author: JUSTICE NELSON JUSTICE TREIWEILER

text:
    DARLENE KNUTSON and RON KNUTSON, Plaintiffs/Respondents & Cross-Appellants, v. TIMOTHY C. BARBOUR, JAMES E. NELSON, and T.J.’S POOL AND GAME ROOM, INC., d/b/a T.J.’S LOUNGE, Defendants/Appellants & Cross-Respondents.
    No. 93-262.
    Submitted March 29, 1994.
    Decided August 16, 1994
    51 St.Rep. 749.
    266 Mont. 170.
    879 P.2d 696.

      For Appellants: Robert J. Emmons and Joseph M. Sullivan, Emmons & Sullivan, Great Falls.
    For Respondents: Howard F. Strause, Attorney at Law, Great Falls.
    Amicus Attorneys: Gerald J. Neely, Billings, (Montana Medical Association); Debra D. Parker, Murphy, Robinson, Heckathorn & Phillips, Kalispell (Montana Defense Trial Lawyers); Patricia Cotter, Great Falls, (Montana Trial Lawyers Association)
   JUSTICE NELSON

delivered the Opinion of the Court.

This is an appeal by the defendants and a cross-appeal by the plaintiffs from a jury verdict in favor of the plaintiff, Darlene Knutson in a “slip and fall” case. The jury attributed negligence to the defendants Timothy C. Barbour, James E. Nelson, d/b/a T.J.’s Lounge (80%) and found Darlene Knutson comparatively negligent (20%). Both parties appeal certain issues. We reverse and remand.

ISSUES

Although numerous issues were appealed and cross-appealed, we dispose of this case upon the following two issues:

I. Did the District Court err in concluding that the Uniform Building Code (UBC) applied in this case as a matter of law?

II. Is the $50,000 distinction in § 27-1-308, MCA, unconstitutional in that it violates the equal protection and due process clauses of the Montana Constitution?

FACTUAL BACKGROUND

On Wednesday, April 4, 1990, Darlene Knutson made plans with her friend, Shelly Hagen, to socialize at Joe’s Place, a tavern in Great Falls. Darlene drove to the Holiday Village Mall to retrieve Shelly at 5:30 p.m. and then drove to Joe’s Place. Darlene testified that she had two drinks during the time spent at Joe’s Place, and Shelly’s testimony supports that statement.

At approximately 8:30 p.m., Shelly and Darlene left Joe’s Place and went to T.J.’s Lounge, another tavern, to meet Shelly’s friend. At the time they left Joe’s Place, the weather was turning to sleet.

Darlene drove her car to T.J.’s and parked south of the alley in the Evergreen Mall parking lot. T.J.’s customers commonly park across the alley in the mall parking lot and use the “back door.” The area is paved and slopes from the alley toward the rear door of T.J.’s and customers entering the lounge must walk through this sloped, paved area.

Darlene and Shelly were walking toward T.J.’s when Darlene remembered she left a special T.J.’s “discount drink” mug in her vehicle. She returned to the car, retrieved her mug, and walked toward T.J.’s again. On her way to T.J.’s, she slipped and fell. Her friend, Shelly and an unidentified man carried her into T.J.’s lounge. Darlene’s husband, Ron Knutson, was called and was informed of the incident. He arrived at T.J.’s with the couple’s son and drove Darlene to Columbus Hospital.

Dr. Powers, an orthopedic surgeon, attended Darlene. His examination revealed that she had “an oblique fracture of the supercondylar area of the femur.” Eventually, Darlene required four operations to facilitate the healing process in her leg.

PROCEDURAL BACKGROUND

The plaintiffs/respondents Daflene and Ron Knutson, filed their complaint and demand for jury trial on January 8, 1991. The defendants/appellants Timothy C. Barbour and James E. Nelson, d/b/a T.J.’s Lounge, filed a motion to dismiss, or in the alternative, motion for a more definite statement, on February 11,1991. Subsequently, the defendants filed an answer on March 8, 1991. :

Ajury trial commenced on October 26,1992. On November 2,1992, the jury returned a verdict for Darlene Knutson in the amount of $325,000.00. However, the jury determined that the percentage of Darlene’s comparative negligence was twenty percent. Ron Knutson was not awarded damages for his loss of consortium claim.

The defendants appealed on February 26, 1993, from the final judgment dated January 6,1993, from an order of January 4,1993, denying defendants’ post trial motions and from an order of February 1, 1993, denying the defendants’ motion for a new trial. The plaintiffs brought a cross-appeal on March 1, 1993, from the final judgment on January 6,1993, from an order dated January 4,1993, wherein the District Court reduced the jury verdict by $62,285.89 and failed to grant Ron Knutson’s motion for a new trial on the issue of damages.

DISCUSSION

I. THE APPLICATION OF THE UNIFORM BUILDING CODE (UBC)

Did the District Court err in concluding that the Uniform Building Code (UBC) applied in this case as a matter of law?

The trial court judge in the present case issued an order on October 14, 1992, granting the plaintiffs’ motion to apply the requirements of the UBC to the area where Knutson fell and sustained her injury. The trial court ruled that the “ramp” upon which Knutson fell was subject to the requirements of the 1979 Uniform Braiding Code which had been previously adopted by ordinance by the City of Great Falls. As a result, at trial the court instructed the jury on negligence per se.

The District Court’s order is particularly troubling because of the fact that there was no evidence upon which to base a ruling that a) the area in question was a “ramp” within the meaning of the UBC; and b) the UBC applied to the area in question. To the contrary, however, there was testimony that the area in question was not a “ramp” within the meaning of the UBC. The appellants provided expert testimony from a former Great Falls City Engineer stating that:

[T]he Uniform Building Code requirements regarding ramps ... do not apply to the area where Plaintiff describes she had fallen. Further, the City of Great Falls would not and did not apply this standard to an area of the type behind T.J.’s Lounge. Finally, application of the Uniform Building Code in the manner described in Plaintiff’s Complaint requiring hand rails in an area which is also used for parking is neither practical nor feasible because more problems would be created than solved.

Moreover, at a later date, the appellants filed another affidavit from a professional member of the International Conference of Building Officials, the body which publishes the UBC, stating that the area in question was “not a ramp as described by Plaintiffs. Both by definition and by general limits of the Uniform Building Code, the Uniform Building Code has no application to the area in question.”

The Knutsons offered no expert testimony or opinion affidavits regarding the applicability of the UBC to the area in question in their brief in support of their motion to have the trial court determine the applicability of the UBC. Their proof simply assumed the applicability of the UBC and went solely to the angle of slope of the area in question. Furthermore, they did not offer expert testimony, affidavits or evidence at any later point to support their conclusion that the area in question was a “ramp” as envisioned by the UBC. The Knutsons, and then the District Court, assumed that the area in question was a ramp and did not discuss, for all practical purposes, the UBC definitions for “ramp,” or any evidence of any substance to support their conclusion in that regard.

