author: JUSTICE HARRISON JUSTICE HUNT

text:
    CRAIG S. LUECK, Plaintiff and Appellant, v. UNITED PARCEL SERVICE, Defendant and Respondent.
    No. 92-418.
    Submitted on Briefs January 7, 1993.
    Decided April 13, 1993.
    50 St.Rep. 401.
    851 P.2d 1041.
    258 Mont. 2.

      See C.J.S. Master and Servant § 48.

      For Plaintiff and Appellant: Michael G. Eiselein, Lynaugh, Fitzgerald, Eiselein & Eakin, Billings.
    For Defendant and Respondent: Steven Lehman and Chris Mangen, Jr., Crowley, Haughey, Hanson, Toole & Dietrich, Billings.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from the Seventh Judicial District, Dawson County, the Honorable Dale Cox presiding. Appellant Craig Lueck (Lueck) appeals from an order granting summary judgment in favor of respondent United Parcel Service (UPS) and dismissing his retaliatory discharge complaint. We affirm.

UPS hired Lueck as a part time delivery driver on April 16, 1984. He joined the Teamsters Union shortly after he was hired. In June 1986, Lueck became a full time driver, driving a tractor-trailer combination on a “swing run” three nights and one day per week. After driving on this schedule for approximately twenty months, Lueck was given a new route in February 1988, from Glendive to Wolf Point on a regular schedule. Another driver, who had more seniority than Lueck, bid for and got Lueck’s swing run.

UPS discontinued the Glendive-Wolf Point run after only one week, and Lueck went back to part time driving. Around May 1,1988, the driver who had taken Lueck’s swing run took another position with UPS and Lueck took over the swing run again. By then, however, it had been changed.

The revised swing run followed a schedule Lueck describes as “bizarre.” It began at 1:00 p.m. on Sunday, when Lueck was scheduled to drive from Glendive to Billings, returning at approximately 2:00 a.m. on Monday morning. On Monday evening at 7:00 he was scheduled to drive to Bismarck, returning at approximately 8:00 on Tuesday morning. On Wednesday he was scheduled to begin driving at 6:45 a.m., returning at approximately 7:00 that evening, and on Thursday, he was scheduled to begin driving at 8:30 p.m., returning at 9:00 on Friday morning.

After his first week on this schedule Lueck complained about lack of sleep. He spoke to his supervisors on three separate occasions, indicating that he was having serious problems and was unable to sleep. On June 9,1988, Lueck reported to work at the UPS Center in Glendive and put on his uniform in preparation for leaving on the evening’s run. At that point he “flipped out,” as he describes it, and went home without doing the run. His doctor prescribed anti-depressants and admitted him to Glendive Community Hospital for treatment over the weekend of June 11-12, 1988. He was then referred to the Eastern Montana Mental Health Center for outpatient counselling.

Don LaPlante, a counselor at the mental health center, described Lueck’s “presenting problem” as a “physical/psychological adverse stress reaction to working swing shifts as a truck driver for UPS” and recommended continuing anti-depressant medication as well as counselling. Lueck’s family physician, Dr. J.E. Harkness, a Glendive osteopath, saw him in June 1988 and again on July 13, 1988, when he reported that although Lueck appeared to be considerably improved, “it’s unlikely that he will be able to go back into such a swing shift as it was a direct causal effect of his acute hysterical depression episodes.” In fact, Lueck never returned to work for UPS.

On July 25, 1988, Lueck filed a claim for compensation with the Montana Division of Workers’ Compensation, stating that his “double swing” work schedule had disrupted his sleeping and eating patterns, leading to severe physical fatigue, loss of weight, ringing in the ears, dizziness, headaches, nervousness and insomnia. This claim was denied by UPS’s insurer on August 24, 1988, on the grounds that Lueck’s condition was not compensable under the 1987 Workers’ Compensation Act. Lueck never appealed the denial of his claim.

Lueck also filed a claim under his credit disability insurance policy in July 1988. Dr. Harkness completed the required attending physician’s statement on July 20, 1988, describing Lueck’s current condition as “acute anxiety — hysteria, stress reaction, depression” and adding as a “remark” that Lueck “cannot do that type of shift switch work again.”

Lueck occasionally played guitar with a band on weekend nights during the spring of 1988, until he became ill in June. In October 1988 he again began playing with a band. On October 6, 1988, he filed a claim for disability benefits under a Teamsters Union insurance policy, but he never received any benefits because he had begun working in the band before the payments began. In connection with Lueck’s Teamsters Union claim, Dr. Harkness completed a physician’s statement indicating that October 11, 1988, was the “date patient able to return to work.”

In November 1988, UPS learned that Lueck had started working again in a band, that he was not receiving benefits through the Teamsters Union, and that Dr. Harkness had approved his return to work on October 11, 1988. Joe Kriskovich, a Billings UPS manager, called Lueck at home on December 8,1988, to verify this information and to ask why he had not returned to work for UPS. Lueck explained that Dr. Harkness had said that he could not return to the swing shift schedule. Kriskovich told Lueck that UPS had nothing in its files to document this statement. Later on the same day, Lueck took a copy of the statement Dr. Harkness signed as attending physician on July 20, 1988, indicating that Lueck “cannot do that type of shift switch work again,” to his supervisor in Glendive, for delivery to Kriskovich the next day.

In the meantime, Kriskovich wrote Lueck a letter, dated December 8, 1988, telling him that he was no longer on authorized leave, that he was scheduled to return to work on Sunday, December 11, 1988, and that his employment at UPS “could be terminated” if he did not return to work on December 11. Lueck did not communicate with UPS or return to work, and on December 12 he received a mailgram and a telegram from the UPS division manager in Billings, telling him that if he did not return to his regularly scheduled shift on Monday, December 12, his name would be removed from the employment records. Lueck again did not communicate with UPS or return to work, and on December 13 the division manager sent him an official separation letter terminating his UPS employment.

Asked during his deposition why he ignored these messages from UPS, Lueck said:

It was just inconceivable to me that they could have received this, that says I cannot return to the shift work and persist in calling me back to shift work without so much as checking with my doctor or having me checked out by a doctor to find out whether or not I am able to go back to work.

On December 8, 1989, Lueck filed a complaint in District Court alleging that UPS had discharged him because he had filed a workers’ compensation claim, in violation of the retaliatory discharge provision in the Workers’ Compensation Act, § 39-71-317(1), MCA, and that UPS had intentionally inflicted emotional distress by refusing to alter his work schedule in May 1988. In 1991 Lueck amended his complaint by adding a new cause of action under § 39-71-317(2), MCA, alleging that UPS had failed to give him preference for a position that became vacant within two years after the date of his injury, as the statute requires. The District Court granted summary judgment on the amended complaint on May 14, 1992, after oral argument on January 14, 1992.

The issue on appeal is whether the District Court erred in granting summary judgment and dismissing Lueck’s retaliatory discharge, preference, and emotional distress claims. We will address each of Lueck’s claims separately.

The Retaliatory Discharge Claim

Lueck contends that the District Court should not have dismissed his retaliatory discharge claim because the record contains sufficient facts from which a jury could infer that he was discharged for filing a workers’ compensation claim. He relies on Lingle v. Norge Division of Magic Chef Inc. (1988), 486 U.S. 399, 108 S.Ct. 1877, 100 L.Ed.2d 410, for the proposition that employer motivation is a factual question and is not appropriate for summary judgment. In Lingle, however, the Supreme Court did not decide whether summary judgment was appropriate in a retaliatory discharge action. Instead, it held that the appellant’s retaliatory discharge remedy under the Illinois Workers’ Compensation Act was not preempted by Section 301(a) of the Labor Management Relations Act of 1947, 29 U.S.C. § 185(a). The relevant holding in Lingle follows:

[I]f the resolution of a state-law claim depends upon the meaning of a collective-bargaining agreement, the application of state law ... is pre-empted and federal labor-law principles ... must be employed to resolve the dispute.

Lingle, 486 U.S. at 405-406, 108 S.Ct at 1881. In the case before us as well, a decision on the merits of Lueck’s retaliatory discharge claim can be made without reference to the collective bargaining agreement. See Foster v. Albertsons, Inc. (1992), 254 Mont. 117, 835 P.2d 720, 49 St.Rep. 638 (directed verdict based on § 301 preemption reversed, following Lingle, because appellant’s wrongful discharge claim could be resolved without reference to the collective bargaining agreement).

Here, however, the District Court granted summary judgment in favor of UPS, not because Lueck’s claims were preempted by § 301 but because Lueck had failed to exhaust the remedies available to him under the collective bargaining agreement between his union and UPS. To support its argument that summary judgment was properly granted for this reason, UPS relies on Brinkman v. State (1986), 224 Mont. 238, 729 P.2d 1301.

In Brinkman, we upheld the district court’s grant of summary judgment for the respondents based on the state-employee appellant’s failure to exhaust his contractual remedies under a collective bargaining agreement. To the extent that Brinkman is based on federal preemption under § 301, our holding there was overruled in Foster, 835 P.2d at 725. But to the extent that Brinkman requires an employee subject to a collective bargaining agreement to exhaust his remedies under that agreement, it is not overruled. We hold, as we held in Brinkman, that union employees “must attempt use of the contract grievance procedure agreed upon by employer and union as the mode of redress,” for a “contrary rale which would permit an ... employee to completely sidestep available grievance procedures in favor of a lawsuit has little to recommend it.” 729 P.2d at 1305-1306. Accord, Fellows v. Sears, Roebuck & Co. (1990), 224 Mont. 7, 795 P.2d 484.

