has met his burden as defined in Metzger. He testified in great detail concerning his injuries and limitations. He suffers constant pain in his right arm and right shoulder, and intermittent pain in his neck. Physical work worsens the condition. Dr. Nelson testified that claimant’s injuries prevent him from doing laborious work, that is, “overhand, overhead, climbing, lifting, prolonged, repetitive usage of the arm and shoulder to any degree of strength.” This is the very work claimant had done all his life.

He attempted to secure work as a supervisor with several Lewis-town construction firms and as a welding instructor, but was unsuccessful. Claimant conclusively established an inability to perform the jobs in his normal labor market. Claimant meets the requirements of Section 39-71-116(13), MCA, for permanent total disability.

Because of our ruling on the first issue we need not consider the second issue in this case.

Claimant’s final issue is whether the lower court erred in failing to increase his award by 20% under Section 39-71-2907, MCA, because of respondent’s allegedly unreasonable delay or refusal to pay benefits. We hold claimant is entitled to the 20% penalty.

The Worker’s Compensation Court concluded:

“6. Under these facts the penalty provided for under Section 92-824.1 R.C.M., now MCA Section 39-71-2907 (1983), does not apply. Reducing claimant’s benefits from temporary total to permanent partial because the claimant refused to work with a private rehabilitation firm is unreasonable. However, from the Court’s record, it appears that the insurer coincidentally had sufficient information allowing it to reduce the claimant’s benefits from temporary total to permanent partial.

“The defendant is not without a remedy if rehabilitation is appropriate and the claimant refuses to participate. The proper procedure is delineated in MCA Section 39-71-1005. This procedure was not followed in the case at bar.”

The lower court essentially concluded that respondent’s actions would have been unreasonable had the record not supported the conclusion that claimant was permanent partial, not permanent total. It follows that since we now hold that claimant is permanent total, he is also entitled to the 20% penalty. Respondent reduced claimants benefits in retaliation for his refusal to work with a private rehabilitation firm. Such action is unreasonable. Respondent should have followed the procedure delineated in Section 39-71-1005, MCA. Claimant is entitled to a 20% penalty pursuant to Section 39-71-2907, MCA.

Reversed and remanded to the Workers’ Compensation Court to enter judgment for the claimant on his claim of permanent total disability, and to award claimant a 20% increase in his award pursuant to Section 39-71-2907, MCA.

MR. JUSTICES HARRISON, MORRISON and SHEEHY concur.

MR. JUSTICE GULBRANDSON,

dissenting:

I respectfully dissent.

Appellant must prove, by a preponderance of the probative, credible evidence, that he is entitled to permanent total disability benefits. Dumont v. Wickens Bros. Const. Co. (1979), 183 Mont. 190, 598 P.2d 1099. This he has not done.

To establish that he is permanently totally disabled under the Metzger test cited in the majority opinion, the appellant must show a complete inability to perform the employment and duties associated with the jobs constituting his normal labor market. Although appellant is clearly permanently disabled, he has not satisfied the Metzger standard for permanent total disability. There are three main problems with the majority opinion, which simply glosses over the voluminous evidence in this case.

First, the only expert medical opinions entered into evidence tend to show that appellant is not permanently totally disabled. Dr. Nelson diagnosed appellant as having a 10% impairment of the whole body. He testified that appellant should be in some type of sedentary employment (primarily educative or supervisory, or doing something, if repetitive, from which he could take breaks periodically). Dr. Cahill also rated appellant as having a 10% impairment of the whole body. Dr. Cahill’s opinion in 1982 was that:

“The patient’s present physical condition shows ... he has stabilized and has reached a maximum point of recovery. I do think he would be able to return to work, but I think that heavy lifting and using his upper extremities excessively other than for writing and desk work would be very difficult for him.”

Second, the majority finds that appellant’s normal labor market does not include working as a foreman. This finding is perplexing as it runs against the majority’s recitation of facts and the appellant’s testimony. The facts stated in the majority opinion are that:

“[Appellant] also worked as a supervisor in a Missoula paper mill and he has worked for very short periods of time (two to three days) in other supervisory positions . . . details on how long he worked as a supervisor in the paper mill are lacking.”

It is unclear how the majority can find that appellant’s normal labor market does not include a foreman position when the majority is unsure how long he worked as a foreman.

Appellant’s testimony was as follows:

“Q. Did you ever work in any of these occupations strictly as a supervisor?

“A. I was a supervisor in the paper mill in Missoula for awhile.

“Q. Other than that job, did you ever work strictly as a supervisor?

“A. Not for any length of time, no.”

The testimony is simply unclear as to how long appellant worked as a supervisor. Appellant has not established what his normal labor market is. Appellant did attempt to find employment as a supervisor with three or four construction firms in Lewistown. This indicates that appellant considers supervisory positions as within his normal labor market and that he believes he can perform the duties of those positions.

Third, appellant explicitly stated that he would not accept any job unless he could earn at least $1,000 a month. Although appellant conceded that he had worked as a laborer, he stated that he had not applied for work at any of the shops or stores, such as hardware stores, convenience stores or gas stations, in his hometown of Lewis-town. Appellant did not introduce evidence showing a complete inability to perform these jobs or the supervisory jobs.

The majority states that appellant has conclusively established an inability to perform the jobs in his normal labor market. The record does not support this assertion. The record does show that appellant refuses to even consider any job paying less than $1,000 a month. The majority opinion has dispensed with the requirements of the Metzger test.

Lastly, I dissent from the majority’s imposition of a 20% penalty upon the respondent under Section 39-71-2907, MCA. That section allows the lower court to increase an award by 20% because of an insurer’s unreasonable delay or refusal to pay.

“Whether an action is ‘unreasonable’ under this statute is a question of fact which is subject on appeal to the limited review of the substantial evidence test. (Citation omitted.) If there is substantial evidence to support a finding of ‘unreasonableness’, this Court cannot overturn the finding.”

Wight v. Hughes Livestock Co., Inc. (Mont. 1981), 634 P.2d 1189, 1192, 38 St.Rep. 1632, 1636. The same standard of review applies to a lower court’s finding of reasonableness.

Substantial credible evidence supports the lower court’s finding of “reasonableness” and its refusal to impose the penalty. The majority finds that respondent acted unreasonably because respondent reduced appellant’s benefits in retaliation for appellant’s refusal to work with a private rehabilitation firm. The opinion cites no evidence directly supporting this assertion.

Peter McGraw, a claims manager and insurance adjuster who worked on appellant’s claim, testified as to why the insurer had reduced appellant’s benefits from permanent total to permanent partial. McGraw stated that the insurer reduced the benefits because the insurer had received medical reports form Dr. Nelson and Dr. Cahill that stated: (1) appellant’s condition had stabilized and he had reached his maximum point of recovery; (2) that appellant was able to go back to a sedentary-type of work; and (3) that appellant had a 10% impairment rating of the whole body. There was evidence at the hearing that the insurer sent a letter to appellant which stated that the reduction in benefits was due to the doctor’s reports. Moreover, McGraw specifically refuted the suggestion that the insurer reduced appellant’s benefits as retaliation. There is substantial, credible evidence which support the lower court’s refusal to impose the 20% penalty. The reduction of benefits was a reasonable action and no penalty should be imposed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICE WEBER join in the foregoing dissent of MR. JUSTICE GULBRANDSON.


author: MR. CHIEF JUSTICE TURNAGE MR. JUSTICE HUNT,

text:
    KATHRYN ALBERT OGREN, Beneficiary of Erik R. Ogren, Deceased, Claimant and Appellant, v. BITTERROOT MOTORS, INC., Employer, and Orion Group, Ins., Defendant and Respondent.
    No. 85-237.
    Submitted on Briefs March 28, 1986.
    Decided Aug. 12, 1986.
    Rehearing Denied Sept. 11, 1986.
    723 P.2d 944.

