author: JUSTICE HUNT

text:
    In the Matter of the ESTATE OF ALICE LUND LETTENGARVER, a/k/a ALICE B. LUND, Deceased.
    No. 90-537.
    Submitted on briefs March 7, 1991.
    Decided June 18, 1991.
    249 Mont. 92.
    813 P.2d 468.

      Stephen C. Moses, Moses Law Firm, Billings, for appellant.
    William E. Berger, Wilkins & Berger, Lewistown, for respondent.
   JUSTICE HUNT

delivered the opinion of the Court.

The personal representatives of the estate of Alice Lund Lettengarver, also known as Alice B. Lund, appeal from an order of the Tenth Judicial District Court, Fergus County, awarding family and homestead allowances and exempt property to the surviving spouse. The surviving spouse cross appeals from the court’s denial of his petition for an elective share of the augmented estate. We affirm.

The issues raised by the parties overlap a great deal. We therefore frame the questions that will be considered on appeal as follows:

1. Did the District Court abuse its discretion in awarding the surviving spouse a family allowance?

2. Did the District Court err in determining the ownership of the home in Lewistown?

3. Did the District Court properly determine and distribute the augmented estate?

Alice Lund Lettengarver (decedent) died intestate on August 4, 1986. She was survived by her husband, William Lettengarver (surviving spouse), and two children of previous marriages, Dolly V. Smith (daughter) and Monte Lund (son).

On August 15, 1986, letters of appointment issued, naming the daughter and son as joint personal representatives of the estate. That same day, the surviving spouse filed a renunciation of claim. The surviving spouse subsequently moved to be released from the renunciation and petitioned to take a one-third elective share of the augmented estate. The daughter and son waived their objections to the surviving spouse’s withdrawal of the renunciation.

Following a hearing held September 21, 1988, the District Court issued an order in which it determined the nature of the ownership of several pieces of property left by the decedent. The court found that the surviving spouse and the decedent had held a contract for deed for the sale of a ranch as joint tenants with right of survivorship. Accordingly, it concluded that the surviving spouse, as the sole surviving tenant, was entitled to the proceeds from the contract.

The court also determined that the surviving spouse had no interest in the home in Lewistown in which he and the decedent had resided before her death and in which the surviving spouse continued to reside during the administration of the estate. The title to the home had been deeded solely to the decedent, who in turn deeded the property to herself and her daughter as joint tenants with the right of survivorship. The District Court concluded, however, that the value of the home should be included in the augmented estate because the conveyance had been made without consideration. The court similarly concluded that other property that the decedent had deeded to the daughter would be included in the augmented estate because, during her marriage to the surviving spouse, the decedent had transferred the property to the daughter without consideration.

The court awarded the surviving spouse a $6,000 family allowance, a $20,000 homestead allowance, and $3,500 in exempt property. It ordered the personal representatives to compute the augmented estate and the surviving spouse’s elective share.

When the parties could not reach agreement on the calculation of the augmented estate, they petitioned the court to compute the estate for them. The court did so, determining that the surviving spouse’s one-third share of the augmented estate totaled $97,129. The court refused to award the surviving spouse that amount, however, because it found that the date-of-death balance of the contract for deed received by the surviving spouse through joint tenancy exceeded the one-third share of the augmented estate. The court therefore denied his petition for an elective share. Both parties appeal.

I.

The personal representatives contend that the District Court abused its discretion in awarding the surviving spouse a family allowance of $6,000. We do not agree.

The surviving spouse may be entitled to a family allowance while an estate is administered. Section 72-2-803(1), MCA, provides:

“In addition to the right to homestead allowance and exempt property, if the decedent was domiciled in this state, the surviving spouse and minor children whom the decedent was obligated to support and children who were in fact being supported by him are entitled to a reasonable allowance in money out of the estate for their maintenance during the period of administration, which allowance may not continue for longer than 1 year if the estate is inadequate to discharge allowed claims. The allowance may be paid as a lump stun or in periodic installments.”

The amount awarded as a family allowance depends on the circumstances of each case. Uniform Probate Code § 72-2-803, MCA, official comments. However, the personal representative may not grant an allowance in excess of a lump sum of $6,000 or monthly payments of $500 for one year. Section 72-2-804(1), MCA. Aparty who disagrees with the amount of the family allowance granted by the personal representative may petition the district court for a larger or smaller sum. Section 72-2-804(2), MCA. The district court’s decision regarding whether to grant an award and the amount of the award will not be overturned absent a showing of an abuse of discretion. In re the Estate of Glein, 162 Mont. 464, 467, 512 P.2d 1151, 1153 (1973).

In this case, the surviving spouse’s standard of living decreased during the administration of the estate because he lived on only one-half of the proceeds received from the contract for deed while the other half was placed in an escrow account. Under these circumstances, the District Court did not abuse its discretion in awarding a $6,000 family allowance.

II.

The surviving spouse argues that the District Court erred in concluding that he had no interest in the home in Lewistown. He contends that he is entitled to at least a one-half interest in the house because the property was purchased with proceeds from the sale of property he owned with the decedent in joint tenancy. He maintains that a resulting trust arose in his favor when the house was purchased with joint tenancy funds but title to the house was placed solely in the decedent’s name.

“[Pjroceeds of a sale of joint tenancy property pursuant to a contract are held in joint tenancy.” In re the Estate of Rickner, 164 Mont. 51, 56, 518 P.2d 1160, 1162 (1974). If real property sold under contract for deed was held in joint tenancy, the contract itself and the proceeds generated by the sale are also held in joint tenancy.

Although the proceeds from the sale are held in joint tenancy, the parties are not limited in the manner in which they dispose of the proceeds. Here, the parties purchased the home in Lewistown with funds from the sale of ranch property held in joint tenancy. They placed the title to the home, however, solely in the decedent’s name. Where a title is held by one party but the consideration paid by another, a resulting trust arises in favor of the latter. Section 72-33-218(1), MCA. A resulting trust does not arise, however, where the party holding the title is the spouse of the party providing the consideration. Section 72-33-218(2)(b), MCA. In such cases, a gift is presumed, a presumption that may be overcome only with clear and convincing evidence. Lewis v. Bowman, 113 Mont. 68, 77-78, 121 P.2d 162, 167 (1942).

The surviving spouse testified that he allowed the decedent to put the title to the house in her name to avoid a fight. He also testified that the decedent agreed to grant him a life estate in the property, which the decedent never did. The evidence established that both parties paid for utilities and repairs on the house, but that the decedent paid the taxes and insurance as well. Under the circumstances, the surviving spouse failed to marshal clear and convincing evidence to rebut the presumption that he gave his share of the house to the decedent as a gift. The District Court did not err in determining that the surviving spouse had no interest in the house.

III.

The parties argue that the District Court failed to properly calculate and distribute the augmented estate. The District Court added one-half of the date-of-death balance of the contract into the augmented estate. The personal representatives contend that the entire value of the contract should have been incorporated into the augmented estate while the surviving spouse argues that only one-quarter of the contract should have been included.

Montana adopted the Uniform Probate Code in 1974. Uniform Probate Code, ch. 365, § 1,1974 Mont. Laws 1378. The code contains provisions for allowing a surviving spouse to elect a one-third share of the augmented estate. Sections 72-2-701 through -707, MCA. The augmented estate consists of the net probate estate increased by (1) the value of certain lifetime transfers of property made without consideration in money or money’s worth by the decedent during marriage to donees other than the surviving spouse; and (2) the value of all property owned by the surviving spouse and certain transfers of property made by the surviving spouse during marriage to donees other than the decedent, to the extent the owned or transferred property was derived from the decedent. Section 72-2-705, MCA. The election is made from a device called the augmented estate rather than from the probate estate alone for two reasons:

“(1) [T]o prevent the owner of wealth from making arrangements which transmit his property to others by means other than probate deliberately to defeat the right of a surviving spouse to a share, and (2) to prevent the surviving spouse from electing a share of the probate estate when the spouse has received a fair share of the total wealth of the decedent either during the lifetime of the decedent or at death by life insurance, joint tenancy assets and other nonprobate arrangements

Uniform Probate Code § 72-2-705, MCA, official comments.