The UBC does not define the term “ramp” anywhere in the Code. The Code specifically provides that where terms are not defined, Webster’s Third New International Dictionary of the English Language, Unabridged, copyright 1961, will provide the ordinary accepted meaning for that term. The aforementioned dictionary defines “ramp” as “a sloping way: as a: a sloping floor or walk leading from one level to another. ...” The area in which Knutson fell is neither a floor nor a walk. This definition contemplates a structure which is built to lead from one area to another. Timothy Barbour stated in an affidavit that the area in question was asphalted at the time the building was originally constructed in 1965 and has remained unchanged with the exception of the area where Godfather’s Pizza now stands. The area serves as the parking lot for the Godfather’s Pizza delivery vehicles and must be traversed to enter the back door of T. J.’s Lounge.

The trial court, however, without any analysis or reasons stated, simply concluded that the area in question was a ramp, and assumed the applicability of the UBC. Given our reading of the UBC and applicable case law, within this jurisdiction and without, the area in question is more akin to a driveway, or a sloped parking area, than the type of ramp envisioned by the UBC. The cases from outside this jurisdiction generally have applied the UBC to concrete sidewalks and walkways constructed specifically to facilitate egress or ingress to a building. See Mortimer v. Martin (Ca. 1957), 308 P.2d 840; Sorensen v. Western Hotels, Inc. (Wa. 1960), 349 P.2d 232; Miller v. Broadmoor Village, Inc. (La. 1975), 321 So.2d 925; Grand Union Co. v. Rocker (Fl. 1984), 454 So.2d 14; Foster v. Kwik Chek Super Markets, Inc. (Ala. 1969), 224 So.2d 895. The area in question here serves primarily as a parking lot for pizza delivery vehicles. We have found no authorities which have applied the UBC ramp requirements to an area similar to where Knutson fell, and, as pointed out above, the expert opinion evidence presented to the District Court on the applicability issue was that the area was not a ramp nor was the area covered by the UBC.

Davis v. Church of Jesus Christ of LDS (1990), 244 Mont. 61, 796 P.2d 181, and Herbst v. Miller (1992), 252 Mont. 503, 830 P.2d 1268, the two Montana cases which address the UBC, both applied the UBC to the areas at issue in their respective cases, without any analysis of the UBC’s applicability and without that issue being raised. Davis involved the plaintiff’s fall on a sidewalk outside a Latter Day Saints’ church as she was leaving the building and walking toward her automobile. The sloping cement walkway was specifically built by the Church to facilitate ingress to and egress from the church building.

A key issue in Davis was the slope of the portion of the sidewalk which led to the front doors of the church because under the UBC, handrails must be provided on any slope greater than ten percent and there were no handrails provided for this area of the sidewalk. Both sides presented conflicting testimony about the slope of the sidewalk, from less than ten to twenty-five percent and this Court found that there was substantial evidence to support the jury’s conclusion that the Church was seventy-six percent responsible for the injury sustained by Davis. There is no analysis of the applicability of the UBC in Davis with liability being premised upon a landowner’s duty to use ordinary care in maintaining his premises in a reasonably safe condition.

Herbst involved Herbst’s fall down the cement stairwell on the outside of a building owned by defendant Miller. Herbst was using the stairs to enter an apartment in the building. The stairwell had been specifically built to facilitate ingress and egress to the apartment. There was no handrail along the stairwell, and as Herbst was descending the stairs, she slipped and fell. This Court concluded that Miller was in violation of the State Building Code at the time of the construction of the building and was in violation of the town’s building code at the time of the accident. Although Herbst was concerned with the UBC, there was no analysis about whether the UBC applied to the area in question; there was simply a blanket assumption that the UBC did apply.

We suspect that a similar assumption guided the trial court in the present case since no reasons are given for the court’s conclusion that the area in question was a “ramp” in its order granting plaintiffs’ motion that the area where Knutson fell was subject to the requirements of the UBC. In reviewing a trial court’s conclusions of law, this Court must determine whether the tribunal correctly applied the law. Steer Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-475, 803 P.2d 601, 603. Our review convinces us that the trial court incorrectly applied the UBC to the instant case. All the evidence before the court was to the effect that the area in question was not a “ramp” within the meaning of the UBC and that the UBC did not apply in the instant case. ;

The appellants argued that the District Court erred in not applying landowner liability law in this case, including the principles of notice and knowledge of a dangerous condition. The respondents emphatically denied that landowner liability law applied to the instant case. We agree with the appellants that this case is purely and simply a landowner liability case. Even Davis] is similar to the present case in many respects and also involved issues of landowner liability, stating that “[a] landowner has a duty to use ordinary care in maintaining his premises in a reasonably safe condition or to warn those legally on the land of any hidden or lurking dangers.” Davis, 244 Mont. 61, 796 P.2d at 184. This is the issue in the present case — whether T. J.’s Lounge exercised ordinary care in maintaining its premises in a reasonably safe condition.

We hold that the District Court erred in concluding that the UBC applied as a matter of law to the area where Knutson fell and by instructing the jury that the violation of the UBC constituted negligence per se. Accordingly, we reverse and remand for new trial.

II. THE CONSTITUTIONALITY OF SECTION 27-1-308, MCA.

Is the $50,000 distinction in § 27-1-308, MCA, unconstitutional in that it violates the equal protection and due process clauses of United States and the Montana Constitutions?

The respondents challenge the validity of a clause in § 27-1-308(1), MCA, under the United States and Montana Constitutions. They assert that the clause in the statute violates due process and equal protection rights under both constitutions.

Section 27-1-308(1), MCA, provides:

27-1-308. Collateral source reductions in actions arising from bodily injury or death —subrogation rights. (1) In an action arising from bodily injury or death when the total award against all defendants is in excess of $50,000 and the plaintiff will be fully compensated for his damages, exclusive of court costs and attorney fees, a plaintiff’s recovery ¡must be reduced by any amount paid or payable from a collateral source that does not have a subrogation right.

At the outset, we note that Knutsons do not challenge the constitutionality of the modification of the collateral source rule as codified by § 27-1-308, MCA, as a whole. Rather, the Knutsons challenge on constitutional grounds only the clause in subsection (1) of the statute which states that “when the total award... is in excess of $50,000 and the plaintiff will be fully compensated for his damages, exclusive of court costs and attorney fees, a plaintiff’s recovery must be reduced by any amount paid or payable from a collateral source. ...” Section 27-1-308, MCA.

Inasmuch as we have not previously had the opportunity to pass upon the constitutionality of the modifications to the collateral source rule, we are not convinced that it is appropriate that we undertake that analysis on the limited issue framed by the parties — i.e. whether the distinction between those persons whose awards total $50,000 and those whose awards exceed $50,000 is unconstitutional because it does not treat similarly situated individuals in the same maimer by the government. Butte Community Union v. Lewis (1986), 219 Mont. 426, 430, 712 P.2d 1309, 1311.

More importantly, in view of our determination to remand this case for new trial, it is arguable that, at this juncture, Knutsons are without standing to challenge the constitutionality of the statute.

Accordingly, we decline to address the constitutionality of the modifications to the collateral source rule at this time.

REVERSED AND REMANDED FOR NEW TRIAL.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, GRAY and WEBER concur.

JUSTICE TREIWEILER

dissenting.

I dissent from the majority’s conclusion that the Uniform Building Code did not apply to the location where plaintiff Darlene Knutson was injured and that defendants were not negligent as a matter of law, based on the undisputed facts in this case.