      Snavely and Philips, P.C., Donald V. Snavely and Robert S. Marcott, Missoula, for claimant and appellant.
    Garlington, Lohn and Robinson, Larry Riley, Missoula, for defendant and respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Kathryn Ogren, claimant and beneficiary of Erik Ogren, brought this action in the Workers’ Compensation Court seeking to recover workers’ compensation benefits for the death of her husband. Subsequent to the trial, the court issued its findings of fact and conclusions of law wherein it held that Erik Ogren was not acting within the course and scope of his employment at the time of the fatal car accident. Judgment was entered denying claimant’s petition for benefits, and claimant appeals. We affirm.

The basic facts of this case are not in dispute and were admitted by stipulation. Erik Ogren was President-Owner and General Manager of Bitterroot Motors, Inc. (Bitterroot), located in Missoula, Montana. Bitterroot, respondent herein, was enrolled in a workers’ compensation plan under a policy issued by Orion Group, Inc., also the respondent. Appellant was married to Erik at the time of the accident.

On the morning of Friday, July 13, 1984, Bill Petritz, then the Comptroller for Bitterroot, asked Erik for permission to leave early that day. Petritz wanted to go to Great Falls primarily to attend a family reunion. He had planned also to pick up his father’s car and drive it back to Missoula to have some work done on it at Bitterroot motors. Erik told Petritz that he could leave early. However, that day was one of the busiest on record for the dealership, and Petritz was unable to leave when he had planned to. Around noon, Erik offered to fly Petritz to Great Falls in the company plane so that Petritz could work until 5:00 p.m., and he accepted.

At the same time, Erik’s daughter, Kristi Ogren, was attending a beauty pageant function in Sheridan, Wyoming. Originally, Kristi was supposed to leave Sheridan by bus Friday night and arrive in Billings. From there, she was to take a commercial flight to Missoula. However, during the early afternoon of the 13th, Erik told appellant that he was flying to Great Falls and that he might be able to go on to Sheridan to pick up Kristi. Before he left for Great Falls, Erik called appellant again to tell her that he definitely was going to Sheridan to pick up their daughter after dropping Petritz off in Great Falls.

Appellant testified that prior to the 13th, she and Erik had talked about Erik flying down to Sheridan to pick up Kristi, but he said that he could not do it. However, Petritz stated to an insurance adjuster shortly after the accident that when he and Erik first discussed the trip to Great Falls, Erik said: “Well, I have to go out anyway, maybe I will just drop you off in Great Falls.” Although at trial Petritz could not specifically remember Erik making that statement, he did remember relating that statement to the adjuster and believed that Erik could have made that statement.

Erik and Petritz left Missoula in the company plane at around 5:00 Friday afternoon. After stopping in Great Falls to let off Petritz, Erik flew on to Sheridan. The plane developed engine trouble at the Sheridan airport, and Erik decided to rent a car and drive home. After picking up Kristi, they drove to Billings where Erik phoned his wife. She strongly suggested that they stay at a motel for the night but Erik refused, stating that he must get back to Missoula because he had a business meeting at 10:00 Saturday morning. Erik and Kristi left Billings around 1:00 Saturday morning; however, Erik fell asleep only a few miles outside of Missoula and lost control of the car. Both Erik and Kristi were killed when they were thrown from the car.

The only issue raised on appeal is whether Erik Ogren was killed while he was acting in the course and scope of his employment with Bitterroot.

The general standard to be applied in determining whether an employee is entitled to workers’ compensation benefits is provided by Section 39-71-407, MCA:

“Every insurer is liable for the payment of compensation . . . to an employee of an employer it insures who receives an injury arising out of and in the course of his employment or, in the case of his death from such injury, to his beneficiaries, if any.”

It is the application of this broad standard to the facts of particular cases that often proves difficult; however, this case does not present such a problem.

Appellant readily admits that the plane trip from Great Falls to Sheridan, Wyoming, was a purely personal trip. She could not logically argue otherwise. Kristi Ogren was not employed by Bitterroot, nor did she have any connection with it other than having a father who was employed there. Moreover, Erik’s only purpose in going to Sheridan was to pick up his daughter so that she would not have to travel home alone. Thus, it is undisputed that when Erik flew from Great Falls to Sheridan, he was not acting within the scope of his employment.

Appellant contends, however, that Erik’s trip from Missoula to Great Falls was in the course of his employment, as was his trip from Sheridan back to Missoula. Since he was killed while performing some reasonably immediate service to his employer (i.e., driving to Missoula in order to meet a business appointment), appellant is entitled to workers’ compensation benefits. Appellant also contends that her husband’s death is compensable under the deviation rule, the dual purpose rule, and the going and coming rule. We cannot agree with appellant’s analysis of any of these theories.

In construing what “arising out of and in the course of his employment” means, the general principle that has developed was first enunciated in Morgan v. Industrial Accident Board (1958), 133 Mont. 254, 321 P.2d 232, and reaffirmed recently in Steffes v. 93 Leasing Co., Inc. (1978), 177 Mont. 83, 580 P.2d 450. The Court in Morgan stated:

“What is the underlying principle? In cases whore some reasonably immediate service to the employer can be discerned the claim has been sustained. Where there has been no reasonably immediate service, the claim has been denied. Such impresses us as a fundamental rule and guide for the liberality to which this court is necessarily and properly committed . . .”

Morgan, 321 P.2d at 236. Thus, the question to be decided in this case is: Did Erik Ogren perform some reasonably immediate service to his employer when he flew to Sheridan to pick up his daughter and then drove through the night back to Missoula?

As stated earlier, the trip from Great Falls to Sheridan had no connection of any kind with Erik’s employment. Moreover, it is just as certain that the trip from Sheridan to Missoula was not made in the course and scope of his employment. The fact that he was going to Missoula to attend a business meeting is not sufficient, standing alone, to bring him within the ambit of his employment. Saturday was a regular work day for Erik and the meeting was at his usual place of work. Further, he was certainly planning to go home first to drop off Kristi before leaving for his meeting. If he had been out of town on a personal week end trip and had to be back at work Monday morning, and was involved in a car accident during the night while driving back to town, there would be no question that the accident would not be within the scope of his employment. The situation before us is not materially different from the one given in the example. The service that Erik was performing for his employer in driving to Missoula to attend a business meeting at his regular work place on a regular workday is the same as the service that every other employee performs in driving to his usual place of work. However, this Court has consistently held that the “going and coming rule” is a “well-established principle in Workers’ Compensation law which denies compensation benefits for injuries sustained by an employee traveling to or from the regular work place.” Courser v. Darby School Dist. No. 1 (Mont. 1984), [214 Mont. 13,] 692 P.2d 417, 418, 41 St.Rep. 2283, 2285.