The collective bargaining agreement in effect between UPS and the Teamsters Union in 1988 provides in pertinent part that:

The right to process and settle grievances is wholly, to the exclusion of any other means available, dependent upon the provisions of this Article.
The Union and the Employer agree that there shall be no strike, picketing, lockout, tie-up, or legal proceedings without first using all possible means of a settlement, as provided for in this Supplement ....

The agreement includes specific steps for a discharged employee to follow in settling the grievance over his discharge, and ultimately provides for binding arbitration.

Lueck attempted to meet with the Teamsters Union representative in Billings in September 1988, but the union representative broke their appointment. Concluding that relying on the union was “fruitless,” Lueck did not attempt to contact the union or enlist its support after he was discharged in December 1988. Clearly, he did not attempt to use the grievance procedure in the collective bargaining agreement before he resorted to legal action in 1989.

Even if Lueck had gone through the prescribed grievance procedure, however, his retaliatory discharge claim would fail for lack of evidence. To prove retaliatory discharge under § 39-71-317, MCA, Lueck would have to show (1) that he was discharged and (2) that UPS’s motive in discharging him was to retaliate for his filing a claim under the Workers’ Compensation Act. UPS amply documented its efforts to persuade Lueck to return to work, which were justified by the information it had at the time. From UPS’s point of view, Lueck simply abandoned his job without providing a coherent explanation and without filing a grievance after he was discharged.

Summary judgment is appropriately granted where no genuine issue as to any material fact exists and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. The party moving for summary judgment has the initial burden of demonstrating that “there is no genuine issue as to any fact deemed material in light of the substantive principles that entitle the movant to judgment as a matter of law.” Fleming v. Fleming Farms, Inc. (1986), 221 Mont. 237, 241, 717 P.2d 1103, 1105-1106. Once the movant has met this burden, the party opposing the motion must show “by present facts of a substantial nature that a material fact issue does exist. Mere conclusory or speculative statements are insufficient to raise a genuine issue of material fact.” Mayer Bros. v. Daniel Richard Jewelers, Inc. (1986), 223 Mont. 397, 399, 726 P.2d 815, 817 (citations omitted); see also First Security Bank of Bozeman v. Jones (1990), 243 Mont. 301, 303, 794 P.2d 679, 681, and Kenyon v. Stillwater County (1992), 254 Mont. 142, 835 P.2d 742, 744.

Lueck has provided no facts to show or even suggest that UPS fired him in December for filing a workers’ compensation claim in July. Lueck must provide facts that support a reasonable inference that UPS’s motive was retaliatory, as mere assertions of a retaliatory motive are not enough to defeat a motion for summary judgment. See Kenyon, 835 P.2d at 745; Foster v. Arcata Associates, Inc. (9th Cir. 1985), 772 F.2d 1453, 1459.

Lueck implies that because UPS knew of Dr. Harkness’ statement on Lueck’s July 1988 credit disability claim form, it could have had no reason other than retaliation for firing him. He does not explain why UPS should have given that statement greater weight than Dr. Harkness’ later statement on Lueck’s October 1988 application for union benefits, which indicated that Lueck was able to work, or why UPS’s failure to give the earlier statement greater weight is evidence that he was fired in retaliation for filing a workers’ compensation claim.

We hold that the District Court concluded correctly that Lueck did not raise a genuine issue of material fact regarding UPS’s motive for terminating his employment.

The Preference Claim

Section 39-71-317(2), MCA, provides that

When an injured worker is capable of returning to work within 2 years from the date of injury and has received a medical release to return to work, the worker must be given a preference over other applicants for a comparable position that becomes vacant if the position is consistent with the worker’s physical condition and vocational abilities.

In his amended complaint, Lueck alleged that when a vacancy occurred in Glendive in March 1989, UPS was required by this statute to prefer him for it. UPS, however, did not notify Lueck that the position was available.

The District Court dismissed this claim on the grounds that (1) Lueck was not an injured worker under the definition in the Workers’ Compensation Act, and (2) if he had been injured, he would have had to apply for the preference within two years after the injury. Lueck made no such application.

Under § 39-71-119, MCA, an “injury” consists of physical harm to the body and is caused by an accident, which is defined as an “unexpected traumatic incident or unusual strain” that is caused by a specific event on a single day or during a single work shift. It does not include a physical or mental condition arising from emotional or mental stress. The District Court correctly decided that this statutory definition does not include Lueck’s “adverse stress reaction” of June 9,1988.

Lueck argues that his condition actually was an “occupational disease,” defined in § 39-72-102, MCA (1987), as “harm, damage or death as set forth in 39-71-119(1) arising out of or contracted in the course and scope of employment and caused by events occurring on more than a single day or work shift.” Although the statute goes on to exclude conditions arising from emotional or mental stress, Lueck argues that his condition was caused by “physical disruption of his eating and sleeping schedule” and therefore is not excluded. The District Court concluded correctly, however, that the term “injury” in the preference statute, § 39-71-317(2), MCA, does not include occupational disease.

Lueck contends that the District Court’s reading of the preference statute is too narrow, and that it erred in ignoring the declaration of public policy in § 39-71-105(3), MCA (1987), which states that “an objective of the workers’ compensation system is to return a worker to work as soon as possible after the worker has suffered a work-related injury or disease.” UPS argues that this objective does not apply to an occupational disease, for there is no good reason to return a worker to a job that caused his disease. The District Court agreed, concluding correctly that the preference statute applies only to work-related injuries.

We review a district court’s interpretation of the law only for correctness. Steer, Inc. v. Dep’t of Revenue (1990), 245 Mont. 470, 803 P.2d 601. Here, we conclude that the District Court correctly interpreted the preference statute as excluding Lueck’s condition, and that UPS therefore was entitled to summary judgment on Lueck’s preference claim, as a matter of law.

The Emotional Distress Claim

Lueck claims that as a result of UPS’s refusal to alter his work schedule and as a result of his termination, he suffered severe emotional distress. His emotional distress was severe enough that he sought counselling and was on medication for several months.

This Court has adopted the requirements for recovering damages for infliction of emotional distress that are set out in Restatement (Second) of Torts § 46 comment j (1965). First Bank (N.A.)-Billings v. Clark (1989), 236 Mont. 195, 206, 771 P.2d 84, 91. The victim must show that the defendant’s tortious conduct resulted either in physical or mental injury or in “a substantial invasion of a legally protected interest,” and that it “caused a significant impact,” including emotional distress “so severe that no reasonable person could be expected to endure it.” Clark, 771 P.2d at 91. Accord, Doohan v. Bigfork School Dist. No. 38 (1991), 247 Mont. 125, 805 P.2d 1354.

The District Court concluded that UPS’s actions did not approach the level of outrageousness needed to establish a prima facie case of intentional infliction of emotional distress. See Frigon v. Morrison-Maierle, Inc. (1988), 233 Mont. 113, 123, 760 P.2d 57, 64 (the defendant’s conduct must be “so outrageous ... as to go beyond all possible bounds of decency”).

In the past we have characterized emotional distress as an element of damages rather than a distinct cause of action; see Frigon, 760 P.2d at 63; Shiplet v. First Security Bank (1988), 234 Mont. 166, 171, 762 P.2d 242, 247. Even if considered only for the purpose of establishing damages, however, Lueck’s deposition testimony demonstrates the absence of any genuine issue of material fact concerning the severity of his alleged emotional distress. UPS was entitled to summary judgment on this claim.

AFFIRMED.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY and McDonough concur.

JUSTICE HUNT

dissenting.

I dissent.


source: Caselaw Access Project

author: JUSTICE HUNT JUSTICE WEBER

license: Public Domain

text:
    IN RE THE MARRIAGE OF REBECCA GRAY WACKLER, Petitioner and Appellant, and THOMAS PAUL WACKLER, Respondent and Respondent.
    No. 92-309.
    Submitted on Briefs December 10, 1992.
    Rehearing Denied May 13, 1993.
    Decided April 13, 1993.
    50 St.Rep. 406.
    850 P.2d 963.
    258 Mont. 12.

      See C.J.S. Divorce § 632.
    For Petitioner and Appellant: Paul Neal Cooley, Skelton & Cooley, Missoula.
    For Respondent: Richard A. Reep, Reep, Spoon & Gordon, Missoula.
   JUSTICE HUNT

delivered the Opinion of the Court.

Petitioner Rebecca Gray Wackier appeals the decision of the Fourth Judicial District Court, Missoula County, modifying visitation, capping child support at $39,500, and failing to award her attorney fees.

We affirm.

Petitioner raises three issue for this appeal.

1. Did the District Court err in refusing to modify child support?

2. Did the District Court err in modifying visitation without providing advance notice to petitioner?

3. Did the District Court err in failing to award petitioner attorney fees and costs?

Rebecca Gray Wackier and Thomas Paul Wackier were married on December 16, 1990, in Missoula. Rebecca filed a petition for dissolution on March 12, 1991. Rebecca was pregnant at the time of filing the petition. On April 4, 1991, the parties entered into a marital and property settlement agreement. On July 9,1991, the court found that the agreement was not unconscionable and incorporated it into the decree of dissolution. The parties were given joint custody of the child, with Rebecca designated as principal residential custodian. Thomas was to have custody of the child 25 percent of the time, with visitation to be essentially arranged by the parties. Thomas was ordered to pay $400 per month in child support until January 1992 when the parties agreed to exchange information regarding their income for the purpose of applying the Uniform Child Support Guidelines.

Thomas works as a commissioned salesman and currently earns $77,000 a year. Rebecca is employed part-time as a hair stylist and has a yearly income of $7,000.

The record demonstrates that the parties have had difficulty implementing the dissolution decree. Thomas filed a motion in September 1991 requesting a clarification of visitation and day care expenses. Following a hearing, the court issued an order on October 25, 1991, establishing a visitation schedule and day care payments.

