text:
    NORTHERN MONTANA HOSPITAL, a Montana nonprofit corporation, Plaintiff, Respondent, and Cross-Appellant v. KENNETH KNIGHT, a sole proprietor, d/b/a KNIGHT & COMPANY, Plaintiff, Appellant, and Cross-Respondent
    No. 89-569.
    Submitted May 9, 1991.
    Decided May 21, 1991.
    Rehearing Denied July 9, 1991.
    248 Mont. 310.
    811 P.2d 1276.

      Tracy A. Axelberg argued, Jack L. Lewis, Jardine, Stephenson, Blewett & Weaver, Great Falls, for plaintiff, appellant, and cross-respondent.
    Ronald F. Waterman argued, Gough, Shanahan, Johnson & Waterman, Helena, Patrick A. Sullivan, Winston & Cashatt, Spokane, Wash., for plaintiff, respondent, and cross-appellant.
    Charles I. Hadden argued, Sean M. Hanifin, Ross, Dixon & Mas-back, Washington, D.C., Sherman V. Lohn, William Evan Jones, Garlington, Lohn & Robinson, Missoula, for amici curiae American Institute of Architects and Montana Chapter/American Institute of Architects.
   JUSTICE HUNT

delivered the opinion of the Court.

Defendant Kenneth Knight (Architect) appeals from a jury verdict rendered against him and in favor of plaintiff Northern Montana Hospital in the Twelfth Judicial District Court, Hill County. The Hospital cross-appeals from the District Court’s denial of its motion for prejudgment interest. We affirm.

The Architect raises the following issues:

1. Were the Hospital’s claims barred by the statute of limitations?
2. Was expert testimony on the custom of the architectural profession properly admitted into evidence?
3. Was the Architect’s motion to compel production of documents reviewed by the Hospital’s expert witness in preparation for his deposition properly denied by the District Court?

The sole issue raised by the Hospital on cross-appeal is whether the District Court properly denied its motion for prejudgment interest.

In 1968, the Hospital’s board of directors engaged the Architect and his firm to provide architectural services for the construction of a hospital in Havre. Construction commenced in 1973 and the building was substantially completed by mid-June 1975.

Shortly after completion, several problems arose, most centering around the structure’s heating, ventilating, and air-conditioning systems. Temperatures fluctuated tremendously throughout the building. Air-conditioning equipment on the roof transmitted noise and vibrations to the rooms below. Drafts and boiler room fumes permeated the facility. Gases from the incinerator were sucked into the nursery. The elevator doors constantly whistled as wind rushed through the elevator shafts.

The Hospital administration sought assistance from the Architect in its attempts to remedy the problems. The Architect assured the Hospital that the problems were not the result of design deficiencies but were caused by either the Hospital maintenance staff or the contractor.

In 1979, the Hospital employed the RMH Group, a Denver-based consulting firm, to conduct an energy audit and systems review. The RMH report, which the Hospital received in 1980, concluded that the various atmospheric problems were the result of building code violations and design defects. RMH suggested a major redesign and reconstruction of the system. The Hospital retained the consultant to correct the problems.

On July 2, 1981, the Hospital filed suit against the Architect, alleging that he had breached and negligently breached his express and implied contractual duties; breached the contract’s implied warranty of fitness of the design; breached his implied duty to supervise the project’s construction; negligently designed the building; negligently supervised the facility’s construction; and fraudulently concealed known or suspected design deficiencies, preventing the Hospital from discovering the cause of those problems.

In March 1989 the Architect moved for summary judgment, arguing that the claims were barred by the statute of limitations. The District Court denied the motion, ruling that the action constituted architectural malpractice and was governed by the three-year limitations period for general tort actions. The court found that, although the Hospital was put on inquiry notice more than three years before it filed the lawsuit, the action was not time barred because the Hospital made reasonable inquiry of the Architect and the Architect kept it from knowing the magnitude of the problems by assuring it that the systems were fine. The court therefore concluded that the Architect was equitably estopped from relying on the statute of limitations defense.

Trial proceeded on the merits on May 22, 1989. After the close of the Hospital’s case-in-chief, the Architect moved for a directed verdict, arguing that the Hospital had not presented sufficient evidence to support the breach of contract and warranty claims. He also raised the timeliness issue once again. The court denied the Architect’s statute of limitations defense, reserved ruling on the contract claim, and granted the Architect a directed verdict on the warranty issue.

At the close of the evidence, the Architect again moved for a directed verdict on the statute of limitations defense and the breach of contract claim. The court denied the motion on the timeliness issue but this time dismissed the contract claim. The court also refused to allow the fraud claim to go to the jury.

The negligent design and negligent breach of contract claims were submitted to the jury. The jury found that the Architect had not negligently designed the facility but that he had negligently breached the contract. It awarded the Hospital $1,750,000 in damages.

Post trial, the Architect moved for judgment notwithstanding the verdict, raising the timeliness issue for the fourth time. The Hospital moved for prejudgment interest. Both motions were denied. The Architect appeals and the Hospital cross-appeals.

I.

Were the Hospital’s claims barred by the statute of limitations?

When determining which statute of limitations applies to a cause of action, this Court looks to the gravamen of the action rather than relying on the label given to the claim by the plaintiff. Erickson v. Croft, 233 Mont. 146, 153, 760 P.2d 706, 710 (1988). If the essence of the action is tortious, the tort statute of limitations applies. Similarly, if the essence of the action is contractual, the contract statute of limitations applies. Quitmeyer v. Theroux, 144 Mont. 302, 311, 395 P.2d 965, 969 (1964).

In a case that concerns the breach of a professional service contract, it is oftentimes difficult to determine whether the claims are strictly tortious or strictly contractual. The rule in such circumstances is that if the claims are based upon breach of specific provisions in the contract, the action sounds in contract and the contract statute of limitations applies. If, however, the claims are based on a breach of a legal duty imposed by law that arises out of the performance of the contract, the action sounds in tort and the tort statute of limitations applies. Billings Clinic v. Peat Marwick Main & Co., [244 Mont. 324,] 797 P.2d 899, 908, 47 St.Rep. 1464, 1473-74 (Mont. 1990).

In the present case, the Hospital based its claims against the Architect on several theories, including breach of express and implied contractual terms, breach of warranty, negligent breach of contract, negligent design, and fraudulent concealment. The District Court directed a verdict against the Hospital on the breach of contract, breach of warranty, and fraudulent concealment allegations. Consequently, the court instructed the jury exclusively on negligent theories of law and the jury considered only the negligent design and negligent breach of contract claims, claims which were, in essence, grounded in the tort of architectural malpractice. Because no specific statute of limitations governed architectural malpractice, the general three-year tort statute of limitations found in § 27-2-204(1), MCA, controlled the action.

The statute of limitations begins to run when a cause of action accrues. The term accrual was not defined in Montana by statute until 1987. Act of April 9,1987, ch. 441, § 1,1987 Mont. Laws 977. Therefore, at the time the acts complained of in this case occurred and at the time the lawsuit was filed, accrual was defined by common law.

Generally, at common law, a cause of action grounded in negligence accrues when the negligent act or omission occurs, if the plaintiff is immediately and directly injured by the act or omission. If the plaintiff’s injury is consequential, rather than direct, the action accrues when the injury is sustained. Heckaman v. Northern Pac. Ry. Co., 93 Mont. 363, 375-76, 20 P.2d 258, 261 (1933). In suits alleging architectural malpractice, the action accrues either when the design is submitted to and accepted by the owner or upon substantial completion of the building. See generally Annot., 90 A.L.R.3d 507, 513-21 (1979).

In order to alleviate the harshness sometimes worked by a strict application of the statute of limitations, courts have devised exceptions to the general rules. Thus, this Court has applied the discovery rule to latent injuries, holding that the limitations period does not commence until the plaintiff discovers the injury. Johnson v. St.Patrick’s Hospital, 148 Mont. 125, 417 P.2d 469 (1966). Other courts have utilized the continuing relationship doctrine in cases involving professional malpractice. Schoenrock v. Tappe, 419 N.W.2d 197 (S.D. 1988) (legal malpractice); Sharsmith v. Hill, 764 P.2d 667 (Wyo. 1988) (medical malpractice); Lincoln Grain, Inc. v. Coopers & Lybrand, 338 N.W.2d 594 (Neb. 1983) (accountant malpractice); Greene v. Greene, 56 N.Y.2d 86, 451 N.Y.S.2d 46, 436 N.Ed.2d (N.Y. 1982) (legal malpractice); Borgia v. City of New York, 12 N.Y.2d 151, 237 N.Y.S.2d 319, 187 N.E. 2d 777 (N.Y. 1962) (medical malpractice).

The continuing relationship doctrine may be used when, during the course of an ongoing relationship between a professional and his client, the professional commits a tortious act that injures the client. The relationship must not be intermittent or sporadic. Instead, there must be “clear indicia of an ongoing, continuous, developing, and dependent relationship between [the parties].” Schoenrock, 419 N.W.2d at 201.

The doctrine suspends the accrual of the cause of action in order to give the professional an “opportunity to remedy, avoid or establish that there was no error or attempt to mitigate damages.” Pittman v. McDowell, Rice & Smith, Chartered, 12 Kan.App.2d 603, 752 P.2d 711, 716 (Kan.Ct.App. 1988) (quoting Mallen and Levit, Legal Malpractice § 391, at 460-61 (2d ed. 1981)). Thus, the cause of action does not accrue until either the professional relationship ends or, if a general professional relationship continues between the parties, the professional ceases to treat or advise the client for the particular act causing the injury. The continuing treatment must relate to the same or a related injury that caused the initial problem. The mere continuity of a general professional relationship after cessation of treatment for or advice on the injury caused by the negligent act will not prevent the statute from running. Schoenrock, 419 N.W.2d at 201.