In this case, the sole issue is what portion of a contract for deed held by the decedent and the surviving spouse should be included in the augmented estate where the contract is held in joint tenancy with the right of survivorship. Section 72-2-705, MCA, which defines the augmented estate, provides in pertinent part:

“The augmented estate means the estate, reduced by funeral and administration expenses, homestead allowance, family allowances and exemptions, and enforceable claims, to which is added the sum of the following amounts:
“(3) the value of property owned by the surviving spouse at the decedent’s death, plus the value of property transferred by the spouse at any time during marriage to any person other than the decedent which would have been includable in the spouse’s augmented estate if the surviving spouse had predeceased the decedent, to the extent the owned or transferred property is derived from the decedent by any means other than testate or intestate succession without a full consideration in money or money’s worth. For purposes of this subsection:
“(a) property derived from the decedent includes but is not limited to ... any property held at the time of decedent’s death by decedent and the surviving spouse with right of survivorship ...
“(c) property owned by the surviving spouse as of the decedent’s death or previously transferred by the surviving spouse is presumed to have been derived from the decedent, except to the extent that the surviving spouse establishes that it was derived from another source. “(Emphasis added.)”

Under the statute, property held by the decedent and the surviving spouse as joint tenants with the right of survivorship is included in the augmented estate only to the extent that the property was derived from the decedent without full consideration in money or money’s worth. Section 72-2-705(3), MCA. The statute presumes that the property was derived from the decedent; nonetheless, the surviving spouse may rebut the presumption by establishing that the property was obtained from a different source. Section 72-7-705(3)(c), MCA.

In the present case, the record established that the ranch sold under the contract for deed was purchased at least in part with funds gained from the sale of property owned solely by the surviving spouse. The record also showed that the decedent contributed her own money for ranch payments. Under the circumstances, the District Court did not err in finding that the parties contributed equally to the purchase of the ranch.

Nor did the District Court err in denying the surviving spouse an elective share of the estate. Section 72-2-706(1), MCA, provides in pertinent part:

“In the proceeding for an elective share, values included in the augmented estate which pass or have passed to the surviving spouse, or which would have passed to the spouse but were renounced, are applied first to satisfy the elective share and to reduce any contributions due from other recipients of transfers included in the augmented estate. (Emphasis added.)”

Thus, “the value of all property owned or transferred by the surviving spouse that is derived from the decedent and included in the augmented estate [should] first be applied against the elective share...” Kurz, The Augmented Estate Concept under the Uniform Probate Code: In Search of an Equitable Elective Share, 62 Iowa L.Rev. 981, 1046 (1977). Here, the surviving spouse’s elective share totaled $97,128 while one-half of the value of the contract for deed amounted to $109,588. Consequently, the value the surviving spouse received from joint tenancy property derived from the decedent more than satisfied his one-third share of the augmented estate.

The personal representatives argue that the District Court erred in failing to distribute the remaining two-thirds of the augmented estate to the son and daughter. We do not agree. The augmented estate is merely an accounting device “designed to protect a spouse of a decedent who was a domiciliary against donative transfers by will and will substitutes which would deprive the survivor of a ‘fair share’ of the decedent’s estate.” Uniform Probate Code, title 72, ch. 2, part 7, part official comments. The remaining heirs do not receive distributions from the augmented estate.

Affirmed.

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


source: Caselaw Access Project

author: JUSTICE McDONOUGH

license: Public Domain

text:
    CANAL INSURANCE COMPANY, Plaintiff and Appellant, v. GARY BUNDAY, d/b/a BUNDAY TRUCKING; and UNITED STATES FIDELITY AND GUARANTY COMPANY, Defendants and Respondents.
    No. 90-620.
    Submitted on briefs May 10, 1991.
    Decided June 18, 1991.
    249 Mont. 100.
    813 P.2d 974.

      Gig A. Tollefsen, Berg, Lilly, Stokes, Andriolo, Tollefsen & Schraudner, Bozeman, for plaintiff and appellant.
    Sarah M. Power, Gough, Shanahan, Johnson & Waterman, Helena, for defendants and respondents.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

This case involves a dispute between two insurers concerning who should pay the liabilities incurred by the insured, Gary Bunday d/b/a Bunday Trucking (Bunday), arising from a negligence case. The plaintiff, Canal Insurance Company (Canal), appeals the order of the Eighteenth Judicial District Court, Gallatin County, denying its motion for summary judgment and granting the defendant United States Fidelity and Guaranty Company’s (USF&G) motion for summary judgment. We reverse.

The parties raise several issues on appeal and cross-appeal. However, the first issue raised by Canal on its appeal is dispositive of this case: Did the District Court err in granting summary judgment to USF&G based upon finding coverage for the insured in the policy issued by Canal?

On August 2, 1983, Terrence North was killed when he drove off the end of a dead-end frontage road east of Bozeman and drove his vehicle into two semi-trailers owned by Bunday Trucking. The trailers were parked on property adjacent to Bunday’s premises. The decedent’s estate sued the State of Montana for failing to properly mark the end of the frontage road and Bunday for negligently placing the semi-trailers in a position where they could be struck by someone driving off the end of the frontage road. Bunday tendered the defense of the case to his insurers, Canal and USF&G.

At that time, USF&G took the position that Canal had the obligation to defend Bunday, and that USF&G had no liability. Canal refused to defend Bunday, and brought the present action seeking a declaratory judgment that it had no liability on the North claim. To protect itself, USF&G undertook defending Bunday on the North claim. Following trial on the liability issue and appeal to this Corut, the underlying case was settled. Bunday’s share of the settlement was $125,000.00. USF&G paid $108,500.00 and Canal contributed the remaining $16,500.00.

After the settlement, USF&G amended its answer in this declaratory judgment action and counterclaimed against Canal seeking reimbursement of the $108,500.00 it had paid on the North settlement, and the costs and fees incurred in defending Bunday. On February 26, 1990, Canal moved for summary judgment asserting that the USF&G policy provided coverage and their policy did not. On February 27, 1990, USF&G moved for summary judgment arguing that the Canal policy was ambiguous and that such ambiguities should be resolved in favor of coverage for the insured. USF&G further asserted that the reason it provided coverage was due to an underwriting coding error on the declaration page of its own policy.

On May 3, 1990, the District Court granted USF&G’s motion for summary judgment and ordered Canal to reimburse USF&G for the $108,000.00 paid on the North claim. It further ordered that since USF&G had no duty to defend the claim, it should recover costs and attorney fees from Canal incurred in the defense. Additionally, the court held that USF&G was entitled to interest to be paid by Canal on the principal sums paid by USF&G on the claim. Canal appealed. We dismissed that appeal as premature because the District Court had not yet determined the amount of attorney’s fees and interest to be awarded.

On June 23, 1990, the matter of the attorney’s fees award and interest was considered by the District Court. On August 17, 1990, the court denied USF&G’s motion for costs and attorney’s fees and pre-judgment interest on the grounds that there had been a legitimate legal issue regarding which insurer should pay Sunday’s liability. Canal now appeals, asserting that the finding of coverage under its policy was error and, alternatively, if this Court finds that Canal’s policy does provide coverage, that the District Court’s failure to split the settlement equally between the insurers, in accordance with policy provisions, was error.

We now examine the specific paragraphs of Canal’s policy that give rise to the issues in this case. Canal’s policy provides that

“The company will pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of
“bodily injury or property damage to which this insurance applies, caused by an occurrence and arising out of the ownership, maintenance or use, including loading and unloading, for the purposes stated as applicable thereto in the declarations, of an owned automobile .... (Underscored emphasis added.)”

The bold-face terms in the policy are further defined in the policy. The policy defines an “owned automobile” as

“either
“(a) an automobile which is owned hv the named insured arid described in the declarations:
“or
“(b) an automobile ownership of which is newly acquired by the named insured during the policy period ...”