The parties failed to agree on a child support amount, based on 1991 incomes, by January 15, 1992, and on January 27, 1992, Rebecca filed a motion regarding child support. A hearing was held on February 19, 1992, and on April 20, 1992, the District Court issued its order finding that $400 a month in child support was sufficient and ordering Thomas to provide for post-high school education. In addition, the court clarified Thomas’s visitation rights. Rebecca appeals the decision.

I.

Did the District Court err in refusing to modify child support?

When this Court reviews child support awards, a presumption exists in favor of the district court’s determination, and this Court will reverse the district court only if it has abused its discretion. In re Marriage of Sacry (1992), 253 Mont. 378, 833 P.2d 1035, 1038, 49 St. Rep. 452, 453. Whenever the court issues or modifies an order relating to child support, the district court is required to determine the child support obligation on the basis of the factors set out in § 40-4-204(1) and (2), MCA, and the Uniform Child Support Guidelines adopted by the Department of Social and Rehabilitation Services. Section 40-4-204(3), MCA.

In its order, the District Court found that Thomas’s yearly gross income was approximately $77,000. He is currently paying $400 a month in child support, $260 a month in day care, and $25 a month in insurance costs. Rebecca requested that the court increase the monthly child support to $557. The court found that $400 a month in child support was sufficient. In addition, the court ordered Thomas to provide for the child’s post-high school education. The court based its decision on the belief that child support should not be calculated on income in excess of $39,500 and that the reasons for capping support at this level were the specific statements contained within the Uniform Child Support Guidelines.

The District Court’s order was issued prior to our decision in Sacry where we concluded that the mandatory provisions of the guidelines do not apply to incomes greater than $39,500. Sacry, 833 P.2d at 1038. The $39,500 limitation does not place a cap on the amount of child support to be awarded based on incomes greater than $39,500. For incomes exceeding $39,500, the first $39,500 should be “first applied in the appropriate column and line which shows the number and age of the child to arrive at a minimum support amount.” Sacry, 833 P.2d at 1038 (quoting 46.30.1543(2), ARM). Any parental income that exceeds the $39,500 may be used to supplement a minimum support amount. The amount of the supplement is to be determined on a case-by-case basis utilizing the factors set out in § 40-4-204(1) and (2), MCA. The district court is given broad discretion in awarding supplemental child support based on parental incomes that exceed $39,500. Sacry, 833 P.2d at 1038. Thus, the guidelines do not establish a cap on child support on incomes exceeding $39,500, but instead provide the district court with greater flexibility in setting child support payments when parental income exceeds $39,500.

Even though the District Court erred in ruling that there was a cap on the amount of child support payments because Thomas earned more than $39,500, the court’s decision does not amount to reversible error. After applying the first $39,500 of Thomas’s income, he is currently paying $400 a month in child support which is within the limits of the child support guidelines. Thomas is also responsible for $260 in monthly day care costs, as well as $25 per month in health insurance. In addition, Thomas is required to make arrangements to pay for any post-high school education that the child may need. We hold that the District Court did not err in refusing to modify child support.

II.

Did the District Court err in modifying visitation without providing advance notice to petitioner?

During the February 19, 1992, hearing, the District Court granted Thomas’s oral motion to modify the visitation schedule over Rebecca’s objection. The court modified visitation by giving Thomas visitation on Thursday evenings instead of Monday evenings, and clarified summer visitation, as well as allowing additional visits upon request when Thomas’s relatives visit from out of town. Rebecca contends that § 40-4-208, MCA, requires that she be given notice prior to modification of visitation rights.

Section 40-4-208(1), MCA, requires notice be given for a motion to modify a decree relating to child support and maintenance. Section 40-4-217(3), MCA, grants the district court authority to modify an order granting or denying visitation “whenever modification would serve the best interest of the child ....” In this instance, Rebecca was not prejudiced by the lack of notice because the District Court only clarified visitation rights as a result of some apparent confusion relating to the previous visitation schedule. Rebecca’s counsel was able to discuss these matters and properly raise Rebecca’s concerns as to Thomas’s request to extend visitation rights, which was denied. We hold that the District Court did not err in its clarification of Thomas’s visitation rights.

III.

Did the District Court err in failing to award petitioner attorney fees and costs?

The marital agreement entered into by the parties provided an award of attorney fees to the prevailing party should an action be initiated to enforce or modify the agreement. During the hearing, both parties requested attorney fees. The District Court concluded that neither side substantially prevailed in their requests and denied attorney fees pursuant to § 40-4-110, MCA.

The District Court has discretion to grant attorney fees after considering the financial resources of the parties. Section 40-4-110, MCA. The award of attorney fees is permissive not mandatory. Section 40-4-110, MCA. We will not overturn the court’s decision denying attorney fees absent an abuse of discretion. In re Marriage of Manus (1987), 225 Mont. 457, 733 P.2d 1275. The District Court stated it had considered the financial resources of the parties and that neither side substantially prevailed in the case. We hold that the District Court did not err in failing to award attorney fees.

We affirm.

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

JUSTICE WEBER

dissents as follows:

I dissent from the conclusion on Issue I in which the District Court refused to modify the child support. I agree with the legal standard to be applied and with the standard that this Court will reverse the District Court only if it has abused its discretion. The majority referred to Saery and pointed out that the $39,500 limitation does not place a cap on the amount of child support, because the amount above that figure may be used to supplement a minimum support amount, and thereby provides greater flexibility. The majority further concluded that even though the District Court erred in ruling there was a cap on child support payments above $39,500, the court’s decision did not constitute reversible error. I do not find any factual basis for that conclusion.

In order that there may be no confusion, I quote from the District Court’s order on this aspect:

The Court noted that child support should not be calculated on income in excess of the $39,500.00 cap set forth in the Uniform Child Support Guidelines. The Court’s reasons for capping support at this level are the specific statements contained within the Uniform Child Support Guidelines. The opinion of the Court that child support at $400.00 per month for this child is sufficient support and the Court has imposed a duty upon the Respondent to provide for post-high school education.

As is apparent, the District Court incorrectly concluded as a matter of law that child support should not be calculated on income in excess of $39,500. As a result, the opinion in the paragraph that the child support of $400 per month is sufficient is certainly not conclusive on this Court.

I also quote from the controlling Guideline which is set forth in Sacry:

When incomes exceed this amount the first $39,500.00 should first be applied in the appropriate column and line which shows the number and age of the child to arrive at a minimum support amount. The minimum support amount should be supplemented out of the remaining parental income. The amount of the supplement must be determined on a case-by-case basis. (Emphasis supplied.)

In re the Marriage of Sacry (1992), 253 Mont. 378, 383, 833 P.2d 1034, 1038, (quoting 46.30.1543(2), ARM). (Note that 46.30.1543(2), ARM, as quoted was in effect from July 13, 1990 to July 31, 1992, and has since been superseded). As pointed out in Sacry, the court is given broad discretion. However, in the exercise of that discretion, the regulation requires that the court start with the underlying premise that “the minimum support amount should be supplemented out of the remaining parental income.” 46.30.1543(2), ARM (1990). As a result of the District Court’s misconstruction, it incorrectly concluded that it did not have the power to so supplement. At that point, as a matter of law, I conclude that the District Court was incorrect in applying the foregoing limitation.

I would reverse the District Court on this issue and remand in order that the court could properly redetermine the amount of child support, specifically taking into consideration the income above $39,500.

JUSTICE GRAY joins in the foregoing dissent.


author: JUSTICE WEBER

text:
    IRENE BICKLER, individually and as personal representative of the Estate of BUCKY ROBERT BICKLER, deceased, and VICTOR BICKLER, individually, Plaintiffs and Appellants, v. THE RACQUET CLUB HEIGHTS ASSOCIATES, a co-partnership consisting of WALTER FRANCKE, M.D., WILLARD D. JOHNSON, and ORVAL GRAHAM, Defendants and Respondents.
    No. 92-198.
    Submitted on Briefs January 7, 1993.
    Order Changing Opinion on and Otherwise Denying Clarification and Rehearing May 13, 1993.
    Decided April 15, 1993.
    50 St.Rep. 409.
    850 P.2d 967.
    258 Mont. 19.

      See C.J.S. Motor Vehicles § 208.
    For Plaintiffs and Appellants: William P. Fitzgerald, Lynaugh, Fitzgerald, Eiselein & Eakin, Billings.
    For Defendants and Respondents: Ward Swanser, Moulton, Bellingham, Longo & Mather, Billings.
   JUSTICE WEBER

delivered the Opinion of the Court.

Plaintiffs Irene Bickler and Victor Bickler appeal the December 22,1988 order of the District Court of the Thirteenth Judicial District, Yellowstone County, Montana, granting summary judgment in favor of defendant Racquet Club Heights Associates. We affirm.

The issues presented for our review are:

1. Did the District Court err in concluding that acts or omissions of Racquet Club Heights Associates were not the proximate cause of a motorcycle car collision which killed Bucky Bickler, the son of plaintiffs Irene Bickler and Victor Bickler?

2. Did Racquet Club Heights Associates owe a duty to Bucky Bickler as a member of the traveling public to maintain trees on property belonging to the City of Billings?

3. Are sanctions appropriate against the appellants and their attorney for bringing a frivolous appeal?

Plaintiffs Irene and Victor Bickler (Bidders) brought this action to recover damages for the wrongful death of their son, Bucky Bickler (Bickler). Bucky Bickler died shortly after 1:00 a.m. on August 3, 1983, when his motorcycle collided with Nadine Evensen’s (Evensen) car within the intersection of Rimrock Road and Arlene Street in Billings, Montana.