The New York courts have extended the continuing relationship doctrine to the area of architectural malpractice. County of Broome v. Vincent J. Smith, Inc., 78 Misc.2d 889, 358 N.Y.S.2d 998 (N.Y.Sup.Ct. 1974); Board of Educ. v. Thompson Constr. Corp., 488 N.Y.S.2d 880, 111 A.D.2d 497, (N.Y. App. Div. 1985); Greater Johnstown City School Dist. v. Cataldo & Waters, Architects, P.C., 159 A.D.2d 784, 551 N.Y.S.2d 1003 (1990).

In County of Broome, an architect contracted to design a library for the plaintiff. Shortly after construction was completed, the roof began to leak. The architect thereafter negotiated with the contractors, who made attempts to remedy the situation. During this time, the architect communicated regularly with the plaintiff, assuring it that “the resulting roof will equal the original plans and specifications.” Three years later, the plaintiff filed suit. The architect claimed that the statute of limitations had run. The court rejected the argument, ruling that the continuing treatment by the architect after the completion of the library had lulled the plaintiff into an unfounded assurance that the problem would be corrected. Under these circumstances, the statute of limitations did not begin to run until the professional relationship terminated.

The court in County of Broome noted that, in a malpractice case, the professional renders advice or services of a highly technical or specialized nature, outside of the knowledge of the client. The client has the right to place his confidence and trust in the professional and depend on the professional’s advice if problems arise during the course of the relationship. The client should not be forced to unnecessarily disrupt the relationship by having to consult with a different member of the profession to ensure that he is receiving competent advice or services. County of Broome, 358 N.Y.S.2d at 1001-03.

The continuing relationship doctrine prevents the professional from assuring the client, whether fraudulently or in good faith, that defects can be fixed or that another party is responsible while the statute of limitations runs. The professional should not be able to take advantage of the client’s justifiable reliance by claiming that the statute of limitations bars the cause of action when the limitations period has expired because of the professional’s repeated assurances that the deficiencies could be repaired. County of Broome, 358 N.Y.S.2d at 1001-03.

The facts of the present case fit squarely with those giving rise to the use of the continuing relationship theory. Here, the Architect was hired to design and oversee the building of the facility. Shortly after completion, problems with the heating, air conditioning, and ventilating systems manifested themselves. The Hospital contacted the Architect, who in turn either worked with the contractor to resolve the deficiencies or blamed the defects on the Hospital’s maintenance staff and suggested different ways to operate the systems. Both the Hospital administrator and the Architect himself testified that, until sometime in 1979, the Hospital continued to seek and rely upon advice from the Architect in an attempt to repair the defects.

As applied to this case, the continuing relationship doctrine relieves the harshness rendered by a strict application of the limitations period. We therefore adopt the continuing relationship doctrine in this case, where no specific statute of limitations governs the tort of architectural malpractice and where, at the time of the acts giving rise to the action and the time of the filing of the lawsuit, no statute defined the term accrual. We note that our adoption of the doctrine here does not overrule our earlier decision in Schneider v. Leaphart, 228 Mont. 483, 488, 743 P.2d 613, 617 (1987), where we declined to apply the continuing relationship rule. Schneider concerned a legal malpractice action that was controlled by a specific statute of limitations incorporating the discovery rule but not the continuing relationship rule. As we recognized above, the present action is governed only by the general tort statute of limitations, which does not include either the discovery or the continuing relationship rule within its text.

In conclusion, this lawsuit was not barred by the statute of limitations. Under the continuing relationship theory, the statute of limitations, which would normally have started to run upon substantial completion of the structure in 1975, was suspended until the Hospital’s relationship with the Architect ended in 1979. The Hospital filed the complaint in 1981, well within the three-year limitations period.

II.

Was expert testimony on the custom of the architectural profession properly admitted into evidence?

At trial, the Hospital’s expert testified that, by the custom and practice of the architectural profession, the Architect undertook an obligation to ascertain that materials and equipment were furnished and installed in accordance with the facility’s design. He also testified that the Architect violated his duty to provide a good and safe building adequate to perform the tasks of a hospital. The Architect argues that this testimony was improperly admitted.

When confronted with a similar argument, the Eighth Circuit Court of Appeals held:

“[A]n architect whose contractual duties include supervision of a construction project has the duty to supervise the project with reasonable diligence and care. An architect is not a guarantor or an insurer but as a member of a learned and skilled profession he is under the duty to exercise the ordinary, reasonable technical skill, ability and competence that is required of an architect in a similar situation; and if by reason of a failure to use due care under the circumstances, a foreseeable injury results, liability accrues. Whether the required standard of care was exercised presents a jury question.”

Aetna Ins. Co. v. Hellmuth, Obata & Kassabaum, Inc., 392 F.2d 472, 476-77 (8th Cir. 1968).

We agree with the Eighth Circuit and hold that, in this case, expert testimony on the custom of the architectural profession constituted rebuttable proof aimed at assisting the trier of fact to determine whether the Architect negligently performed the contract. The testimony aided the jury in establishing whether the Architect fulfilled the contract with care, skill, reasonable expediency, and faithfulness according to the standards of his profession.

The Architect was obligated under the contract to supervise construction of the building, utilizing the ordinary care exercised by members of his profession. The jury was so instructed. The expert did not testify that an architect is an insurer against defects in a project. The trial court did not err in allowing the Hospital’s expert to testify on the standard of the industry.

III.

Was the Architect’s motion to compel production of documents reviewed by the Hospital’s expert witness in preparation for his deposition properly denied by the District Court?

The Architect cites Rule 612, M.R.Evid., to support his contention that, because one of the Hospital’s experts took to his deposition a file containing documents he had reviewed to prepare for the deposition, the entire file should be made available as a deposition exhibit and as subject matter for cross-examination. Rule 612, M.R.Evid., provides:

“If a witness uses a writing to refresh his memory for the purpose of testifying, either
“(1) while testifying, or
“(2) before testifying, if the court in its discretion determines it is necessary in the interests of justice, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce into evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objection shall be preserved and made available to the appellate court in the event of an appeal.” (Emphasis added.)

The documents the Architect sought to compel were reviewed by the trial court in camera following the Hospital’s claim that two letters in the file were not related to the subject matter of the expert’s testimony and were in any case protected by the attorney-client privilege. The court, in compliance with Rule 612, M.R.Evid., concluded that the letters were protected as attorney work product and, furthermore, that they were of little relevance to the expert’s testimony and would not lead to further discovery. The District Court did not abuse its discretion in so ruling.

IV.

Did the District Court properly deny the Hospital’s motion for prejudgment interest?

When the amount of recovery is certain or capable of being made certain by calculation, a plaintiff shall recover prejudgment interest. Section 27-1-211, MCA, provides:

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

This Court has established three criteria that must be met to be eligible for prejudgment interest under this statute. There must be an underlying monetary obligation; the amount of recovery must be certain or capable of being made certain by calculation; and the right to recover the obligation must vest on a particular day. Byrne v. Terry, 228 Mont. 387, 390, 741 P.2d 1341, 1343 (1987).

Prejudgment interest is inappropriate when the amount of a party’s damages is uncertain or disputed. In Carriger v. Ballenger, 192 Mont. 479, 628 P.2d 1106 (1981), the builder failed to complete construction of the plaintiff’s home in a timely manner. Plaintiff sought interest from the date of injury. We rejected the request with the following language:

“[T]he amount of the damages due upon breach was not clearly ascertainable until determined by the trial court. This Court has interpreted the statute to mean that no interest can run until a fixed amount of damages has been arrived at, either by agreement, appraisal, or judgment.” (Emphasis added.)

Carriger, 192 Mont. at 486, 628 P.2d at 1110.

In this case, much evidence was presented at trial concerning the Hospital’s damages. The jury returned a verdict of $1,750,000. This amount did not coincide with any amount set out as damages by the Hospital. Clearly, the right to recover interest vested only on the date of the jury verdict and not on an earlier particular date. The trial court did not err in refusing to award the Hospital prejudgment interest.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, BARZ, McDONOUGH and SHEEHY, and THE HONORABLE DOUGLAS G. HARKIN, District Judge, sitting for JUSTICE WEBER, concur.


source: Caselaw Access Project

author: JUSTICE WEBER JUSTICE TRIEWEILER JUSTICE HUNT JUSTICE GRAY

license: Public Domain

text:
    S.M., J.A.M., M.M., J.K.M., and J.N.M., all individuals, Plaintiffs and Appellants, v. R.B., an individual, and MISSOULA SCHOOL DISTRICT NO. 1, a political subdivision of the State of Montana, Defendants and Respondents.
    No. 90-184.
    Submitted on briefs May 21, 1991.
    Decided May 23, 1991.
    248 Mont. 322.
    811 P.2d 1295.

      James P. O’Brien and Randolph J. Stevens, O’Brien Law Offices, Missoula, for plaintiffs and appellants.
    Larry Jones; Garlington, Lohn & Robinson, Missoula, for defendants and respondents.
   JUSTICE WEBER

delivered the Opinion of the Court.

The complaint alleges that R.B., an educational aide for the Missoula School District, sexually assaulted four-year-old plaintiff.

