author: JUSTICE GRAY JUSTICE McDONOUGH

text:
    J. ROBERT RILEY, Plaintiff and Appellant, v. AMERICAN HONDA MOTOR CO., INC., Defendant and Respondent.
    No. 91-143.
    Submitted December 10, 1992.
    Rehearing Denied Aug. 17, 1993.
    Decided June 22, 1993.
    50 St.Rep. 714.
    259 Mont. 128.
    856 P.2d 196.

      For Plaintiff and Appellant: David M. McLean (argued); Knight, Dahood, McLean & Everett, Anaconda.
    For Defendant and Respondent: R. H. Bellingham (argued), Scot Schermerhorn; Moulton, Bellingham, Longo & Mather, Billings.
   JUSTICE GRAY

delivered the Opinion of the Court.

Robert Riley appeals from an order of the Third Judicial District Court, Powell County, denying his motion for judgment notwithstanding the verdict or a new trial. We affirm.

We restate the issue on appeal as whether the District Court erred in directing a verdict on the failure to warn claim.

On May 3, 1980, J. Robert Riley (Riley) test drove a 1978 Honda GL1000 “Goldwing” motorcycle owned by his friend, Michael Dolce. Riley intended to drive the motorcycle from Missoula to Helena. Approximately eight miles east of Garrison Junction, however, Riley lost control of the motorcycle and drove onto a graveled area off the left shoulder of the highway. The motorcycle flipped as Riley attempted to negotiate it back onto the pavement, throwing Riley down a steep embankment. The accident rendered Riley a quadriplegic.

On April 28, 1983, Riley filed suit against American Honda Motor Company (Honda), the original distributor of the motorcycle. Riley asserted several negligence claims, as well as design defect, manufacturing defect and failure to warn claims under the theory of strict products liability. Riley abandoned the negligence claims prior to trial.

Ajury trial began on September 17,1990. Riley contended that the motorcycle had a propensity to wobble, and that a wobble caused him to lose control of the motorcycle. At the conclusion of Riley’s case-in-chief, Honda moved for a directed verdict on the design defect, manufacturing defect and failure to warn claims. The District Court directed a verdict on the manufacturing defect and failure to warn claims; only the design defect claim was submitted to the jury. On September 27, the jury returned a verdict in Honda’s favor, finding that the motorcycle was not in an unreasonably dangerous defective condition.

Riley subsequently moved for judgment notwithstanding the verdict or, in the alternative, for a new trial. He alleged, among other things, that the directed verdict dismissing the failure to warn claim constituted an irregularity in the proceedings or an abuse of the court’s discretion which prevented a fair trial. Riley appeals from the court’s denial of his motion; his only asserted error relates to the directed verdict on his failure to warn claim.

Did the District Court err in directing a verdict on the failure to warn claim?

Riley’s complaint alleged that Honda had failed to warn of an inherent danger in the use of the motorcycle. In support of his allegation that the motorcycle was inherently dangerous, Riley testified that the motorcycle began to “shimmy and shake” immediately prior to the accident. As a result of the “shimmy and shake,” Riley asserted that he had difficulty remaining mounted on the motorcycle and that his right hand was shaken from the handlebar. He further testified that he was unable to prevent the motorcycle from drifting off the highway. Furthermore, Riley’s expert witnesses testified that the 1978 Honda Goldwing motorcycle had a propensity to wobble and that the propensity was unreasonably dangerous.

At the end of Riley’s case-in-chief, Honda moved for a directed verdict on the failure to warn claim. Honda asserted that there was no evidence of record that could support a jury verdict in favor of Riley on that claim. As a separate ground for the motion, Honda contended that the only defect developed by Riley’s case was a design defect, and that a claim based on the failure to warn of the design defect was superfluous to the design defect claim. The District Court directed a verdict on the failure to warn claim, stating “the Court feels that this is a design case, and that there is no warning that would make this product safe under the Plaintiff’s theory.”

Our review of a directed verdict is governed by well-established principles. We consider only the evidence introduced by the party against whom the directed verdict is granted. If that evidence, when viewed in a light most favorable to the party, tends to establish the case made by the party’s pleading, we will reverse the directed verdict. Boehm v. Alanon (1986), 222 Mont. 373, 379, 722 P.2d 1160, 1163. The test commonly used to determine if the evidence is legally sufficient to withdraw cases and issues from the jury is whether reasonable persons could draw different conclusions from the evidence. Boehm, 722 P.2d at 1163-64.

We will affirm a district court’s grant of a directed verdict if the court’s conclusion is correct; the reasons given by the court for granting the directed verdict are immaterial to our review. Laurie v. M. & L. Realty Corp. (1972), 159 Mont. 404, 408, 498 P.2d 1192, 1194. Here, we determine that the directed verdict on the failure to warn claim was proper, but for a different reason than that given by the District Court. We focus on whether Riley presented a prima facie case relating to his failure to warn claim. Where a party fails to present evidence establishing all elements of a prima facie case, a directed verdict is properly granted. Nicholson v. United Pac. Ins. Co. (1985), 219 Mont. 32, 37, 710 P.2d 1342, 1345.

Montana law recognizes a failure to warn claim as a distinct cause of action under the theory of strict products liability. In Brown v. North American Mfg. Co. (1978), 176 Mont. 98, 110, 576 P.2d 711, 718, we recognized that “a failure to warn of an injury causing risk associated with the use of a technically pure and fit product can render such product unreasonably dangerous.” The elements of a failure to warn claim are the same as any other strict products liability claim:

(1) The product was in a defective condition, “unreasonably” dangerous to the user or consumer;
(2) The defect caused the accident and injuries complained of; and
(3) The defect is traceable to the defendant.

Brown, 576 P.2d at 716.