The policy defines “automobile” as

“a land motor vehicle, trailer or semi-trailer designed for travel on public roads (including any machinery or apparatus attached thereto)

The coverage paragraph of the policy quoted above essentially provides coverage for accidents involving automobiles owned by the insured which are described in the declarations, or automobiles purchased to replace ones described in the declarations or added to the insured’s fleet of automobiles if notice is given and an increased premium paid. The declarations portion of the policy refers to a separate Schedule of Equipment, form E-69L. The Schedule of Equipment states that it is “[attached to, forming a part of and completing the Declarations” of the policy. It lists the following equipment:

1. 1973 Freightliner Tractor S# CA213HP086005
2. 1977 Kenworth Tractor S# 156877
3. 1977 Kenworth Tractor S# 255T30M
4. 1978 Kenworth Tractor S# 165147S
5. 1978 Freightliner Tractor S# CA213HL137604
6. 1979 Freightliner Tractor S# CA213HP164470
7. 1981 Freightliner Tractor S# 1FV8YOY97B
8.1979 Freightliner Tractor S# CA213HP164471
9. 1968 Freightliner Tractor S# CA213HP0328027
10. 1976 Peterbuilt Tractor S# 83864P
11. 1979 International Tractor S# E252HGA21711
12. 1970 International Tractor S# 259471VG403083
13. ANY UNDESCRIBED TRAILER WHILE ATTACHED TO UNIT 1
14. ANY UNDESCRIBED TRAILER WHILE ATTACHED TO UNIT 2
15. ANY UNDESCRIBED TRAILER WHILE ATTACHED TO UNIT 3
16. ANY UNDESCRIBED TRAILER WHILE ATTACHED TO UNIT 4
17. ANY UNDESCRIBED TRAILER WHILE ATTACHED TO UNIT 5
18. ANY UNDESCRIBED TRAILER WHILE ATTACHED TO UNIT 6
19. ANY UNDESCRIBED TRAILER WHILE ATTACHED TO UNIT 7
20. ANY UNDESCRIBED TRAILER WHILE ATTACHED TO UNIT 8
21. ANY UNDESCRIBED TRAILER WHILE ATTACHED TO UNIT 9
22. ANY UNDESCRIBED TRAILER WHILE ATTACHED TO UNIT 10
23. ANY UNDESCRIBED TRAILER WHILE ATTACHED TO UNIT 11
24. ANY UNDESCRIBED TRAILER WHILE ATTACHED TO UNIT 12

Canal alleges that the two trailers in this case were merely being used for storage; USF&G alleges they were parked but generally used to haul beer. Regardless of these allegations, it is undisputed that the trailers in this case were parked and not attached to any tractor when the decedent collided with them.

The District Court found, and USF&G argues on appeal, that the policy is ambiguous. After concluding that the policy was ambiguous, the court then followed the established rule of resolving ambiguities against the insurer. See § 28-3-206, MCA; Bauer v. Mountain West Farm Bureau Mutual Ins. Co. (1985), 215 Mont. 153, 156, 695 P.2d 1307, 1309; St.Paul Fire & Marine Ins. Co. v. Cumiskey (1983), 204 Mont. 350, 363, 665 P.2d 223, 229; Williams v. Ins. Co. of North America (1967), 150 Mont. 292, 295, 434 P.2d 395, 397. Ambiguity exists only when the contract taken as a whole in its wording or phraseology is reasonably subject to two different interpretations. Williams, 434 P.2d at 397. A clause in an insurance policy is ambiguous when different persons looking at it in the light of its purpose cannot agree upon its meaning. Bauer, 695 P.2d at 1309. The ambiguity argued by USF&G and found by the court is that the policy definition of “automobile” as used in the term “owned automobile” includes semi-trailers and does not require attachment to a tractor.

We disagree. If the language of a contract is unambiguous and subject to only one meaning, there is no basis for the interpretation of the policy coverage under the guise of ambiguity. Bauer, 695 P.2d at 1309; Williams, 434 P.2d at 397. As Canal points out, there is no ambiguity here at all. Under the policy, coverage is only extended to “owned automobiles.” The definition has three criteria. An “owned automobile” is defined as (1) an automobile (2) owned by the insured, and (3) described in the declarations. Thus, a semi-trailer — while clearly an [1] “automobile” under the policy — is not an “owned automobile” unless it is also [2] owned by the insured and [3] described in the declarations — i.e., it must be attached to a tractor. This is the only reasonable construction that can be arrived at from the wording here. USF&G’s “ambiguous” construction gives little or no effect to the declarations of the policy and the attached schedule. Section 28-3-202, MCA, requires that effect be given to every part of a contract if reasonably practicable, with each clause helping to interpret the others. To follow USF&G’s logic one could also conclude that an ambiguity exists because the term “automobile” as used in “owned automobile” includes semi-trailers and does not require ownership by the insured; thus all automobile liability policies that limit coverage to only automobiles “owned by the named insured” would be ambiguous. Such logic would have serious consequences on the construction of all automobile liability policies. We hold that there is no conflict between the coverage paragraph and the declarations in this policy.

Our holding is supported by the case of Harbor Ins. Co. v. United Services Auto Assn. (1976), 114 Ariz. 58, 559 P.2d 178. In Harbor, Millhouse had rented a tractor from Erv’s Equipment Rental. While operating the tractor on a public road, he was involved in a collision with Aruffe, who was injured and filed an action for damages alleging that Millhouse was negligent. Millhouse was insured by Farmer’s Insurance Company of Arizona and Erv’s was insured by Harbor. A dispute arose regarding which insurer was primarily liable. Like the case at bar, Harbor’s policy included a definition of “owned automobile” and an attached schedule specifically listing the vehicles insured. The tractor involved in the accident was not listed. The trial court found Harbor primarily liable under its policy. The court of appeals reversed, holding that the tractor was not an “owned automobile” within the coverage of Harbor’s policy. The court stated that while ambiguities are to be construed against the insurer, “when a policy’s meaning and intent are clear, it is not the prerogative of the courts to create ambiguities where none exist or to rewrite the contract in attempting to avoid harsh results.” Harbor, 559 P.2d at 181. The court further noted that “[t]he scheduling of automobiles is not merely for the convenience of assessing premiums but is itself a declaration of the limitations of the hazards assumed.” Harbor, 559 P.2d at 178.

USF&G argues that Harbor is distinguishable because there the parties conceded the tractor in question was not listed on the vehicle schedule; in the present case the trailers are listed. We see no distinction. Here the only trailers listed on the schedule were “undescribed” trailers while attached to a tractor unit specifically described and scheduled. Parked, unattached trailers are not listed.

USF&G argues that in addition to interpreting contract language, policy intent must be considered. It argues that this Court has imposed a high standard on insurance companies:

“Although courts have long followed the basic precept that they would look to the words of the contract to find the meaning which the parties expected from them, they have also applied the doctrine of the adhesion contract to insurance policies, holding that in view of the disparate bargaining status of the parties we must ascertain that meaning of the contract the insured would reasonably expect.... [T]he test is not what the insurer intended the words of the policy to mean but what a reasonable person in the position of the insured would understand them to mean. (Emphasis in original.)”

McAlear v. St. Paul Ins. Cos. (1972), 158 Mont. 452, 458-9, 493 P.2d 331, 335. Our holding here does not call McAlear into doubt. Rather, we hold that a reading of the policy here as a whole, including the declarations and attached schedules, gives rise to only one reasonable interpretation: that there is no coverage for trailers not attached to insured tractors. The language of a contract is to govern its interpretation if the language is clear and explicit and does not involve an absurdity. Section 28-3-401, MCA. The language here is clear and explicit; the result may be harsh but it is not absurd. The intent of the parties is controlled by the language of the contract in this case.

USF&G also argues that Canal’s filing of an Interstate Commerce Commission endorsement form BMC-90 is evidence of Canal’s intention to provide coverage for both tractors and trailers, whether or not they are attached. This Court has held that such endorsements do not impose primary liability as a matter of law on the insurer of the licensed carrier under whose permit a vehicle is in use at the time of an accident. Truck Ins. Exchange v. Transport Indemnity Co. (1979), 180 Mont. 419, 430, 591 P.2d 188, 194. Furthermore, as noted above, the intent of the parties is controlled by the clear, explicit and unambiguous language of the contract in this case.

Finally, USF&G urges this Court to consider the difference in the respective premiums paid by Bunday to Canal ($30,180.00) and USF&G ($1,890.00) to insure the different aspects of Bunda/s business as evidence that the parties intended for this type of accident to be covered by Canal’s policy rather than USF&G’s. The District Court noted that

“The pertinent part of the applicable USF&G policy is Part II, ‘Business Autos.’ Part II, Letter C, states that trailers with a load capacity of two thousand (2,000) pounds or less, designed to travel on public roads, are covered autos. This language would exclude a semi-trailer ... as was involved in the North case. Unfortunately for USF&G, it made an underwriting error on the declaration page of its policy, thereby extending coverage to ‘any auto’ rather than business automobiles specifically described on the attachment to the policy.
“A fair reading of the two policies clearly reflects that USF&G was not insuring Bunday’s over-the-road hauling operation, but that Canal was.”

The size of the premium may be a factor considered “in construing doubtful clauses in a policy.” 2 Couch on Insurance 2d, § 15.52 (1984); see also Pan American World Airways v. Aetna Casualty & Surety (2d Cir. 1974), 505 F.2d 989, 1001, at n. 10. Here, the clause is not “doubtful,” ambiguous, or uncertain, and we need not look beyond the language of the contract. Furthermore, USF&G is arguing that it should not be held liable due to a technical mistake in underwriting when the contracts taken together indicate that Canal was insuring the liabihty at issue here. We note that if USF&G had not made that mistake, its policy definitions would be organized in a manner similar to Canal’s policy, and it would not be liable. Canal should not be faulted for USF&G’s mistake in underwriting.