S.M. who was enrolled in the Missoula School District special education program for the developmentally disabled. The defendants include the School District and the School District personnel involved in the special education program. The District Court for the Fourth Judicial District, Missoula County, granted defendants’ motion to dismiss the Amended Complaint of the plaintiffs on the grounds of immunity, and subsequently granted the motion to dismiss the Second Amended Complaint on the same grounds. Plaintiffs appeal. We affirm in part and reverse in part.

The issues are:

1. Have the Montana statutes and case law interpretations resulted in an ambiguity requiring a reversal of the District Court holding that the defendants are immune under § 2-9-111, MCA?
2. Does the purchase of insurance waive immunity?
3. Did the District Court improperly fail to rule on plaintiffs’ claims under 42 U.S.C. § 1983?
4. Is § 2-9-111, MCA, unconstitutional?

The facts as alleged in the Amended Complaint and the Second Amended Complaint are as follows:

Plaintiffs included S.M., her two parents, and the other two minor children in her family. S .M. was a four-year-old suffering developmental disabilities and was enrolled in the School District’s special education program when the acts occurred. Plaintiffs allege that the special education program established a special relationship between S.M., her family, and the School District.

R.B. was an educational aide for the School District, who helped in the education and training of developmentally disabled children attending the School District’s program.

The School District maintained a policy of liability insurance insuring against liabilities arising from its negligence. Plaintiffs contend the procurement of such insurance constitutes a waiver of sovereign immunity to the extent of the insurance coverage.

Plaintiffs alleged that on or about April 16, 1987, R.B. sexually assaulted S.M. and committed sodomy and attempted rape. S.M. received vaginal lacerations of such severity that reconstructive surgery will be required at adulthood. She suffers continual nightmares, and has become fearful of school.

Plaintiffs alleged that the School District and its employees were negligent in the hiring, controlling and supervising of R.B. as an educational aide. Plaintiffs maintain the School District knew or should have known that R.B. had “a predatory predisposition toward young developmentally disabled children by virtue of prior reports” that warned the School District of R.B.’s “antisocial and dangerous behavior”.

Plaintiffs alleged seven different causes of action with various theories of liability which will be discussed where appropriate. In substance the defendants assert that plaintiffs’ claims are barred by the following defenses:

doctrine of sovereign immunity;
doctrine of respondeat superior;
doctrine of exhaustion of remedies;
failure to seek administrative review;
lack of jurisdiction;
claims for monetary damages barred by § 2-9-108, MCA;
claims for punitive damages barred by § 27-1-221, MCA; and
claims barred by 42 U.S.C. § 1983 (1981).

Following the failure of R.B. to appear, plaintiffs moved for default judgment which was entered against him on September 8, 1989.

The School District filed a Rule 12, M.R.Civ.P., motion to dismiss the plaintiffs’ complaint. On January 25, 1990, the District Court granted the motion to dismiss the plaintiffs’ Amended Complaint on the grounds of immunity. Subsequently, the District Court also granted defendants’ motion to dismiss plaintiffs’ Second Amended Complaint on the same grounds. From that order, plaintiffs appeal.

I.

Have the Montana statutes and case law interpretations resulted in an ambiguity requiring a reversal of the District Court holding that the defendants are immune under § 2-9-111, MCA?

Plaintiffs argue there is a statutory ambiguity which is apparent upon a comparison of § 2-9-111, MCA, the immunity section, and § 20-3-331, MCA, which authorizes the trustees of a school district to purchase insurance coverage against liability for death, injury or disability of any person. Essentially plaintiffs argue there is no purpose in authorizing a school district to purchase liability insurance if there is immunity. This contention is cared for in Part II of this opinion in which we conclude that the purchase of liability insurance in this case does constitute a waiver of immunity.

Plaintiffs contend there is ambiguity as a result of the various cases previously decided in Montana. In particular, plaintiffs rely upon B.M. v. State (1982), 200 Mont. 58,649 P.2d 425, [1 Ed.Law 157.] Plaintiffs argue that in B.M. this Court found there was no governmental immunity for negligence committed under a special education program and that such theory should be applied in the present case. In considering the cases, it is necessary that we first set forth the provisions of § 2-9-111, MCA:

“Immunity from suit for legislative acts and omissions. (1) As used in this section:

“(a) the term ‘governmental entity5 includes the state, counties, municipalities, and school districts;
“(b) the term ‘legislative body5 includes the legislature vested with legislative power by Article V of The Constitution of the State of Montana and any local governmental entity given legislative powers by statute, including school boards.
“(2) A governmental entity is immune from suit for an act or omission of its legislative body or a member, officer, or agent thereof.
“(3) A member, officer, or agent of a legislative body is immune for damages arising from the lawful discharge of an official duty associated with the introduction or consideration of legislation or action by the legislative body.
“(4) The immunity provided for in this section does not extend to any tort committed by the use of a motor vehicle, aircraft, or other means of transportation.”

Plaintiffs have not discussed the cases subsequent to B.M. which must be considered. In State ex rel. Eccleston v. Montana Third Judicial Dist. Ct. (1989), 240 Mont. 44, 53, [8 Ed.Law 146g,] 783 P.2d 363, 369, the forth the contentions of the plaintiffs in B.M. and stated:

“In B.M., the plaintiffs sued the State for negligence in placing a six-year old child in a special education program for educable mentally retarded children. The State was granted summary judgment based on immunity under § 2-9-111, MCA. We reversed on the grounds that the legislature had not enacted legislation to limit the liability of school boards in the administration of special education programs. We held that in the absence of a clear statutory declaration granting immunity it is this Court’s duty to permit rather than to deny an action for negligence. B.M., 649 P.2d at 427.”

However, Eccleston pointed out that § 2-9-111, MCA, was not discussed in B.M. In concluding that under the decisions, the plain language of the statute constitutes a clear statutory declaration granting immunity, the Court said in Eccleston:

“The plain meaning of the actual language used in § 2-9-111, MCA, was not discussed in our decision in B.M. v. State. We have decided several other immunity cases since our 1982 decision in B.M. In the process, we have arrived at the current construction of § 2-9-111, MCA, on a case-by-case basis. B.M.’s rule of strict construction still holds true. However it is now clear, particularly after our decisions in Bieber [v. Broadwater County, (1988) 232 Mont. 487, 759 P.2d 145,] and Peterson v. [Great Falls School District No. 1, (1989) 237 Mont. 376, 773 P.2d 316, 8 Ed.Law 61,] that the plain language of the statute constitutes a clear statutory declaration granting immunity to the relators in this case.”

Eccleston, 783 P.2d at 369. The Court then analyzed further and pointed out that the statute granted immunity to both the school district and its individual employees, and stated:

“In this regard, we are not asserting in this opinion that the statute is unequivocally clear at first glance. Indeed, several interpretations of § 2-9-111, MCA, have been argued in the line of cases that have come before us since the statute’s adoption. However, it is this line of cases, particularly our recent decisions in Bieber and Peterson that has given a specific and reasonable interpretation to the statute based on the plain meaning of the actual language used. Moreover, this interpretation of § 2-9-111, MCA, leads us to but one conclusion: the statute grants immunity to both the school district and its individual employees in this case.”

Id. at 369. It is clear that Eccleston disposes of the argument made by the plaintiff. This interpretation was approved in Hayworth v. School Dist. No. 19 (1990), 243 Mont. 503, 795 P.2d 470, [9 Ed.Law 108,] in which this Court affirmed the Eccleston rationale and its interpretation of B.M., and reached the conclusion that the claims of the plaintiffs in Hayworth were barred by the immunity found in § 2-9-111, MCA.

In a similar manner, in Crowell v. School Dist. No. 7 (Mont. 1991), 805 P.2d 522, 48 St.Rep. 81 [10 Ed. Law 8,] this Court affirmed the rationale of Eccleston, holding that the school district in Crowell was immune from suit for an act or omission of its agent and that the physical education teacher was the agent of the school district. Further the Court concluded that the claim for damages arose from the lawful discharge by the teacher of an official duty associated with actions of the school district and its legislative body. The Court held that the physical education teacher was immune under § 2-9-111, MCA.

Montana now has a number of consistent interpretations of § 2-9-111, MCA, which are controlling on the present issue. We conclude that there is no basis for a reversal of the holding of the District Court that the defendants were immune under the provisions of § 2-9-111, MCA.

II.

Does the purchase of insurance waive immunity?

Plaintiffs maintain that even if the School District and its employees are immune, such immunity is waived to the extent of existing liability insurance coverage. The School District argues that the grant of immunity is a public right which cannot be waived.

In Crowell this Court concluded that the purchase of insurance may constitute a waiver of immunity by a school district. In Crowell, the plaintiff alleged that the negligence of the physical education teacher and the school district caused her injuries. Summary judgment was granted to the defendants based on immunity. On appeal plaintiff contended that any such immunity was waived by the school district’s purchase of an insurance policy specifically covering teachers and physical training instructors. After an extensive review of Montana legislative history and the case law of other jurisdictions, this Court concluded:

“We emphasize that Montana’s statutory provisions are unique. We conclude that the Montana Legislature has reached the following conclusion: while a school district is granted immunity of various types, a school district still is granted authority to purchase insurance which may have the effect of waiver of immunity to the extent of the insurance proceeds. We do not find it necessary to imply a waiver, as the intention of the Legislature is clear. That intention is reemphasized by its authorization of tax levies sufficient to pay for insurance premiums. That intention is consistent with the legislative theory that a claim against a school district should be paid in a manner similar to payment required of a private party. We conclude that the Legislature has declared its intent to allow a school district to waive immunity to the extent of the insurance proceeds.”