“A showing of proximate cause is a necessary predicate to plaintiff’s recovery in strict liability.” Brown, 576 P.2d at 719. While causation is ordinarily a question of fact for the trier of fact, it may be determined as a matter of law where reasonable minds can reach but one conclusion regarding causation. See Brohman v. State (1988), 230 Mont. 198, 202-03, 749 P.2d 67, 70. Because the causation element is dispositive in the case before us, we do not address whether Riley presented sufficient evidence on the other elements of his failure to warn claim.

Riley presents two separate arguments regarding the causation element of his failure to warn claim. He contends that his testimony relating to his respect for machinery and concern for safety was sufficient evidence from which to infer that he would have ridden the motorcycle differently had a warning of the propensity to wobble been given — creating a question of fact for the jury on the causation element. Alternatively, Riley contends that he is entitled to a rebut-table presumption that he would have followed a warning, thus satisfying the causation element of the failure to warn claim.

It is true that the causation element in a failure to warn claim can be satisfied by evidence indicating that a warning would have altered plaintiff’s use of the product or prompted plaintiff to take precautions to avoid the injury. 63 Am.Jur.2d, Products Liability, §§ 356-57 (1984); 9 American Law of Products Liability 3d, § 32:76 (1987). While we have not expressly stated this proposition, we have relied on such evidence in determining whether sufficient evidence supported a finding that a failure to warn was a proximate cause of plaintiff’s injuries. In Krueger v. General Motors Corp. (1989), 240 Mont. 266, 783 P.2d 1340, plaintiff was injured while removing the front drive shaft from a General Motors four-wheel drive pickup truck. Parked on a sloping driveway and engaged in “park,” the pickup rolled over plaintiff. The pickup was equipped with a newly designed transfer case which caused the pickup to act differently while engaged in park than a pickup equipped with a conventional transfer case. The jury found that General Motors’ failure to warn of the difference was a proximate cause of the injuries.

On appeal, we determined that substantial evidence supported the jury’s finding of proximate cause. Krueger, 783 P.2d at 1348. Integral to our determination was plaintiff’s testimony that he would have altered his method of repairing the truck had he been warned that a pickup equipped with the new transfer case would not behave like a conventional four-wheel drive pickup; other witnesses injured under similar circumstances testified to the same effect. Krueger, 783 P.2d at 1348. We examine the record before us, then, to determine whether Riley presented evidence analogous to that which we relied on in Krueger — evidence establishing that a warning relating to the motorcycle’s alleged propensity to wobble would have altered Riley’s conduct.

Our review of the record indicates that Riley failed to establish a causal relationship between the lack of a warning and his injury. Unlike the plaintiff in Krueger, Riley did not testify that he would have altered his conduct had he been warned of the motorcycle’s alleged propensity to wobble; nor did he present other witnesses to testify to that effect. He does not contend that he presented any direct testimony on causation.

Rather, Riley relies solely on his general testimony that he respected machinery and was concerned about safety to meet the causation element. Based on this testimony, he suggests that he “might have rode [sic] the motorcycle differently and might not have taken it on a long trip on the highway” had warnings been given. This suggestion is not supported by evidence of record, however. Nor is it analogous to the testimony on which we relied to support a causal relationship between the lack of warning and injury in Krueger; there, plaintiff unequivocally testified that a warning “would have” altered his conduct.

Considering the evidence presented by Riley in a light most favorable to him, we find no evidence upon which reasonable minds could conclude that a failure to warn of the alleged propensity to wobble was the cause of the accident and injuries. Without such evidence, Riley failed to present a prima facie failure to warn claim.

In the absence of evidence establishing a causal link between the failure to warn and the accident and injuries, Riley urges this Court to apply a rebuttable presumption of causation. Under this approach to failure to warn claims, the causation element is satisfied by a presumption that a warning would be read and heeded. Wooderson v. Ortho Pharmaceutical Corp. (Kan. 1984), 681 P.2d 1038, 1057. A number of jurisdictions rely on Comment j to Restatement (Second) of Torts § 402A (1965) as a basis for such a rebuttable presumption. Comment j provides in pertinent part:

In order to prevent the product from being unreasonably dangerous, the seller may be required to give directions or warning, on the container, as to its use.
Where warning is given, the seller may reasonably assume that it will be read and heeded; and a product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous.

Some courts interpret this language as creating a rebuttable presumption which works in favor of a seller where an adequate warning is given. Where no warning is given, however, courts have construed this language as giving rise to a rebuttable presumption that the consumer would have read an adequate warning and acted to minimize the risks inherent in the use of the product. See Reyes v. Wyeth Laboratories (5th Cir. 1974), 498 F.2d 1264, 1281; Williams v. Lederle Laboratories, Div. of American Cyanamid Co. (S.D.Oh. 1984), 591 F. Supp. 381, 386-87; and Snawder v. Cohen (W.D.Ky. 1990), 749 F. Supp. 1473, 1479.

Riley asserts that this Court has adopted Comment j in its entirety and, therefore, that the presumption of causation is applicable to his failure to warn claim. We disagree. Our adoption of Restatement (Second) of Torts § 402A (1965) was not a wholesale adoption of the comments accompanying that provision; nor are we constrained by the comments in developing a body of products liability law. Stenberg v. Beatrice Foods Co. (1978), 176 Mont. 123, 128-29, 576 P.2d. 725, 729. It is true that we have cited to Comment j in recognizing the failure to warn claim itself. See Rost v. C.F. & I. Steel Corp. (1980), 189 Mont. 485, 488, 616 P.2d 383, and Krueger v. General Motors (1989), 240 Mont. 266, 278, 783 P.2d 1340, 1348. However, we have not adopted the specific language in Comment j that — in the view of many courts — gives rise to a rebuttable presumption regarding causation.

In developing a body of Montana products liability law, this Court consistently has required a plaintiff to establish a causal link between the lack of a warning and the accident and injuries in a failure to warn claim. Brown v. North American Mfg. Co. (1978), 176 Mont. 98, 110, 576 P.2d 711, 719; Rost v. C. F. & I. Steel Corp. (1980), 189 Mont. 485, 490, 616 P.2d 383, 386; Dvorak v. Matador Service, Inc. (1986), 223 Mont. 98, 106, 727 P.2d 1306, 1311; Krueger v. General Motors (1989), 240 Mont. 266, 278, 783 P.2d 1340, 1348. We decline to depart from this approach in the case before us.