Rimrock Road is a through street running east and west in Billings. Arlene Street intersects Rimrock Road from the south. Zimmerman Trail connects with Rimrock Road from the north at the same intersection. Both Zimmerman Trail and Arlene Street are controlled by stop signs at this intersection. Bickler was traveling west on Rimrock Road with Fred Farr as his passenger. Evensen was traveling north on Arlene Street. Her deposition testimony establishes that she stopped for the stop sign on Arlene Street. She did not see the Bickler motorcycle. She proceeded into the intersection intending to execute a left turn in order to proceed west on Rimrock Road. Evensen pulled out in front of the Bickler motorcycle. The motorcycle struck the right rear passenger panel and wheel of Evensen’s car. Both Bickler and Farr were propelled by the force of the collision into the air and landed on the street in front of Evensen’s car. Bickler died at the scene of the accident. Farr died later at a Billings hospital.

Evensen testified she did not see the oncoming Bickler motorcycle. Accident reconstruction experts testified by deposition for both Even-sen and the Bidders. Such testimony indicated that in order to adequately perceive oncoming traffic on Rimrock Road, a driver must stop at a location several feet in front of or to the north of the stop sign itself. Evensen testified that when she stopped at the stop sign on Arlene Street, she looked to the left and to the right and could see clearly in both directions. According to the expert testimony, this suggested that she had stopped at a location in front of the stop sign where her vision was not obstructed by trees located on the right of way. Evensen’s testimony indicated she stopped only once. Evensen testified that her vision was not obstructed or impaired but that she did not see the Bickler motorcycle approaching from the east.

The City of Billings owns a right of way approximately twenty feet in width abutting Rimrock Road to the south at the point Arlene Street intersects. Several Lombardy poplar trees grow on the city right of way near the southeast comer of the intersection of Rimrock Road and Arlene Street. The trees are located within an area described as the clear vision zone by the Billings City ordinances. Testimony of the reconstruction experts established that the poplar trees may obstruct the vision of a driver approaching Rimrock Road on Arlene Street as the driver looks to the east.

Racquet Club Heights Associates (RCH) owns property adjacent to the southern edge of the described city right of way. The RCH strip extends approximately twenty feet south of the City right of way. This area is designated as part of the RCH subdivision’s “common area.” The subdivision covenants place responsibility for maintenance of the “common areas” in the subdivision on RCH. Billings ordinances also place responsibility on a corner lot owner for maintenance of vegetation growing on City boulevards.

Bidders argue that Evensen stopped within three feet in front of the stop sign and at that point, she could not have seen vehicles on Rimrock Road approaching from the east. Because she testified that she had stopped only once at the sign, Bicklers further contend that she would have entered the intersection without a clear view of oncoming traffic.

RCH points out that Evensen’s testimony was that at the point she stopped her car, she could see Rimrock Road clearly enough to make out the lights from a Kwik-Way store located one block to the east. RCH also points out that police records establish that Bickler’s blood alcohol content at the time of his death was 2.0, twice the legal driving limit. The record on summary judgment does not establish whether or not the motorcycle headlights were on at the time of the accident. As necessary, we will provide additional facts.

I.

Did the District Court err in concluding that acts or omissions of Racquet Club Heights Associates were not the proximate cause of a motorcycle car collision which killed the plaintiffs’ son?

The District Court reached the following conclusion in granting summary judgment to RCH:

Defendants Racquet Club and City have argued their acts or omissions in this case were not the actual or proximate cause of plaintiffs’ injuries. Plaintiffs have the burden of proving by specific facts that these defendants’ acts or omissions actually caused the accident or, alternatively, that but for these defendants’ acts or omissions, the accident would not have occurred. Plaintiffs have failed to carry these burdens, and thus summary judgment for Racquet Club and City is appropriate.

We note that the case has been settled and dismissed as to the defendant City.

Summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.R We review a district court’s summary judgment ruling using the same standard of review as the trial court. Higham v. City of Red Lodge (1991), 247 Mont. 400, 402, 807 P.2d 195, 196. Summary judgment is proper if a plaintiff fails to establish an element material to his negligence action. Dvorak v. Matador Service Inc. (1986), 223 Mont. 98,107, 727 P.2d 1306,1311. The showing of proximate cause is a necessary element for such actions. Thus, the pivotal question is whether plaintiffs here satisfied a showing of proximate cause.

In its analysis the District Court quoted from this Court’s analysis of cause in fact and proximate cause in Young v. Flathead County (1988), 232 Mont. 274, 757 P.2d 772. In Young, we stated:

Liability, in any cause of action, attaches if the plaintiff can prove first that defendant’s act is a cause in fact of injury and then that the injury is the direct or indirect result, proximately caused by the negligent act. Causation in fact has been determined by the use of the “but for” test... and in rare circumstances under a substantial factor examination. Prosser and Keeton, The Law of Torts, Section 41, pp. 264-268 (5th ed., 1984). In Montana, the distinction between causation in fact and proximate cause, now occasionally referred to as legal cause, has not generally been made....
Under causation in fact, the “but for” test has been defined as but for defendant’s conduct, the event would not have occurred, or, conversely, defendant’s conduct is not the cause of the event, if the event would have occurred without the conduct. ... As an uncommon alternative to the “but for” test, the “substantial factor” test has been designed to deal with problems where application of the “but for” test would allow each of a number of defendants to escape responsibility because the conduct of one or more others would have been sufficient to produce the same result. ...

Young, 757 P.2d at 777. (Citations omitted.)

In Montana, proximate cause is an act or omission which, “in a natural and continuous sequence, unbroken by any new, independent cause, produces injury, and without which the injury would not have occurred.” Young, 757 P.2d at 777. The phrase “without which the injury would not have occurred” incorporates the “but for” test. Young, 757 P.2d at 777.

The District Court concluded the Bidders failed to factually establish actual or proximate cause here. Plaintiffs argue that there is an issue of fact whether Evensen could see the approaching motorcycle because of the clump of poplar trees on the City right of way, and that such issue of fact precluded summary judgment. We do not agree with that contention.

Plaintiffs have failed to submit evidence which establishes that Evensen could not see oncoming vehicles because of the obstruction of trees at the corner of the intersection. Evensen’s uncontradicted testimony establishes that she stopped at the stop sign, looked left and right and could see clearly in both directions, failed to see the Bickler motorcycle, and pulled out into the intersection in front of the motorcycle. Plaintiffs’ accident reconstruction expert speculated that if Evensen stopped her car at the stop sign or within three feet in front of the stop sign, the trees would have obstructed her vision. There is no evidence to precisely establish where Evensen stopped her car.

The stop sign is located a number of feet south of the south right of way line of Rimrock Road. Evensen testified that she thought she stopped at a point close to the stop sign, but she could not fix the precise point. She testified that she stopped only once, finding it unnecessary to pull further forward in order to be able to see to her right before proceeding into a turn. While her testimony does not specify the exact spot where she stopped, her testimony is unrebutted with regard to her ability to see to the east. Evensen further testified she was familiar with the intersection, having previously driven through it on numerous occasions. Plaintiffs have failed to present any evidence for summary judgment consideration which establishes that Evensen did not or could not see the Bickler motorcycle because of the tree obstruction at the southeast corner of the intersection.

We agree with the conclusion of the District Court that the plaintiffs have failed to meet their burden of proving by specific facts that RCH’s acts or omissions were the proximate cause of the accident, or that but for the acts or omissions of RCH, the accident would not have occurred. We agree with the conclusion of the District Court that visual obstruction was not established as a cause in fact of plaintiffs’ injuries.

We hold the District Court correctly granted summary judgment to the defendant RCH.

II.

Did RCH, as the owner of the corner lot abutting Rimrock Road, owe a duty to members of the traveling public to maintain a clear vision zone?

Because of our holding on Issue I, we conclude it is unnecessary to address this issue.

III.

Are sanctions appropriate against the Bidders and their attorney for bringing a frivolous appeal?

Rule 32, M.R.App.R, allows recovery of damages when this Court is satisfied from the record and the presentation of an appeal in a civil case that the appeal was taken without substantial or reasonable grounds. This Court has imposed such sanctions in cases where counsel’s actions constitute an abuse of the judicial system. Where reasonable grounds for appeal exist, no sanctions will be imposed. Tope v. Taylor (1988), 235 Mont. 124, 768 P.2d 845.

We conclude there were reasonable grounds for an appeal and deny the request for sanctions.

Affirmed.

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


author: JUSTICE HARRISON

text:
    LESTER D. NORMAN, Plaintiff and Appellant, v. CITY OF WHITEFISH, and TRUSTEES OF CITY OF WHITEFISH POLICE RETIREMENT FUND, Defendants and Respondents.
    No. 92-437.
    Submitted on Briefs January 14, 1993.
    Decided April 28, 1993.
    50 St.Rep. 441.
    852 P.2d 533.
    258 Mont. 26.

      See C.J.S. Municipal Corporations § 588.
    For Plaintiff and Appellant: John H. Bothe and Laurie Wallace, Bothe & Lauridsen, Columbia Falls.
    For Defendants and Respondents: Donald E. Hedman, Hedman, Hileman & LaCosta, Whitefish.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from the Eleventh Judicial District, Flathead County, the Honorable Michael H. Keedy presiding. Appellant Lester Norman (Norman) appeals from a judgment of the District Court denying his claim for police disability retirement benefits. We affirm.

The issue on appeal is whether the District Court erred in affirming the Whitefish City Council’s denial of Norman’s claim for police disability retirement benefits. We note that this appears to be a case of first impression regarding the applicable statutes.

Norman served as a reserve police officer with the Whitefish Police Department from 1969 until 1973, at which time he entered a full-time position with the department. He left the department in 1975, but returned again in 1979 as a reserve officer. He became a full-time officer again in 1984 and worked as a full-time officer until March 16, 1988, when he quit the department.