Crowell, 805 P.2d at 533. This Court then made the following holding:

“Balancing all applicable factors, we hold that the purchase by the School District of liability insurance waives its immunity to the extent of the coverage granted by the pertinent insurance policy.”

Crowell, 805 P.2d at 534.

In accordance with the holding in Crowell, we hold that the purchase by the School District of liability insurance waives its immunity to the extent of the coverage granted by the pertinent insurance policies. We remand to the District Court for further proceedings consistent with this holding.

III.

Did the District Court improperly fail to rule on plaintiffs’ claims under 42 U.S.C. § 1983?

By its Opinion and Order dated January 25, 1990, the District Court granted defendants’ motion to dismiss the Amended Complaint with prejudice on the grounds that the named defendants were immune from suit for damages under § 2-9-111, MCA, and cases interpreting that section. The District Court did not specifically rule on the § 1983 claims. Plaintiffs contend that the District Court abused its discretion by dismissing those claims. The defendants urge that the doctrine of implied findings should be used to reach the conclusion that the District Court did rule on the federal claims.

In a consideration of the § 1983 claims of the plaintiffs, the District Court was required to analyze the complaint, the facts presented to it, and to apply the law in reaching a decision as to whether or not § 1983 claims were barred. The court did not make such an analysis. Apparently it assumed that the § 1983 claims would be barred under § 2-9-111, MCA. We note that Howlett v. Rose (1990),_U.S._, 110 S.Ct. 2430, 110 L.Ed.2d 332, is a case in which the United States Supreme Court concluded that a state immunity defense was not available in a § 1983 action brought in a state court, when such a defense would not be available if the action were brought in a federal court. Howlett precludes any implication on our part that the District Court properly dismissed § 1983 claims.

We therefore remand this issue for consideration and determination by the District Court.

IV.

Is § 2-9-111, MCA, unconstitutional?

In their pleadings the plaintiffs briefly alleged deprivation of constitutional rights. In a similar manner, plaintiffs’ briefs contain only a limited argument on theories of unconstitutionality. It appears that the plaintiffs added constitutional arguments in the hope that if previous contentions failed, there might be some basis for a reversal on theories of unconstitutionality. In view of our remand to the District Court on the issues of waiver of immunity by insurance and also 42 U.S.C. § 1983, it may be that the plaintiffs will choose no longer to urge the constitutional issues. If they conclude that they wish to present such issues, then both sides may present their theories and briefs to the District Court and request an appropriate determination by that court. We note that the District Court did not rule on this issue. We conclude it is not appropriate in this case to consider the issue of unconstitutionality of § 2-9-111, MCA.

We reverse the orders of dismissal of the District Court and remand for further proceedings consistent with this opinion.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON and McDonough concur.

JUSTICE TRIEWEILER

concurring in part and dissenting in part.

I concur with the result of the majority opinion. Based upon this Court’s decision in Crowell v. School Dist. No. 7 of Gallatin County, [247 Mont. 38,] 805 P.2d 522, 48 St.Rep. 81 [10 Ed.Law 8,] (Mont. 1991), hat this case should be remanded to the District Court for further proceedings consistent with that opinion. However, I disagree with the reasoning of the Crowell decision. It is clear to me that the legislature did not authorize the waiver of immunity when it authorized local governments to purchase insurance. It authorized local governments to purchase insurance because it never did create the kind of local governmental immunity that has been found to exist by this Court.

I also concur in that part of the majority’s opinion which remands this case to the District Court for proper consideration of the plaintiffs’ claims under 42 U.S.C. § 1983.

I dissent from that part of the majority’s opinion which holds that § 2-9-111, MCA, clearly and unambiguously provides immunity to the Missoula School District and its employees for the acts complained of by the plaintiffs.

To understand just how far we have come with this Court’s unique brand of judicial activism, it is necessary to put this holding in the proper perspective. The defendant, R.B., is accused of raping and sodomizing a four-year-old special education student, and in the process, causing serious physical and emotional injury. In order to immunize the school district and all of its employees, this Court had to conclude that the depraved conduct which is complained of was “action by the legislative body.” I am confident that the members of the Board for the Missoula School District will take no satisfaction in this appalling conclusion.

Section 2-9-111, MCA, is a poorly worded statute which provides different types of immunity to different defendants. Subsection (2) is relatively straightforward and provides that “[a] governmental entity is immune from suit for an act or omission of its legislative body or a member, officer, or agent thereof.” (Emphasis added.)

However, subsection (3), which pertains to governmental employees in their individual capacities, sets forth a completely different description of when immunity applies. It states:

“A member, officer, or agent of a legislative body is immune from suit for damages arising from the lawful discharge of an official duty associated with the introduction or consideration of legislation or action by the legislative body.” Section 2-9-111(3), MCA.

In this case, plaintiffs sued both the school district and several of its employees.

It is obvious from any reasonable interpretation of these two sections that liability of individual governmental employees is granted on a much more limited basis than liability for the governmental entity itself. If not, it would have been a simple matter for the legislature to provide in subsection (2) that “a governmental entity and its employees are immune from suit from an act or omission of its legislative body, or a member, officer, or agent thereof.” (Emphasis added.) The legislature chose not to do that. Therefore, this Court should not do so.

In his concurring opinion to Crowell, Chief Justice J.A. Turnage correctly points out that:

“ ‘In the construction of a statute, the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted.’ Section 1-2-101, MCA. This is the rule of law governing statutory construction, and it is an appropriate and proper rule. There is no place for individual preference or desire to become the rule of law when the Court interprets statutory language.”

I agree with Chief Justice Turnage’s conclusion regarding the proper role of this Court. However, I disagree that this Court has adhered to that rule of statutory construction when interpreting § 2-9-111, MCA. If it did, it could certainly not have concluded that the sodomization and rape of a four-year-old special education student by a teacher’s aide was “the lawful discharge of an official duty associated with the introduction or consideration of legislation or action by the legislative body.”

The reason we are at the point we have reached with today’s decision is that this Court has ignored the statutory admonishment found in § 1-2-101, MCA, and substituted its collective personal preference for a literal application of the statutory language found in § 2-9-111(3), MCA. The misapplication of that statute will result in countless hardships to innocent victims throughout the State of Montana. I prefer not to be part of blind adherence to precedent which is both legally incorrect and morally indefensible.

Furthermore, I dissent from that part of the majority decision which refuses to address the constitutionality of § 2-9-111, MCA, as it has been applied by this Court.

The principal reason for which this Court exists is to enforce the Constitution of the State of Montana. When the legislature, through its statutes (as they are written or as this Court interprets them), violates the Constitution, this Court owes Montana’s citizens its judgment to that effect.

Article II, § 4, of the Montana Constitution provides in part that “no person shall be denied the equal protection of the laws.” That provision of our state constitution is similar to rights provided for in the 14th Amendment of the United States Constitution. The equal protection clauses of both constitutions go to the very heart of the reason for which this Court exists. They guarantee that all Montana citizens shall be treated fairly.

There is no greater example in the recent history of this Court of unfair treatment of Montana citizens than in this Court’s recent decisions on the issue of local governmental liability. Those decisions have been inconsistent and irrational. And yet, they deny Montana citizens the most fundamental rights that any citizen in a free country possesses. They deny Montanans the right to use their courts to seek redress from a government which injures them through irresponsible, negligent, or even intentional and unlawful conduct.

In Meech v. Hillhaven, 238 Mont. 21, 776 P.2d 488 (1989), this Court held that there is no fundamental right in Montana to full legal redress for injuries or damages caused by the unlawful or negligent act of another. Therefore, according to that decision, classifications which give different rights to different classes of tort victims need not pass the strict scrutiny test and need not be justified by a compelling governmental interest. The state need only establish that the disparate treatment of similar claims is rationally related to a state interest. While I disagree with this Court’s decision in Meech, I am satisfied that the patchwork of arbitrary classifications created by this Court’s decisions on local governmental liability cannot meet the most liberal rational basis analysis.

According to this Court’s decisions, if a person is seriously injured due to the negligent maintenance and signing of roads in Fallon County, that person has no recourse against local government. Miller v. Fallon County, 240 Mont. 241, 783 P.2d 419 (1989). However, if that same person sustains the same injuries under the exact same circumstances in the City of Billings, he may be fully compensated. Irion v. Peterson, [247 Mont. 459,] 807 P.2d 714, 48 St.Rep. 258 [10 Ed.Law 83,] (Mont. 1991). What is the rational basis for such a distinction?

Under this Court’s application of the law, if a local citizen is paralyzed because a county road crew digs a ten foot ditch across the road and leaves it unmarked at night, that victim is without any remedy. Miller. However, if a member of the same road crew gets into a county truck, rims a red light and strikes another local citizen, that citizen can be fully compensated, no matter how minor his or her injury. § 2-9-111(4), MCA. What is the rational basis for such a distinction?

Under this Court’s series of decisions, if a local citizen is injured because he or she slips on the steps at the University of Montana, that person may be fully compensated. Mitchell v. University of Montana, 240 Mont. 261, 783 P.2d 1337, [8 Ed.Law 147,] (1989). However, if that same person is injured because he slips and falls on the steps of the local junior high school, he is without a remedy. State ex rel. Ecceleston v. District Court, 240 Mont. 44, [8 Ed.Law 146g,] 783 P.2d 363 (1989). What is the rational basis for such a distinction?