The issue before the District Court was really a simple matter of statutory construction and application, and not nearly as complicated as suggested by the majority opinion.

Defendants purchased the building where their business was operated in 1977, and in 1981 applied for a building permit authorizing construction of an addition to the building. Prior to that construction, there were entrances on the northwest and southwest comer of the building, both of which were accessible from the parking lot located on the property. Neither entrance required use of the ramp on which Knutson was injured. However, due to the 1981 addition, the entrance on the southwest corner was closed, and in order to meet building code requirements, a new entrance was constructed at the southeast corner at the rear of the building. This entrance was not accessible from the parking lot and could only be reached by the ramp Knutson was descending at the time of her injury.

The evidence was that because parking was inadequate on defendants’ premises, and because there was additional parking available across the alley behind defendants’ premises, approximately 40 percent of their customers entered their business through the rear entryway at the southeast corner of the building. Contrary to suggestions in the majority opinion, this was not primarily a parking area. In fact, public parking on the ramp was specifically prohibited.

When the southeast entrance was constructed, the Uniform Building Code provided that a ramp providing egress from a building could not exceed a slope of 12.5 percent, and required that any ramp with a slope steeper than 6.67 percent have a handrail. The defendants’ own expert concluded that the slope on this ramp was 13.62 percent and no handrail was provided.

In Herbst v. Miller (1992), 252 Mont. 503, 507, 830 P.2d 1268, 1271, we held that where the relevant provision of the Uniform Building Code has been adopted by a municipality, a violation of that provision is negligence per se. In this case, documentation provided to the District Court prior to the issuance of its order established that: the Uniform Building Code was adopted as an ordinance by the City of Great Falls on April 19, 1965; that ordinance was in effect when defendants constructed the new rear entrance to their building in 1981 or 1982; and that the ordinance was in effect on the date of Knutson’s injury.

Section 3301(c) of the Uniform Building Code, 1979 edition, provides that an “exit” from a building is “a continuous and unobstructed means of egress to a public way and shall include intervening ... ramps ... exit passageways, exit courts and yards.” Although ramps are not defined in the Code itself, § 401 provides that “[w]here terms are not defined, they shall have their ordinary accepted meanings within the context with which they are used. Webster’s Third New International Dictionary of the English Language, Unabridged, copyright 1961, shall be considered as providing ordinary accepted meanings.” As conceded in the majority opinion, a ramp is defined in Webster’s Third New International Dictionary of the English Language (3d ed. 1961) as “a sloping way: as a: a sloping floor or walk leading from one level to another ....”

The area where Knutson was injured was clearly a sloping way or walk leading from the level of defendants’ rear entry to the level of the alleyway. The majority’s conclusion (without any authority) that it is not a walkway ignores the undisputed fact that 40 percent of defendants’ customers entered the business premises by traversing this sloping route and that there was no other access to the rear entrance.

It is equally clear that the sloped walkway leading from the back door of defendants’ premises to the alley behind the building provided egress to a public way. Section 3301(c) of the UBC defines “public way” as “any street, alley or similar parcel of land... dedicated or otherwise permanently appropriated to the public for public use and having a clear width of not less than 10 feet.”

Having established, based on the plain language of the UBC, that Knutson was injured while traversing a ramp which provided egress from defendants’ premises, the only remaining question was whether defendants complied with the UBC’s requirements for ramps. Section 3306 of the UBC provides that:

(a) General. Ramps used as exits shall conform to the provisions of this section.
(c) Slope. Ramps required by Table No. 33-A shall not exceed a slope of one vertical to 12 horizontal. The slope of other ramps shall not exceed one vertical to 8 horizontal.
(e) Handrails. Ramps having slopes exceeding one vertical to 15 horizontal shall have handrails as required for stairways, except that intermediate handrails shall not be required.

The fact that the ramp leading from the alley behind defendants’ premises to the rear doorway did not meet the requirements set forth in § 3306 is undisputed. Therefore, there were no factual issues for the District Court to submit to the jury. The District Court was correct when it concluded as a matter of law that the UBC was applicable to the area where Knutson was injured, and that based upon the undisputed facts, defendants violated the terms of that Code. This fact situation is only made complicated by the rationale employed by the majority to arrive at its conclusion.

For example, in spite of the plain language of the UBC, as set forth above, and the undisputed facts, as previously discussed, the majority concludes that the District Court’s order is particularly troubling because of the fact that there was no 'evidence upon which to base its ruling. The majority then goes on to discuss opinions by the Great Falls City Engineer and a consultant retained by defendants to the effect that the UBC was not applicable to the location in question. However, whether or not the UBC was applicable was a question of law to be determined by the District Court based upon its interpretation of the Code. As we have repeatedly held, opinion evidence is not relevant to establish a violation of law. In Heltborg v. Modern Machinery (1990), 244 Mont. 24, 795 P.2d 954, we adopted the Fifth Circuit’s reasoning from its opinion in United States v. Lueben (5th Cir. 1987), 812 F.2d 179, aff’d on reh’g (1987), 816 F.2d 1032, when it stated that:

The two questions quoted above illustrate the major surviving exception to the rule that expert opinions on an ultimate issue are admissible: an expert may not express an opinion on a conclusion of law.

Heltborg, 244 Mont. 24, 795 P.2d at 957 (emphasis added).

We held in Heltborg that:

Clearly an expert may testify to an ultimate issue of fact and we have previously so held. See, e.g., Scofield v. Estate of Wood (1984), 211 Mont. 59, 683 P.2d 1300 (court properly allowed highway patrolman to testify as to cause of accident); Wollaston v. Burlington Northern, Inc. (1980), 188 Mont. 192, 612 P.2d 1277 (court properly allowed highway patrolman to testify as to cause of accident); State v. Petko (1978), 177 Mont. 229, 581 P.2d 425 (court properly allowed expert to testify that substance was marijuana even though this was an ultimate factual issue). We emphasize, however, that there is a distinction between testimony on the ultimate factual issue, and testimony on the ultimate legal issue.

Heltborg, 244 Mont. 24, 795 P.2d at 958 (emphasis added).

For that reason, we held in Heltborg, 244 Mont. 24, 795 P.2d at 958-59, that the plaintiff’s expert in a wrongful discharge claim could not testify to his legal conclusion that the employer had violated the covenant of good faith and fair dealing. Likewise, in Hart-Anderson v. Hauck (1988), 230 Mont. 63, 748 P.2d 937, we held that it was erroneous for a witness to state his opinion regarding the law of the forum. In Smith v. Rorvik (1988), 231 Mont. 85, 751 P.2d 1053, we held that a highway patrolman’s opinion regarding whether traffic laws had been violated was irrelevant and inadmissible.

Clearly, the determination of whether laws are applicable and have been violated is the exclusive responsibility of the District Court and is not, according to our previous case law, the proper subject of expert testimony. The District Judge in this case should be complimented for following our prior decisions, not criticized as he has been for ignoring irrelevant “expert” opinions. Neither should plaintiffs be criticized, as they are by the majority, for failing to offer the kind of evidence the same majority has previously ruled inadmissible.