During the course of his employment, Norman was involved in two automobile accidents. The first occurred on November 16,1980, while he and a fellow officer pursued another vehicle. The car Norman was driving slid off an embankment, and Norman hit his head on the ceiling of the car. He filed a workers’ compensation claim that was accepted by the City of Whitefish, which was self-insured. The second accident occurred February 12, 1987, when the car he was driving slid on the ice and struck a snow bank as he turned the corner on a city street. Norman hit his head and shoulder against the door frame and window of the car. The city also accepted a workers’ compensation claim for this accident and paid his medical expenses. Norman suffered no wage loss from either accident and continued to work after the 1987 accident -until March 16,1988, when he quit the department due to stress and anxiety problems.

In an affidavit submitted into evidence, Norman stated that he “became very nauseous and jittery feeling” while patrolling that day. He stated that he became ill and told the city manager that he was very sick and had to leave because of his nerves. He told the city manager that he could not take any more of the treatment he had received on the force. It appears, though, that Norman had decided to leave the police department before his shift started. According to a voluntary statement given by the officer whom Norman relieved of duty that day, Norman informed him at the beginning of the shift that he was leaving the department. The officer made this statement to the chief of police on the day Norman quit.

The “treatment” Norman referred to in his affidavit related to a history of tension between him and other officers and the police chief. He had been denied promotion twice in the eight months before he quit. Also, Norman had complained of abuses occurring in the department such as mistreatment of prisoners and excessive use of force by other officers. He claims his relationship with the chief and other officers, the incidents of abuse he witnessed, and the fact that he did not believe anyone was acting on his complaints elevated his pre-existing anxiety problems to a disabling level.

He then petitioned the Whitefish City Council for police disability retirement benefits on the basis of anxiety-stress syndrome. The city council held a meeting on June 27,1988, and on July 18,1988, voted unanimously to deny the request. In November 1988, Norman filed the present action in District Court seeking benefits and claiming that the stress and pressure he experienced at work caused the anxiety problems that led him to quit working.

On or about December 5, 1989, Norman filed a petition in Workers’ Compensation Court seeking temporary total disability benefits, claiming that a cervical disk injury was related to the automobile accident of February 12,1987. In August 1990, the Workers’ Compensation Court denied that claim, concluding that Norman had not met his burden of showing “that his current ‘... ability to engage in gainftd employment is diminished ...’ by his February 12, 1987 accident.” The Workers’ Compensation Court added, “If anything, the evidence is overwhelming that claimant’s anxiety disorder is his predominant disabling condition.” This Court affirmed the [Workers’ Compensation Court in] Norman v. City of Whitefish (1991), 248 Mont. 490, 812 P.2d 1259.

In December 1989, Norman filed another petition with the Whitefish City Council seeking police retirement disability benefits. This petition included the anxiety-stress claim and a claim for benefits due to herniated discs in his cervical spine. The city council denied this petition also. On May 4, 1990, Norman filed an amended complaint in District Court adding the herniated disk claim.

The District Court held a hearing on May 24,1991. After reviewing numerous depositions and Norman’s extensive medical records, the court issued its findings of fact, conclusions of law, and judgment on May 18, 1992. The court made extensive findings as to both the cervical disk injury and the anxiety-stress problem. The District Court concluded that the findings and conclusions of the Workers’ Compensation Court regarding the cervical disk injury were res judicata. As to the anxiety disorder, the court concluded that it was “not caused by injuries or disabilities in the active discharge of his duties as a police officer, but [was a] pre-existing condition for which Plaintiff had been treated many times....” The District Court, therefore, affirmed the city council’s denial of benefits.

As for the cervical disk injury, Norman claims the court erred in concluding that the Workers’ Compensation Court’s decision had res judicata effect on the proceeding in the District Court. He argues that the elements of res judicata have not been satisfied and that in considering the matter res judicata, the District Court ignored relevant medical evidence developed after the workers’ compensation case had been heard. He also claims that the District Court’s determination that he was not entitled to benefits is clearly erroneous because it is not supported by substantial evidence.

In reviewing the decision in a civil case tried to a court sitting without a jury, this Court will uphold a trial court’s findings unless the findings are clearly erroneous. Rule 52(a), M.R.Civ.R; Interstate Prod. Credit Ass’n v. Desaye (1991), 250 Mont. 320, 322, 820 P.2d 1285, 1287. Findings are clearly erroneous if not supported by substantial evidence. Desaye, 820 P.2d at 1287. This Court will uphold the result reached in the district court, regardless of the reasoning used by the district court, if the decision is correct. District No. 55 v. Musselshell County (1990), 245 Mont. 525, 527, 802 P.2d 1252, 1253; Jerome v. Pardis (1989), 240 Mont. 187, 192, 783 P.2d 919, 922.

Section 19-10-402, MCA, governs an award of police disability retirement benefits. It provides as follows:

Eligibility for disability retirement. When a police officer receives injuries or disabilities in the active discharge of his duties as a police officer, which injuries or disabilities are, in the opinion of the board of police commissioners or city council of the city or town, of such character as to impair his ability to discharge his duties as an active police officer, he shall be placed on the retired list of the city or town.

The officer is then entitled to disability benefits under § 19-10-502, MCA, which reads in part:

Disability retirement allowance. When a police officer is transferred from the active list to the retired list of a city, he shall thereafter receive monthly payments from the city’s police retirement fund, as follows:
(1) A police officer who is eligible under 19-10-402 before completing 20 years of service shall receive a sum equal to one-half the base salary, excluding overtime and payments in lieu of sick leave and annual leave, he was receiving as an active officer computed on the highest salary received in any one month during his last year of active service.

The Cervical Disk Injury Claim

The District Court made extensive findings regarding Norman’s cervical disk injury and its effect on his ability to work, ultimately finding that “the evidence submitted to the Whitefish City Council (as Police Pension Fund Commission) was not so persuasive as to require a determination of entitlement under the applicable code section.” Norman raises issue with the District Court’s findings because he claims they are nothing more than an adoption of those submitted by the City and the Workers’ Compensation Court. He cites In re Marriage of Johnson (1989), 238 Mont. 153, 157, 777 P.2d 305, 308, where this Court said that the district court “errs in adopting a party’s proposed findings only if the court does so ‘without proper consideration of the facts’ and with a lack of independent judgment.” (Citation omitted.) In those cases we look to whether the “ ‘findings and conclusions are sufficiently comprehensive and pertinent to the issues to provide a basis for decision, and are supported by the evidence.’ ” Marriage of Johnson, 777 P.2d at 308 (citation omitted). Because the parties’ proposed findings and conclusions are not contained within the record and subject to review, we are unable to address this point. See Glaspey v. Workman (1988), 230 Mont. 307, 749 P.2d 1083; First Nat’l Bank of Cut Bank v. Springs (1987), 225 Mont. 62, 731 P.2d 332. However, even if this matter were before us, our decision renders the point moot as we do not find error in the District Court’s findings and conclusions.

The District Court made over thirty findings related to the cervical disk injury. A sample of those findings indicates that Norman clearly did not quit his job because of any difficulties related to the cervical disk injury, and that the court did not err in determining that any injuries he received did not entitle him to disability benefits.

10. Prior to March 16,1988, Plaintiff voiced no concern to his fellow police officers that he was suffering any discomfort or disability relating to his cervical spine.
11. Plaintiff did not leave the employment of the City of Whitefish Police Department by reason of the injury to his cervical spine.
15. The history related to Dr. Mahnke was that Plaintiff left the force in the “context of political and personnel problems in the force.”
18. Dr. Mahnke in his notes states that Plaintiff was “fighting for disability for anxiety, for anxiety-stress disorder, Whitefish Police Department, 1979-1988.”
19. Even in October, 1989, Plaintiff still felt his disability was related to his nervous disorder, not to the herniate discs in his cervical spine.
21. Dr. Mahnke, neurosurgeon, indicates that Plaintiff’s spondylosis may be simply a degenerative process, although it could be caused by trauma; in fact, intellectually, he would have trouble discriminating them completely.
22. Were it not for the history related by Plaintiff, Dr. Mahnke could not relate the condition to any accidents or injuries.
25. A delay of approximately nine years, from the 1980 automobile accident until the 1989 MRI study, and considering that the condition complained of by Plaintiff may be the result of natural degeneration, traumatically-induced, the likelihood that Plaintiff’s condition is related to his automobile accident is highly questionable.
29. Although acting as Plaintiff’s consulting psychiatrist, Dr. Gray did not know of claimant’s neck complaints until the morning of his deposition, March 21,1990. Dr. Gray had previously prescribed time away from work for Plaintiff due to his anxiety or stress.
31. The findings of the Workers’ Compensation Court were that at no time did Dr. Wenzel (chiropractor) advise claimant to quit work due to his physical problems. After seeing the claimant in February, 1987, Dr. Wenzel does not reference cervical complaints, but rather “trapezius fibrocytis,” which refers to the upper shoulder muscles.
33. Judge Reardon found that, “during the entirety of the claimant’s pursuit of retirement disability benefits in calendar year 1988, his claim for disability was for stress. No mention was made of any disability related to the February 12, 1987 automobile accident. In fact, until the denial of his disability retirement benefits, claimant did not pursue any Workers’ Compensation benefits.”