Under this Court’s decisions, if a Montana citizen is injured due to the negligence or illegal conduct of a member of the park board which is appointed by the county commission in Yellowstone County, that person may be fully compensated. Koch v. Yellowstone County, 243 Mont. 447, 795 P.2d 454, (1990). However, if that same person is injured due to the negligence of the road foreman hired by the commissioners for Yellowstone County, that person is without a remedy. Miller.

Under this Court’s recent decisions, if a citizen of Montana is injured due to the negligence of an employee of the Town of Whitefish, and if that town is responsible enough to purchase liability insurance for the protection of its citizens, then that injured victim can be fully compensated for his injuries. Crowell. However, if that person’s spouse is injured by the same conduct and under the same circumstances, by public officials in Kalispell, and if that town is irresponsible enough to go without liability insurance, then that person is entitled to no compensation, no matter how disabling or catastrophic his injuries. What is the rational basis for any of these distinctions?

If this Court can conceive for a rational basis for the arbitrary classifications of tort victims that have been established by its series of decisions set forth above, then it has rendered the important constitutional guarantee of “equal protection” meaningless, and no one in Montana is protected from the arbitrary whims that create discrimination among its citizens.

If the equal protection clause is so meaningless, then the legislature can decide that doctors can be sued, but that lawyers are immune; that plumbers can be sued, but that carpenters are immune; and that women can be sued, but that men are immune. The ultimate test will be who has the most influential lobby at the legislature.

To avoid such situations is exactly why we have a constitution and a judicial branch of government. However, the majority has abdicated its responsibility to address this critical issue based on speculation that plaintiffs were not that serious about it in the first place.

On appeal, the plaintiffs have clearly raised the fact that they, as victims of abuse in a public school, are being treated differently than if they had suffered the same abuse in a private school. There is no question about the fact that if a four-year-old preschool student was sodomized and raped in a private school, she and her family would be entitled to reasonable compensation for the terrible physical and emotional injuries that she had sustained. On appeal, the plaintiffs have asked this Court to justify that arbitrary class distinction. This Court obviously cannot do so, and so, has, in effect, told the plaintiffs, “don’t bother us with constitutional technicalities.”

It is ironic that during the same year that Montana became the 48th state to honor slain civil rights symbol, Martin Luther King, Jr., this Court refuses to recognize the civil rights of its private citizens when in conflict with local bureaucrats and their agents.

I would accept this Court’s obligation to decide the constitutionality of § 2-9-111, MCA, as it has been applied, and I would find that, as it has been applied, it violates the equal protection clause of the Montana and federal Constitutions.

For these reasons I dissent from the majority opinion.

JUSTICE HUNT

concurring and dissenting:

I concur in the foregoing concurrence and dissent of Justice Trieweiler.

JUSTICE GRAY

concurring in part and dissenting in part.

I agree with the result of the majority opinion in remanding to the District Court for further proceedings in light of the availability of insurance coverage, although I disagree with its rationale in Crowell v. School Dist. No. 7 (Mont. 1991), [247 Mont. 38, ] 805 P.2d 522, 48 St.Rep. 81, [10 Ed.Law 8,] that the availability of the coverage is predicated upon a waiver of immunity. I also agree with the majority’s remand for consideration and determination of the § 1983 claims. I must, however, respectfully dissent from the Court’s interpretation of § 2-9-111, MCA, as it applies to this case and from the Court’s refusal to address the constitutional issue before it.

With regard to the immunity issue, I am not blind to the importance of precedent. However, I cannot assent to the application of this Court’s precedents in the area of so-called legislative immunity as it relates to this case. For the Court to expand its previous holdings which were, in my view, legally incorrect to begin with, to provide immunity to an employee who (if the allegations herein are taken as true) rapes and sodomizes a four-year-old special education student on the basis that the employee was engaged in the “lawful discharge of an official duty associated with action by the legislative body” is beyond the bounds of reason, legal or otherwise.

Finally, it is my view that the Court has an obligation to address the equal protection issue which is before it. The classifications which have resulted from the Court’s immunity rulings are troubling, at best, and may be constitutionally infirm. I have not determined whether I believe those classifications can meet the rational basis test. I am, however, convinced that it is time for the Court as a whole to address the question. If it is the Court’s view that additional briefing or argument is needed, the Court need only direct such a course of action. We should not careen farther down the immunity path without determining whether we have been a party, through our interpretations of legislative enactments, to depriving the citizens of Montana of their constitutional rights.


author: JUSTICE HARRISON JUSTICE WEBER, JUSTICE TRIEWEILER,

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. MARK STUART GORDER, Defendant and Appellant.
    No. 90-403.
    Submitted on briefs Mar. 4, 1991.
    Decided May 23, 1991.
    248 Mont. 336.
    811 P.2d 1291.
    Julie A. Macek, Great Falls, for defendant and appellant.
    Marc Racicot, Atty. Gen., Elizabeth L. Griffing, Asst. Atty. Gen.,

      Helena, Patrick L. Paul, Cascade County Atty., Steven Hudspeth,
    Deputy County Atty., Great Falls, for plaintiff and respondent.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Defendant/appellant, Mark Stuart Gorder, was convicted of criminal possession of dangerous drugs, a felony pursuant to § 45-9-102, MCA, following a jury trial in the District Court of the Eighth Judicial District, Cascade County. He appeals. We reverse.

On November 28, 1988, two agents from the State’s Criminal Investigation Bureau traveled to Great Falls, Montana, to serve an arrest warrant on appellant for charges pending against him in another county in Montana. In the initial appearance on these charges appellant stated that his residence was a travel trailer located on Lot No. 12, Cascade Trailer Park, Cascade, Montana.

Law enforcement officers applied for and received a search warrant for the travel trailer located in Cascade. They went to the trailer park and determined that appellant’s trailer was in storage and had not been occupied recently. The officers searched the trailer and found a folded ten-dollar bill in the cupboard area above a couch which folded out to a bed. One officer picked up the bill, put it in his hand, examined it, then replaced the bill in the cupboard and photographed it. The officer testified that he noted a small amount of white powdery substance on the bill.

When the bill was sent to the crime laboratory, the lab found the powder folded within the bill weighed .05 grams or 50 milligrams which is one-twentieth of a gram. The powder tested positive for cocaine. The bill at no time was processed for fingerprints.

One Bob Neer testified for appellant at trial, stating that he stayed with appellant in his trailer during a week to ten-day visit with appellant in Minnesota in February of 1988. Neer testified that during that visit he purchased half a gram of cocaine which was contained in a folded ten-dollar bill. While visiting appellant, Neer would empty his pockets and put the contents in the cupboard above the bed where the ten-dollar bill containing cocaine was later found by law officers. Neer further testified that he had forgotten the bill and some clothes in appellant’s trailer. During cross-examination the deputy county attorney asked Neer, “Did you ever tell the defendant you bought some cocaine?” Neer answered: “No.”

The issue is whether there was sufficient evidence to support the jury’s verdict that appellant possessed dangerous drugs.

In State v. Smith (1983), 203 Mont. 346, 661 P.2d 463, this Court held that felony criminal possession of a dangerous drug requires proof that a defendant (1) possessed (2) dangerous drugs. Section 45-2-101(52), MCA, defines “possession” as “the knowing control of anything for a sufficient time to be able to terminate control.” Thus, the mental state of “knowingly” is also contained in the definition of possession of dangerous drugs. Section 45-9-102(1), MCA.

Therefore to establish the offense of criminal possession of dangerous drugs, a felony, under § 45-9-102, MCA, the State must prove: (1) knowing (2) control of a (3) dangerous drug for a sufficient time to be able to terminate control. See Compiler’s Comments, § 45-9-102, MCA.

The standard of review to be applied is whether, after reviewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the three essential elements of the crime charged beyond a reasonable doubt. Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed. 2d 560, 573; State v. McDonald (1987), 226 Mont. 208, 210, 734 P.2d 1216, 1217.

Here the State failed to prove beyond a reasonable doubt that appellant had “possession” of the cocaine. There is no evidence that appellant had any “actual” possession of the cocaine. The State’s evidence that the appellant had “constructive” possession of the ten-dollar bill containing traces of cocaine is not sufficient to find appellant guilty of a felony.

Other than the fact that the trailer was owned by appellant, no evidence was presented to the jury as to appellant’s ownership of the drug. The State did not rebut the testimony of Mr. Neer that he was the owner of the ten-dollar bill which contained the traces of cocaine. Where the drug belonged to Mr. Neer, there was a lack of showing that appellant had “dominion” over the drug. The State failed to prove the element of possession.

The second element the State must prove beyond a reasonable doubt is that any possession of the drug by appellant must have been “knowingly.” Section 45-2-101(33), MCA, provides that a person acts knowingly with respect to a circumstance described by a statute “when he is aware ... that the circumstance exists.” The State has failed to carry the burden of showing that appellant knew the prohibited substance was either in his “dominion” or “known” to be in his “possession.” See State ex rel. Glantz v. District Court (1969), 154 Mont. 132, 461 P.2d 193.

Other than the fact that the drug was found in appellant’s trailer, no evidence was produced to tie appellant to the drug. Appellant testified that the last time he had lived in the trailer was in the summer of 1988 at Essex, Montana. People were in and out of the trailer in Essex. At the end of August the trailer was moved to Cascade. Appellant testified that in September of 1988, he cleaned out the trailer, prepared it for winter storage and took all items of value from the trailer. The evidence was that appellant’s stored travel trailer had no water hook up, no electricity, no edible food, and the windows were shuttered and the door padlocked. Appellant further testified that the trailer, while parked in Cascade, was broken into twice and beer cans and other evidence of a party were left in the trailer. Another witness testified that he was with appellant when the first break-in was discovered. Appellant’s father testified that after the second break-in he saw where the door of the trailer had been pried open when he put on a hasp for a new lock.