Appellant attempts to bring her case under the exceptions to the “going and coming rule.” Those exceptions were set forth in Hagerman v. Galen State Hospital (1977), 174 Mont. 249, 251, 570 P.2d 893, 894, wherein the Court stated:

“Throughout the years this State has had workers’ compensation, this Court has considered a number of cases where injuries were sustained going to or coming from work and has found no recovery unless employee travel pay was covered under the employment contract or that travel allowance was for travel for the special benefit of the employer.”

See also, Correa v. Rexroat Tile (Mont. 1985), [217 Mont. 126,] 703 P.2d 160, 42 St.Rep. 1075. The fact that the expenses for operating the company plane and for renting the car were paid for by the employer does not mean that Erik’s travel pay was covered under an employment contract. No evidence was submitted of an employment contract between Erik and Bitterroot which specifically authorized that Erik be paid a definite travel allowance in connection with his employment. Rather, this seems to be simply a situation where the president of a company has a company credit card and uses it at his discretion, which is not sufficient, by itself, to come within the exception to the general rule. Furthermore, the trip from Sheridan to Missoula was not made for the special benefit of the employer. It is hard to imagine how traveling to one’s regular work place on a regular workday can be for the special benefit of an employer. Therefore, appellant does not fall within either exception to the “going and coming rule.”

Appellant goes to great lengths to show that the flight from Missoula to Great Falls was for a business purpose so that the personal trip to Sheridan can be viewed as merely a minor deviation from a trip with an overall business purpose. Considering Petritz’s testimony that at the time Erik offered to fly Petritz to Great Falls, Erik stated that he had to go out anyway, the fact that Erik’s purpose in flying Petritz to Great Falls was more of a friendly gesture than truly business motivated, and the strong likelihood that the entire trip was motivated by the desire to pick up Kristi in Sheridan, we have serious doubts whether the trip to Great Falls was one within the course and scope of Erik’s employment. However, it is unnecessary to decide that question because it is clear that the trip from Great Falls to Sheridan and then to Missoula was not one arising out of his employment.

The benefit, if there was any, received by Bitterroot from the trip to Great Falls ended once Erik let Petritz off at the airport. Erik performed no service of any kind for Bitterroot when he flew to Sheridan to pick up Kristi nor did he perform any reasonably immediate service in driving through the night in order to arrive in Missoula by morning. It is a strain on reason to accept the argument that the decedent was performing some reasonably immediate service to his employer in going to Sheridan for a purely personal reason and in driving to his home to drop off his daughter before he left for work. Therefore, we hold that Erik was not killed while performing some reasonably immediate service to his employer.

Appellant contends that the deviation rule also supports her claim for benefits. We disagree.

It is true that if Erik had gone to Great Falls for the “special benefit” of his employer, the return trip back to Missoula would have been within the course and scope of his employment. Under the deviation rule, if an employee leaves the area or route where his job requires him to be to pursue an objective solely to benefit himself, the employment connection is severed throughout the deviation. If the employee returns to his employment from the deviation and is subsequently injured, his injuries would be compensable under workers’ compensation. See Steffes, supra. However, if a deviation is found to be substantial or major, the employment relation is completely severed, and the employee cannot re-enter the scope of employment even though he is proceeding home from a trip that was originally employment motivated. Other jurisdictions considering this issue have found this rule applicable under the facts presented.

In Calloway v. State Workmen’s Compensation (1980), 165 W.Va. 432, 268 S.E.2d 132, the claimant was employed as an outside salesman and was sent with a fellow employee to another county to solicit business. The claimant made a business call while in the county and then began to visit relatives and have a few drinks at various taverns. Around 11 p.m. he started home, but before he reached his home, he was involved in a car accident. In denying compensation to the claimant, the court stated:

“In the case of a major deviation from the business purpose, most courts will bar compensation recovery on the theory that the deviation is so substantial that the employee must be deemed to have abandoned any business purpose and consequently cannot recover for injuries received, even though he has ceased the deviation and is returning to the business route or purpose.” (Emphasis added.) Calloway, 268 S.E.2d at 135. See also Bush v. Parmenter, Forsythe, Rude, and Dethmers (Mich. 1982), 320 N.W.2d 858; Carter v. Burn Construction Company, Inc. (1973), 85 N.M. 27, 508 P.2d 1324; Hebrank v. Parsons (1965), 88 N.J. Super. 406, 212 A.2d 579.

The determination of whether a deviation is substantial or not depends upon the particular facts of each case. Factors important in arriving at this determination include: (1) the amount of time taken up by the deviation; (2) whether the deviation increases the risk of injury; (3) the extent of the deviation in terms of geography; and (4) the degree to which the deviation caused the injury. Applying these factors to the facts of the case before us, we find the deviation to be substantial.

First, the deviation was substantial in relation to time. Erik left Great Falls around 6 p.m. on a Friday evening going toward Sheridan. He did not return to the business route from the deviation until 5 a.m. Saturday morning — a deviation in time of around eleven hours. Appellant contends that if the plane had not broken down in Sheridan, the deviation would have lasted only a couple of hours. That may be true; however, we cannot resolve the issues before us on the basis of what might or could have been. We must look to the facts as they actually occurred. Under the facts presented, the deviation lasted eleven hours.

Second, the deviation substantially increased the risk of injury to Erik. Had he left Great Falls in the plane and gone directly back to Missoula, Erik would have arrived in Missoula at around 7 p.m. Even if he had taken a car from Great Falls to Missoula, he would have arrived at around 9 p.m. However, because Erik went to Sheridan on a personal mission, he had to drive through the night after working hard all day in order to get back to Missoula by Saturday morning. He had to fly and drive an extra eleven hours just for the deviation which obviously contributed to his falling asleep while driving. Thus, the deviation greatly increased the risk of injury to Erik.

Third, the deviation was substantial in relation to geography. It is approximately 336 highway miles for a round trip from Missoula to Great Falls. However, the total mileage of the deviation was approximately 744 highway miles — over twice the distance of the business trip. This is clearly a case where the personal deviation completely dwarfed the business purpose.

Fourth, the deviation was the direct cause of the accident. Erik fell asleep at the wheel of his car after driving almost ten hours through the night. The only reason that Erik had to drive so long was because he went to Sheridan to pick up his daughter. Thus, the business trip to Great Falls had little connection with Erik’s death.

Therefore, since the deviation involved here was substantial, the employment relation was completely severed, and Erik could not re-enter the course of his work. The fact that he was proceeding home and was killed while on the original business route is not relevant since the business purpose of the trip had been abandoned.

Finally, appellant contends that the dual purpose rule also applies to allow recovery. This assertion is without merit. There was no dual purpose in Erik’s going to Sheridan; there was only one purpose and it was personal. Bitterroot did not compel Erik to go to Sheridan. He undertook that trip solely to benefit his family. Under the dual purpose doctrine, an employee is within the scope of his employment when he is traveling on some substantial mission for his employer, even though he may simultaneously be on a personal errand. Steffes, supra. Erik was not on any mission, substantial or otherwise, for his employer subsequent to the time he left Great Falls.