It is true that there are policy arguments to be made in support of the rebuttable presumption. These arguments are ably advanced by the dissent, notwithstanding Riley’s reliance on his assertion that we previously have adopted the presumption. The dissent’s policy arguments, however, do not convince us to abandon the traditional causation element and allow Riley to survive a directed verdict without establishing a prima facie case.

First, the dissent contends that it is “common sense” that if an adequate warning is given the plaintiff would have read and heeded it. While this might be common sense in an ideal world, our own experience does not support it; warnings are everywhere in the modern world and often go unread or, where read, ignored. We conclude that the presumption is not appropriate running in either direction, to the manufacturer/seller where a warning is given or to a plaintiff where it is not.

Next, the dissent raises the perceived difficulties involved in requiring a plaintiff to establish the causation element. We note that the evidence required to establish this element is not qualitatively different than other testimony given by a party in support of her or his prima facie case. Concerns that the testimony may be speculative or self-serving and that a plaintiff may die before the testimony is given are not unique to this cause of action. In any event, these concerns are a red herring in the case before us where Riley had a full and fair opportunity to present his case and simply did not establish a prima facie case of failure to warn.

Finally, the dissent argues that the presumption is consistent with the policy behind strict products liability. This may be so; so too would many other changes in a plaintiff’s burden of establishing a prima facie case — including the elimination of any burden at all — be consistent with that policy. We are unwilling to shift the respective parties’ burdens in such a fashion. In order to rebut a presumption of causation, the defendant would need to prove that the warning would not have altered the plaintiff’s conduct or that the plaintiff’s own negligence caused the injury. See 63 Am.Jur.2d, Products Liability, § 358 (1984). A defendant certainly is in no better position to rebut a presumption which totally excuses a plaintiff from meeting the causation element than a plaintiff is in establishing the causation element as part of the prima facie case.

We conclude that the District Court did not err in directing a verdict on the failure to warn claim.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, and WEBER concur.

JUSTICE McDONOUGH

respectfully dissents.

Riley is entitled to a rebuttable presumption that he would have followed the warning if such a warning had been given. Thus he would have satisfied the causation element of his failure to warn claim in the court’s consideration of the motion for a directed verdict.

The failure to warn case of product liability is different from the usual products liability case and adherence to the products liability causation criteria is an example of ossification. In a failure to warn case it is not the product itself which is unreasonably dangerous because of a defect in it, but that it is rendered unreasonably dangerous due to the failure to warn and inadequate labeling. Generally it is common sense that if an adequate warning has been presented or given the plaintiff would have read it and taken heed. For the plaintiff to actually testify as to whether or not he would have actually done it, is purely speculative in nature and self serving and in some cases would be impossible due to a death or lack of communication skills on the part of the plaintiff. See 53 A.L.R.3d 239, 247. In Harlow v. Chin (1989), 405 Mass. 697, 545 N.E.2d 602, 606, the court stated “The law permits an inference that a warning, once given, would have been followed.” The reason the law imposes a duty to give notice in the first place is the assumption that, because of the danger not commonly known to users, a warning is needed, and if given, will be heeded.

Comment j to the Restatement (Second) of Torts, § 402(a), 1965, states that when the warning is given, the seller may reasonably assume that it will be read and heeded, and when the product has such a warning, which is safe for use if it is followed, such product is not in a defective condition nor is it unreasonably dangerous. By the same reasoning it is rational to grant a presumption that if the product should have a warning and if there had been a warning, it would have been read and acted upon to so minimize the risk.

In the first instance the rebuttable presumption benefits the manufacturer and in the second instance the rebuttable presumption benefits the injured. Placing the burden of rebutting this presumption of causation in the second example on the manufacturer is consistent with the policy behind strict liability. It would encourage manufacturers to provide safe products and to warn of the known dangers in the use of the products which might cause injury. It would also discourage any manufacturer from risking liability when he could have provided a warning, even if he felt that such warning would impair the salability of his product. See Nissen Trampoline Co. v. Terre Haute First Natl. Bk., 332 N.E.2d 820. The rebuttable presumption has been overwhelmingly supported in recent cases. See Walsh v. Ford Motor Co. (D.D.C. 1985), 106 F.R.D. 378; Knowlton v. Deseret Medical, Inc. (1st Cir. 1991), 930 F.2d 116, 123; Plummer v. Lederle Laboratories (2nd Cir. 1987), 819 F.2d 349; Reyes v. Wyeth Laboratories (5th Cir. 1974), 498 F.2d 1264, 1281; Petty v.United States (8th Cir. 1984), 740 F.2d 1428, 1437; Brazzell v. United States (N.D. Iowa 1985), 633 F.Supp. 62, 72; Wolfe v. Ford Motor Co. (Mass.App. 1978), 376 N.E.2d 143, 147; and Snawder v. Cohen (W.D.Ky. 1990), 749 F.Supp. 1473.

The case oí Kruger v. General Motors Corp. (1989), 240 Mont. 266, 783 P.2d 1340, is not analogous to this case. In Kruger there was no request for the presumption, nor was rebuttable presumption an issue in the case. The rebuttable presumption was not needed, nor raised, nor discussed. In this case it has been specifically raised.

The District Court erred in directing a verdict and I would reverse and remand for a new trial on the cause of action of a failure to warn.

JUSTICES HUNT and TRIEWEILER join in the foregoing dissent.


source: Caselaw Access Project

author: JUSTICE TRIEWEILER

license: Public Domain

text:
    IN RE THE MARRIAGE OF LYNN TACKETT STARKS, Petitioner and Appellant, and MICHAEL JOSEPH STARKS, Respondent and Respondent.
    No. 92-211.
    Submitted on Briefs January 14, 1993.
    Decided June 23, 1993.
    50 St.Rep. 719.
    259 Mont. 138.
    855 P.2d 527.