Without any further proof of appellant’s ownership or knowledge of the ten-dollar bill containing the drug, we hold that the mere fact that the bill was found in appellant’s stored travel trailer would not allow any rational trier of fact to conclude that appellant had knowing possession of the drug. Such a result would, in this Court’s opinion, be both unjust and unsupported by the evidence.

We reverse the conviction of appellant for criminal possession of dangerous drugs and direct that charges against appellant in this matter be dismissed with prejudice.

JUSTICES GRAY, HUNT and TRIEWEILER concur.

JUSTICE WEBER,

dissenting:

Possession of dangerous drugs maybe either “actual” or “constructive”. State v. Meader (1979), 184 Mont. 32, 42, 601 P.2d 386, 392. Actual possession means that the drugs are in the personal custody of the person charged with possession; whereas constructive possession means that the drugs are not in actual physical possession but that the person charged with possession has dominion and control over the drugs. Meader, 184 Mont, at 42,601 P.2d at 392. Constructive possession is shown when a person either has control or a right to control the drug. Meader, 184 Mont. at 43, 601 P.2d at 392.

The mental state of “knowingly” may be inferred from the acts of the accused and the facts and circumstances connected with the offense. § 45-2-103(3), MCA. Although knowledge may not be inferred from mere possession alone, knowledge may be proved by evidence of acts, declarations or conduct of the accused from which an inference of knowledge may be drawn. State v. Krum (1989), 238 Mont. 359, 362, 777 P.2d 889, 891. The question of intent therefore is a question for the jury. Meader, 184 Mont. at 43, 601 P.2d at 392.

The facts cited by the majority opinion to support its conclusion are directly from defendant’s own testimony. Defendant himself contradicted many of those facts during his testimony. When conflicting evidence exists, the credibility and weight given to the conflicting evidence is within the jury’s province. § 26-1-302, MCA; Wheeler v. City of Bozeman (1988), 232 Mont. 433, 437, 757 P.2d 345, 347.

In the initial appearance on these charges defendant stated that his residence was a travel trailer located on Lot No. 12, Cascade Trailer Park, Cascade, Montana. A search warrant was obtained for the trailer and in the course of the search the officers found in a cupboard a folded ten-doflar bill containing approximately .05 grams of cocaine.

Bob Neer, witness for the defense, testified that the folded ten-dollar bill containing cocaine belonged to him rather than the defendant and had been placed in the cupboard by him several months earlier. Defendant claims he did not know the bill was in the cupboard and argues that he could not have control when he did not know that the bill existed. The facts support a contrary inference.

The trailer was registered to the defendant who admitted that he had purchased the trailer and had lived in the trailer until September of 1988. Defendant listed the trailer as his address when he was arrested. The travel trailer was not hooked up to water or power but the defendant admitted that he spent an occasional night there. He kept his belongings and clothing in the cupboards, including the cupboard where the cocaine was found. He used a padlock to secure the trailer. The officers who conducted the search of the trailer obtained keys from the defendant to the padlock on the trailer. The defendant testified that, in September, he prepared the trailer for winter and cleaned it out, including the cupboards. He also testified that the trailer had been broken into twice but that after the second break-in, he had cleaned the trailer, checked the cupboards, and put a bigger lock on the door. He continued to check the trailer regularly and had been in the trailer a couple of weeks prior to the search in November 1988. All of these activities by defendant occurred after Bob Neer allegedly left the ten dollar bill in the cupboard. The officer testified that the bill was easily seen when he opened the cupboard door.

Under facts strikingly similar to this case, we recently held that the facts supported the inference that defendant had knowing control and possession of the cocaine. State v. Van Voast (1991), [247 Mont. 194,] 805 P.2d 1380, 48 St.Rep. 160. In the Van Voast case, the drugs were also found in a stored, locked trailer over which the defendant had dominion and control. We held that the defendant had constructive dominion and control over the drugs contained in the trailer.

As in the Van Voast case, the facts in this case support the conclusion that any rational trier of fact could have found beyond a reasonable doubt the essential elements of the crime and are sufficient to support the conviction of knowing possession of dangerous drugs. By reversing this case, the majority has ignored the Van Voast case and has assumed the fact finding role of the jury.

CHIEF JUSTICE TURNAGE and JUSTICE McDONOUGH concur in the foregoing dissent of Justice Weber.

JUSTICE TRIEWEILER,

concurring:

I concur in the majority opinion.

The thrust of the dissenting opinion is to point out that the defendant’s testimony was contradicted — as if that fact is somehow relevant.

The defendant did not have the burden of proving his innocence. The State had the burden of proving his guilt.

In this case, the State had the burden of proving that the defendant knowingly possessed a dangerous drug. All the State did prove was that residue of cocaine was found on a ten dollar bill located in a locked-up, uninhabitable travel trailer which the defendant had abandoned a couple of months before the drug was found. Those facts are simply not sufficient to put someone in jail for commission of a serious felony.

Section 45-2-101(52), MCA, provides that “ ‘[possession’ is the knowing control of anything for a sufficient time to terminate control.” (Emphasis added.)

Section 45-2-101(33), MCA, provides that a person acts knowingly with respect to a circumstance described in a statute “when he is aware ... that the circumstance exists.”

The State has argued, and the dissenters have concluded, that this defendant did not have actual possession of a dangerous drug, but that he had constructive possession since he had dominion and control over the travel trailer in which the drug was found. However, constructive possession without knowledge is not sufficient for conviction of the crime of which the defendant was accused. Furthermore, this Court has previously held that knowledge may not be inferred from possession alone. State v. Krum, 238 Mont. 359, 362, 777 P.2d 889, 891 (1989).

In this case, there was absolutely no substantial evidence to prove the defendant had knowledge that cocaine was located in his travel trailer, other than the fact that he owned the travel trailer.

The mere fact that he had cleaned the trailer out at some time before abandoning it does not make it any more likely that he knew of the presence of drugs. In fact, it is more reasonable to infer that if he had been aware of the presence of the ten dollar bill when he cleaned the trailer out and abandoned it, he would not have left it in the trailer.

Inconsistencies in the defendant’s testimony did not change the fact that the State failed to prove a crucial element of the crime with which the defendant was charged. For these reasons, I concur in the majority opinion.


author: JUSTICE HARRISON

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. NICHOLAS LEE DANIELS, Defendant and Appellant.
    No. 90-488.
    Submitted on briefs Mar. 28, 1991.
    Decided May 23, 1991.
    248 Mont. 343.
    811 P.2d 1286.

      J.B. Wheatcroft, Miles City, for defendant and appellant.
    Marc Racicot, Atty. Gen., Joseph E. Thaggard, Asst., Helena, John Forsythe, County Atty., Forsyth, for plaintiff and respondent.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Nicholas Lee Daniels appeals from a conviction of burglary after a jury trial in the District Court of the Sixteenth Judicial District, in and for the County of Rosebud, State of Montana. We affirm.

Two issues are presented on appeal:

1. Whether the defendant and appellant was denied his right to a speedy trial.
2. Whether the District Court erred in admitting certain evidence of other crimes.

At about 12:30 a.m. on the morning of June 18, 1989, Jerry’s Big Sky Service, a service station located in Forsyth, Montana, was burglarized. Items taken from the service station included cash, candy, sunglasses, a car battery, and cigarettes. During the same night, a pickup truck was stolen from the nearby residence of one Gerald Schaefer.

On June 19, 1989, appellant, then seventeen years old, and his brother, Charles then sixteen, were apprehended in Hutchinson, Minnesota with the Schaefer pickup. The two had escaped from the Pine Hills School for Boys in Miles City, Montana, two days earlier. Items identified as those taken in the Forsyth, Montana, burglary were found in the truck.

The County Attorney of Rosebud County filed a petition in Youth Court on June 27, 1989, charging the appellant with the theft of Schaefer’s truck and the burglary of Jerry’s Big Sky Service. On July 26, 1989, the State moved the Youth Court for leave to transfer the burglary charge to District Court. While the appellant resisted the transfer of the burglary charge to the District Court, he failed to file his proposed findings of fact and conclusions of law with respect to that transfer hearing until August 30,1989. The District Court, on September 20, 1989, granted the State’s motion to transfer the burglary charge from Youth Court to the District Court and filed findings of fact, conclusions of law and an order accomplishing this transfer.

The procedural history which then transpired was as follows:

October 12, 1989: The appellant was arraigned in district court.

October 20,1989: The appellant gave notice of his intent to rely on mental disease or defect as a defense to the charged crime.

October 23,1989: The court held the required omnibus hearing and set the trial for December 13,1989.

October 27,1989: The State gave the appellant the first Just notice of its intent to introduce evidence of other crimes.

November 2, 1989: The appellant moved the court to order a mental examination of him.

November 17,1989: The State moved to consolidate the appellant’s trial with the trial of his brother Charles, a motion the court granted.

November 20, 1989: The court set the consolidated trial for January 23, 1990.

November 30, 1989: The court ordered a mental examination of the appellant.

January 6, 1990: The appellant wrote a letter to Charles Daniels which suggested that the defense attorney had a conflict of interest in representing both brothers in a consolidated trial. The State intercepted the letter and informed the court and the defense attorney that a potential conflict of interest existed.

January 16,1990: The court held a hearing on the potential conflict of interest and noted that the impending trial date would likely be continued.

January 19,1990: The court appointed separate counsel for Charles Daniels.