This Court has the power to reverse the district court’s grant of summary judgment and order it to enter summary judgment in favor of the other party as a matter of law only when it is clear that all the facts bearing on the issues are before this Court. Hereford v. Hereford (1979), 183 Mont. 104, 110, 598 P.2d 600, 603; citing Swecker v. Dorn (1979), 181 Mont. 436, 441, 593 P.2d 1055, 1058-9; 6 Moore’s Federal Practice ¶ 56.12, p. 56-337. There are no genuine issues of material fact in this case. We conclude that the trailers were not “owned automobiles” within the coverage of Canal’s policy and direct that judgment be entered in favor of Canal. The order of the District Court is

REVERSED. Summary Judgment is ordered in favor of Canal.

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


author: JUSTICE HARRISON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. MICHAEL JAMES KOONTZ, Defendant and Appellant.
    No. 91-085.
    Submitted on briefs May 23, 1991.
    Decided June 18, 1991.
    249 Mont. 109.
    813 P.2d 463.

      Randi M. Hood, Public Defender’s Office, Helena, for defendant and appellant.
    Marc Racicot, Atty. Gen., John Paulson, Asst. Atty. Gen., Mike McGrath, Lewis & Clark County Atty., Helena, for plaintiff and respondent.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Michael James Koontz appeals from the December 11, 1990, verdict of a jury sitting in the District Court of the First Judicial District, Lewis and Clark County, Montana, finding him guilty of robbery by accountability, a felony, in violation of §§ 45-2-302 and 45-5-401(l)(b), MCA. We affirm.

The issue is whether sufficient evidence corroborates the testimony of defendant’s alleged accomplice in the robbery of a convenience store for the jury to find defendant guilty of robbery by accountability.

I.

On February 24, 1990 at approximately 6:00 p.m., Broadwater Market in Helena, Montana, was robbed by Eddi Jo Howard. Howard entered the market, pointed a gun at the clerk, and demanded money. According to the testimony of the store clerk, she was dressed in a white coat and had a pair of nylon pantyhose on her head, but not pulled down over her face. After the clerk handed over all the money in the cash drawer, Howard told him to check underneath the food stamps for more cash. No money was under the food stamps, and Howard then instructed the clerk to give her all the money underneath the till. The clerk took the checks from under the till and spread them out to show Howard that no bills were among them. When he looked up, Howard was already out the door.

The clerk caught a glimpse of a blue car with a white top, which he thought was perhaps a Chevrolet Monte Carlo, leaving the market’s parking lot at a high rate of speed, but could not see who was driving or how many people were in the car.

At approximately 8:00 the same evening, Helena Police Department officers stopped a car matching the description given by the convenience store clerk. Defendant was a passenger in the car driven by Howard, who consented to a search of the car by police officers. When officers found nothing pertaining to the robbery in the car, including the trunk of the car, Howard and defendant were released.

Howard continued working at her regular job in Helena for the next two months before leaving the city in April 1990 to visit her mother in Tacoma, Washington.

In July 1990, defendant was detained by officers of the Federal Bureau of Investigation in Denver, Colorado. He gave F.B.I. agents a statement implicating Howard in the Broadwater Market robbery. Because of the information defendant had provided to the F.B.I., law enforcement officers arrested Howard on August 10,1990, in Tacoma.

Howard pled guilty to robbery and was sentenced to fifteen years with ten years suspended plus a sentence enhancement of two years for use of a weapon. A condition of Howard’s sentence was that she testify against defendant.

Since defendant’s statement to the F.B.I. and testimony of the principal witnesses are crucial evidence, we briefly summarize each witness’ version of events surrounding the robbery.

Defendant’s Statement to F.B.I. Officers

The F.B.I. report, admitted into evidence at trial, contained defendant’s freely given statement that he was driving Howard’s car when the robbery was committed. According to defendant, Howard had asked him to go for a ride in her car. On their way out of town, Howard asked him to stop at Broadwater Market because she wanted to buy some cigarettes. Howard went into the store and came out in less than a minute, saying that her father, with whom she was on unfriendly terms, was in the store and that she wanted to go home, change her clothes, and go out for the evening.

Defendant drove Howard to her home, where she changed her clothes while defendant waited in the car. They then went to the Gold Bar and played gambling machines. After leaving the Gold Bar, on their way to another bar, Howard and defendant were stopped by police who searched Howard’s car. Finding nothing in the car, police released the couple. As the couple continued on their way to Ginny’s Casino, defendant began to question Howard about whether she had robbed Broadwater Market. Howard at first denied having committed the robbery. But after retrieving a revolver from the trunk of her car, Howard admitted that she had robbed Broadway Market.

Defendant and Howard then went into Ginny’s Casino where Howard gave defendant $50 for gambling while she gambled away four or five times that amount. After defendant left Ginny’s Casino without Howard, he went to the residence of his girlfriend, Hannah Gibson, and told her that Howard had robbed Broadwater Market. He left the next day with Gibson to visit her children in Denver.

Howard’s Testimony

Howard’s account of the robbery differed markedly from defendant’s statement. Howard said that she was depressed and contemplating suicide because of $800 worth of bad checks she had written to cover gambling debts. On the afternoon of the robbery, Howard and defendant had been drinking for three or four hours at a local bar when he suggested, to solve her financial difficulties, robbing a convenience store on the west side of town because no stores had been robbed in that area of Helena. Defendant instructed Howard to disguise herself by pulling a nylon down over her face, which she forgot to do while she was committing the robbery. In addition, defendant suggested that Howard order the convenience store clerk to lie down on the floor.

Defendant drove Howard to Broadwater Market, and she went inside to buy a pack of cigarettes. After leaving the market, Howard cut the legs from a pair of pantyhose that she had in the car. She had hidden a .44 caliber handgun in the car under the seat. Defendant again drove Howard to Broadwater Market and waited outside while she robbed the store.

After leaving the parking lot of Broadwater Market, Howard gave defendant $100 of the $405 she recovered in the robbery. Defendant directed Howard to dispose of her coat and change her clothes in order that she not be recognized. Howard threw out her pantyhose, and defendant drove Howard to her residence where she left the gun and changed her clothes. After throwing Howard’s coat into a garbage container outside a restaurant, Howard and defendant went to the Gold Bar. In the Gold Bar, Howard gave defendant some more of the stolen money for gambling and in less than half an hour Howard gambled away the remainder of the money she had stolen.

After Howard and defendant left the Gold Bar, around 8:00 p.m., they were stopped by police. By this time, Howard had disposed of the pantyhose, the gun, her clothes, and the money. After being released by police, she and defendant drove to Ginny’s Casino. Howard did not have further contact with defendant after he left the casino.

Hannah Gibson’s Testimony

Hannah Gibson, defendant’s girlfriend, appeared as a witness for the State and testified that she had seen both Howard and defendant, who were talking about being stopped by police, in Ginny’s Casino on the night of the robbery.

About a week later defendant described to Gibson his involvement in the robbery. Defendant told Gibson that he and Howard were in a bar on the afternoon of February 24, 1990, and that Howard was planning to commit a robbery with a gun she had. Defendant declined Howard’s request to help her with the robbery and saw Howard leave by the back door of the bar. When Howard came back to the bar with the money, defendant threatened to call police unless Howard gave him some of the money. Gibson did not know whether or not Howard had given defendant any of the money.

After the State rested, defendant moved to dismiss the charge of robbery by accountability against defendant on the ground that the State had not presented a prima facie case. Defendant argued that the State, as required by statute, had not introduced evidence corroborating Howard’s testimony and showing that defendant had aided Howard before or during commission of the robbery. The court denied the motion.

The defense had earlier stipulated that defendant’s statement to F.B.I. officers would be admitted into evidence if the defendant did not testify. When defendant decided not to take the stand, the District Court allowed the State to reopen its case and enter the F.B.I. report into evidence. After deliberating for approximately three hours, the jury returned a guilty verdict.

The District Court sentenced defendant to thirty years in prison for robbery by accountability.

II.

Defendant contends that corroboration of Howard’s testimony, as required by § 46-16-213, MCA, was insufficient to support the jury’s verdict that he was guilty of robbery by accountability.

In deciding whether a person is legally accountable for an offense committed by another, a jury cannot rely exclusively on the testimony of an alleged accomplice because without corroborative evidence an innocent person may be convicted by the “ ‘testimony of one with a strong motive for seeing that such conviction occurred.’ ” State v. Conrad (1990), 241 Mont. 1, 5, 785 P.2d 185, 187 (citing State v. Warren (1981), 192 Mont. 436, 439, 628 P.2d 292, 294).