As a final word, it should be noted that we decide this case based solely on the facts presented before us. What may be a reasonably immediate service of the employee in one case may not be so in another depending on the particular facts presented. Likewise, what may be a deviation in one case may not be so in another. Particularly in this area of the law, the facts of the individual case determine the result for that case. With this said, the judgment of the Workers’ Compensation Court denying benefits to appellant is affirmed.

MR. JUSTICES HARRISON, WEBER and GULBRANDSON concur.

MR. JUSTICE HUNT,

dissenting:

I dissent.

The decedent, Erik Ogren, was killed in the course and scope of employment under the dual purpose and deviation rules.

The dual purpose rule is defined as follows:

“Under the dual purpose doctrine, an employee may, while traveling, be on an errand of his own, but if he is at the same time on some substantial mission for his employer, he may be said to be within the course of his employment. If the work of the employee creates the necessity for travel, the employee is in the course of his employment though he is serving at the same time some purpose of his own. If, however, the work has had no part in creating the necessity for travel, i.e., if the journey would have gone forward though the business errand had been dropped and would have been can-celled upon failure of the private purpose though the business errand was undone, the travel is personal and not in the course of employment.”

N. Grossfield, Montana Workers’ Compensation Manual, Section 4.24 at 21 (1979).

Ogren offered to fly an employee, Petritz, to Great Falls so that the employee could work a full day and still attend a family reunion. Kathryn Ogren testified that Erik discussed the trip with her on Friday afternoon. He stated that Petritz needed to go to Great Falls but was also needed at work, so he was flying Petritz to Great Falls and could possibly pick up their daughter in Sheridan. Clearly, this trip meets the definition of the dual purpose rule. The necessity to travel was created by the work of the employee. Petritz was needed in Missoula, but also needed to get to Great Falls that day. Petritz testified he believed Erik had said he was going to take the trip anyway. However, from the record I cannot agree that “the journey would have gone forward though the business errand had been dropped and would have been cancelled upon failure of the private purpose though the business errand was undone.” The purpose of the trip was dual: to enable Petritz to work a full day in Missoula and still attend a reunion in Great Falls; and, to pick up Ogren’s daughter in Sheridan and bring her to Missoula. Since Ogren’s trip involved a substantial benefit to his employer, the trip was within the course and scope of his employment.

Ogren should also recover under the deviation rule. That rule is defined as follows:

“Under the deviation rule, when an employee departs from the area where his job requires him to be to pursue an objective which is not essential or incidental to any service he is being paid to perform, the continuity of the employment is severed, and remains severed until he returns to the point of deviation from the path of duty. The character of the employee deviation, whether pronounced or relatively inconsequential, and the materiality and purpose thereof, are given consideration in determining the applicability of the rule. Equal consideration is also given to the reasonableness of the employee’s behavior in the light of all the circumstances, and whether the deviation caused or contributed to the injuries suffered. Time and space are considered in determining whether the rule is applicable. A line of demarcation between the disqualifying deviation and one which does not disqualify is ordinarily a matter of judgment for the trier of fact.”

N. Grossfield, Montana Workers’ Compensation Manual, Section 4.25 at 21-22 (1979).

The majority holds that Ogren’s trip from Great Falls to Sheridan was such a major deviation as to totally sever the employment connection. I disagree. Clearly the trip from Missoula to Great Falls was for a business purpose. The trip from Great Falls to Sheridan was a deviation, but not such a major deviation as to totally sever the business connection.

Ogren was traveling in a twin engine airplane capable of covering the 280 air miles from Great Falls to Sheridan in less than 90 minutes. Had he not had engine trouble in Sheridan, and been able to fly back to Missoula there would have been no need to travel without rest in order to reach Missoula in time to be at his employment as he planned to do when he left on the trip. Such a deviation did not totally sever the business connection. Once Ogren began the trip back to Missoula, the deviation ended and he was once again in the course and scope of his employment.

This case is similar to a case cited by the majority, Steffes v. 93 Leasing Co., Inc. (1978), 177 Mont. 83, 580 P.2d 450. In Steffes, an employee traveled from Missoula to Seeley Lake to exchange an automobile for that belonging to a customer. In Seeley, the employee met the customer in a bar and spent several hours drinking. He then discovered the car he was driving had been stolen. The employee left Seeley with a friend and headed toward Missoula. He was involved in an automobile accident on the way and was killed. Although the employee intended to spend the night in Seeley, he wanted to return to Missoula to look for the missing car. We held that his death was compensable. The employee fell within the purview of the dual purpose rule and we held that “the evidence shows that Steffes’ trip back to Missoula was for the benefit of his employer and he was acting in the course and scope of his employment at the time of his death.”

Similarly, Ogren’s trip to Great Falls was for the benefit of his employer and in the course and scope of his employment. While the trip to Sheridan was a deviation, the deviation ended when Ogren started back toward Missoula. Kathryn Ogren testified that she suggested Ogren remain in Billings overnight given the lateness of the hours. Ogren refused, stating he had to be in Missoula by 10:00 the following morning for a business meeting. The drive to Missoula in the early morning hours of July 14, 1984, was for the benefit of the employer, and he was acting within the course and scope of his employment at the time of his death.

I would reverse the Workers’ Compensation Court.

MR. JUSTICE SHEEHY and MR. JUSTICE MORRISON concur in the foregoing dissent of MR. JUSTICE HUNT.


author: MR. JUSTICE MORRISON MR. JUSTICE HARRISON, MR. JUSTICE SHEEHY,

text:
    DALE COX, Petitioner, v. LEE ENTERPRISES, INC., and the Billings Gazette, a division of Lee Enterprises, Inc., Respondents.
    No. 85-618.
    Submitted June 20, 1986.
    Decided Aug. 13, 1986.
    723 P.2d 238.
    Huntley & Eakin, Gene Huntley argued, Baker, for petitioner.
    Moulton, Bellingham, Longo & Mather, Sidney R. Thomas, Billings, P. Cameron Devore argued, Seattle, Wash., for Billings Gazette.
    Goetz, Madden & Dunn, James Goetz argued, Bozeman, amicus curiae, for Allied Daily Newspapers and the Reporters Committee for Freedom of the Press.
    Peter M. Meloy, Helena, amicus curiae, for Montana Press Ass’n, Great Falls Tribune, Associated Press, Society for Professional Journalists & Montana Press Women.
   MR. JUSTICE MORRISON

delivered the Opinion of the Court.

This Court has accepted jurisdiction to determine a question of state law certified by the United States District Court for the District of Montana.

Petitioner Dale Cox is an attorney practicing in Glendive, Montana. Respondents are Lee Enterprises, Inc. and the Billings Gazette, a division of Lee Enterprises, Inc. The following statement of facts is taken from the federal court’s order certifying the question to this Court.

In 1971, Laura Thomas was involved in an auto accident and Cox was retained to represent her. Cox settled the case with the insurance company, and because Laura was a minor with no living parents, a legal guardian was appointed and the settlement money was placed in the guardianship. Due to apparent physical and mental impairments existing since childhood, Laura’s guardianship continued beyond her age of majority. In 1978, five years after legally becoming an adult, Laura had the guardianship terminated and the remaining funds distributed to her.