The majority accuses plaintiffs and the District Court of simply assuming the applicability of the UBC and limiting its proof to the angle of slope on the ramp in question. However, that is not correct. The District Court’s conclusion that the UBC was applicable was based upon extensive deposition testimony and affidavits and lengthy briefing from both parties. Plaintiffs’ proof upon which the District Court’s order was based included the following: a description and photographs of the ramp and its relationship to defendants’ building and the public way behind defendants’ building; testimony regarding the pedestrian purpose for which the ramp was primarily used; the fact that parking by patrons was specifically prohibited in that area; and testimony that access to the rear door of defendants’ premises was impossible other than by traversing the ramp in question. No other evidence was necessary. Because of the undisputed evidence, the issue before the District Court was purely a legal issue, and not a very complicated one at that.

The majority opinion alleges that the arguments made by plaintiffs did not discuss the definition of “ramp” or provide any other basis for supporting the District Court’s conclusion. However, neither is that correct. The briefing provided by plaintiffs to the District Court prior to its order dated October 14,1992, fully discussed the definitions set forth in the UBC, as well as the definition incorporated by reference from Webster’s Third New International Dictionary of the English Language. No further definitions were relevant nor necessary.

The majority opinion criticizes the District Court’s lack of analysis, but then concludes, without any basis or analysis, that the sloped walkway providing the only access to the rear door of defendants’ building was not a “sloping way” or a “walk leading from one level to another.” Apparently, the majority is not willing to assume the same analytical requirements that it would impose on the District Court.

The majority opinion concludes that based on its reading of the applicable case law both in and out of Montana, the area on which Knutson was injured is “more akin to a driveway, or a sloped parking area, than the type of ramp envisioned by the UBC.” However, no Montana cases are cited for that principle, nor are there any which could be cited. The majority does cite several cases from other jurisdictions. However, none of them are in any way relevant to the proposition for which they are cited. None of them even involve the issue with which this case is concerned.

Specifically, Mortimer v. Martin (Cal. Ct. App. 1957), 308 P.2d 840, was not concerned with an exterior ramp. The plaintiff in that case was injured on an inside ramp and the court held that the district court erred by failing to instruct the jury of the city ordinance requirements pertaining to ramps in that locale.

In Sorensen v. Western Hotels, Inc. (Wash. 1960), 349 P.2d 232, the facts did concern an exterior ramp. However, the only issue was whether the city’s building code could be applied retroactively to establish the defendant’s negligence.

In Miller v. Broadmoor Village, Inc. (La. Ct. App. 1975), 321 So.2d 925, the issue was whether the plaintiff was injured on an exit way from a store, as defined in the city’s building code. However, the definition of an exit way in that city’s building code was entirely different from the definitions applicable to this building, and did not include any discussion of ramps providing egress to a public way.

Grand Union Company v. Rocker (Fla. Dist. Ct. App. 1984), 454 So.2d 14, dealt only with the issue of whether a violation of the county’s building code established negligence per se, or was merely evidence of negligence. As mentioned, this Court previously decided that issue in Herbst.

Finally, Foster v. Kwik Chek Super Markets, Inc. (Ala. 1969), 224 So. 2d 895, dealt with a sloped area connecting a horizontal sidewalk to a parking lot. That court simply held that based on that city’s definition of an exit ramp, it did not meet the definition. Foster, 224 So. 2d at 896. However, the definition was entirely different than the definition with which we are concerned in this case, and the principle for which that case stands is in no way relevant to our conclusion.

The majority’s reliance on such irrelevant decisions simply illustrates its inclination to make a simple issue more complex than it should be.

The fact that the area where Knutson fell is covered by the UBC, and the fact that that Code was violated, based on the undisputed facts in this case, is clear from any fair and objective reading of the plain language of the Code. Knutson’s injury due to the steepness of this entrance made dangerous by slippery conditions is exactly what the Code was designed to prevent.

The Code applies to entryways. Entryways include any ramp providing access from the building to the public right-of-way. While ramp is not specifically defined in the Code, the definition of ramp included in the Dictionary is applicable by reference from the Code. Ramp is defined as “a sloped way.”

There is no question that under the facts in this case, Knutson was injured on a sloped way providing egress from defendants’ building to the public right-of-way. Therefore, what is the issue for a jury to decide? This ramp did not conform to the UBC, and therefore, defendants were negligent per se. The only issues to be resolved were whether that negligence was a cause of injury to plaintiffs and the extent of plaintiffs’ damages. Those issues have already been decided.

This case may have provided an interesting intellectual exercise for the majority. However, they failed to consider that by ignoring the UBC’s plain language, they have once again reversed a substantial verdict in favor of a seriously injured and damaged person and have wasted the time and efforts of the trial court, the citizen jurors who participated in this case, the witnesses who testified, and the attorneys who labored on behalf of the parties.

This is another decision rendered in the practical vacuum of the Supreme Court and with very undesirable consequences for nearly everyone involved.

Once again, as it has so often in the past, the majority of this Court has substituted its own opinion of what the law should provide for the plain language of the law itself. And once again, as it has so often in the past, by imposing its values on the rest of the State, the burden of the majority’s arbitrary judgment falls on one of those least able to bear it.

For these reasons, I dissent from the majority opinion.

JUSTICE HUNT joins in the foregoing dissent.


source: Caselaw Access Project

author: JUSTICE WEBER

license: Public Domain

text:
    DeTIENNE ASSOCIATES LIMITED PARTNERSHIP and PARK PLAZA HOTEL, INC., Plaintiffs and Respondents, v. FARMERS UNION MUTUAL INSURANCE COMPANY, Defendant and Appellant.
    No. 93-624.
    Submitted on Briefs June 2, 1994.
    Decided August 16, 1994.
    51 St.Rep. 730.
    266 Mont. 184.
    879 P.2d 704.

      For Appellant: Robert F. James, James, Gray & McCafferty, Great Falls.
    For Respondent: Patrick E. Melby, Luxan & Murfitt, Helena.
   JUSTICE WEBER

delivered the Opinion of the Court.

This action springs from Farmers Union Mutual Insurance Company’s (FUMI’s) right of subrogation against a third party tortfeasor Montana Rail Link (MRL). MRL damaged FUMI’s insured’s property Park Plaza Hotel (Park Plaza) when a train wrecked in sub-zero weather and caused a prolonged power outage. When Park Plaza was not totally made whole by FUMI’s pblicy payment, Park Plaza sued MRL for the excess damages. FUMI joined in that litigation. FUMI claims a right of subrogation against MRL. The First Judicial District Court found that, even though both insurer and insured were compensated by MRL, FUMI should pay Park Plaza for its attorney fees and costs incurred in this joint litigation with MRL. We affirm.

The only issue on appeal is:

Did the District Court err in ordering that Farmers Union Mutual Insurance Company must pay Park Plaza’s attorney fees and costs, plus interest, before Farmers could assert its subrogation rights?

DeTienne Associates (DeTienne) is a Montana limited partnership which owns the Park Plaza in Helena. FUMI insured Park Plaza under a special multi-peril insurance policy. The hotel sustained property and business losses when an MRL train derailed, exploded, and caused power outages around Helena on February 2, 1989. During this four-hour power outage, Park Plaza sustained damage because the extremely cold weather conditions combined with the power outages caused pipes to freeze and burst.