      For Petitioner and Appellant: Chris P. Christensen, Attorney at Law, Kalispell.
    For Respondent: Darrell Worm, Ogle & Worm, Kalispell.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Petitioner Lynn Tackett Starks appeals from an order of the District Court for the Eleventh Judicial District, Flathead County, issued on February 12,1992, which modified the original dissolution decree and awarded sole custody of the parties’ minor child to Michael Joseph Starks. We affirm.

The following issues are raised on appeal:

1. Did the District Court err when it found that the statutory requirements for modification of a prior custody decree had been satisfied?

2. Did the District Court improperly exclude evidence of respondent’s past conduct?

3. Did the District Court err when it awarded sole custody to respondent and did not assign custody to Lynn and Michael jointly?

4. Was respondent’s affidavit in support of a motion to temporarily modify custody sufficient to warrant a hearing?

Lynn and Michael were married on August 14,1981. They had one daughter, Chelsea Nichole, who was two years old at the time of their dissolution on August 16, 1984. The dissolution decree incorporated the parties’ custody agreement which designated that Chelsea would be placed in the sole care, custody, and control of Lynn, subject to Michael’s rights of liberal and reasonable visitation.

In 1985, Lynn and Chelsea moved to Albuquerque, New Mexico, and Lynn subsequently lived with Robin Blagg. Lynn and Robin Blagg then separated in 1986, two months after the birth of their son, Levi Reston Blagg. Thereafter, when Blagg would exercise visitation with his son, he would frequently take both Levi and Chelsea out for various activities.

In 1989, it was discovered that Chelsea, who was then seven years old, had been sexually molested by Blagg. Lynn immediately contacted rape counselors and notified the police department, which investigated the incident. As a result, the New Mexico District Attorney’s office initiated efforts to prosecute Blagg. Lynn testified that Chelsea experienced mental and emotional difficulties after the incident with Blagg, but that she believed Chelsea’s condition was aggravated due to the ongoing investigation by the district attorney’s office and the appearance before the Grand Jury.

When the district attorney’s office requested a second video deposition of Chelsea in 1991, nearly two years after the molestation incident, Lynn objected to Chelsea’s further participation in the legal proceedings against Blagg. Lynn sent Chelsea to Montana for summer visitation with Michael, claiming that she believed there was sufficient information to convict Blagg without Chelsea’s testimony. Although Lynn was aware that the district attorney wanted Chelsea to testify, she maintains that she was not informed of a hearing scheduled for June 24, 1991, until after Chelsea had already left for Montana. Lynn insists that she acted to protect Chelsea, but the New Mexico authorities, based on their observations and evidence, assert that Lynn was attempting to protect Blagg from the sexual molestation charges.

When Chelsea’s location was discovered, the New Mexico District Attorney’s office served subpoenas on Michael and Chelsea to require Chelsea’s attendance at the proceedings against Blagg. Lynn contacted Michael and told him not to bring Chelsea to New Mexico because her testimony was not necessary to prosecute Blagg, and that she did not want Chelsea to have “to come forward anymore.” In a later communication, Lynn threatened to sue Michael for custodial interference if he brought their daughter to the trial. Despite these threats, Michael and Chelsea attended the New Mexico proceedings. Blagg subsequently pled guilty to criminal sexual contact with a minor and received an 18 month suspended sentence, conditioned on his completion of a sex offender treatment program.

In June 1991, because of these events and the fact that Lynn was no longer willing to cooperate with the New Mexico authorities, Michael petitioned the District Court in Flathead County and obtained temporary custody of Chelsea, pending further order of the court. Hearings were then conducted on August 7, 1991, and on February 3, 1992.

In its findings of fact and conclusions of law, the court found that Lynn has an ongoing relationship with Blagg to the extent that Blagg exercises his court-ordered visitation rights with Levi and that this threatens Chelsea’s future welfare. Furthermore, based on Lynn’s refusal to cooperate with Blagg’s prosecution and her attempts to dissuade Michael from assisting the New Mexico authorities, the court inferred that Lynn may have been shielding Blagg from prosecution. After concluding that Chelsea had suffered physical and emotional harm while in Lynn’s custody and was in danger of suffering further serious harm if she was to remain with Lynn, the court awarded Michael sole custody of Chelsea, with reasonable visitation rights to Lynn. From this order, Lynn appeals.

I

Did the District Court err when it found that the statutory requirements for modification of a prior custody decree had been satisfied?

Section 40-4-219, MCA, provides in pertinent part:

(1) The court may in its discretion modify a prior custody decree if it finds, upon the basis of facts that have arisen since the prior decree or that were unknown to the court at the time of entry of the prior decree, that a change has occurred in the circumstances of the child or his custodian and that the modification is necessary to serve the best interest of the child and if it further finds that:
(c) the child’s present environment endangers seriously his physical, mental, moral, or emotional health and the harm likely to be caused by a change of environment is outweighed by its advantages to him.

In In re Marriage of Sarsfield (1983), 206 Mont. 397, 404, 671 P.2d 595, 599, this Court made clear that a finding of a change in circumstances, such that the child’s welfare is endangered seriously by the present custody arrangement, is a jurisdictional prerequisite to determining whether an original custody decree should be modified. See also, Gianotti v. McCracken (1977), 174 Mont. 209, 214, 569 P.2d 929, 932.

In this instance, Lynn contends that the court erred in modifying the decree because there was no evidence of any present danger to Chelsea while in Lynn’s custody. She asserts that the molestation was a past, one-time occurrence, and Chelsea’s only contact with Blagg at this time is that she witnesses him picking up Levi from the street curb outside Lynn’s residence. Lynn disputes the court’s finding that her relationship with Blagg is “ongoing,” particularly in light of the fact that Blagg only infrequently exercises his visitation with Levi, and she maintains that the court’s inference that she was shielding Blagg from prosecution was not supported by any credible evidence. Therefore, because there was no evidence of a change of circumstances presently endangering Chelsea, she contends that the statutory prerequisites for modification of custody were not satisfied.