While pursuing promotions in August 1987 and January 1988, Norman did not mention any problems related to the cervical disk injury. As specifically found by the District Court, Norman’s chiropraetor, Dr. Wenzel, never advised him to be off work or to quit work because of any physical problems. At the time Norman quit, his physician, Dr. Miller, clearly indicated that it was for stress and anxiety, not a physical problem. In fact, Dr. Miller had not heard of the 1987 accident until he spoke with Norman’s attorney on the date of his deposition for the workers’ compensation claim — March 22, 1990. Dr. Miller actually had no opinion as to whether the cervical disk problems were related to the 1987 accident. Dr. Mahnke, a neurosurgeon who examined Norman once, could not tell from reading the MRI, or from the examination, whether the 1987 accident changed the underlying anatomical condition of Norman’s neck.

The parties stipulated to the introduction of numerous depositions and medical records. This Court is in as good a position as the district court to review evidence of this nature, Spadaro v. Midland Claims Serv., Inc. (1987), 227 Mont. 445, 449, 740 P.2d 1105, 1107-1108, and has done so freely. Having done so, we conclude that substantial evidence supports the District Court’s finding that the evidence “was not so persuasive as to require a determination of entitlement under the applicable code section.” As we conclude that the District Court correctly determined that Norman was not entitled to benefits based on the cervical disk injury, we need not address whether the Workers’ Compensation Court’s decision had res judicata effect here.

Stress and Anxiety Related Claim

Dr. Gray, Norman’s psychiatrist, diagnosed Norman as suffering from “generalized anxiety disorder and psychological factors influencing physical condition.” In his April 8, 1991, deposition, Dr. Miller testified that Norman had a predisposition toward anxiety and that he had less ability to handle stress factors than the average person.

The District Court also made extensive findings recounting Norman’s anxiety and stress problems before he became a full-time officer in 1984. Those findings cite numerous diagnoses of anxiety, anxiety reactions, and chronic anxiety. Based on this history, the court concluded:

The anxiety disorder and panic attacks which Plaintiff complains of are not caused by injuries or disabilities in the active discharge of his duties as a police officer, but were pre-existing conditions for which Plaintiff had been treated many times by the doctors at Family Physicians Clinic in Whitefish.

Dr. Kuffel, a Whitefish physician who reviewed Norman’s medical records in 1990 at the city’s request, reached much the same conclusion.

Norman claims the District Court misinterpreted the statute by requiring a separate work-related injury or disability aside from the anxiety disorder. He argues that his anxiety disorder is his work-related disability and that an aggravation of a pre-existing condition should be compensable as it is for workers’ compensation injuries and occupational diseases. We note, however, that both the Workers’ Compensation Act and the Occupational Disease Act exclude coverage for physical or mental conditions arising from emotional or mental stress. See § 39-71-119(3) and § 39-72-102(10), MCA. Therefore, we do not find his argument persuasive.

Although Norman’s employment with the Whitefish Police Department may have been stressful and he may have experienced anxiety problems while serving on the force, substantial evidence supports the District Court’s finding that his problems did not result from the active discharge of his duties. We conclude that the District Court did not err in determining that Norman’s history of problems precluded him from receiving police disability retirement benefits.

Affirmed.

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


author: JUSTICE TRIEWEILER JUSTICE HARRISON

text:
    DEBRA OKLAND, as Guardian Ad Litem for BERNIE OKLAND, a minor, Plaintiff and Respondent, v. KEITH DAVID WOLF, Defendant and Appellant.
    No. 92-219.
    Submitted on Briefs August 20, 1992.
    Decided April 15, 1993.
    50 St.Rep. 412.
    850 P.2d 302.
    258 Mont. 35.

      See C.J.S. Motor Vehicles § 518(14).
    For Defendant and Appellant: Paul C. Meismer, Anita Harper Poe, Garlington, Lohn & Robinson, Missoula.
    For Plaintiff and Respondent: Edward K. Duckworth, Ronan.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Plaintiff brought this action on behalf of her eight-year-old son, Bernie Okland, for injuries sustained when the bicycle he was operating collided with the vehicle being driven by defendant Keith David Wolf. The jury returned a verdict, finding that both Wolf and Okland were negligent and that each was 50 percent responsible for the collision. The jury found that the reasonable amount of Okland’s damages was $40,000. Pursuant to the jury’s finding of comparative fault, the District Court entered judgment for plaintiff in the amount of $20,000, plus costs and statutory interest from the date of judgment. From this judgment, defendant appeals. We affirm the District Court.

The issues raised by defendant on appeal are:

1. Was there substantial evidence to support the jury’s verdict?

2. Was defendant entitled to judgment as a matter of law based on our decision in Olson v. Parchen (1991), 249 Mont. 342, 816 P.2d 423?

3. Was defendant entitled to a new trial because of an erroneous instruction given to the jury by the District Court?

4. Was defendant entitled to a new trial based upon improper closing argument by plaintiff’s attorney?

FACTUAL BACKGROUND

On July 3, 1990, eight-year-old Bernie Okland was operating his bicycle in a westerly direction in the alley between 13th Avenue and 12th Avenue in Poison. As he approached the alley’s intersection with 7th Street, he intended to make a right-hand turn and proceed in a northerly direction. However, he was traveling too fast, could not control his bicycle, and swerved into the southbound lane, where he collided with defendant Keith David Wolf’s vehicle.

Defendant was 15 years old at the time of his collision with Okland. He had received his driver’s license 30 days prior to the accident. Immediately before the collision, he was proceeding in a southerly direction on 7th Street and conversing with his friend, who was a passenger in the vehicle. According to all witnesses, he was operating his vehicle at a speed of between 20 and 25 miles an hour, which was within the legal speed limit. He testified that he did not observe Okland until an instant before the collision. There was no evidence that defendant applied his brakes or swerved to take evasive action prior to the collision.

As a result of Okland’s collision with defendant, he sustained physical injuries and incurred medical expenses.

On January 10,1991, plaintiff filed an amended complaint alleging that the collision in which her son was injured was caused by defendant’s negligence. In his answer, defendant admitted that the collision occurred, but denied that it was his fault and alleged that it was caused entirely by the negligence of Okland.

The principals involved in the collision were deposed, as were the investigating officer and an off-duty officer who witnessed the collision. Based on the testimony of these witnesses, defendant moved the District Court prior to trial to enter summary judgment holding that as a matter of law the collision in which Okland was injured was caused solely by his own negligence. That motion was denied by the District Court, and this case proceeded to trial before a jury of 12 people on December 18,1991. On December 19, the jury returned its verdict, finding both parties negligent and apportioning responsibility for the collision equally between them. The jury found that the total amount of damage sustained by Okland as a result of his collision with defendant was $40,000.

Further facts will be discussed as necessary in the discussion of the issues raised by defendant.

I

Was there substantial evidence to support the jury’s verdict?

Defendant contends that the District Court erred when it denied his motions for summary judgment, a directed verdict, and judgment notwithstanding the verdict.

In reviewing a denial of a motion for summary judgment, our scope of review is basically the same as when reviewing denial of defendant’s motion for a directed verdict. Doll v. Major Muffler Centers, Inc. (1984), 208 Mont. 401, 416, 687 P.2d 48, 56.

Our scope of review from denial of a motion for a directed verdict is the same as from denial of a motion for judgment notwithstanding the verdict. Nelson v. Flathead Valley Transit (1992), 251 Mont. 269, 274, 824 P.2d 263, 267.

In Nelson, we explained the scope of review from an order denying a motion for judgment notwithstanding the verdict as follows:

In considering a motion for judgment notwithstanding the verdict, the court must view all of the evidence in a light most favorable to the non-moving party. Nicholson v. United Pacific Insurance Company (1985), 219 Mont. 32, 710 P.2d 1342. The motion may only be granted if it appears that the non-moving party cannot recover upon any view of the evidence, including legitimate inferences to be drawn from it. Larson v. K-Mart Corporation (1990), 241 Mont. 428, 787 P.2d 361.

Nelson, 824 P.2d at 265.

In Simchuk v. Angel Island Community Association (1992), 253 Mont. 221, 228-29, 833 P.2d 158, 162-63, we stated:

We recently discussed our function in reviewing jury verdicts. See Silvis v. Hobbs (Mont. 1992), [251 Mont. 407,] 824 P.2d 1013, 49 St. Rep. 62. It is not the function of this Court to agree or disagree with the jury’s verdict. Our function is to determine whether substantial evidence existed to support the verdict. In our examination, we review the facts in the light most favorable to the prevailing parties. If conflicting evidence exists, the credibility and weight given to the evidence is in the jury’s province and we will not disturb the jury’s findings unless they are inherently impossible to believe. Silvis, [251 Mont. at 410-12] 824 P.2d at 1015-16, 49 St. Rep. at 63-64. Our job is complete once we find substantial evidence in the record to support the jury’s conclusion.

With that scope of review in mind, we conclude that the following substantial evidence supports the jury’s verdict:

The street on which this accident occurred was the main artery from downtown Poison to the location of defendant’s residence. Prior to the date on which the accident occurred, defendant had passed the intersection of the alley with 7th Street hundreds or thousands of times. The intersection is located in a residential area with homes on both sides of the street. Defendant was aware that it was common for children to be playing and biking in the area. He was also aware that because of the presence of children in the area, it was important to keep a lookout on both sides of the road. He acknowledged that he knew from the driver’s education course he had just completed that drivers need to be especially alert for children because they are unpredictable and you never know what they are going to do.

Defendant admitted that as he proceeded south on 7th Street he would have been able to see a substantial part of the alley where Okland was operating his bicycle, but testified that he and the passenger in his vehicle were chatting and that he did not see the bicycle until it was too late to take evasive action. He admitted that if he had looked in the direction of the alley and seen Okland coming, he could have either slowed down, braked, or swerved.

Rick Hunter testified that he is employed as a detective by the Poison Police Department. He was off duty at the time of the accident. However, he witnessed the accident as a passenger in a third vehicle.