FUMI paid Park Plaza $411,155.49, which represented the limits of Park Plaza’s policy. Park Plaza contended that it sustained damages beyond this amount.

On November 19, 1990, FUMI brought suit against MRL in Cascade County. On February 2, 1991, Park Plaza brought suit against MRL in Lewis and Clark County. On May 31,1991, FUMI intervened in Park Plaza’s suit in order to assert its right of subrogation against MRL, and on October 22,1991, the Cascade County suit against MRL was transferred to Lewis and Clark County. On November 7, 1991, the First Judicial District Court consolidated the two suits and dismissed FUMI’s separate complaint for intervention. The parties stipulated that the issues of negligence would not be tried and that the trial would be limited to the issue of proximate cause and damages.

Park Plaza and FUMI could not agree on the amounts of damage sustained by Park Plaza, including the amounts of personal property damage and business interruption losses. An appraiser was hired and at trial Park Plaza sought $491,111 in business interruption losses for the period between February 2, 1989 and December 31,1989.

On January 3,1992, Park Plaza filed a cross-claim against FUMI, asserting that FUMI could not recover its damages until Park Plaza was made whole. Park Plaza’s contention was that the policy payment paid by FUMI was short of the total damages it had sustained. On August 27, 1992, the court granted partial summary judgment against MRL and in favor of Park Plaza and FUMI for damages caused to each by the power outage. Following a bench trial the court ordered MRL to pay $411,155 to FUMI for the money it had paid Park Plaza and $122,441 to Park Plaza for the damages sustained over and above the policy limits of the FUMI policy. The court ordered that the time period for which Park Plaza could recover was from the date of the train wreck until November of 1989, because Park Plaza went ahead with previously scheduled remodeling in November of 1989. The court left pending Park Plaza’s cross-claim against FUMI for attorney fees.

In July of 1993, the court held a hearing specifically to determine whether Park Plaza should be reimbursed for its attorney fees and costs involved in the lawsuit with MRL. Also in July of 1993, an appeal was filed to this Court for review of the District Court’s determination following the bench trial. We affirmed that decision. DeTienne Associates Limited Partnership and Park Plaza Hotel, Inc. v. Montana Rail Link (1994), [264 Mont. 16], 869 P.2d 258.

Following the subsequent court hearing involving attorney fees, the court ruled that Park Plaza was entitled to its fees and costs plus interest before FUMI could assert its right of subrogation against MRL. The result of this ruling would require FUMI to pay Park Plaza’s attorney fees for the bench trial.

FUMI appeals this ruling.

Did the District Court err in ordering that Farmers Union Mutual Insurance Company must pay Park Plaza’s attorney fees and costs, plus interest, before Farmers could assert its subrogation rights?

The resolution of this case involves the District Court’s interpretation of existing case law involving subrogation rights. We review a District Court’s interpretation of law as to whether it is correct. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 803 P.2d 601.

The District Court determined that Park Plaza was entitled to be made whole including reimbursement of attorney fees and costs before FUMI could subrogate its interests against the insured or the tortfeasor (MRL). The court based this ruling on a prior case decided by this Court, Skauge v. Mountain States Tel. and Tel. Co. (1977), 172 Mont. 521, 565 P.2d 628. Further, the court determined that Park Plaza had paid premiums to FUMI so that it could be made whole should it be injured.

FUMI argues that it should not have to pay Park Plaza’s attorney fees and costs, plus interest, because it is entitled to bring an action for subrogation in its own name. Further, FUMI argues that only when the insurer is seeking reimbursement from an insured who has recovered his total loss from the tortfeasor is the insurer prevented from subrogating until the insured is made whole.

Park Plaza argues that the rule in Skauge applies and FUMI cannot recover from MRL until Park Plaza has recovered the total sum of its losses. Also, Park Plaza contends that the specific subrogation provision in its policy states that it has the right to recover for its total losses before FUMI can subrogate its own interests. FUMI interprets this subrogation provision as meaning that it, the insurer, must be permitted to recover all the monies it paid to Park Plaza.

The clause as included in Park Plaza’s policy states:

Subrogation.
(a) In the event of any payment under this policy, the Company shall be subrogated to all the insured’s rights of recovery against any third person or organization and the insured shall execute and deliver instruments and papers and do whatever else is necessary to secure such rights. The insured shall do nothing after loss to prejudice such rights. (Emphasis added.)

However, what we must determine on review is not only the interpretation of this provision, but also what significance it has to the entire purpose of subrogation.

We have already determined the purpose of “subrogation”:

The purpose of subrogation is to prevent injustice by “compelling the ultimate payment of a debt by one who, injustice, equity, and good conscience, should pay it. It is an appropriate means of preventing unjust enrichment.” i

Youngblood v. American States Insurance Co. (1993), 262 Mont. 391, 866 P.2d 203; citing Bower v. Tebbs (1957), 132 Mont. 146, 155, 314 P.2d 731, 736.

Subrogation is the substitution of another person in the place of the creditor, so that the person substituted will succeed to the rights of the creditor in relation to the debt or claim, and is an act of the law growing out of the relation of the parties to the original contract of insurance, and the natural justice or equities arising from the fact that the insurer has paid the insured, rather than a right depending upon the contract.

Youngblood, 262 Mont. at 394-96, 866 P.2d 203.

FUMI attaches great weight to the subrogation provision in Park Plaza’s policy and would have us interpret it to require that FUMI must be totally reimbursed for all monies it paid to the insured. FUMI contends that given this interpretation, the clause prohibits its payment of Park Plaza’s attorney fees because if it has to pay the insured’s costs and attorney fees, the insurer would have to subtract this amount from its total recovery. Such an interpretation is negated by what we have determined to be the purpose of subrogation.

That purpose is not to ensure that the risk-taker, the insurer, be compensated for all money it paid to policy holders:

[T]he insurer cannot assert any claim by way of subrogation unless the insured has a claim against the third person to which the insurer can be subrogated for the reason that the subrogated insurer stands in no better position than the insured, and cannot recover over against the wrongdoer unless the insured could have done so, for if the insured had no right of action against the wrongdoer none can pass to the insurer by way of subrogation. ... Otherwise stated, subrogation by definition and of necessity presupposes the existence of a right of the insured against some third person or fund ...

G.Couch and R.Anderson, 16 Couch Cyclopedia of Insurance Law, Subrogation, § 61:114, pgs. 183-184 (1983).

Relying on Skauge, the District Court determined that while FUMI was entitled to be subrogated, it had to reimburse Park Plaza for its attorney fees and costs involved in the litigation with the tortfeasor. Such reimbursement was required to make the insured whole. FUMI contends this reliance is error because of the different set of facts in Skauge — basically, the fact that the insurer in Skauge had to be drawn into the action against the tortfeasor where in the present case FUMI assisted Park Plaza at trial. While it is true that the facts of the two cases differ, and each case involving subrogation must be considered on its own facts, the equitable principles set down in Skauge are applicable here, despite the possible differences in facts.