When reviewing findings in regard to the grounds for modifying custody, this Court will not reverse those findings unless they are clearly erroneous. Rule 52(a), M.R.Civ.P.; In re Marriage of McClain (Mont. 1993), 849 P.2d 194, 50 St. Rep. 314. After findings have been made, it is within the court’s discretion whether to modify custody, based on its findings and its application of the law. We will not reverse that decision unless there has been a clear abuse of discretion. In re Marriage of Merriman (1991), 247 Mont. 491, 807 P.2d 1351.

In custody modification cases, it is particularly important for this Court to defer to the district court which personally evaluated the testimony and was in the best position to determine the credibility and character of the witnesses. In re Marriage of Ulland (1991), 251 Mont. 160, 168, 823 P.2d 864, 869. When the testimony presented by the parties conflicts, it is the trier of fact’s function to resolve those conflicts, and this Court will not substitute its judgment for that of the district court. Ulland, 823 P.2d at 870; In re Marriage of Mitchell (1991), 248 Mont. 105, 108, 809 P.2d 582, 584.

In this instance, we hold that the court’s findings of a change in circumstances necessitating a custody modification in order to protect Chelsea’s well-being were supported by substantial credible evidence and were not clearly erroneous.

Even though there was conflicting testimony, the court could reasonably find that there was an ongoing relationship between Lynn and Blagg at least to the extent of Blagg’s court-ordered rights to visit Levi, who is in Lynn’s custody. What particularly concerned the court was the fact that Blagg was not incarcerated after he was convicted of molesting Chelsea, so the potential existed for recurring contact between Blagg and Chelsea if she returned to New Mexico. Although Lynn asserts that this does not constitute evidence of present danger, we made clear in Sarsfield, 671 P.2d at 602, that a potential danger of future harm to a child is sufficient to give the trial court jurisdiction under § 40-4-219(l)(c), MCA, to consider whether to modify a custody decree. Furthermore, although the testimony in regard to Lynn’s motives for her actions was conflicting, the District Court was in the best position to evaluate credibility, and we will not substitute our judgment in this situation.

Lynn next asserts that, even if the statutory prerequisites of a change of circumstances and present danger were satisfied, the court failed to adequately consider the harmful effects of a change of custody. Lynn points out that, before it can order a change in custody, § 40-4-219(l)(c), MCA, requires the court to determine that the advantages of a change in custody will outweigh the disadvantages. She contends that the District Court completely ignored the adverse effects of breaking up the five-year relationship that Lynn, Chelsea, and Levi have established, and the consequences of removing Chelsea from the environment she has lived in since she was three years old.

However, the record clearly demonstrates that the court evaluated Chelsea’s adjustment to her new environment, as well as her environment in New Mexico, when it decided whether the home situation offered by Michael would serve her best interests. Moreover, the court’s purpose in changing custody was to protect Chelsea from contact with her molester, and it is evident that the court decided that this advantage outweighed any harm from the change itself.

We recognize that disrupting the familial relationship that Chelsea has been raised in will inevitably have its negative impacts. Such problems are virtually unavoidable in a custody dispute. However, in light of the tragic incident of sexual abuse that this child was subjected to, we do not find it unreasonable that the court acted to remove Chelsea from a situation that would bring her into contact with her molester. Having found that substantial evidence existed to support the District Court’s findings, we conclude that the court did not clearly abuse its discretion when it transferred custody of Chelsea from Lynn to Michael.

II

Did the District Court err when it excluded evidence of respondent’s past conduct?

The court sustained Michael’s objection to questions concerning his and Lynn’s conduct before their dissolution on the basis that the evidence was too remote in time to be probative of Michael’s fitness to serve as Chelsea’s custodian. Lynn contends that the language of § 40-4-219(1), MCA, requires the court to consider facts which were unknown to the trial court at the time the decree was entered, and that, based on our holding in Sarsfield, 671 P.2d at 604, it was reversible error for the court to limit the evidence in this regard.

In Sarsfield, the trial court ruled that evidence concerning the parent seeking modification, which took place prior to the entry of the decree, was inadmissible on a theory of res judicata when there had been no issue of fitness during consideration of the first decree. We rejected this argument, noting that § 40-4-219(1), MCA, specifically contemplates that the court should consider pre-decree facts unknown to the trial court at the time the decree was entered. We held that it was reversible error to summarily reject evidence bearing on custodial fitness in that case.

This case is distinguishable from Sarsfield because Michael did not object on the grounds that the trial court was precluded from considering this evidence. His objection, and contention before this Court, is that the events in question were too remote in time to be probative of the issue of custody and were not relevant with respect to Chelsea.

The determination of the admissibility of evidence is within the discretion of the trial court, and we will not disturb the court’s ruling absent a manifest abuse of this discretion. Jacobsen v. State (1989), 236 Mont. 91, 94, 769 P.2d 694, 695. In determining whether evidence is too remote in time to be relevant, a trial court is not guided by any fixed rules, but must consider the nature of the evidence and the circumstances of the particular case. Preston v. McDonnell (1983), 203 Mont. 64, 67, 659 P.2d 276, 277.

Here, the modification action was seven years after the initial decree and the conduct alluded to occurred prior to the dissolution. In contrast, the evidence in Sarsfield was offered in a modification action less than one year after the original custody order was entered. In this instance, considering the circumstances of this case and the nature of the evidence in question, we do not find that the court abused its discretion when it ruled that the evidence was too remote to have significant probative value in regard to the question of custodial fitness.

Ill

Did the District Court err when it awarded sole custody to respondent and did not assign custody to Lynn and Michael jointly?