On May 27, 1980, Laura filed a complaint against Cox in the United States District Court for the Western District of Washington alleging injuries resulting from unnecessary extension of the guardianship. On June 8,1980, prior to the time Cox had been served with the complaint, the Billings Gazette published an article paraphrasing and quoting allegations against Cox listed in the complaint. The case was subsequently transferred to the United States District Court for the District of Montana; by opinion dated December 23, 1982, the federal court entered summary judgment in favor of Cox.

Cox filed a defamation action against the Billings Gazette and Lee Enterprises, Inc., for publication of the June 8,1980, article. In their answer, respondents raised the affirmative defense that the news article was privileged under Section 27-1-804(4), MCA, because it was a fair and accurate report without malice of a judicial proceeding. Following briefing and oral argument the federal court issued an order dated January 16, 1986, certifying the following question of law to be answered by this Court:

“Under the law of the State of Montana, is the defense of privilege available to a newspaper publisher in a defamation case when the alleged defamation consists of facts taken from preliminary judicial pleadings which have been filed in court but which have not been judicially acted upon?”

The applicable statue is Section 27-1-804(4), MCA, which makes a fair and true report without malice of a judicial proceeding a privileged publication. Respondents contend “judicial proceeding” should be construed to encompass the filing of a complaint. We agree.

“Judicial proceeding” is not defined within the Montana Code. Therefore, we look to the approved usage of the term or the, appropriate meaning in law. Section 1-2-107, MCA.

Included in the common definition of “proceeding” is “legal action,” Webster’s New Collegiate Dictionary, 910 (1979), and “the instituting or conducting of litigation,” American Heritage Dictionary, 987, Second College Edition (1985). Black’s Law Dictionary, 986, (4th ed. 1968), lists the following definitions of “judicial proceeding:” “Any proceeding wherein judicial action is invoked and taken;” “Any proceeding to obtain such remedy as the law allows;” “Any step taken in a court of justice in the prosecution or defense of an action.”

We look to plain meaning of words because our paramount task in statutory construction is to determine what legislators intended when they phrased the statute. Most are lay people and we look to common usage in honoring legislative purpose.

Application of the above definitions leads us to a finding that the filing of a complaint was intended to be included within the phrase “judicial proceeding.”

The modern trend is to apply a qualified privilege to reports of judicial pleadings which have not yet been the subject of judicial action. In fact most jurisdictions hold that a complaint is part of the judicial proceeding. The rationale is explained by an Illinois court in Newell v. Field Enterprises, Inc., (Ill.App.1980) 91 Ill.App. 3d 735, 415 N.E.2d 434. That court said:

“Certainly, the administration of justice is of utmost importance to the citizenry. While we are aware that pleadings are one-sided and may contain, by design, highly deflamatory [sic] statements, we believe the information found in such pleadings is of sufficient value as to warrant the encouragement of its publication.”

415 N.E.2d 444.

The right to inspect pubic documents and be fully informed of their contents finds strong expression in our state constitution. Article II, Section 9 provides:

“Right to know. No person shall be deprived of the right to examine documents or observe the deliberations of all public bodies or agencies of state government and its subdivisions, except in cases in which the demand of individual privacy clearly exceeds the merits of public disclosure.”

A broad interpretation of the privilege is statutorily supported by the right to inspect public documents, Section 2-6-102, MCA, and the right to public sittings of the courts, Section 3-1-312, MCA. A complaint is a public document pursuant to Section 2-6-101, MCA. These statutes reflect Montana’s commitment to the public’s right to know what is occurring within the judicial system, including the filing of civil suits.

Our function is not to determine whether the Billings Gazette should respond in damages. That question will be decided by a jury in federal court. Fairness, truth and malice will be at the controversy’s core. The qualified privilege exists only where the report was true, fair, and published without malice.

Our task is to answer the certified question. This court did not enact the statute in question and does not rule on its wisdom.

We hold that pursuant to Section 27-1-804(4), MCA, a qualified privilege is available as a defense for a newspaper publisher in a defamation case when the alleged defamation consists of facts taken from preliminary judicial pleadings which have been filed in court but which have not been judicially acted upon.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES WEBER and HUNT and MR. CHIEF JUSTICE HASWELL, Retired, sitting for MR. JUSTICE GULBRANDSON, concur.

MR. JUSTICE HARRISON,

dissenting:

I must dissent. Once again we are presented with a certification from the Federal Court without a sufficient fact question to properly and fully answer the problem presented.

As noted by the majority opinion, the complaint of Laura Thomas, a diagnosed retarded person, was filed in the United States District Court in Washington and was then transferred to the United States District Court in Montana. The complaint charged the petitioner, a long-time reputable practitioner of law in Montana, of serious illegality concerning the handling of the estate of Laura Cox’s mother and of Laura’s resulting guardianship, all of which irreparably damaged the petitioner’s reputation as an attorney of law in the state of Montana. Evidence of the untruth of the charges is clearly shown by the summary judgment issued by the Federal District Court finding Cox free of any misconduct of the handling of Laura’s affairs. However, it did not restore the petitioner’s good reputation to the hundreds of persons who read the first story in the Billings Gazette, published on a Sunday in glaring headlines. As noted by the majority, at the time of the publication the petitioner had not been served, no reporter from the Gazette had made any effort to check with him nor had any judicial action been taken by a responsible District Judge.

This brings me to the issues presented to us from the Federal Court of whether in a defamation case where the facts in which the preliminary judicial proceedings filed in court and having not been served upon the defendant or judicially acted upon are privileged “judicial proceedings.”

Admitting that there are divergent views on this subject, I choose to accept and support that view Mr. Justice Oliver Wendell Holmes, Jr., expressed when he was a Justice on the Supreme Judicial Court of Massachusetts:

“The chief advantage to the country which we can discern, and that which we understand to be intended by the foregoing passage, is the security which publicity gives for the proper administration of justice ... It is desirable that the trial of causes should take place under the public eye, not because the controversies of one citizen with another are of public concern, but because it is of the highest moment that those who administer justice should always act under the sense of public responsibility, and that every citizen should be able to satisfy himself with his own eyes as to the mode in which a public duty is performed.

“[I]t is clear that [the grounds for privilege] have no application whatever to the contents of a preliminary written statement of the claim or charge. These do not constitute a proceeding in open court. Knowledge of them throws no light upon the administration of justice. Both form and contents depend wholly on the will of the private individual, who may not be even an officer of the court. It would be carrying privilege farther than we feel prepared to carry it, to say that, by the easy means of entitling and filing it in a cause, a sufficient foundation may be laid for scattering any libel broadcast with impunity.” Cowley v. Pulsifer (Mass.1884), 137 Mass. 392 at 394. See, 54 Colum.L.Rev. 364, (1954).

This same view is pointed out in the case of Park v. The Detroit Free Press Co. (1888), 72 Mich. 560, 40 N.W. 731, 734.