The facts of the present case provide us with a subrogation clause that by its own terms, does not extend subrogation beyond the equitable principles set out in Skauge. The clause permits FUMI to subrogate — it does not dictate upon what terms that subrogation shall occur. The terms of subrogation are not provided by the parties’ contract, here, but are provided by the equitable principles inherent in the Skauge ruling.

We determined in Skauge that in a situation where the sum recovered by the insured from the tortfeasor is less than the total loss and thus, either the insured or the insurer must to some extent go unpaid, the loss should be borne by the insurer for that is a risk the insured has paid it to assume. Skauge, 172 Mont. at 528, 565 P.2d at 632. Likewise, we held in Skauge that when the insured has sustained a loss in excess of the reimbursement by the insurer, the insured is entitled to be made whole for its entire loss and any costs of recovery, including attorney fees, before the insurer can assert its right of legal subrogation against the insured or the tortfeasor. Skauge, 172 Mont. at 528, 565 P.2d at 632.

What this means if applied to the present case is that Park Plaza must recover all that it has lost because of the train wreck, including any attorney fees and costs expended in an attempt to recover sums over and above those received under its policy with FUMI. This must be done before FUMI can recover pursuant to subrogation rights.

We used the word “before” in Skauge to indicate that the paramount interest is that of the insured. This language actually indicates that the insured’s interests are the primary concern and are attached to the subrogation rights of the insurer; the use of the word “before” does not necessarily indicate a chronology of events.

It is possible that neither the insurer nor the insured will be able to make a decision as to which party should litigate against the tortfeasor. In many fact situations, the tortfeasor will eliminate the timing concerns raised in Skauge by joining both parties in simultaneous litigation:

[T]he insured may prosecute an action for the full amount of the loss, or either the insured or the insurer may separately sue for his portion of the loss, and if the action is instituted by either one alone, the defendant can compel joinder of the other or may waive joinder.

Glacier General Assurance Co. v. G. Gordon Symons Co., Ltd. (9th Cir. 1980), 631 F.2d 131, 134 (citing State ex rel. Slovak v. District Court (1975), 166 Mont. 485, 489-90, 534 P.2d 850, 852.) This case law recognizes that in order to protect themselves from multiple lawsuits, defendants can require that both the insurer and insured join in the suit or otherwise be bound by its outcome. United States v. Aetna Casualty & Surety Co. (1949), 338 U.S. 366, 381, 70 S.Ct. 207, 215-16, 94 L.Ed.2d 171.

Therefore, despite the use of the word “before” in the Skauge ruling, the important aspect of the case is the adoption of the equitable principle that an insured must be totally reimbursed for all losses as well as the costs involved in recovering those losses. The insured has paid premiums to be insured. This equitable principle is not impaired by concurrent litigation of both the insured’s and the insurer’s interests.

FUMI maintains that if this Court determines that Park Plaza obtains reimbursement for its costs and attorney fees, the ensuing precedent would remove any incentive for an insurance company to participate in an action to recover the damages of its insured above policy limits. We disagree. Such a conclusion by this Court could just as easily prompt insurance companies to simultaneously litigate both their own subrogation rights and the insured’s losses over and above policy limits paid. By litigating the insured’s damages concurrently with its own, the insurer has control over the costs of litigation by combining its own interests with those of the insured. While FUMI argues that it could not concurrently litigate both its concerns and Park Plaza’s because of a conflict of interest, we note that it was FUMI who filed to intervene in Park Plaza’s action for excess damages against MRL.

Thus, regardless of the simultaneous judgments to FUMI and Park Plaza here, we are cognizant of two guiding concerns based upon prevailing equitable principles: 1) Park Plaza must be made whole for its losses, including the attorney fees it incurred in the litigation against the tortfeasor, and 2) if either the insured or the insurer must to some extent go unpaid, equity prescribes that the loss should be borne by the insurer, in this case, FUMI. Therefore, while we have a situation in which both insurer and insured were compensated by the tortfeasor at the same time during the same litigation instead of the insured regaining its total costs first as indicated by Skauge, we must still arrive at the same equitable conclusion that Park Plaza must be made whole in terms of all losses — including money it expended on the MRL litigation.

To do otherwise would mean that the insured looses money (money paid for litigation of excessive damage plus money paid as premiums to insurer) and the insurer gains by such a financial arrangement (insurer has received premiums plus has been fully recompensed for money it paid to the insured). In Skauge we determined that such a state of affairs is akin to unjust enrichment and is not equitable.

FUMI contends that the Skauge case can be distinguished because it involves “legal” subrogation and that the present set of circumstances involves “conventional” subrogation. We stated in Skauge:

Again we note, the doctrine of legal subrogation is applied to subserve the ends of justice and to do equity in the particular case under consideration.

Skauge, 172 Mont. at 528, 565 P.2d at 632. “Subrogation is an equitable doctrine which is not dependent on any contractual relationship between the parties.” Youngblood v. American States Insurance Co. (1993), 262 Mont. at 395, 866 P.2d at 205. Equity is the motivating factor in Skauge — that the insured, after paying premiums to be insured, be made whole — and, although a different set of facts exists in the present case, the same equitable principle applies to Park Plaza — equity here dictates that Park Plaza recoup its total losses, including attorney fees and costs because it has paid insurance premiums to be insured and FUMI has completely recovered its payment to Park Plaza.

The District Court further determined that Park Plaza was entitled to interest as provided in § 25-9-205, MCA:

Amount of Interest. (1) Except as provided in subsection (2), interest is payable on judgments recovered in the courts of this state at the rate of 10% per annum and no greater rate.

This statute governs the interest rate on any judgment already rendered, but not yet paid. It is self-explanatory and applicable to all judgments.

The court also determined that Park Plaza was entitled to pre-judgment interest after financial affidavits determined the exact amount of attorney fees and costs. FUMI argues that it is not responsible for pre-judgment interest.

Section 27-1-211, MCA, states:

Right to interest. Every person who is entitled to recover damages certain or capable of being made certain by calculation and the right to recover which is vested in him upon a particular day is entitled also to recover interest thereon from that day except during such time as the debtor is prevented by law or by the act of the creditor from paying the debt.

Prejudgment interest can be awarded by the trial judge pursuant to § 27-1-211, MCA, when the following criteria are met: 1) there is an underlying monetary obligation; 2) the amount of recovery is certain or capable of being made certain by calculation; and 3) the right to recovery vests on a particular day. R.H. Grover, Inc. v. Flynn Ins. Co. (1989), 238 Mont. 278, 777 P.2d 338.

Park Plaza asserts that they are due monies spent on litigation through June 29, 1993. They presented financial affidavits dated June 29, 1993, at a hearing held by the court on July 7, 1993. FUMI agreed to the totals in these affidavits. The court found that FUMI owed Park Plaza pre-judgment interest on the costs of recovery of $35,112.59 from June 29, 1993.

We conclude that the elements required for pre-judgment interest have been satisfied: FUMI has an underlying monetary obligation to Park Plaza for costs and attorney fees amounting to $35,112.59, that sum was made certain on June 29,1993, when it was incorporated into financial affidavits, and the right to recover these fees vested on July 7, 1993, when FUMI agreed that the fees were reasonable. In determining when pre-judgment interest will commence, we have held that it will begin on the date that the exact amount due is ascertained. Marriage of Gerhart (1990), 245 Mont. 279, 800 P.2d 698. Here, the date that the money due was ascertained was June 29, 1993. Therefore, the court was correct in determining that it was from this date that the interest should rim.