By statute, the testimony of an alleged accomplice must be corroborated by independent evidence:

“A conviction cannot be had on the testimony of one responsible or legally accountable for the same offense, ... unless the testimony is corroborated by other evidence which in itself and without the aid of the testimony of the one responsible or legally accountable for the same offense tends to connect the defendant with the commission of the offense. The corroboration is not sufficient if it merely shows the commission of the offense or the circumstances thereof.”

Section 46-16-213, MCA. To summarize, the statute sets out three requirements for corroborative evidence, which must: (1) be independent; (2) tend to connect the defendant with the commission of the offense; and (3) show more than the commission of an offense or the circumstances under which the offense was committed.

Other criteria for evaluating evidence corroborating an alleged accomplice’s testimony have been established by case law. Corroborative evidence must raise more than a suspicion that defendant was involved in, or had an opportunity to commit, the crime. State v. Warren (1981), 192 Mont. 436, 441, 628 P.2d 292, 295. Corroborative evidence, in and of itself, need not be sufficient to make out a prima facie case against defendant and need not extend to every fact to which the alleged accomplice testifies. State v. Kaczmarek (1990), 243 Mont. 456, 459-60, 795 P.2d 439, 441-42. Corroborative evidence may be circumstantial and may come from the defendant or his witnesses. Kaczmarek, 243 Mont. at 460, 795 P.2d at 441.

Since the jury must decide the factual question of whether corroborative evidence of an alleged accomplice’s testimony is sufficient for a conviction, we apply the sufficiency of the evidence test. State v. Downing (1989), 240 Mont. 215, 217, 783 P.2d 412, 414. This Court, after viewing the evidence in the light most favorable to the prosecution, must decide whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Downing, 240 Mont. at 217, 783 P.2d at 414.

Commission of a crime by accountability consists of four elements. Defendant is legally accountable for the conduct of another when (1) either before or during (2) the commission of an offense (3) with the purpose to promote or facilitate such commission (4) defendant solicits, aids, abets, agrees, or attempts to aid such other person in the planning or commission of the crime. Section 45-2-302(3), MCA; Downing, 240 Mont. at 217, 783 P.2d at 414.

We now turn to the facts of this case to determine whether sufficient evidence corroborated Howard’s testimony. First, Howard testified that while she and defendant were drinking in a bar two or three hours before the robbery, defendant advanced the idea of robbing a convenience store on the west side of Helena and helped plan the robbery. Defendant’s admission to Hannah Gibson that he was in a bar with Howard prior to the robbery and that Howard had a gun and planned to commit a robbery tends to corroborate Howard’s testimony.

Second, defendant admitted that he was driving the car at the tíme of the robbeiy. As we noted in State v. Case (1980), 190 Mont. 450, 454-55, 621 P.2d 1066, 1069, “the ensuing flight is considered part and parcel of a robbery until such time as the criminal purpose, including carrying away of the spoils of the crime, is completed.” Defendant’s statements to the F.B.I. are independent corroboration that he drove the get-away car which constituted part of the crime.

Although defendant claimed in his statement that he had no knowledge before or during the robbery of the crime being committed, defendant’s version of events makes his claim questionable. Defendant stated in the F.B.I. report that after Howard requested him to stop at Broadwater Market for cigarettes, Howard entered the store and “came out of the market in less than a minute.” According to defendant, approximately two hours after leaving Broadwater Market and after the police had searched Howard’s car, he first learned of the robbery when Howard “retrieved a gun from the trunk of the vehicle.”

The jury had cause to doubt defendant’s assertion that he had no knowledge that Howard was committing a robbery while he waited outside Broadwater Market. Defendant did not explain how Howard, without defendant’s knowledge, could have exited the car with a gun which Howard said was hidden -under the front seat. Nor does he reveal how Howard could have forced the store clerk to trun over the money, concealed the money, as well as the pantyhose, and deposited the gun in the trunk of the car without defendant’s noticing, all in “less than a minute.” Finally, defendant does not explain why police failed to find the gun in the car trunk, even though, as a police officer testified, the officers searched the trunk of the car carefully.

In addition to acknowledging that he had driven the get-away vehicle and that he knew at some point of the robbery, defendant admitted to the F.B.I. that he had taken Howard to her residence to change clothes. While he waited in the car, Howard “was in the house less than three minutes.” Defendant also admitted that he had taken money from Howard after the robbery. These statements corroborate Howard’s testimony about the events which occurred after the robbery.

Lastly, police discovered defendant and Howard in a car matching the description of the vehicle seen at the scene of the robbery less than two hours after the robbery. Independent evidence “tends to connect the defendant with the commission of the offense,” and shows more than the mere “commission of the offense or the circumstances thereof.” We hold that the evidence was sufficient for the jury to conclude that defendant was guilty of robbery by accountability.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES GRAY, McDONOUGH and WiEBER concur.


author: JUSTICE GRAY

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. BOYD IRVIN BROELL, Defendant and Appellant.
    No. 90-464.
    Submitted on briefs May 10, 1991.
    Decided June 24, 1991.
    249 Mont. 117.
    814 P.2d 44.

      Karl R Seel, Bozeman, for defendant and appellant.
    Marc Racicot, Atty. Gen., George Schunk, Asst. Atty. Gen., Helena, Wm. Neis Swandal, Park County Atty., Tara DePuy, Dep. Co. Atty., Livingston, for plaintiff and respondent.
   JUSTICE GRAY

delivered the Opinion of the Court.

The appellant, Boyd Broell, was charged with criminal possession of dangerous drugs with intent to sell, under § 45-9-103, MCA, and criminal possession of dangerous drugs, under § 45-9-102, MCA. Broell was found guilty of both offenses at an uncontested bench trial held before the Sixth Judicial District Court, Park County. He now appeals a denial of his motion to suppress. We affirm.

The dispositive issue on appeal is whether the District Court erred in denying the appellant’s motion to suppress.

On January 18, 1990, Livingston police officer Sam Frederick noticed a 1976 Chevrolet Camaro stopped on the median in the middle of Park Street in Livingston. The vehicle’s motor was still running and an occupant was sitting behind the steering wheel in an unconscious state with his head leaning against the window of the driver’s door. Officer Frederick circled the car, pulled up behind it, and activated his lights and siren. The occupant drove the car across the oncoming traffic lane and up onto the curb, where he stopped on the sidewalk. Officer Frederick walked over to the car, saw the appellant inside, opened the driver’s door, and shut off the ignition.

The officer detected an odor of alcohol on Broell and, after field sobriety tests, the appellant was arrested for driving under the influence of alcohol. Officer Frederick left Broefl’s car where it was, locked it, and kept the keys.

The appellant was taken to the station where he was booked for DUI. When asked to empty his pockets, Broell was reluctant to remove or give up his jacket. The police found in the appellant’s jacket pocket a white tobacco pouch containing a small bag of what they believed was marijuana, a mirror, razor blade, tiny spoon and pipe, and a three inch plastic tube sniffer, all of which are items utilized by drug users. Also found in the appellant’s possession were four small paper packets marked V4, V% or 1, with white powder contents, which numbers Officer Frederick believed to signify the drugweights; a small yellow piece of paper that had initials and amounts on it, which Officer Frederick believed was a record of the appellant’s customers who had bought drugs on credit; cash totaling $207 in one, five, ten and twenty dollar bills; and a small brown vial tucked into the back of the appellant’s waistband, which contained white powder. The white powder in the paper packets and the vial were sent in for lab analysis and proved to be methamphetamine, commonly called “speed.”

During the subsequent booking for possession of drugs with intent to sell, the appellant asked to make a telephone call. Broell asked whoever answered the telephone to go change the right front tire on his car and take the spare out of the trunk. This phone call, the fact that there had been no flat tire on the car, Broell’s nervous demeanor and conduct, and the drugs found on his person made the police suspicious, so they decided to request a search warrant for the car. The dispatcher called a wrecker and had the car towed to the police garage pending application for, and issuance of, a search warrant.

The search warrant was issued at approximately 8:00 a.m., about three hours after Broell had been arrested for DUI. A search of the car disclosed nothing in the right front tire or the interior, but in the trunk, alongside the spare tire, the officers found a small, two-compartment knapsack. The lower compartment was unlocked and contained a few articles of clothing, some personal hygiene items, and a trifold wallet with $600 in cash and various credit cards. The upper compartment had a small padlock on it, which was opened with a key found on the ring with Broell’s car keys. This compartment contained a leather eyeglass case and a vinyl bag.

Inside the eyeglass case police found $67 in one dollar bills and, stuffed beneath them, a matchbox-size tin container with eighteen pieces of blotter paper. Laboratory analysis later determined the blotter paper to be lysergic acid diethylamide, or “LSD”.