Recognizing that these are earlier cases concerning this matter, public policy considerations and the promotion of important values requires that a privilege not be extended to the publication in question. Here, the matter was not of such grave import that there was not time to investigate more fully these charges before publication.

The whole purpose of our constitutional rights and our statutes grows out of the central core belief that the individual comes first, that all mean are children of God, and that their personalities are therefore sacred and carries with it a great belief that personal liberties should be protected. It is repugnant that anyone would steal from the human being that which is most precious to him — his good name — by imputing things that are untrue.

To me it is an especially unhappy circumstance that occasionally this is done in the name of the First Amendment. This, I believe, does not grant the protection of the law an individual is entitled to expect.

It is the very basis of our great heritage that we expect the strictest responsibility to be applied by those who rely on the privileges of the First Amendment. That responsibility should have been exercised by the Gazette before it published any charges against Mr. Cox. Whenever such care is not taken and those principles which protect an individual and his good name against besmirchment by false statements are abused, we have failed to carry forward the ideals guaranteed to us by our constitution and statutes.

I would find that until a competent jurist has examined the files and the petitioner has had an opportunity to respond, such pleadings are not privileged.

MR. JUSTICE SHEEHY,

dissenting:

I concur with the views expressed in the dissent of MR. JUSTICE JOHN C. HARRISON, and add some additional comments:

Libel is defined as a false and unprivileged publication. Section 27-1-802, MCA. To determine whether a publication is privileged, one looks to Section 27-1-804(4), MCA. With respect to judicial proceedings, that section provides:

A privileged publication is one made: “(4) by a fair and true report without malice of a judicial . . . proceeding . . .”

There is no automatic privilege under Section 27-1-804, MCA, for publications by newspapers. To be entitled to the privilege, the publications must be fair, true, and without malice. Otherwise there is no privilege. Unfair editorializing or yellowdogging the allegations of a complaint to slant the reader or sell newspapers would bring the article within the rule announced by the New York Court of Appeals in Klein v. McGauley (1968), 29 A.D.2d 418, 288 N.Y.S.2d 751, wherein it is stated in a slander action that a statement which is extreme and beyond the bounds of reason is not entitled to the privilege even though it were a part of a judicial proceeding.

I further contend that the provisions of Section 27-1-804, MCA, in defamation cases should be examined in the light of the later adoption in the 1972 Montana Constitution of this provision:

“. . . Every person shall be free to speak or publish whatever he will on any subject, being responsible for all abuse of that liberty.” Art. II, Section 7.

It is apparent that the constitutional grant “to speak or publish whatever he will on any subject” is far more broad than the statute defining privileged communications in Section 27-1-804, MCA. Under the constitutional provision, the Billings Gazette is free to publish whatever and whenever it might about any person or subject. The only limitation on that freedom (perhaps I should say “chilling effect”) is the responsibility for abuse of the freedom. In defamation cases, therefore, under the present state constitution, there should be but two defenses, one that the statement is true, (but truth above would not save the constitutional provision, see New York Times, infra), and two, that the liberty to publish was not abused.

I would hold, therefore, that in defamation actions for libel or slander, the statutory privileges for free speech and a free press are not to be found within Section 27-1-804, MCA, but rather center on whether the statements made or the articles published abused the liberty to speak or to publish under state law.

While I admit that such a rule might lead to ad hoc determinations from case to case, the rule would be more in accord with the trend to be observed in the decisions from the United States Supreme Court which themselves appear to be ad hoc, though generally in favor of the press. The United States Supreme Court looks to the character of the person defamed, and changes the burden of proof of malice accordingly.

Thus, in New York Times v. Sullivan (1964), 376 U.S. 254, 279-280, 84 S.Ct. 710, 725-726, 11 L.Ed.2d 686, the Supreme Court held that the First Amendment required the plaintiff to show that in publishing the defamatory statement the defendant acted with actual malice — with knowledge that it was false or with reckless disregard of whether it was false or not — and that such actual malice must be shown with “convincing clarity.” New York Times involved a public official, but the New York Times rule has been applied to public figures as well, Gertz v. Robert Welch, Inc. (1974), 418 U.S. 323, 351, 94 S.Ct. 2997, 3012, 41 L.Ed.2d 789, wherein a public figure was defined as an individual who may achieve some pervasive fame or notoriety that he/she becomes a public figure for all purposes and in all contexts, or an individual who voluntarily injects himself/herself or is drawn into a particular public controversy and therefore becomes a public figure for a limited range of issues. An attorney, however, without more, is neither a public official nor a public figure and the heightened standard of proof of New York Times and Gertz does not apply to the proof of malice.

It may be that the majority is saying in reality that its “qualified” privilege is one that is fair, true and without malice. If that be the true import of the majority, it should be more plainly stated.


author: MR. JUSTICE HUNT

text:
    In the MATTER OF J.W.K., a Youth under the age of Eighteen years.
    No. 86-21.
    Submitted on Briefs May 30, 1986.
    Decided Aug. 19, 1986.
    724 P.2d 164.

      See C.J.S. Infants § 66.
    David L. Irving, Glasgow, for appellant.
    Mike Greely, Atty. Gen., George Schunk, Asst. Atty. Gen., Helena, David Nielsen, Co. Atty., Glasgow, for respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

The Valley County District Court found J.W.K., a minor, guilty of sexual assault, and ordered him committed to the Pine Hills School for Boys. He appeals the conviction.

We affirm.

Appellant raises three issues on appeal:

1. Did the District Court err in admitting the opinion testimony of a psychologist as to the truthfulness and reliability of children’s testimony?

2. Did the District Court err in denying appellant’s motion to suppress his admission?

3. Is there substantial credible evidence in the record to support the findings of the District Court?

At the time of the incident in question, appellant was thirteen years old. He did occasional babysitting work for several families in the Glasgow area. In December of 1984, he babysat M.B., J.B., and D.B. M.B. and J.B were five and six years old.

In the spring of 1985, J.B. and M.B. exhibited precocious sexual knowledge at their day care center. This information was brought to the attention of Beverly Miller, a social worker. In April, Ms. Miller interviewed J.B. and M.B. separately, and through the use of anatomically correct dolls learned that the children had been sexually abused. Ms. Miller reported her observations to the county attorney.

On April 24, 1985, an investigator with the county attorney’s office interviewed J.B. and M.B. Based upon that interview, the investigator questioned appellant. Appellant denied the allegations of sexual abuse.

Ms. Miller then spoke to appellant and told him she knew of the incident. He then attempted to describe the incident. She stopped him and suggested he talk further with the officer investigating the case.

On May 9, 1985, the investigator conducted a second interview with appeilant. Before the interview, appellant and his mother executed a written acknowledgment and waiver of rights. Appellant’s mother was present during the first part of the interview, but later left the room at her son’s request. The interview was taped. A twelve page transcript of the interview was prepared and the tapes were erased. During this interview, appellant admitted he had sexually assaulted J.B.

On May 23, 1985, appellant was charged with theft, criminal mischief, and sexual assault. A pretrial agreement was executed whereby appellant admitted the theft and criminal mischief charges and was sent to the Pine Hills School for a forty-five day evaluation. Dr. George Hossack conducted a psychological evaluation of appellant at the school.