We hold that the District Court did not err in ordering that Farmers Union Mutual Insurance Company must pay Park Plaza’s attorney fees and costs, plus interest, before Farmers could assert its subrogation rights.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, NELSON, and TRIEWEILER concur.


author: JUSTICE HUNT

text:
    IN RE THE MARRIAGE OF CLEM R. LOCKMAN, Petitioner and Respondent, and LORNA G. LOCKMAN, Respondent and Appellant.
    No. 93-512.
    Submitted on Briefs April 7, 1994.
    Decided August 16, 1994.
    51 St.Rep. 726.
    266 Mont. 194.
    879 P.2d 710.

      For Appellant: Patricia Jensen, Rice Law Office, Havre.
    For Respondent: Laura Christoffersen, Christoffersen & Knierim, Wolf Point.
   JUSTICE HUNT

delivered the Opinion of the Court.

Respondent/appellant, Loma G. Lockman, appeals from an order of the Fifteenth Judicial District Court, Roosevelt County, modifying the original custody arrangement by awarding petitioner/ respondent, Clem R. Lockman, primary physical custody of the parties’ three youngest children, and adopting Clem’s proposed findings of fact, conclusions of law, and order. Lorna also appeals the court’s denial of her motion to change venue.

Affirmed.

Appellant raises the following issues:

1. Did the District Court err when it modified primary physical custody of the parties’ three youngest children?

2. Did the District Court err when it adopted Clem’s findings of fact, conclusions of law, and order verbatim?

3. Did the District Court err when it denied Loma’s motion to change venue?

The parties’ marriage was dissolved on June 20, 1989. They have five children, three from the marriage, and the youngest twin boys, who are Lorna’s biological children. Clem has paid child support for all five children since the dissolution. At dissolution, the parties were awarded joint custody, and Loma was designated primary physical custodian of all the children. Clem was granted visitation rights. After the dissolution, Lorna and the five children resided in Havre, Hill County. Lorna has attended Northern Montana College in Havre, and recently received a bachelor’s degree, and was seeking employment at the time of this appeal. Clem lives near Poplar in Roosevelt County, where he has farmed for 16 years. The court found that the parties had difficulty scheduling visitation because of their irascible relationship, and Lorna’s requests and refusal to cooperate with Clem on visitation, and her influence over the oldest children.

On July 6,1992, Lorna filed a motion to change venue of “the case” to Hill County stating that she intended to file a visitation modification petition. On July 31, 1992, the District Court denied the motion on the grounds that no action was pending, but stated that it would reconsider whether change of venue was appropriate if Lorna filed a petition. On September 2, 1992, Lorna filed a petition and affidavit to modify Clem’s visitation and child support, and also filed a motion for reconsideration of her prior motion to change venue. On September 17, 1992, Clem filed a motion to dismiss Lorna’s petition for modification. A hearing was set on the motions for March 10, 1993, then eventually reset for August 20,1993. On March 18,1993, Clem filed a petition to modify custody and visitation, asking that the court award him primary physical custody of the parties’ children, or in the alternative, to modify the visitation ¡provisions of the decree so as to assist the parties in reaching agreements regarding visitation. On March 23, 1993, Clem also filed a petition to modify his support obligations to exclude the oldest daughter who had moved out of Lorna’s home. On April 7, 1993, Lorna responded to Clem’s motions to modify custody, visitation, and child support, stating that the oldest daughter still resided with her, and asking the court to increase child support, pursuant to the child support guidelines. On May 13, 1993, the District Court denied Lorna’s motion to change venue to Hill County. On May 17, 1993, Lorna filed a motion that the court reconsider its order denying her motion to change venue. On May 24, 1993, the court denied her motion to reconsider.

On August 20, 1993, a hearing was held in Roosevelt County on the parties’ petitions. The court interviewed the children as a group to determine with which parent each child wished to live. Then the court privately interviewed each child in chambers on the same question. In its findings of fact, conclusions of law, and order of August 31,1993, the District Court affirmed joint custody of the five children to the parties. However, the court modified the custody arrangement from the prior decree of dissolution, granting Clem primary physical custody of the three youngest children. Lorna was granted visitation rights to the three youngest children, and remained primary physical custodian of the two daughters who were both seniors at the Havre high school. The court granted each party reasonable visitation rights of the children who were not in their primary physical custody. At the time of the hearing, Clem had exercised all visitation to which he was entitled with the three youngest children and was current in his financial obligations to them.

On September 2, 1993, Lorna appealed to this Court.

ISSUE 1

Did the District Court err when it modified primary physical custody of the parties’ three youngest children?

Lorna contends that when the District Court modified primary physical custody of the three youngest children, it failed to comply with the statutory requirements of §§ 40-4-224(2) or -212(1), MCA, and therefore, committed reversible error. Specifically, Lorna argues that the court did not make specific findings on the children’s best interests when modifying the custody arrangement. Lorna asserts that the court failed to: (1) follow the children’s wishes; (2) consider the children’s interaction with her, their siblings, or Loma’s male companion; (3) consider the children’s adjustment to Lorna’s home in Havre, their school, and the Havre community; (4) preserve the family as a unit; and (5) maximize finality of custody to insure continuity and stability of the children. In short, Lorna concludes that the court failed to consider the children’s best interests in the custody arrangement.

We have long held that an award of custody is a matter of discretion for the trial court. Custody of N.T.E. (1987), 227 Mont. 396, 398, 739 P.2d 485, 487. In addition, we will overturn a court’s award of custody only for an abuse of that discretion. In re Marriage of Speer (1982), 201 Mont. 418, 421, 654 P.2d 1001, 1002-03.

We recently held that the lower court must consider the substance of the custody change sought by the moving party when determining whether the jurisdictional prerequisites of § 40-4-212 or § 40-4-219, MCA, should apply. In re Marriage of Johnson (Mont. 1994), 879 P.2d 689, 51 St.Rep. 703. See also In re Marriage of Stephenson (1988), 230 Mont. 439, 750 P.2d 1073; In re Marriage of Gahm (1986), 222 Mont. 300, 722 P.2d 1138. In Johnson, for purposes of clarification, we said that:

Motions or petitions to modify a sole custody provision or terminate a joint custody provision must satisfy the jurisdictional prerequisites set forth in § 40-2-219, MCA. Likewise, a motion or petition to modify child custody provisions in a dissolution decree which have the effect of substantially changing the primary residence of the parties’ children, even though the formal designation of “joint custody” is retained, are to be construed as motions or petitions to terminate joint custody and must satisfy the jurisdictional requirements set forth in § 40-4-219. Any effort to modify the physical custody arrangements in a decree which provided for joint custody, which does not seek a substantial change in the children’s primary residence, may be considered by the district court according to the best interest standard set forth in § 40-4-212, MCA. [Emphasis added].

Johnson, 879 P.2d at 694.