Lynn contends that under § 40-4-222, MCA, the court is to presume that joint custody is in the child’s best interest, and if the court finds otherwise, it must state its reasons for not awarding joint custody. Section 40-4-224, MCA. Therefore, Lynn asserts that the court erred when it did not award joint custody, or, alternatively, that the order should be set aside because the cotut faded to state its reasons for not doing so.

While it is true that Montana law creates a presumption in favor of joint custody, this presumption only arises if a party requests it. Section 40-4-224, MCA, provides that “[ujpon application of either parent or both parents for joint custody, the court shall presume joint custody is in the best interest of a minor child ....” (Emphasis added.)

There is no evidence in the record that either Lynn or Michael ever requested joint custody. Therefore, the District Court’s decision to award sole custody to Michael without articulating why joint custody would not be in Chelsea’s best interest is not in conflict with Montana law. Accordingly, the court did not err in this regard.

IV

Was respondent’s affidavit in support of a motion to temporarily modify custody sufficient to warrant a hearing?

Finally, Lynn challenges the sufficiency of the affidavit submitted by Michael when he moved to temporarily modify custody. It is her contention that the affidavit was inadequate to establish cause for a hearing because § 40-4-220(1), MCA, requires that an affiant set forth facts, and Michael’s averments, with one exception, were purely speculative.

This is the first time Lynn has raised this objection and it is the settled rule in Montana that we will not review an issue raised for the first time on appeal. Hares v. Nelson (1981), 195 Mont. 463, 466-67, 637 P.2d 19, 21. Therefore, we decline to address this issue.

For the reasons stated, the District Court’s order is affirmed.

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


author: JUSTICE MCDONOUGH JUSTICE TRIEWEILER JUSTICE HUNT

text:
    GARY STRATEMEYER, Claimant and Respondent, v. LINCOLN COUNTY, Employer, and MACO WORKERS’ COMPENSATION TRUST, Defendant and Appellant.
    No. 92-376.
    Submitted December 16, 1992.
    Rehearing Denied July 16, 1993.
    Decided June 23, 1993.
    50 St.Rep. 731.
    259 Mont. 147.
    855 P.2d 506.

      For Defendant and Appellant: Norman H. Grosfield, Utick & Grosfield, Helena (argued).
    For Claimant and Respondent: Sydney E. McKenna, Patterson, Marsillo, Tornabene, Schuyler & McKenna, Missoula (argued).
    For Amicus Curiae: John J. Richardson, Beck Law Offices, Bozeman, for Montana Trial Lawyers Association; Charles G. Adams, Helena, for State Compensation Mutual Insurance Fund; Robert E. Sheridan, Garlington, Lohn & Robinson, Missoula, for Montana Self-Insurers Association.
   JUSTICE MCDONOUGH

delivered the Opinion of the Court.

This is an appeal from an order of the Worker’s Compensation Court, concluding that subsections (3)(a) and (b) of § 39-71-119, MCA (1987), violate Article II, Section 4 of the Montana Constitution. We reverse.

The sole issue on appeal is whether the Workers’ Compensation Court erred in concluding that subsections (3)(a) and (b) of § 39-71-119, MCA, violate Article II, Section 4 of the Montana Constitution, which states ... “[n]o person shall be denied the equal protection of the laws ...”

Gary Stratemeyer (Stratemeyer) was a deputy sheriff for Lincoln County from 1982 to 1990. On May 4, 1990, Stratemeyer was called by the Sheriff’s dispatcher to respond to a suicide attempt near the Libby office. When he arrived at the home, he was led to a back bedroom where he found a 17 year old girl being held by her father. She had shot herself in the head but was still alive. Respondent took the girl from her father’s arms and administered first aid, including cardiopulmonary resuscitation, until the ambulance arrived.

When the ambulance arrived, the respondent helped the crew carry her to the ambulance. He then served as an escort for the ambulance to the hospital where he learned the girl had died. He was then called away from the hospital to another accident scene.

Thereafter, the respondent was continually plagued by thoughts of the girl’s suicide. Afew weeks after the suicide, the respondent took sick leave because of anxiety over the event. He continued to suffer anxiety problems and was unable to return to work. Stratemeyer submitted a claim for Workers’ Compensation on May 25,1990, for a mental stress injury suffered during his employment as a police officer. The claim was denied on the basis that he had not suffered a “compensable injur/’ as defined by statute. (Statutory law prohibits coverage for a mental (stress) injury suffered without a physical component.) He then petitioned for a hearing before the Workers’ Compensation Court for coverage of his medical costs and lost wages.

That court concluded that he did not suffer a “compensable injur/’ within the language of § 39-71-119, MCA. The Workers’ Compensation Court also determined that this statute violated respondent’s right to equal protection of the law because “claimant has been denied compensation based on the nature of his disability without regard to its cause as being work-related.” Respondent contended, and the Workers’ Compensation Court concluded, that the statute at issue was unconstitutional because it violated equal protection of the law.

There are limitations governing a court’s ability to declare a statute unconstitutional. We take cognizance of the following cautions:

[I]t is our sacred duty to measure the Act by the terms of our constitutional limitations, as we interpret them. “It must be evident to anyone that the power to declare a legislative enactment void is one which the judge, conscious of the fallibility of the human judgment, will shrink from exercising in any case where he can conscientiously and with due regard to duty and official oath decline the responsibility. The legislative and judicial are co-ordinate departments of the government of equal dignity; each is alike supreme in the exercise of its proper functions, and cannot directly or indirectly while acting within the limits of its authority be subjected to the control or supervision of the other without an unwarrantable assumption by that other of power which, by the Constitution, is not conferred upon it. The Constitution apportions the powers of governments but it does not make any one of the three departments subordinate to another when exercising the trust committed to it. The courts may declare legislative enactments unconstitutional and void in some cases, but not because the judicial power is superior in degree or dignity to the legislative. Being required to declare what the law is in the cases which come before them, they must enforce the Constitution as the paramount law, whenever a legislative enactment comes in conflict with it.”

State v. Dixon (1923), 66 Mont. 76, 84-85, 213 P. 227, 229.