An adjudicatory and dispositional hearing was held October 1, 1985. J.B. and M.B. testified against appellant. Dr. Hossack testified that appellant admitted the alleged crime to him and he recommended further treatment at Pine Hills. He also testified that five and six year old children are unable to sustain a lie about sexual abuse.

The District Court found that appellant did commit the crime of sexual assault and adjudged the appellant to be a delinquent youth. He was ordered committed to Pine Hills.

Appellant’s first issue is whether the District Court erred in admitting the opinion testimony of Dr. Hossack as to truthfulness and reliability of children’s testimony. Appellant makes three arguments. First, appellant argues that the testimony was beyond the scope of cross-examination as provided in Rule 611, M.R.Evid. We disagree.

Rule 611, M.R.Evid. states:

“(b) Scope of cross-examination.
“(1) Cross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witnesses. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.”

As this rule indicates, the scope of cross-examination is within the discretion of the trial court and this Court will not disturb the District Court’s ruling absent a clear abuse of discretion. State v. Hart (Mont. 1981), 625 P.2d 21, 38 St.Rep. 133. Dr. Hossack’s testimony aided the trier of fact and the District Court did not abuse its discretion in allowing it.

Appellant next argues that Dr. Hossack was not qualified or submitted to the court as an expert and the court did not accept or rule on his qualifications.

Rule 702, M.R.Evid. states:

“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.”

The determination that a witness is an expert is within the discretion of the trial court and will not be disturbed on appeal without a showing of abuse of that discretion. State v. Berg (Mont. 1985), 697 P.2d 1365, 42 St.Rep. 518. Here we find no abuse of discretion. Dr. Hossack testified he was a licensed psychologist employed at Pine Hills for three years. He had done hundreds of psychological evaluations. Fifteen to twenty a year are related to sexual abuse cases. He further testified that he was a consultant for two public school systerns and worked for two pediatricians doing psychological evaluations for fifteen years. The District Court did not abuse its discretion by allowing Dr. Hossack to testify concerning the reliability of children’s testimony.

Although the District Court did not formally acknowledge the doctor as an expert, we hold that the District Court made the determination that the witness was qualified when it overruled the appellant’s objection and permitted him to testify. Berg, 697 P.2d at 1367. Further, appellant’s objections as to Dr. Hossack’s qualifications go to the weight rather than the admissibility of the testimony. Id.

Appellant finally argues that Dr. Hossack’s testimony was not responsive. We do not agree. Since appellant denied the charge of sexual assault, the victim’s credibility was an issue. Therefore, it was proper for the District Court to allow Dr. Hossack to testify as to the reliability of children’s testimony. An expert may not testify concerning the credibility and reliability of a particular witness. State v. Brodniak (Mont. 1986), [221 Mont. 212,] 718 P.2d 322, 43 St.Rep. 755. However testimony concerning the reliability of a particular class of witnesses, such as juvenile victims of sexual abuse, is admissible. People v. Ashley (Colo.App.1984), 687 P.2d 473; State v. Middleton (1983), 294 Or. 427, 657 P.2d 1215. Appellant’s arguments on this issue are not persuasive.

Appellant’s second issue is whether the District Court erred in denying his motion to suppress his confession. At trial, the State offered into evidence a transcript of appellant’s confession. Appellant objected, and the judge allowed the transcript into evidence but reserved ruling on its admissibility until hearing the testimony. The judge later admitted the transcript over appellant’s objection.

Appellant did not file his motion to suppress until the first day of trial in violation of Section 46-13-301(3), MCA. However, the State failed to object to the timeliness of the motion at trial and so has waived the objection pursuant to Section 46-20-104(2), MCA. Therefore, we will address appellant’s arguments.

Appellant argues that the confession was not voluntary pursuant to Section 46-13-301(1), MCA. The standard to be applied in our review of this question is whether the District Court’s decision is supported by substantial credible evidence. State v. Gould (Mont. 1985), [216 Mont. 455,] 704 P.2d 20, 42 St.Rep. 946; State v. Grimestad (1979), 183 Mont. 29, 598 P.2d 198.

To determine whether an admission is voluntary, the court must look at the totality of the circumstances. Those circumstances include the background, experience, and conduct of the accused.

“Other appropriate considerations include the age, education, and intelligence of the accused, and his capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights.”

State v. Blakney (1982), 197 Mont. 131, 138, 641 P.2d 1045, 1049.

Appellant argues that his confession was not voluntary because he was 14 years old, had a borderline I.Q., was strongly dependent on his mother, and confessed only after succumbing to the pressure and promises of the police. We disagree.

Appellant and his mother signed an acknowledgment and waiver of constitutional rights prior to the interview. Appellant was given intelligence tests during his 45 day evaluation at Pine Hills. He registered a full scale I.Q. of 86, verbal I.Q. of 102, and performance I.Q. of 72. We have held a confession voluntary where the 20 year old defendant had a full scale I.Q. of 91, verbal I.Q. of 99, and performance I.Q. of 83. State v. Phelps (Mont. 1985), [215 Mont. 217,] 696 P.2d 447, 451, 42 St.Rep. 305, 309.

Further, we held in Phelps that:

“Mental illness or deficiency does not in itself preclude admissibility of defendant’s statements so long as he was capable of understanding the meaning and consequences of his statements. It is an important factor to consider in examining the totality of the circumstances, but it is not conclusive.” (Citations omitted.)

696 P.2d at 451.

The length of the interrogation in this case, one half hour, is far less than the one and one half hour interrogation in Phelps. In addition, the confession was not induced by any promises of treatment on the part of the interrogating officer. The officer testified that he made no promise of treatment to appellant, but merely said there was help available for him.

Given the totality of the circumstances, we cannot agree that the District Court’s decision to admit appellant’s confession is not supported by substantial credible evidence.

Appellant’s final issue is whether there is substantial credible evidence to support the findings of the District Court. When reviewing evidence on appeal, it will be viewed in the light most favorable to the prevailing party and district court. The credibility of the witnesses and the weight given to their testimony is for the determination of the district court in a nonjury trial. In re Jones (1978), 176 Mont. 412, 578 P.2d 1150.

Appellant argues there is not substantial credible evidence to support the finding that he committed sexual assault. Specifically, he argues that the testimony of the five year old witness and six year old victim provides insufficient corroboration of appellant’s confession. We disagree.

This Court has repeatedly upheld the use of juvenile witnesses shown to be competent through their capacity of expression and appreciation of the duty to tell the truth. State v. Phelps (Mont. 1985), [215 Mont. 217,] 696 P.2d 447, 42 St.Rep. 305; State v. Rogers (Mont.1984,) [213 Mont. 301,] 692 P.2d 2, 41 St.Rep. 2131; State v. Campbell (1978), 176 Mont. 525, 579 P.2d 1231. In this case the juvenile victim described the assault and identified the appellant in the courtroom. The juvenile witness corroborated the victim’s testimony by testifying that appellant and the victim were in the bathroom together, and identified the appellant in the courtroom. Two doctors testified that appellant exhibited characteristics typical of adolescent sexual offenders. Finally, appellant admitted to a doctor at Pine Hills and the interrogating officer that he committed the assault.