The vinyl bag contained thirteen paper packets of drugs with various 14, V2,1 and 8 markings similar to those on the packets found in Broell’s possession when he was arrested, and one packet marked “Mine.” Laboratory analysis determined the contents of the thirteen packets to be methamphetamine. The packet marked “Mine” was determined to be inositol, a non-dangerous substance used by drug dealers as a “cutting agent.”

The articles and drugs found in Broell’s trunk provided the basis for count II, possession of dangerous drugs. Broell filed a motion to suppress as evidence all items seized as a result of the search warrant on the grounds that no probable cause existed to issue the warrant. The motion was denied and the appellant was found guilty on both counts. He appeals the denial of his motion to suppress.

The appellant attacks the District Court’s denial of his motion to suppress on three grounds; first, he contends that the application for search warrant lacked sufficient probable cause to justify issuing a search warrant; second, he argues that the search warrant was deficient because it failed to describe with sufficient particularity the articles to be seized; and finally, he contends that the seizure of his vehicle prior to the issuance of a search warrant was unlawful.

The appellant’s first argument is that Officer Frederick was on a “fishing expedition” and had no more probable cause to believe there were drugs in Broell’s car than he had probable cause to believe there would be drugs at his home or his place of business. The appellant correctly points out that simply because there is probable cause to believe someone is guilty of a crime, does not mean there is probable cause to search that individual’s home. However, the standard for probable cause is not a prima facie showing of criminal activity but rather a showing of the probability of criminal activity. State v. Dess (1982), 201 Mont. 456, 465, 655 P.2d 149, 154.

The existence of a probability of criminal activity is to be determined by an analysis of all the circumstances set forth in the application for search warrant. State v. O’Neill (1984), 208 Mont. 386, 679 P.2d 760.

The application for search warrant in question contained the following information: the appellant had been arrested for DUI; drug paraphernalia and methamphetamine had been discovered on his person; a piece of paper which appeared to be a list of customers, and $207 in small bills were found on the appellant; the appellant told Officer Frederick he had just purchased the drugs; during the booking procedure, the appellant made a phone call to an unknown party requesting that he or she change the right front tire of his car, yet upon inspection there was nothing wrong with the right front tire.

The appellant addresses each piece of information separately, on a stand-alone basis, and then appears to conclude that probable cause does not exist. The appellant may be correct in his argument that possession of illegal drugs on the person does not provide probable cause for a search warrant of that person’s vehicle. Likewise, neither a piece of paper with initials and numbers on it, nor $207 in small bills constitutes the necessary probable cause to search the appellant’s vehicle when considered separately. But the factual circumstances of the entire application, including the telephone call made by Broell, are clearly sufficient to justify the issuance of a search warrant.

The appellant next argues that the search warrant is deficient because it described the items to be searched for as “drugs and drug paraphernalia.” It is the appellant’s position that such language is overly broad and could be interpreted to include legal drugs such as aspirin and alcohol.

We agree that “drugs and drug paraphernalia” is not the ideal language to use in describing particular items to be searched for in a warrant. Nonetheless, under the circumstances of this case, we find such language to be an adequate description of the items to be seized. Section 46-5-201, MCA, requires that a search warrant particularly describe “the thing, place, or person to be searched and the instruments, articles, or things to be seized.” The search warrant in question describes the place to be searched as Broell’s 1976 green Camaro, and the things to be seized as “certain items which are contraband/evidence/fruits of the crime... and are particularly described as being drugs and drug paraphernalia.” Moreover, the application for the search warrant reinforces the intended meaning of “drugs and drug paraphernalia” as used in the search warrant. The application states that

“[T]he offense of felony possession of dangerous drugs has been committed and ... in the defendant’s car ... there are now located certain items which are contraband/evidence/fruits of the crime/instrumentalities and articles used in the commission of a crime and are particularly described as being drugs and drug paraphernalia.”

We stated in State v. Peterson (1987), 227 Mont. 503, 741 P.2d 392, that when the application is signed by the officer who is named in the search warrant and it is that officer who personally serves such warrant, the documents are construed together to determine whether the requirement of particularly describing the thing to be seized has been met.

Upon reviewing the search warrant and the application together, the fact that Officer Frederick was to search for and seize illegal drugs is inescapable. The appellant’s contention, that in order to constitute probable cause to search, an officer ought to be able to identify what type or types of illegal contraband the officer expects to find, is unsound. As the state points out, no police officer can anticipate what specific wares a suspected drug dealer will possess at any given time.

The search warrant in this case could have been drafted more carefully. When it is read together with the application, however, it sufficiently describes the place to be searched and the things to be seized.

The appellant’s final argument is that his car was unlawfully seized when the police impounded it prior to the issuance of the search warrant. The appellant apparently argues that seizing the car for DUI-related reasons would have been acceptable, but seizing the car in order to search it was unacceptable. The appellant contends that the police officers needed a warrant to seize the car as well as to search the car.

The appellant is incorrect for two reasons. First, the warrant-less seizure of the car falls under the “automobile exception” to illegal searches and seizures. We adopted this exception in State v. Spielmann (1973), 163 Mont. 199, 516 P.2d 617, where we distinguished between automobiles and nonmovable premises. An automobile may be seized or searched by police without a warrant where there is probable cause to believe such automobile’s contents “offend against the law.” State v. Evjen (1988), 234 Mont. 516, 765 P.2d 708. As we have already stated, there was sufficient probable cause under the facts of this case to believe that illegal drugs were located in Broell’s car.

Finally, even if we were to conclude that Broell’s car was unlawfully seized, we still would not find error in the denial of the motion to suppress. Evidence secured from an impounded automobile will not be suppressed when such automobile is searched pursuant to a warrant that is based on information wholly independent of the seizure:

“The items were secured during a search conducted pursuant to a warrant. Towing the automobile to the police storage lot for safekeeping in no way contributed to the subsequent search. The search warrant was based on information wholly independent of the automobile seizure. The exclusionary rule is therefore inapplicable to the items secured from the automobile. (Citation omitted.)”

United States v. Bagley (9th Cir. 1985), 772 F.2d 482, 491. All the information contained in the application for the search warrant was obtained from sources totally independent of the seizing of Broell’s car.

For the foregoing reasons, we hold that the District Court properly denied the appellant’s motion to suppress. Affirmed.

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


author: JUSTICE WEBER

text:
    THOMAS OWENS, Plaintiff and Appellant, v. GENERAL MOTORS CORPORATION, a corporation, Defendant and Respondent.
    No. 90-530.
    Submitted on briefs May 10, 1991.
    Decided June 25, 1991.
    249 Mont. 124.
    813 P.2d 985.
    Gene Huntley, Baker, for plaintiff and appellant.
    Lorraine A. Schneider, Simonton, Howe & Schneider, Glendive, for defendant and respondent.
   JUSTICE WEBER

delivered the Opinion of the Court.

Plaintiff, the purchaser of a new pickup truck, brought suit against General Motors Corporation alleging breach of express warranty and breach of the implied warranty of merchantability. A trial was held in the District Court for the Sixteenth Judicial District Court, Fallon County. The jury returned a verdict in favor of General Motors Corporation. The District Court denied plaintiff’s motion for a new trial. Plaintiff appeals. We affirm.

The sole issue is whether substantial evidence exists to support the jury’s verdict that General Motors Corporation did not breach the warranty on the plaintiff’s truck.

In October, 1981, plaintiff, Thomas Owens (Mr. Owens), a resident rancher of Baker, Montana, purchased a new 1982 pickup manufactured by General Motors Corporation (GMC), from an out-of-state dealer, Joe Panion Chevrolet (Panion). Mr. Owens made arrangements to purchase the truck from Panion through another Baker, Montana resident, Leroy Singer (Mr. Singer). The truck was warranted and all warranty information was provided to Mr. Owens upon delivery of the truck.

Mr. Owens’ranch is located about 30 miles south of Baker. He lives in town and testified that he drove back and forth regularly. He testified that he would put about seventy miles a day on his truck without any use at the ranch. He also used the truck on the ranch to haul feed and feed cattle.

For a short time, the truck ran and drove well and without complaint. Mr. Owens began having problems with the truck after about six months and with about 14,645 miles on the odometer. He testified that it “had a lack of power. It smoked and drank a lot of gas, it was hard starting”. He testified that “whatever they did, it just didn’t seem like it would fix it”. He testified that he kept taking it in to be worked on and “while they kept trying different things to make it get better mileage, all the other little things kept going wrong with it”. He further testified that the truck was in the shop about once a week and that there were problems with the seals, wiring, transmission and wheels.