Additionally:

When a legislative course of action expressed in statutes or budgetary laws is tested for constitutionality under the State Constitution, our review is circumscribed by certain principles. We must give the state constitutional provision a broad and liberal construction consistent with the intent of the people adopting it to serve the needs of a growing state. The constitutional provision should receive a reasonable and practical interpretation in accord with common sense. The constitutionality of a legislative enactment is prima facie presumed, and every intendment in its favor will be presumed, unless its unconstitutionality appears beyond a reasonable doubt. The question of constitutionality is not whether it is possible to condemn, but whether it is possible to uphold the legislative action which will not be declared invalid unless it conflicts with the constitution, in the judgment of the court, beyond a reasonable doubt.

Fallon County v. State (1988), 231 Mont. 443, 445-46, 753 P.2d 338, 339-340. (Citations omitted.) Every possible presumption must be indulged in in favor of the constitutionality of the Act. See State v. Safeway Stores, Inc. (1938), 106 Mont. 182, 199, 76 P.2d 81, 84.

With these principles in mind, we turn to the standard of review for Workers’ Compensation cases challenging a statute on the basis of equal protection. We have enunciated the following:

[T]he right to receive Workers’ Compensation benefits is not a fundamental right which would trigger a strict scrutiny analysis of equal protection. Nor does this statute infringe upon the rights of a suspect class.
When a right determined to be less than fundamental is infringed upon by classification, the test applied by this Court is the rational relationship test. That is, does a legitimate governmental objective bear some identifiable rational relationship to a discriminatory classification.

Cottrill v. Cottrill Sodding Service (1987), 229 Mont. 40, 42-43, 744 P.2d 895, 897 (Citations omitted). In other words, is the classification (means) used to accomplish a legitimate governmental objective rational? The statute at issue here, because it affects no fundamental right or suspect class, must be analyzed under the rational basis test.

Section 39-71-119, MCA, excludes from the definition of injury work-related injuries that do not have a physical component. Section 39-71-119, MCA, reads as follows:

(1) “Injury... means:
(a) internal or external physical harm to the body.
(3) “Injury” or “injured” does not mean a physical or mental condition arising from:
(a) emotional or mental stress; or
(b) a non physical stimulus or activity.

The Workers’ Compensation Court concluded that the respondent’s injury was not covered under § 39-71-119, MCA, because it was a mental injury. The Workers’ Compensation Court further concluded that the statute was unconstitutional because it improperly excluded people with mental injuries with no physical component from compensation under the Workers’ Compensation Act in violation of equal protection of the law. In applying the rational basis test to the exclusion for above conditions without a physical component, the Workers’ Compensation Court stated that “[i]f a rational basis exists for the classification created by section 39-71-119, MCA (1987), the legislature must provide it. The Court may not speculate to find it.” The court concluded that the classification did not meet the rational basis test because it could glean no purpose for the legislation from the statute itself or its legislative history.

However, appellant argues that the Workers’ Compensation Court should have sought “any combination of purposes that the Legislature might have been attempting to achieve” in enacting § 39-71-119, MCA. The Ninth Circuit has stated: “[i]n our review of governmental purposes,... we need not rely only upon those purposes the legislature, litigants, or district court have espoused, but may also consider any other rational purposes possibly motivating enactment of the challenged statute.” Mountain Water v. Mont. Dept. of Public Serv. Reg. (9th Cir. 1990), 919 F.2d 593, 597. See also; Kadrmas v. Dickinson Public Schools (1988), 487 U.S. 450, 462-463, 108 S.Ct. 2481, 2490, 101 L.Ed.2d 399; Cottrill v. Cottrill Sodding Service (1987), 229 Mont. 40, 43, 744 P.2d 895, 897; ([although this Court could speculate as to why the legislature elected to treat these select individuals differently under the Workers’ Compensation laws ....) (Emphasis added.) The purpose of the legislation does not have to appear on the face of the legislation or in the legislative history, but may be any possible purpose of which the court can conceive. In this case, the Workers’ Compensation Court expected the legislature to provide the purpose. This, however, is not required of legislation being examined relative to equal protection.

Appellant contends that the Workers’ Compensation Court ignored the rule that legislation is presumed to be constitutional. Further, it did not require the respondent to meet his burden of proving the statute was unconstitutional. Appellant claims the respondent provided no testimony, no evidence nor any case law to argue that the statute was invalid. Respondent merely argued that the distinction between physical and mental injury claims was nonsensical and unfair.

This Court concludes that the Workers’ Compensation Court did not properly apply these rules for analyzing legislation under an equal protection challenge. The Workers’ Compensation Court did not presume the statute to be constitutional and look to any possible legitimate purpose for the legislation. However, resolving doubts in favor of the legislation in minimum level scrutiny cases is the proper approach because:

[i]n the utilities, tax, and economic regulation cases, there are good reasons for judicial self-restraint if not judicial deference to legislative judgment. The legislature after all has the affirmative responsibility. The courts have only the power to destroy, not to reconstruct. When these are added to the complexity of economic regulation, the uncertainty, the liability to error, the bewildering conflict of the experts, and the number of times the judges have been overruled by events — self-limitation can be seen to be the path to institutional prestige and stability.
The Court is aware, too, of its own remoteness and lack of familiarity with local problems. Classification is dependent on legislative purpose. Legislative purpose is dependent on the peculiar needs and specific difficulties of the community. The needs and difficulties of the community are constituted out of fact and opinion beyond the easy ken of the Court.

Joseph Tussman and Jacobus tenBroek, The Equal Protection of the Laws, 37 Cal. L. Rev. 341, 373 (1949). The legislature is simply in a better position to develop the direction of economic regulation, social and health issues.