February 5, 1990: The court set the trial date for March 6, 1990.

February 20, 1990: Charles Daniels’ new attorney moved to sever his trial from that of the appellant.

March 2, 1990: The State moved to continue the trial date because of the unavailability of a witness. The court continued the trial until March 27, 1990.

March 22,1990: Five days before the trial date, the appellant filed a motion to dismiss the instant case for lack of speedy trial.

March 23, 1990: The court continued the trial date in order to provide the State with an opportunity to respond to the appellant’s motion to dismiss.

March 30, 1990: The appellant was released from jail on bail.

April 26,1990: The court denied the appellant’s motion to dismiss.

May 11, 1990: The State filed a second Just notice of its intention to introduce at trial evidence of other crimes, including the theft of Schaefer’s pickup truck.

May 15, 1990: Trial commenced in the instant-case.

Prior to trial, counsel for the appellant filed a motion in limine to prevent the State from admitting evidence of the appellant’s record as a juvenile, including his theft of the pickup truck on the night the burglary occurred. This motion was denied with respect to the theft of the pickup truck, which the court perceived as part of the res gestae of the burglary. At trial, three witnesses called by the State offered evidence and testified concerning possible participation by the appellant in other crimes. Gerald Schaefer testified that his truck had a value in excess of $300. Rosebud County Sheriff’s Deputy Charles Skillen corroborated Mr. Schaefer’s testimony that someone had stolen Schaefer’s truck at approximately the same time as the burglary at Jerry’s Big Sky Service. Deputy Skillen farther testified that the authorities found the pickup truck in Hutchinson, Minnesota. However, the court did not allow Skillen to testify specifically that the appellant and his brother Charles were in possession of the vehicle at the time the police recovered it in Minnesota. All of this testimony went to the chain of custody of the evidence taken from the stolen pickup truck.

In addition to the above testimony, appellant’s brother, Charles, testified for the State and offered testimony regarding the theft of the pickup truck and other crimes committed by the appellant. Charles claimed that the appellant did not enter Jerry’s Big Sky Service, but acted as a lookout during the burglary. Charles’ testimony also revealed that he and the appellant had escaped from Pine Hills School for Boys. However, this testimony was stricken and the jury was directed to disregard the reference to the Pine Hills School for Boys.

Upon completion of the State’s case-in-chief the appellant moved for a mistrial because of the testimony of Deputy Skillen and Charles Daniels about possible other crimes committed by the appellant. This motion was denied. The court ruled that the theft of the truck constituted the same transaction as the burglary and that the references to Pine Hills and other burglaries were inadvertent on the part of the witnesses. The jury found the appellant guilty of the offense charged. He now appeals.

Issue one, the speedy trial issue, is complicated principally because there was a transfer from a juvenile to an adult court. The District Court properly applied the law in determining whether the appellant

was denied a speedy trial, relying on this Court’s opinion in State v. Palmer (1986), 223 Mont. 25, 27, 723 P.2d 956, 958. In Palmer we noted:

“Palmer first contends that he was denied his right to a speedy trial. Any person accused of a crime is guaranteed the right to a speedy trial pursuant to the Sixth Amendment to the United States Constitution, which is made applicable to the states by the Fourteenth Amendment. Klopfer v. North Carolina (1967), 386 U.S. 213, 87 S.Ct. 988, 18 L.Ed. 2d 1. The right to a speedy trial is also guaranteed by Article II, § 24 of the 1972 Montana Constitution. The test to be applied to determine whether an accused’s right to a speedy trial has been violated was first set forth in Barker v. Wingo (1972), 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101. This Court applied and stated the Barker test in State ex rel. Briceno v. District Court (1977), 173 Mont. 516, 518, 568 P.2d 162, 163-64 as follows:
“ ‘These cases involve a sensitive balancing of four factors, in which the conduct of the prosecution and the defendant are weighed in determining whether there has been a denial of the right to a speedy trial. The four factors to be evaluated and balanced are:
“ ‘(1) Length of delay;
“ ‘(2) Reason for delay;
“ ‘(3) Assertion of the right by defendant; and
“ ‘(4) Prejudice to the defendant.’
“This Court has stated that the first of the Barker factors, the length of delay, is the trigger to a speedy trial inquiry. There is no need to examine the latter three factors unless some delay deemed presumptively prejudicial has occurred. State v. Harvey (1979), 184 Mont. 423, 603 P.2d 661.”

The United States Supreme Court has determined that the speedy trial clock does not start running until the defendant becomes an “accused” in a criminal proceeding. United States v. Marion (1971), 404 U.S. 307, 313, 92 S.Ct. 455, 459, 30 L.Ed. 2d 468, 474.

The appellant claims that the time used to figure the length of the delay begins to run on the date he was initially arrested and brought back to Montana from Minnesota, June 19,1989, or at least from the date the original petition for a hearing was filed in the Youth Court, June 27,1989. Relying on Marion, the State claims that the appellant only became an “accused” for purposes of the criminal speedy trial computation when the information was filed in District Court.

We note here that while the State alleged that the appellant did not become a “criminal defendant” subject to the jurisdiction of the District Court until September 26,1989, he went through the civil Youth Court proceedings for a period of time previous to that date. The trial court started the clock when the appellant became an “accused” in the civil Youth Court proceeding on June 27, 1989. The court noted, however, that if the youth resists the motion to transfer to the adult court, that resistance ought to be considered when determining the reasons for the delay and the amount of the delay, if any, which can be charged to him. We agree with the District Court.

The court determined that the total amount of delay in this case was 322 days. That is sufficient to trigger consideration of the remaining Barker factors.

The period from June 27, 1989, to August 7, 1989, is attributable to the State as institutional delay. The court found that the period from August 7,1989, to August 30,1989, was attributed to the appellant in that he resisted transfer to the District Court but did not file his proposed findings with respect to such hearing until August 30, 1989.

The period from August 30, 1989, to December 13, 1989, was charged to the State. There is no indication of intentional delay on the State’s part. The delay is weighed accordingly.

The court found that the period from December 13, 1989, to January 23,1990, was chargeable to the appellant in that the appellant filed a motion for mental examination on November 2, 1989, but failed to provide the court with either a brief or a proposed order as required by the court until November 30, 1989. By that date, it was apparent to the court and to the State that no written report of the mental examination could be had prior to the December 13, 1989, trial date. The court continued the matter to the next available court date, January 23, 1990, on the State’s motion. The court stated this motion should have been made by defense counsel but the State had acted in the absence of affirmative action by defense counsel. The defense did not object and acquiesced in the continuance and the 41 days were therefore attributed to the appellant.

On November 17, 1989, the court granted the State’s motion to consolidate this case with the charges against appellant’s brother Charles Daniels. Defense counsel, who also represented the brother, did not object to the consolidation or raise the issue of a conflict of interest. Thereafter, law enforcement officers intercepted a letter from the appellant to his brother Charles Daniels, in which appellant indicated his position that Charles had committed the burglary while appellant was incapacitated by “alcoholic beverages.” The letter indicated that the appellant knew the police would intercept it. The District Court stated that:

“The court can only conclude that either the defendant or his brother told defense counsel this story early on, or that they hid this fact from him. Defense counsel either knew or should have known, that the defendant’s defense was to include implicating his brother in the companion case. This is a clear conflict of interest situation, which, when it became known to the court, was promptly rectified by appointment of other counsel for the defendant’s brother. Counsel for the defendant’s brother promptly moved to sever the trials and, after a hearing, the court granted the motion to sever the trials. If the defendant’s proposition (that he was asleep while his brother did the crime) were true, this defendant’s counsel should have been the one to file the motion to sever. Indeed, he should have fought the consolidation of the two cases, because the defense counsel was relying on the testimony of a co-defendant which would be exculpatory to the defendant, but necessarily implicate the co-defendant brother in the commission of the offense. When the court questioned defense counsel about this, defense counsel stated that he expected to request the court to grant the co-defendant use immunity in order to obtain his testimony at trial. In a consolidated trial, however, the court cannot force a co-defendant to testify by granting immunity, because the co-defendant would be testifying in front of the very jury charged with determining his guilt or innocence. Therefore, although it was the co-defendant’s counsel who brought the motion to sever, it was actually this defendant’s counsel who should have fought against consolidation in the first place, or, if he were somehow unaware of the conflict at that point, he should have moved to sever and for the appointment of other counsel as soon as he became aware. Of course, if defendant’s proposition that his brother did the crime while he slept is not true, then the court would have to conclude that the defendant knowingly leaked the information to the police in order to create a conflict situation and delay the trial. In either event, the State cannot be chargeable for motions which would have been unnecessary except for the failure of the defendant and his counsel to appropriately communicate or appropriately act on those communications. Therefore, defendant is chargeable with the delay caused by those motions from January 23,1990 to March 6,1990, another 42 days.”

We conclude that this delay was properly charged to appellant.

The State moved to continue the March 6, 1990, trial date due to unavailability of an out-of-state witness. The period from March 6 1990, to the next scheduled trial date of March 27, 1990, is therefore charged to the State.

The final delay charged to appellant occurred after the defense’s March 22, 1990, motion to dismiss for failure to prosecute. This motion was made two business days prior to the scheduled trial date. The court continued the trial date in order to allow the county attorney to respond and itself time to decide the motion, resulting in a 30-day delay which was attributable to the defense. The trial date was then reset to May 15, 1990.