We conclude that the custody modification sought by Clem in the District Court amounted to a termination of the parties’ joint custody of the three minor children, because it substantially changed the primary residence of the parties’ three minor children. The District Court should have applied the jurisdictional prerequisites in § -219, MCA. However, in the hearing below, and on appeal, Lorna did not raise the issue that the District Court incorrectly applied the standard set forth in § -212. We will not fault the court for its application of the § -212 standard where the injured party does not raise the issue, and in fact, agreed with Clem on appeal that the court applied the correct standard. We will review the sufficiency of the evidence in support of the court’s findings of fact, conclusions of law, and order pursuant to the standard in § -212 as applied.

Our review of the findings of fact, conclusions of law, and order shows that the District Court met the standards of Johnson that there was a substantial change of the primary residence of the three children.

The court questioned the children as to where each child preferred to live. The court questioned them as a group and as individuals privately in chambers. All the children expressed a desire to stay together. However, while the girls and one of the twins expressed their desire to live with their mother, the oldest boy and one of the twins expressed the wish to live with their father in Poplar. At the court’s inquiry, these two boys agreed to an arrangement to remain in Havre with the other children until the following year in order to think about the question for a year. The court was not required to follow the children’s wishes, but rather only consider those wishes. The court found that the children have friends and family connections in both Poplar and Havre.

The record also shows that the court considered the children’s interaction with Loma, and heard testimony from Loma’s live-in companion about his relationship with the children.

The court considered the children’s mental and physical health, and the physical abuse or threat of physical abuse against them. The court found that when one of the daughters was a small child, Loma had chased her with a lighter and set her pajamas on fire. In addition, the court found that on another occasion, Loma had thrown one of the twins across a bed and onto the floor.

The court found that most of the children had problems that related to Lorna’s lack of control or discipline over them. The oldest boy had been in trouble with authorities in Havre. One of the twins fell from a building and required medical care. He also had been sent to the principal’s office numerous times during the past school year for behavioral problems. The other twin had fallen and suffered a broken arm. The court found that when the twins visit Clem, Lorna has sent cotton balls and strips of her bathrobe soaked in her perfume as a reminder of her to the twins. The court found that the children were not adequately supervised by Loma. In contrast, the court found no indication that visitation with Clem endangered the children’s physical, mental, moral, or emotional health.

The court was not required to preserve the family as a unit. The court found that the children had family connections in both towns. The court weighed each child’s expressed desire of where to live. The record shows that although the children desired to stay together, they also differed in where they preferred to live.

Finally, Lorna argues that the court failed to maximize finality to assure continuity and stability for the children, (citing Keil v. Ferguson, 246 Mont. 344, 348, 805 P.2d 1334, 1337 (1990)). The court made its order on August 30, 1993, modifying custody of the boys to Clem in Poplar. On September 1, 1Í993, the boys had been in school only several days when Clem obtained custody of them, and transferred them to Poplar. Lorna claims that the three boys were in a stable and nurturing environment from which they were uprooted. She asserts that the three boys were forced to make new friends and go to a new school, and be separated from their sisters.

In Ferguson, 805 P.2d at 1337, we stated that “[o]ne of the goals of the Uniform Marriage and Divorce Act as enacted in Montana, is to assure continuity and stability for the child.” The record shows that the oldest boy previously had attended school in Poplar. In addition, the family already had practiced a visitation schedule where the boys attended most of the school year in Havre, but lived with their father on the farm during the summer months. Finally, the boys have family connections in both Poplar and Havre. The court did not fail to assure continuity for the children by making its final order at a time after which the children had already begun school — requiring them to relocate after the start of the school year. The children had been in school at Havre for only several days.

The court heard sufficient evidence and made sufficient findings to conclude that primary physical custody of the three youngest children to Clem was in the children’s best interests, pursuant to § 40-4-212, MCA.

We hold that the District Court did not abuse its discretion when it modified primary physical custody of the parties’ three youngest children.

ISSUE 2

Did the District Court err when it adopted Clem’s proposed findings of fact, conclusions of law, and order verbatim?

Loma asserts that the District Court could not adopt Clem’s proposed findings of fact, conclusions of law, and order because they were not supported by the evidence and the court did not exercise independent judgment.

Recently, we confirmed that a trial court’s verbatim adoption of a parties’ proposed findings of fact, conclusions of law, and order is proper “where they are comprehensive and detailed and supported by the evidence.” In re Marriage of Boyer (1993), 261 Mont. 179, 184, 862 P.2d 384, 387. Clem’s findings and conclusions were comprehensive and detailed. In addition, they were supported by the evidence, as detailed in the discussion of the first issue.

We will give due regard to the District Court’s opportunity to judge the credibility of the witnesses and weigh the children’s statements, as well as the testimony of Clem, Loma, and the other witnesses. Rule 52(c), M.R.Civ.P. The District Court heard substantial evidence on each statutory factor of § 40-4-212, MCA, sufficient to adopt Clem’s proposed findings of fact and conclusions of law.

We hold that the evidence supports the court’s findings and conclusions and the District Court did not err when it adopted Clem’s proposed findings of fact, conclusions of law, and order verbatim.

ISSUE 3

Did the District Court err when it denied Loma’s motion to change venue?

Lorna contends that the court’s denial of her motion to change venue caused financial and logistical hardships for herself, her children, and several witnesses, when they were forced to travel over 200 miles to Wolf Point for the hearing. At the time of the hearing, Loma was attending college in Havre and partially supported the children on AFDC. She asserts that she did not have sufficient funds to support the trip with the children to Wolf Point. In contrast, she asserts that Clem had sufficient means to make the trip to Havre.

Loma relies on § 25-2-201(3), MCA, which provides:

The court or judge must, on motion, change the place of trial in the following cases:
(3) when the convenience of witnesses and the ends of justice would be promoted by the change.

We have said that § 25-2-201(3), MCA, grants the district court wide discretion, and we will not disturb the court’s decision absent a clear abuse of that discretion. Montana Wholesale Accounts v. Pen ington (1988), 233 Mont. 72, 74, 758 P.2d 759, 760. In addition, we long have held “that on motion for change of venue for convenience of witnesses if the evidence is about evenly balanced, it is not an abuse of discretion for the trial judge to go one way and deny the motion.” Brown v. First Fed. Sav. & Loan Ass’n (1964), 144 Mont. 149, 156, 394 P.2d 1017, 1021.

The court denied Lorna’s motion for change of venue based on the following factors: i

1. The parties were residents of Roosevelt County, Montana at the time of the dissolution herein.
2. The Respondent [Clem] is still a resident of Roosevelt County, Montana while Petitioner [Lorna] is a student at Northern Montana College in Havre, Montana.
3. The issues pending before this court relate primarily to the Respondent’s future contact with his children and therefore it appears that the relevant factual concerns relate more closely to Roosevelt County, Montana than to Hill County, Montana.

The record shows that the children had friends and family connections in both Poplar and Havre. Each party had about the same number of witnesses testifying at the hearing.

We do not find a clear abuse of the court’s discretion. Instead, the evidence was about evenly balanced that each party would be inconvenienced by traveling to the other county. The court focused on the reason for the hearing, which involved Clem’s future contact with the children.

We hold that the District Court did not err when it denied Lorna’s motion to change venue.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, GRAY and WEBER concur.