There is substantial credible evidence in the record to support the conclusion of the District Court that appellant committed sexual assault.

The decision of the District Court is affirmed in all respects.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, SHEEHY and WEBER concur.


author: MR. JUSTICE MORRISON

text:
    F.W. SCHMIDT, a/k/a William F. Schmidt, Plaintiff and Appellant, v. COLONIAL TERRACE ASSOCIATES, a partnership, et al., Defendants and Respondents.
    No. 85-223.
    Submitted on Briefs May 30, 1986.
    Decided Aug. 21, 1986.
    723 P.2d 954.

      James A. Cumming, Columbia Falls, for plaintiff and appellant. Worden, Thane & Haines; Ronald A. Bender, Missoula, for defendants and respondents.
   MR. JUSTICE MORRISON

delivered the Opinion of the Court.

Plaintiff F.W. Schmidt, appeals the March 28, 1985, and April 19, 1985, orders of the First Judicial District denying plaintiff’s motions and granting defendant’s motion for sanctions. We affirm.

This case commenced in 1979 as a suit brought by Schmidt and others seeking forfeiture of property by Colonial Terrace Associates (CTA) for failure to pay installments required under contract. CTA counterclaimed for breach of contract, negligence, fraud, and unjust enrichment. On June 17, 1981, a jury returned a verdict of $128,278 in favor of CTA. During trial, the parties stipulated that the amount of offset, if any, would be later determined by the court. However, CTA obtained a final judgment without reference to offset and Schmidt appealed. In an opinion dated December 29, 1982, this Court vacated the judgment and remanded the case to determine the amount of offset, if any. Schmidt, et al., v. Colonial Terrace Associates, et al., (1982), 202 Mont. 46, 656 P.2d 807, 39 St.Rep. 2318.

On remand, a special master was appointed to decide the issue of offset. The master found that Schmidt was entitled to an offset of $74,363.39 against the jury verdict. The District Court adopted the master’s report in its opinion, order, and judgment dated January 17, 1984. Both parties objected to the master’s findings and filed a notice of appeal. On February 21, 1984, Schmidt filed a motion for restitution of funds and affidavit in support thereof. Schmidt claimed CTA had been making insufficient monthly payments since 1979, and that such deficiency should be applied against the judgment in favor of CTA. By order dated March 19, 1984, the District Court denied Schmidt’s motion for restitution of funds, finding that Schmidt sought restitution for claims outside the scope of the original lawsuit.

In an opinion dated January 29, 1985, this Court found the master’s report to be supported by the evidence in the record and affirmed the judgment. Schmidt, et al. v. Colonial Terrace Associates, et al., (Mont. 1985), [215 Mont. 62,] 694 P.2d 1340, 42 St.Rep. 182.

On March 10, 1985, Schmidt filed a document entitled “Motions” again requesting the District Court to determine the actual amount, if any, that Schmidt owed to CTA. CTA responded with a motion to strike alleging Schmidt’s motions were frivolous and filed merely for purposes of delay. A hearing was held on March 28, 1985, concerning the parties’ motions and the District Court granted CTA’s motion to strike as to Schmidt’s request that the court make a further determination of the amount of judgment. Subsequently, by order dated April 19, 1985, the District Court imposed sanctions upon Schmidt and Schmidt’s attorney for attempting to raise arguments which had previously been rejected several times.

Schmidt appeals the March 28, 1985, and April 19, 1985, orders of the District Court. Schmidt’s framing of the issues would have this Court address the District Court’s order of March 19, 1984, denying his motion for restitution of funds. We affirmed such denial in Schmidt, et al. v. Colonial Terrace Associates, et al. (Mont. 1985), [215 Mont. 62,] 694 P.2d 1340, 42 St.Rep. 182, and refuse to address the issue again. Therefore, we address the following two issues:

1) Whether the District Court erred in denying Schmidt’s “Motions”?

2) Whether the District Court abused its discretion by imposing sanctions?

Schmidt’s “Motions” filed on March 10, 1985, were accompanied by his attorney’s affidavit which set forth a list of monthly payments made by CTA between July of 1979 and August of 1984. The affidavit alleged CTA had received credit for property tax and insurance payments not provided for by contract; that CTA had been making deficient payments for the entire period; that the judgment based on the June, 1981, jury verdict should be amended to reflect the numerous fees and costs assessed to each party subsequent to that time; that CTA had carried out an execution sale without proper notice; that Schmidt should be permitted to carry out additional discovery.

The District Court granted CTA’s motion to strike as to all matters listed in the affidavit with the exception of the execution sale. In its order dated April 19, 1985, the court stated: “[Schmidt] now asks the Court to re-litigate issues which arose before the trial, and judgment and, further, to litigate contractual controversies which arose after trial and judgment and which are outside the ambit of the pleadings.” We agree with the District Court.

The jury verdict was entered June 17, 1981, in favor of CTA in the amount of $128,278. Following appeal, a master was appointed to determine the amount of offset. The master’s report awarded Schmidt an offset in the amount of $74,363.39. The report also found that the issue of property tax and insurance payments was not plead by either party and was beyond the scope of the lawsuit. This Court affirmed adoption of the master’s report in the subsequent appeal. Schmidt, et al. v. Colonial Terrace Associates, et al. (Mont. 1985), [215 Mont. 62,] 694 P.2d 1340, 42 St.Rep. 186.

Schmidt again attempts to argue that payments by CTA made prior to, and after, the June 17, 1981, verdict were insufficient. The master’s report determined the actual amount owing between the parties as of June 17, 1981. Any disputes occurring thereafter are outside the scope of the lawsuit. With the exception of the execution sale, upon which the District Court reserved opinion, all issues raised by Schmidt’s “Motions” have been previously ruled upon and are subject to the “law of the case” doctrine. Fiscus v. Beartooth Electric Cooperative (1979), 180 Mont. 434, 591 P.2d 196.

The District Court determined it had no power under Rule 60(b)(5), M.R.Civ.P. to preside over the parties’ controversies throughout the life of the contract. We agree. A jury verdict was rendered and the master’s report determined offsets. Further we find no error in the District Court’s refusal to make additional fact findings as to offsets concerning matters arising after the trial or matters which were not tried before the jury. If there is a new claim the courthouse door is always open for the filing of fresh litigation. The District Court does not have continuing jurisdiction to supervise this matter ad infinitum.

Next, we address whether the District Court abused its discretion by imposing sanctions upon Schmidt and his attorney. Rule 11, M.R.Civ.P. authorizes a court to impose sanctions if the court finds a motion to have been filed for purposes of delay or is not offered in good faith.

In this case, the District Court assessed against Schmidt and his attorney the reasonable attorneys fees and costs incurred by CTA in opposing the motions. The District Court found Schmidt was asking the court to do exactly what it said it would not do in its order of March 19, 1984, and such order had been appealed and affirmed. The March 19, 1984, order made it quite clear that the District Court would not resolve claims and issues outside the scope of the original lawsuit, yet one year later Schmidt’s “Motions” requested the court to do exactly that. We find no abuse of discretion by the District Court in imposing sanctions against Schmidt and his attorney.

The District Court is affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, GULBRANDSON and HUNT concur.