In December, 1983, the engine quit running entirely and the truck had about 42,000 miles on it. When GMC refused to repair the truck under warranty, Mr. Owens filed suit against GMC on theories of breach of express warranty and breach of the implied warranty of merchantability. A jury trial was held and the jury concluded that no breach occurred. Mr. Owens’ appeals.

On appeal, Mr. Owens maintains that GMC breached both the express and implied warranties by failing to repair the truck. GMC maintains that Mr. Owens abused and neglected the truck and such abuse and neglect was the proximate cause of its poor condition. GMC maintains that while such warranties are applicable to the truck in question, the plaintiff has the burden of proving that the defect existed when the product left the manufacturer, GMC’s, hands.

The standard of review for this Court on substantial evidence questions was clearly set forth in Kitchen Krafters Inc. v. Eastside Bank of Montana (1990), 242 Mont. 155 at 164, 789 P.2d 567 at 572:

‘We will not reverse the findings of a jury unless they are not supported by substantial evidence. Substantial evidence is defined as that evidence that a reasonable mind might accept as adequate to support a conclusion. Although it may be based upon weak and conflicting evidence, in order to rise to the level of substantial evidence it must be greater than trifling or frivolous. In short, where a verdict is based upon substantial evidence which from any point of view could have been accepted by the jury as credible, it is binding upon this Court although it may appear inherently weak. (Citations omitted).”

Mr. Singer testified that he picked up Mr. Owens’ truck for him from Panion Chevrolet in Southfield, Michigan and drove it from Southfield to Baker where he delivered it to Mr. Owens. He testified that he never had a problem with the truck and that “it performed beautifully” on the 1,480 mile trip to Baker.

Within about one week after the truck was delivered Mr. Owens and several friends went hunting in the Ennis area. The group took Mr. Owens’ truck through an open gate and “up a mountain trail” to go elk him ting. Upon their return to the main road, they found the gate they came through locked. The decision was to drive around the locked gate to get out. Mr. Singer testified that in so doing, Mr. Owens drove his truck through a road ditch. Mr. Singer testified that the truck was driven over rocks and small trees.

Mr. Owens testified that he used the truck for feeding cattle and hunting. He testified that one day while he was driving the truck loaded with bales of hay through a draw, the back end of the truck bogged down and became stuck. He testified that by the time he got back to pull the truck out, “the cows had ate the bales off the pickup. So they, you know, put a lot of dents in the side of it.”

There was other significant damage to the truck: a hole in the floorboard of the cab where a gun fired; a spotlight hole burned into the seat; broken seat springs; a broken hood latch; and a broken grill. Mr. Owens offered explanations for all the “non-engine” damage to the truck.

GMC maintains that such evidence of the condition of the truck is evidence that the truck was abused and that such abuse directly affected the engine’s performance. Over Mr. Owens’ objection, GMC was allowed to call as a witness Steve Baldwin, a mechanic who worked on Mr. Owens’ truck. The District Court concluded that Steve Baldwin did not offer any opinions or conclusions and that therefore his testimony was entirely proper as a non-expert witness.

Steve Baldwin testified that when the top part of the engine was removed to gain access to the camshaft he saw “engine contamination” he described as “sludge” inside the engine. He further testified that Mr. Owens never complained about the work done on his truck.

After reviewing the record we hold that substantial evidence exists to support the jury verdict.

Affirmed.

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


author: CHIEF JUSTICE TURNAGE

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DEWEY E. COLEMAN, Defendant and Appellant.
    No. 90-531.
    Submitted on briefs April 25, 1991.
    Decided June 25, 1991.
    Rehearing Denied July 25, 1991.
    249 Mont. 128.
    814 P.2d 48.

      Charles F. Moses, Moses Law Firm, Billings, for defendant and appellant.
    Marc Racicot, Atty. Gen., Patricia J. Jordan, Asst. Atty. Gen., Helena, John Forsythe, Rosebud County Atty., Forsyth, for plaintiff and respondent.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Dewey Eugene Coleman (Coleman) appeals the resentencing for his aggravated kidnapping conviction by the District Court of the Sixteenth Judicial District, Rosebud County. The District Court resentenced Coleman to 100 years imprisonment for this conviction following remand by an opinion of the Ninth Circuit Court of Appeals, which vacated Coleman’s prior death penalty sentence on due process grounds. Coleman v. McCormick (9th Cir. 1989), 874 F.2d 1280, 1289-90, cert. denied, _U.S._, 107 L.Ed.2d 337, 110 S.Ct. 349 (1989). We affirm the District Court’s resentencing.

Coleman presents the following issues:

1. Whether the consecutive sentence of 100 years for kidnapping violates the double jeopardy provisions of the United States and Montana Constitutions?

2. Whether Coleman was denied equal protection of the laws upon the grounds that he was: (a) unequally treated during the course of these proceedings; and (b) was unequally treated by reason of the fact that he was discriminated against as a black man?

The facts in this case are set forth in State v. Coleman (1978), 177 Mont. 1, 8-13, 579 P.2d 732, 738-40 (Coleman I). We will therefore not repeat those facts here. We will, however, give a procedural history of this case, which spans over sixteen years.

On October 24, 1974, Coleman, along with his roommate Robert Nank, was charged by information with the crimes of deliberate homicide, sexual intercourse without consent, and aggravated kidnapping in connection with the death of Peggy Lee Harstad on or about July 4, 1974. Nank, a white man, entered a written plea agreement with the State on May 7, 1975, wherein he pled guilty to deliberate homicide and solicitation to commit sexual intercourse without consent in exchange for the dismissal of the aggravated kidnapping charge. Nank also agreed to testify against Coleman. Nank is currently imprisoned in an out-of-state prison.

Coleman, a black man, presented to the District Court on May 23, 1975, a written offer of a conditional plea of guilty in exchange for the dismissal of the aggravated kidnapping charge. In his offer, Coleman insisted on maintaining his innocence. The State refused to accept his conditional plea of guilty.

Coleman went to trial on October 23,1975. On November 14,1975, a jury convicted Coleman of deliberate homicide under § 94-5-102, R.C.M. (1947) (now § 45-5-102, MCA); sexual intercourse without consent under § 94-5-503, R.C.M. (1947) (now § 45-5-503, MCA); and aggravated kidnapping under § 94-5-303, R.C.M. (1947) (now § 45-5-303, MCA). On November 21, 1975, the District Court sentenced Coleman to 100 years imprisonment for the deliberate homicide conviction and forty years imprisonment for the sexual intercourse without consent conviction. The District Court sentenced Coleman to death for the aggravated kidnapping conviction under a then-existing mandatory death penalty statute, § 94-5-304, R.C.M. (1947).

On appeal, this Court affirmed Coleman’s convictions and his sentence for deliberate homicide, but vacated and remanded to the District Court his sentences for sexual intercourse without consent and aggravated kidnapping. Coleman I, 579 P2d at 753. In vacating Coleman’s sentence for aggravated kidnapping, this Court held that § 94-5-304, R.C.M. (1947), was unconstitutional. Coleman I, 579 P.2d at 742. The 1977 Montana Legislature later repealed that statute.

On remand in 1978, the District Court resentenced Coleman to twenty years imprisonment for the conviction of sexual intercourse without consent. The District Court resentenced Coleman to death for aggravated kidnapping under §§ 95-2206.6 to 95-2206.15, R.C.M. (1947) (now §§ 46-18-301 to 46-18-310, MCA), new death penalty statutes enacted by the 1977 Montana Legislature. On automatic review, this Court affirmed Coleman’s convictions and sentences. State v. Coleman (1979), 185 Mont. 299, 336, 605 P.2d 1000, 1022 (Coleman II), cert. denied, 446 U.S. 970, 100 S.Ct. 2952, 64 L.Ed.2d 831 (1980).

In 1980, Coleman sought and was refused review of his sentence by the Sentence Review Division of this Court. Additionally, this Court denied Coleman’s petition for a writ of supervisory control in an order dated March 21, 1980. Coleman’s petition for a writ of supervisory control, before the United States Supreme Court, was also denied. Coleman v. Sentence Review Div. of the Supreme Court of Montana, cert. denied, 449 U.S. 893, 101 S.Ct. 255, 66 L.Ed.2d 121 (1980).

In 1980, Coleman filed a petition and later an amended petition with the District Court for post-conviction relief. The District Court denied Coleman’s amended petition on February 18,1981. On review, this Court once again affirmed his convictions and sentences. Coleman v. State (Mont. 1981), [194 Mont. 428,] 633 P.2d 624, 633 (Coleman III), cert. denied, 455 U.S. 983, 102 S.Ct. 1492, 71 L.Ed.2d 693 (1982).