The vehicle in which Hunter was traveling was proceeding in an easterly direction on 12th Avenue. His position was about one-half block north of the intersection of the alley and 7th Street. He was significantly further away from the alley than defendant. However, from that vantage point he was able to observe Okland operating his bicycle in a westerly direction in the alley. He noticed that Okland did not have control of his bicycle. The bike was wobbling as if its rider was trying to make a turn, but was unable to do so. He was able to make these observations and conclude that a collision was going to occur from one-half block away. He testified that about two to three seconds passed from the point when he first saw Okland until the impact occurred. He had time to yell to the driver of his vehicle that there was going to be an accident. During that time, he did not see defendant make any effort to swerve. He did not see any brake lights applied, and he did not see any indication that defendant had observed the bicycle.

Hunter also testified that he was familiar with the area where the accident occurred and that it is a thickly populated area where, on a summer evening, it was common to see children on bikes and pedestrians out walking. He testified that a driver in that area should certainly plan on children being present and take appropriate precautions. He stated that when he drives in that area, he scans both sides of the road as a precaution.

Denman Lee, Ph.D., is a physics professor at Montana State University and an accident reconstruction expert. He testified, without objection by defendant, regarding his qualifications. Lee investigated the accident to determine defendant’s sight distances as he proceeded in a southerly direction on 7th Street, and he determined how long Okland’s bicycle should have been visible to defendant prior to the point where the collision occurred. He testified that, based upon the speed at which he concluded the bicycle was traveling, defendant would have been able to observe the bicycle for at least 4 seconds prior to the collision if he had been driving at a speed of 20 miles per hour, and 3.6 seconds prior to the collision if he had been driving at a speed of 25 miles per hour. Lee also testified that including reaction time, it would have taken defendant approximately 2.3 seconds to bring his vehicle to a complete stop from a speed of 20 miles per hour, and 2.6 seconds to bring his vehicle to a complete stop from a speed of 25 miles per hour. In summary, he concluded that if defendant had seen what was there to be seen, he could have brought his vehicle to a complete stop prior to colliding with Okland’s bicycle.

The District Court properly instructed the jury that:

Negligence is the failure to use reasonable care. Negligence may consist of action or inaction. A person is negligent if he fails to act as an ordinarily prudent person would act under the circumstances.

In Payne v. Sorenson (1979), 183 Mont. 323, 599 P.2d 362, we held that:

Under Montana law, a motorist has a duty to look not only straight ahead but laterally ahead as well and to see that which is in plain sight. Furthermore, a motorist is presumed to see that which he could see by looking, and he will not be permitted to escape the penalty of his negligence by saying that he did not see that which was in plain view. Nissen v. Johnson (1959), 135 Mont. 329, 333, 339 P.2d 651, 653; Sorrells v. Ryan (1955), 129 Mont. 29, 281 P.2d 1028; Koppang v. Sevier (1938), 106 Mont. 79, 75 P.2d 790. If a motorist does not keep a proper lookout, a jury may find him negligent.

Payne, 599 P.2d at 364.

We conclude that under these circumstances there was sufficient evidence, when construed most favorably for the prevailing party, to support the jury’s finding that defendant was negligent by failing to keep a proper lookout and have his vehicle under sufficient control to avoid his collision with plaintiff’s son.

Defendant also contends that even if there was evidence to support a finding that defendant was negligent, the District Court should have concluded that Okland’s negligence was greater than defendant’s as a matter of law. In support of this contention, defendant cites numerous statutes which he contends Okland violated by the manner in which he operated his bicycle. However, we find the circumstances in this case similar to those in Dillard v. Doe (1992), 251 Mont. 379, 824 P.2d 1016, where we recently held that when there is evidence of negligence by both parties, the respective degree of each party’s negligence is not normally susceptible to apportionment as a matter of law.

In Dillard, the plaintiff was walking along the highway in darkness, wind, and snow when he was struck by a snowplow. He sued the State of Montana based on the alleged negligence of the snowplow operator. The district court granted summary judgment to the State based on its conclusion that the plaintiff was negligent as a matter of law and that even if the snowplow operator was negligent, reasonable minds could not differ on whether the plaintiff’s negligence exceeded that of the defendant. In reversing the judgment of the district court, we pointed out that:

Ordinarily, issues of negligence are questions of fact not susceptible to summary adjudication. Brohman v. State (1988), 230 Mont. 198, 201, 749 P.2d 67, 69. Liability should not be adjudicated upon a motion for summary judgment where factual issues concerning negligence and causation are presented. Duchesneau v. Silver Bow County (1971), 158 Mont. 369, 377, 492 P.2d 926, 931.

Dillard, 824 P.2d at 1018-19.

We also relied on Reed v. Little (1984), 209 Mont. 199, 206-07, 680 P.2d 937, 940-41, where we held that where there is evidence that one party to a lawsuit violated highway traffic statutes, and also evidence of negligence on the part of the other party, it is up to the jury to weigh and compare the negligence of both parties in reaching its verdict. Likewise, in this case, we hold that where there was evidence of negligence on the part of both parties, it was for the fact finder to determine the comparative degree of negligence. The District Court did not err by submitting the issue of comparative negligence to the jury.

II

Was defendant entitled to judgment as a matter of law based on our decision in Olson v. Parchen (1991), 249 Mont. 342, 816 P.2d 423?

Defendant contends that since he was operating his vehicle in his own lane of travel at a lawful speed, his only act or omission which contributed to the collision was his failure to anticipate that plaintiff would violate the law. His argument continues that since we held in Olson that it is not negligent to fail to anticipate the negligence of another, defendant was not negligent in this case. However, the facts in Olson are distinguishable from the facts in this case and we conclude that plaintiff’s recovery is not barred by Olson.

In Olson, the plaintiff, who was the favored driver, collided with the defendant in a Great Falls intersection when the defendant failed to yield the right-of-way. We held that the plaintiff was not negligent for failing to anticipate that the defendant would not yield to him. The difference in that case was that the plaintiff actually observed the defendant shortly prior to the collision and saw nothing that would indicate that defendant would not stop. There was no suggestion that the defendant’s vehicle was out of control. The plaintiff then did the responsible thing, which was to look for traffic coming from the opposite direction. When he looked back in the defendant’s direction, the collision was unavoidable. We noted that:

Olson said that he saw Parchen’s pickup truck, but thought Parchen was going to stop and looked away momentarily. A driver of a vehicle traveling on a street protected by a “yield” sign has a right to rely upon the compliance of the driver of a vehicle which must yield with the yield right-of-way statutes. Olson cannot be contributorily negligent because his alleged failure to see Parchen’s vehicle entering the intersection was not the proximate cause of the collision.

Olson, 816 P.2d at 427.

In this case, defendant did not see Okland because he did not keep the lookout which we have held is required by law. If he had observed Okland prior to the collision, he would have noted, as did Officer Hunter, that Okland’s bicycle was out of control and that there was no way he would be able to bring it to a stop at the intersection, or keep it in his own lane of travel. Under those circumstances, it would not have been reasonable for defendant to presume that Okland would comply with the rules of the road.

In Olson, the plaintiff observed the defendant at the appropriate time and had no reason to believe he would not comply with the law. In this case, defendant failed to observe Okland at any time; if he had, he would have been aware that he was not in sufficient control to comply with the law. For these reasons, we conclude that Olson is not applicable to the facts in this case and does not bar judgment for plaintiff.

Ill

Was defendant entitled to a new trial because of an erroneous instruction given to the jury by the District Court?

Included among the original jury instructions proposed by plaintiff was Plaintiff’s Proposed Instruction No. 28. It read as follows:

It does not follow, merely because a party to this action has violated some statutory provision that you must find him to have been negligent. This is only evidence to be considered in determining whether there was negligence.

During the settlement of instructions, that instruction was withdrawn by plaintiff. Defendant contends on appeal that he objected to the instruction. However, there is no record of any objection in the transcript provided to this Court.

Somehow, the withdrawn instruction was included with the court’s instructions which were read to the jury. After the court concluded reading those instructions, counsel for defendant asked to approach the bench where a discussion off the record was conducted. Following that discussion, the District Court Judge reported to the jury that he had inadvertently included Instruction No. 28 and that the attorneys had stipulated that it should be removed from the instructions. Both attorneys so stipulated.

There is no further record of any objection to the procedure followed by the court, nor is there any indication in the record that defendant requested any relief, such as a mistrial or further clarification, based upon the District Court’s inadvertent reading of the objectionable instruction.

The District Court did give correct instructions to the jury regarding the effect of a statutory violation. Furthermore, counsel for defendant clarified the error during closing argument when he stated that:

A violation of a law in the State of Montana isn’t evidence of negligence. It is negligence. The instruction the judge read, if you find from the evidence that the defendant or the plaintiff violated the law just read to you, you’re instructed that such conduct was negligence as a matter of law. It is negligence. [Emphasis added.]

The objectionable instruction was removed from those instructions which were submitted to the jury and was not sent to the jury room.

However, on appeal defendant contends that since the inadvertent instruction was a misstatement of the law, defendant was prejudiced when it was read and on that basis the verdict for plaintiff should be reversed.