The net result is that 186 days of the delay in bringing appellant to trial were chargeable to the State. Other than the 21-day delay in March due to unavailability of a witness, the reasons for the delay attributable to the State were institutional. Although appellant’s March 22, 1990, assertion of his right to a speedy trial qualifies as one made in a timely manner, we conclude that the delay was not prejudicial. At the time of his arrest, appellant was already under a commitment to the Pine Hills School for Boys. As the District Court noted, appellant was moved to the Rosebud County Jail at the request of the Pine Hills administration, who indicated that appellant had escaped from their institution on numerous occasions and that they could no longer hold him there. Appellant would have been confined for the entire period prior to his trial because of previous unrelated Youth Court actions. Further, there is nothing to indicate that the defense was in any way impaired by the delay in trying appellant. On balancing the factors set forth in Barker, we conclude that the District Court was correct in ruling that appellant was not denied his right to a speedy trial.

The second issue on appeal relates to the evidence presented at trial of past crimes and past criminal conduct charged in Youth Court. These references were made by Detective Skillen and by appellant’s brother.

Skillen’s reference to Pine Hills came as part of his testimony establishing a chain of custody for an exhibit seized in Minnesota and given to Pine Hills employees who retrieved appellant from that state. Rule 404, M.R.Evid., does not prohibit evidence of other crimes unless it is offered to prove the character of a person to show that he acted in conformity therewith. Additionally, we hold that the passing reference that an employee of Pine Hills had brought the exhibit back from Hutchinson, Minnesota, did not violate the confidentiality provisions of §§ 41-5-601 and -602, MCA.

Charles Daniels, who had entered into a plea bargain with the State, was clearly a difficult witness for the State to control. His references to his brother’s juvenile record were not solicited by the State’s questions. Further, the court instructed the jury to consider such evidence only to establish proof of motive, opportunity, plan, knowledge, identity, or absence of mistake or accident. We conclude that under these circumstances the testimony of Charles Daniels is not grounds for reversal of appellant’s conviction.

Affirmed.

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


author: JUSTICE TRIEWEILER

text:
    MICHELLE CHAPMAN, Claimant and Appellant, v. RESEARCH COTTRELL, Employer and Respondent, and NATIONAL UNION FIRE LOSS OF PITTSBURGH, Defendant and Respondent.
    No. 90-574.
    Submitted on briefs Apr. 18, 1991.
    Decided May 23, 1991.
    248 Mont. 353.
    811 P.2d 1283.

      Don Edgar Burris, Billings, for claimant and appellant.
    William J. Mattix, Crowley, Haughey, Hanson, Toole & Dietrich, Billings, for employer and respondent.
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

Michelle Chapman appeals the decision of the Workers’ Compensation Court, holding that the claimant failed to obtain approval of the insurer prior to changing her physician. We reverse the lower court.

The issue before the Court is whether the Workers’ Compensation Court properly concluded that the claimant changed treating physicians without first getting permission from the insurer, in violation of Administrative Rule of Montana 24.29.1403.

Michelle Chapman was injured on May 16, 1989, while in the course and scope of her employment with Research Cottrell in Colstrip, Montana. The claimant sustained her injuries when she fell approximately 12 feet and landed on her side. The claimant reported her injury, and was instructed to rest for the remainder of her work shift.

After returning home, claimant’s friends noticed her discomfort and drove her to a chiropractor, Dr. Howard Norris, in Forsyth. Abrief examination, including X-ray film, was performed, and the claimant was released to return to work. On the following day, claimant reported for work although she continued to be in pain. She was told to discontinue work and was taken to the Colstrip Medical Clinic by a supervisor. There, the claimant was examined by Dr. William Anderson, who, after examining her, prescribed some medication and said she could return to work. Instead, she traveled to Billings to her father’s home to recuperate. She has not returned to Dr. Anderson and he has not treated her, other than with the prescription previously mentioned.

The claimant made two visits to the St. Vincent Hospital Emergency Room on May 18, where she saw Dr. George Angelos and Dr. Gary Mundy. Both doctors noted several contusions, but found no further injury. The claimant states that Dr. Mundy suggested she see a neurologist, Dr. Richard Nelson. On May 22, claimant returned to the St. Vincent Emergency Room, where she was examined by Dr. Kathi Hart, who prescribed changes in her medication and told her to return within a few days if her condition had not improved.

On June 12, the claimant saw Dr. Richard Nelson, who diagnosed cervical and lumbosacral sprain and possible disc herniation. A Magnetic Resonance Imaging scan was ordered, and was conducted by Dr. John Anderson. The MRI showed evidence of disc degeneration and a slight herniation in the lumbar region. Dr. Nelson thereafter reported that the claimant was disabled.

Afew days prior to her initial consultation with Dr. Nelson, a letter was mailed to the claimant from the insurer informing her that she had the right to select her initial treating physician but that any change in physicians had to be authorized by the insurer. The claimant did not seek nor obtain authorization for Dr. Nelson’s services.

By letter dated July 18, 1989, claimant was notified that the insurer did not and would not authorize treatment by Dr. Nelson. Claimant was informed that treatment would be authorized with any orthopedic physician in Yellowstone County or any physician in the Billings Clinic. The letter further indicated that wage loss benefits would not be paid because the reports of Dr. Anderson, Dr. Norris, and the emergency room physicians all indicated no disability. The insurer likewise notified Dr. Nelson, Dr. John Anderson, Physical Therapist Mary Mistal, and the Billings MRI Center that their services were not authorized, and that the insurer was not responsible for payment. Nevertheless, payment was made by the insurer for medical services rendered prior to July 18, 1989.

An independent medical examination was arranged by the insurer to determine the nature of claimant’s injury and the extent of her disability. Dr. William Shaw diagnosed significant decrease in the range of motion of the right shoulder and radicular pain, coupled with degenerative disc disease. He found that further treatment was warranted and that the claimant had not reached maximum healing. Upon receipt of Dr. Shaw’s report, the insurer began payment of temporary total disability benefits retroactive to May 25, 1989. The insurer continued to refuse authorization for claimant to be treated by Dr. Nelson, asserting that Dr. William Anderson of Colstrip was the initial treating physician, even though Dr. Anderson was now 124 miles from where she resided.

Claimant filed a petition with the Workers’ Compensation Court to resolve the dispute regarding the treating physician. The court held that the insurer was liable for all medical bills up to July 18, 1989, when proper notification was given to the claimant that treatment by Dr. Nelson would not be authorized, but that all medical services provided by Dr. Nelson after that date were not the responsibility of the insurer. The court held that the insurer was required to specify its reasons for refusing to authorize a change of treating physician, and that the claimant could further petition the court if not satisfied with the insurer’s reasoning for the refusal. Those reasons have never been provided. This appeal followed.

On appeal, the claimant asserts that Dr. Nelson was the first physician that she selected to treat her, and that she is entitled to a 20 percent penalty and attorney fees and costs. The chronology of her medical visits is:

1. Dr. Norris (Forsyth).
2. Dr. William Anderson (Colstrip)
3. St. Vincent Hospital ER Doctors Angelos, Mundy, and Hart (Billings).
4. Dr. Nelson (Billings).

The lower court did not find that Dr. Norris was the claimant’s treating physician, but that “the insurer considered Dr. Anderson to be the treating physician.” The insurer does not appeal this finding of fact. Therefore, this Court will not consider any contentions on the part of the insurer that Dr. Norris was the claimant’s treating physician. Neither of the parties nor the court concluded that any of the emergency room physicians were the claimant’s choice as treating physician. The issue then is whether the claimant chose Dr. William Anderson as her treating physician or Dr. Richard Nelson.

The administrative rule in question, A.R.M. 24.29.1403, states: “The injured worker may select the physician to provide the initial treatment. Authorization is required to change treating physicians.”

The claimant in this case did not actively choose Dr. Anderson as her treating physician. That choice of a physician was made by a supervisor who drove the claimant to Dr. Anderson. Claimant maintains, and we concur, that Dr. Anderson was not the physician selected as her initial treating physician.

The Workers’ Compensation Court relied upon this Court’s decision in Garland v. Anaconda Company, 177 Mont. 240, 244, 581 P.2d 431, 433 (1978), in determining that the claimant had made an unauthorized switch of treating physicians. The Court stated that the proper result when the claimant fails to comply with the rule is that the employer cannot be charged for the services of the unauthorized second doctor. However, Garland is factually distinguishable. In Garland, the claimant saw a chiropractor on his own initiative on four separate occasions. The chiropractor treated him, at his request, on a number of occasions. In the instant case, Dr. Anderson was not selected by the claimant, and the only treatment he performed was to prescribe medication, which was later discontinued by other physicians.

The claimant in this case continued to see several physicians until she found one who accurately diagnosed her injury. That was Dr. Richard Nelson. That diagnosis was borne out by an MRI scan and the injuries diagnosed to her lower back were later verified by the insurer’s chosen physician, Dr. Shaw. It is clear that the diagnosis by Dr. Nelson was the first correct diagnosis. It was only after that diagnosis that claimant began a proper course of treatment for her work-related injury.

Dr. Anderson did not correctly diagnose claimant’s injury. Therefore he could not have treated her for it. We find that the claimant’s choice of physicians was proper in this instance, and accordingly reverse the lower court.

Under § 39-71-611, MCA, as amended in 1987, it was necessary for the Workers’ Compensation Court to find that the insurer acted unreasonably before awarding attorney fees. Pursuant to § 39-71-2907, MCA, the same requirement is a prerequisite for an award of the statutory penalty. We conclude that there was evidence offered from which the trial corut could find that the insurer acted reasonably, and therefore affirm the court’s decision to deny attorney fees and penalty.

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