Thereafter, Coleman filed a petition for writ of habeas corpus under 28 U.S.C. § 2254 with the United States District Court for the District of Montana, Billings Division (United States District Court). This proceeding was temporarily stayed to allow Coleman the opportunity to exhaust his state remedies when Coleman’s new counsel discovered that Coleman’s prior counsel told the trial court judge, who had presided at the pretrial hearing and later twice sentenced Coleman to death, that Coleman had admitted to the crimes following the administration of sodium amytal, a truth-inducing drug that on occasion produces questionable results. Following review, this Court once again affirmed Coleman’s convictions and sentences holding that there was no evidence in the record suggesting that prior counsel’s statements affected sentencing. Coleman v. Risley (1983), 203 Mont. 237, 250, 663 P.2d 1154, 1161 (Coleman IV).

Thereafter, Coleman moved the United States District Court for 1) an evidentiary hearing on twelve of thirty-seven issues in his habeas corpus petition, and 2) summary judgment on the remaining issues. The State also moved the court for summary judgment. The court denied Coleman’s request for an evidentiary hearing, denied Coleman summary judgment, and granted the State summary judgment in a memorandum opinion and order dated August 8, 1985.

On May 5, 1989, on review of the denial of the petition for writ of habeas corpus, the Ninth Circuit Court of Appeals (Ninth Circuit) vacated Coleman’s death penalty sentence on due process grounds. Coleman v. McCormick (9th Cir. 1989), 874 F.2d 1280, 1289-90, cert. denied, _U.S._, 107 L.Ed.2d 337, 110 S.Ct. 349 (1989). The Ninth Circuit did not overturn the aggravated kidnapping conviction but remanded this case for the State to either pursue a new trial or resentence Coleman on the aggravated kidnapping conviction. Coleman v. McCormick, 874 F.2d at 1290, n. 9. The State opted for resentencing Coleman on the aggravated kidnapping conviction.

On August 13, 1990, following an oral argument on July 13, 1990, and a resentencing hearing on July 31, 1990, the District Court resentenced Coleman to 100 years imprisonment for the aggravated kidnapping conviction, this sentence to run consecutively to the sentences of 100 years imprisonment for his deliberate homicide conviction and twenty years imprisonment for his sexual intercourse without consent conviction. From this resentencing, Coleman appeals.

We restate the first issue as follows:

1. Does the sentence of 100 years for the aggravated kidnapping conviction, which was imposed consecutively to sentences for convictions of deliberate homicide and sexual intercourse without consent, violate the double jeopardy provisions of the United States and Montana Constitutions?

Coleman argues that the double jeopardy clauses of the Montana and United States Constitutions, as well as §§ 46-11-501 to - 505, MCA, statutes concerning lesser included offenses, bar his resentencing on his aggravated kidnapping conviction. The State argues that the doctrine of res judicata applies to this issue as this Court has already determined this issue in the State’s favor in Coleman II, 605 P.2d at 1008-10 (citing, inter alia, Blockburger v. United States (1932), 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306). We agree with the State.

The doctrine of res judicata bars reconsideration of an issue if four elements are present:

“(1) the parties or their privies must be the same; (2) the subject-matter of the action must be the same; (3) the issues must be the same, and must relate to the same subject-matter; and (4) the capacities of the persons must be the same in reference to the subject-matter and to the issues between them.”

Brannon v. Lewis and Clark County (1963), 143 Mont. 200, 207-08, 387 P.2d 706, 711 (cited in Coleman III, 633 P.2d at 630). Here, all four of these elements are indeed present. Furthermore, Coleman presents no new facts or applicable case law to substantiate this argument. We hold that based on res judicata, we will not reconsider this issue.

Additionally, we wish to note that the United States District Court also examined the issue of double jeopardy, along with thirty-six other issues, in Coleman’s habeas corpus petition. After examining these issues, the court denied Coleman’s petition for habeas corpus, denied Coleman’s motion for summary judgment, and granted the State’s motion for summary judgment in a memorandum opinion and order dated August 8,1985.

We restate the second issue as follows:

2. Does the sentence of 100 years for the aggravated kidnapping conviction deny Coleman his right to equal protection of the laws?

Coleman argues that his sentence resulted from racial discrimination and unequal treatment because over sixteen years ago, the State and the District Court refused his conditional guilty plea yet accepted Nank’s pleas of guilty. The State and the District Court, however, were not bound to accept Coleman’s conditional plea of guilty; the acceptance of a plea is within the discretion of the trial court. Coleman I, 579 P.2d at 744-45 (citations omitted). Coleman further argues that he has been denied an evidentiary hearing on this issue. The State, however, correctly points out that Coleman has failed to produce any witnesses to support his assertion in the many years of litigating this case. In particular this includes the present sentencing hearing before a new district court judge who specifically invited counsel for Coleman to submit all evidence and testimony which he thought to be essential. After review of such evidence as was submitted, which had little bearing on the present issue, and after a detailed review of the record, only then did the new district court judge enter his sentence.

This Court has twice discussed and rejected Coleman’s racial discrimination and unequal treatment claim in Coleman I, 579 P.2d at 744-45, and Coleman II, 605 P.2d at 1018-19. In Coleman III, 633 P.2d at 631, this Court dismissed Coleman’s racial discrimination claim, then labeled as “Claim B”, based on res judicata. Coleman presents no new facts or applicable case law in this appeal not already considered in the lengthy records relating to Coleman’s convictions and sentences. We hold that res judicata applies and decline to reconsider this issue.

We find it noteworthy that the United States District Court, in its August 8, 1985 memorandum opinion and order, also found no merit in Coleman’s claim of racial discrimination and unequal treatment, and rejected it as “idle speculation unsubstantiated by any facts.”

Although the Ninth Circuit did not reach this racial discrimination and unequal treatment issue, Judge Trott recognized that this claim lacks merit:

“It is useful to put this case in context to remember that Coleman at one point tried to plead guilty while simultaneously proclaiming he was the innocent victim of racial bias. Then, after the administration of‘truth serum,’ a drug known on occasion to produce unreliable results, his attorney abruptly indicated Coleman was prepared to admit to his part in the kidnap, rape, and murder. With this series of events in mind, it is not appropriate to reject summarily a state prosecutor’s explanation for his reluctance to accept a plea of guilty from a man who first said he was innocent, then in an abrupt, about-face apparently said he was guilty (after being given sodium amytal), and finally went to trial on the theory that he was blameless. Many respected trial judges might well have declined to accept such a plea because of its obvious defects.
“Had Montana accepted either of Coleman’s pleas, it is clear beyond cavil that Coleman would have eventually mounted a collateral attack against his conviction, claiming an innocent black man under the influence of drugs had been coerced into pleading guilty and sent to jail for life for a crime he did not commit. Had he been successful in invalidating such a plea, Montana would have had to try Coleman years later with evidence that might have deteriorated beyond resurrection. Had Nank died or escaped in the interim, Montana’s case might have been nonexistent, and Coleman might have escaped trial altogether. This would have been unacceptable. It is therefore not beyond understanding that the State refused to plea bargain and opted instead to go to trial.
“Montana was under no obligation to plea bargain at all. See Weatherford v. Bursey, 429 U.S. 545, 561, 97 S.Ct. 837, 846, 51 L.Ed. 2d 30 (1977). Also a plea tendered pursuant to North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed. 2d 162 (1970) will not stand — nor should it — without a strong factual basis and a clear showing that it was the product of a free will. Montana’s Hobson’s choice under these difficult circumstances to put its case before a jury, therefore, is hardly conclusive grounds for castigation. As the Supreme Court noted in Singer v. United States, 380 U.S. 24, 36, 85 S.Ct. 783, 790, 13 L.Ed.2d 630, 638 (1965), our Constitution regards a trial by jury as the best way to produce a fair result. The cruel and savage facts in this case also make it evident that Montana’s selection of capital punishment falls short of shocking a reasonable person’s conscience. See Burger v. Kemp, 483 U.S. 776, 107 S.Ct. 3114, 97 Ed.2d 638 (1987).”

Coleman v. McCormick (9th Cir. 1989), 874 F.2d 1280, 1297-98 (Trott, J., joined by Thompson, J., concurring), cert. denied, _U.S._, 110 S.Ct. 349, 107 L.Ed.2d 337 (1989).

Lastly, we note that Coleman invites us to discuss the remaining issues left unresolved by the Ninth Circuit in Coleman v. McCormick, supra. We find it unnecessary to address these issues and therefore decline his invitation. In conclusion, we affirm the District Court’s findings of fact, conclusions of law and order of sentence dated August 13, 1990.

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