While it does appear that the defense objected to the inadvertent reading of the incorrect instruction, it does not appear from the record that defendant had any objection to the solution that was arrived at by the District Court for dealing with the mistake. These circumstances are similar to those presented in Rasmussen v. Sibert (1969), 153 Mont. 286, 456 P.2d 835, where we held that the defendant waived any prejudice resulting from the mention of insurance by failing to request the appropriate relief prior to entry of the jury verdict. In that case, there was discussion outside the presence of the jury regarding the remark and no specific relief was requested by the defendant until after trial. The district court then granted a new trial based upon the prejudicial remark. We reversed the district court for the following reason:

Here there was no objection or motion to strike the testimony, no request for admonition by the court, no motion for mistrial, and no request for a corrective jury instruction. Briefly stated, defendant did nothing. In so doing defendant took a calculated risk. He knew the words had been uttered. He knew that no issue had been raised thereon. He knew that the jury had not been admonished or instructed to disregard this testimony; and he knew that his case was being submitted to the jury on this basis. Under these circumstances, defendant’s failure to object or request corrective action constituted a waiver of objection on this issue. It cannot be urged for this first time upon motion for a new trial following an adverse jury verdict. To hold otherwise would not only put the trial court in error on an issue which had not been presented to it for ruling, but would permit a litigant to submit his case to the jury for a possible verdict in his favor, and in the event he was unsuccessful, would permit him another determination by another jury. [Citations omitted.]

Rasmussen, 456 P.2d at 840.

Likewise, in this case, defendant did not move for a mistrial or other corrective action. He chose to submit his case to the jury based on the posture that it was in. He is, therefore, precluded from requesting relief in the nature of a mistrial for the first time on appeal after receiving a verdict from the jury that he considers adverse.

We conclude that the District Court did not err when it denied defendant’s motion for judgment notwithstanding the verdict based upon the inadvertent instruction which was read to the jury.

IV

Was defendant entitled to a new trial based upon improper closing argument by plaintiff’s attorney?

On appeal, defendant contends that by discussing Okland’s age during closing argument, plaintiff’s attorney invited the jury to ignore the law and base its decision on sympathy, rather than the appropriate standard of care. However, there is no indication in the record that defendant ever objected to any remarks made by plaintiff’s attorney, nor is there any indication in the record that defendant ever requested other relief or corrective action from the District Court as a result of those remarks. For the same reasons discussed in the previous issue of this opinion, defendant is not permitted to raise this issue for the first time on appeal.

For the above reasons, the judgment of the District Court is affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HUNT and McDonough concur.

JUSTICE HARRISON

dissenting.

I dissent. On the four issues presented by the appellant on appeal, I would find as to Issue 1 that there was not substantial evidence to support the jury’s verdict; as to Issue 2, that the defendant was entitled to a judgment as a matter of law, based on our decision in Olson v. Parchen (1991), 249 Mont. 342, 816 P.2d 423; as to Issue 3, that the defendant is entitled to a new trial because the District Court gave the jury an erroneous instruction; and as to Issue 4, that the defendant is entitled to a new trial based on improper closing arguments by the plaintiff’s attorney.

As to Issue 1, which I think is clearly the deciding issue in this matter, the fact that the eight-year-old plaintiff came out of an alley on his bicycle, not under control, and swung into a lane of traffic where the defendant was legally driving his automobile, absolves the defendant of liability. The defendant was in no way found to be negligent by the officers who investigated this accident. Evidence introduced by the plaintiff that the defendant had only recently received his driver’s license had absolutely nothing to do with the cause of this accident.

This accident was observed by an off-duty police officer who was a passenger in a vehicle proceeding east along a street parallel to the alley and about half a block from the intersection of the alley and the street where the accident occurred. He saw the plaintiff come out of the alley, and observing that the bicycle appeared to be out of control, he concluded that an accident was about to occur. Officers responding to the accident were immediately at the scene. They took statements from everyone involved and produced not one iota of evidence that shows in any way that the defendant driver was negligent.

The fact that an accident occurred does not raise an inference of negligence, nor is it evidence of failure to keep a proper lookout, if, indeed, that is what happened in this case. Wilson v. Doe (1987), 228 Mont. 42, 740 P.2d 687.

Numerous times this Court has recognized that it is not negligence to fail to anticipate that an approaching vehicle with an obligation to yield will disregard all traffic laws and common sense and dash out into the path of a driver lawfully and carefully proceeding in his proper lane of travel. This is what I believe Olson stands for. See also Yates v. Hedges (1978), 178 Mont. 488, 585 P.2d 1290, and Slagsvold v. Johnson (1975), 168 Mont. 490, 544 P.2d 442. “It is not negligence to fail to anticipate injury which can come about only as a result of the negligence of another.” Green v. Hagele (1979), 182 Mont. 155, 158, 595 P.2d 1159, 1161. Here, the jury was so instructed but obviously did not follow that instruction.

As to Issue 2, my careful reading of the transcript in this case convinces me that no evidence was produced showing that an act or omission on the part of the defendant was the proximate cause of the accident or of the plaintiffs injuries. Therefore I would hold that under Olson, the District Court erred in not granting the defendant summary judgment, a directed verdict or judgment notwithstanding the verdict.

With regard to the third and fourth issues, I am troubled by the District Court’s reading of an improper instruction that may well have misled the jury and deprived the defendant of a fair trial, even though the instruction was withdrawn. Withdrawing the instruction at least called for a warning on the part of the District Court. I note that the error was called to the judge’s attention.

It is obvious to me that the instruction was intended to allow the plaintiff to avoid the effect of his negligence per se. In addition, even though the instruction had been withdrawn, the prejudice of the original error was magnified when the plaintiff’s counsel, in his closing argument, encouraged the jury to ignore the plaintiff’s negligence. It is my belief that this, in itself, warranted granting a new trial.

I would reverse and remand to the District Court for a new trial.


author: CHIEF JUSTICE TURNAGE

text:
    STATE OF MONTANA, Plaintiff and Appellant, v. JACK STRONG, Defendant and Respondent.
    No. 92-509.
    Submitted on Briefs March 4, 1993.
    Decided April 15, 1993.
    50 St.Rep. 418.
    851 P.2d 415.
    258 Mont. 48.
    See C.J.S. Criminal Law § 606.
    For Plaintiff and Appellant: Joseph P. Mazurek, Attorney General; Cregg W. Coughlin, Assistant Attorney General, Helena; Tom Meissner, County Attorney; Craig R. Buehler, Special Deputy County Attorney, Lewistown.
    For Defendant and Respondent: John L. Pratt, Roundup.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

The State of Montana (State) appeals an order entered by the District Court for the Tenth Judicial District, Fergus County, dismissing four misdemeanor charges filed against Jack Strong (Strong) for lack of speedy trial. We reverse and remand.

We consider the following issue:

Did the District Court err in dismissing the misdemeanor charges against Strong because it concluded that § 46-13-401, MCA, had been violated?

Strong was charged by complaint on November 11,1990, and again on December 13, 1990, with two counts of misdemeanor assault, misdemeanor disorderly conduct, and violating the privacy in communications statute, a misdemeanor. After pleading not guilty, Strong’s first trial resulted in a mistrial on March 26,1991. After the mistrial, the State filed a consolidated complaint on April 9, 1991, charging Strong with the same offenses.

Strong pled not guilty to the charges on May 1,1991, and trial was scheduled for June 20, 1991. Prior to commencement of the second trial, Strong moved to continue the trial in order to file a motion to dismiss for lack of speedy trial. On November 22, 1991, the Justice Court dismissed the charges against Strong.

On December 2,1991, the State appealed the order of dismissal to the District Court. After trial had been scheduled, and continued at the request of Strong, and in one instance, upon the District Court’s own motion, Strong moved to dismiss the charges for lack of a speedy trial. On September 21, 1992, the District Court dismissed the charges.

The District Court found the time elapsing between November 13, 1990 (the date Strong entered his plea to the initial complaint), and June 20, 1991 (the date trial was scheduled following the mistrial), was 197 days. The District Court concluded a delay of this length was violative of Strong’s right to a speedy trial as set forth in § 46-13-401(2), MCA. From that order of dismissal, the State appeals.

Did the District Court err in dismissing the misdemeanor charges against Strong because it concluded that § 46-13-401, MCA, had been violated?

When reviewing a District Court’s conclusions of law, our standard of review is whether the District Court’s interpretation of the law is correct. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603. In this case, the District Court dismissed this action on the sole basis that Strong was not brought to trial within six months of the date of the entry of his first plea. We hold this interpretation of the law is incorrect.

Section 46-13-401(2), MCA, provides:

After the entry of a plea upon a misdemeanor charge, the court, unless good cause to the contrary is shown, shall order the prosecution to be dismissed with prejudice, if a defendant whose trial has not been postponed upon the defendant’s motion is not brought to trial within 6 months.

Apparently, the District Court interpreted the statute on its face without considering the fact that a mistrial had been declared in the first trial. In its appeal to this Court, the State argues that once a mistrial is declared, the speedy trial clock is reset and begins to run anew from the date of mistrial. The State is correct.

In State v. Sanders (1973), 163 Mont. 209, 516 P.2d 372, we adopted, in part, the position of the American Bar Association in its Project on Minimum Standards for Criminal Justice. For purposes of a speedy trial analysis, Section 2.2 of that report addresses when time begins to run following a mistrial.

The time for trial should commence running...

(c) if the defendant is to be tried again following a mistrial,..., from the date of the mistrial, ....

Sanders, 516 P.2d at 375. Therefore, when a mistrial is declared, the speedy trial clock is reset and begins to run from the date the mistrial was declared.

In this case, a mistrial was declared on March 26, 1991. None of the time elapsing prior to this date should have been considered by the District Court. After the State refiled the charges and Strong entered a plea to those charges, a second trial was scheduled for June 20, 1991. The time elapsing between March 26, 1991 and June 20, 1991, was a little less than three months. This time frame is clearly within the six month requirement of § 46-13-401(2), MCA.

We hold the District Court erred by including the period of time prior to the mistrial in its calculation of total elapsed time. The order of dismissal is reversed.

JUSTICES GRAY, TRIEWEILER, HUNT, HARRISON, McDONOUGH and WEBER concur.