Neither did the Workers’ Compensation Court place a burden upon the respondent to bring evidence forward to show the statute was unconstitutional. In fact, the Workers’ Compensation Court looked to the appellant for evidence that the statute was constitutional. “There is not a scintilla of fact, statistical or otherwise to demonstrate any actual cost or cost savings associated with the broad brush of exclusion brought by this legislation.” The “heavy burden”, however, rests with the party challenging the statute. Kadrmas, 487 U.S. at 463, 108 S.Ct. at 2490.

Even a cursory glance at the legislative history and statute indicates a concern over the high cost of the Workers’ Compensation program to the State of Montana and the employers involved in the program. It is evident that this was the primary purpose for the legislative changes in the Workers’ Compensation Act. “[P]romoting the financial interests of businesses in the State or potentially in the State to improve economic conditions in Montana constitutes a legitimate state goal.” Meech v. Hillhaven West, Inc. (1989), 238 Mont. 21, 48, 776 P.2d 488, 504. (Citation omitted.) A purpose would be to provide for injured workers at a reasonable cost.

In addition, there are problems relative to mental stress claims, and they have caused a reluctance in some states to compensate for these claims. As we stated in Erhart v. Great Western Sugar Company (1976), 169 Mont. 375, 379, 546 P.2d 1055, 1057:

Workmen’s compensation cases normally deal with physical injury resulting from an accident, as the term is used in everyday language. When a shipping crate falls on a worker breaking a bone or two, the causation and the tangible happening are easily identifiable. In the present case we are dealing with a nervous disability, which may or may not be causally related to the employment situation.

The exclusion of mental claims rationally relates to the possible goal of reducing costs and having a viable program for the State and the enrolled employers and employees in the workers’ compensation field.

Disallowing mental, or stress claims occurring without a physical component, while quite unfortunate for some, does not violate equal protection of the law.

The problem of legislative classification is a perennial one, admitting of no doctrinaire definition. Evils in the same field may be of different dimensions and proportions, requiring different remedies. Or so the legislature may think. Or the reform may take one step at a time, addressing itself to the phase of the problem which seems most acute to the legislative mind. The legislature may select one phase of one field and apply a remedy there, neglecting the others.

Eastman v. Atlantic Richfield Co. (1989), 237 Mont. 332, 339, 777 P.2d 862, 866, citing Williamson v. Lee Optical Co. (1955), 348 U.S. 483, 489, 75 S.Ct. 461, 465, 99 L.Ed. 563. (Citations omitted.) As we have stated in State v. Safeway Stores, Inc., 76 P.2d at 87, to wit:

On this phase of the question we again quote with approval from the West Coast Hotel [Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703 (1937)] Case, supra, wherein the court said: “This Court has frequently held that the legislative authority, acting within its proper field, is not bound to extend its regulation to all cases which it might possibly reach. The legislature ‘is free to recognize degrees of harm and it may confine its restrictions to those classes of cases where the need is deemed to be clearest.’ If ‘the law presumably hits the evil where it is most felt, it is not to be overthrown because there are other instances to which it might have been applied.’ There is no ‘doctrinaire requirement’ that the legislation should be couched in all embracing terms.”

The concern over problems of administration of the Workers’ Compensation program which prompted changes in the 1987 Workers’ Compensation legislation might reasonably have called for a cautious approach. As stated in Joseph Tussman and Jacobus tenBroek, The Equal Protection of the Laws, 37 Cal. L. Rev. 341, 349 (1949):

[t]he ‘piecemeal’ approach to a general problem, permitted by under-inclusive classifications, appears justified when it is considered that legislative dealing with such problems is usually an experimental matter. It is impossible to tell how successful a particular approach may be, what dislocations might occur, what evasions might develop, what new evils might be generated in the attempt to treat the old. Administrative expedients must be forged and tested. Legislators, recognizing these factors, may wish to proceed cautiously, and courts must allow them to do so.

Here, it is fairly obvious that the legislature was attempting to improve the financial viability of the system. This, they can do by rational means without violating the equal protection clause. Eastman, 777 P.2d at 866; Williamson, 348 U.S. at 489, 75 S.Ct. at 465.

Applying the general rules for analyzing the constitutionality of a statute under the rational basis test, the Court concludes that the classification at hand rationally relates to a legitimate governmental objective of controlling the costs of the program and providing benefits.

Reversed.

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

JUSTICE TRIEWEILER

dissenting.

The language in Article II, Section 4, of Montana’s Constitution is simple, plain, and clear. It provides that “[t]he dignity of the human being is inviolable. No person shall be denied the equal protection of the laws.” Yet, the purpose served by that language in any society based on equality is absolutely vital. It recognizes that majoritarian rule can at times be harsh, intolerant, and unfair. It recognizes that at times a basic framework of principle is necessary to prevent those with political influence from oppressing those without political influence.

In recent years in Montana, no group has had less political influence and been the subject of more political demagoguery than those unfortunate people injured and disabled during the course of their employment. No group has had greater influence than those employers, led by the State’s newspaper publishers, who consider injured workers an unnecessary business expense and an obstruction to the ever elusive “better business climate” that they seek for the State of Montana.

Sadly, today’s decision by the majority sounds the death knell for this critical constitutional protection which powerless people have traditionally relied on courts to enforce.

Based on the majority’s decision in this case, discriminatory laws in Montana need have no rational basis in fact so long as a majority of the members of this Court can contrive some speculative basis to support such discrimination.

To understand the human impact of today’s decision and of the anti-claimant hysteria that is sweeping this State, it is necessary to know more about the circumstances of Gary Stratemeyer than is evident from the majority opinion.

Stratemeyer is a 41-year-old former deputy sheriff in Lincoln County. He has a wife and a son. In late 1988 or early 1989, he was promoted to the rank of sergeant.

On May 4, 1990, Officer Stratemeyer received a call from the dispatcher who advised him of a reported suicide. Although he had been in law enforcement for eight years, he had never previously responded to a suicide attempt. However, he responded immediately.

On his way to the location where the suicide was reported, Stratemeyer learned that the young girl who had attempted to take her life was still alive. When he arrived at the home where the attempt had occurred, he entered the bedroom where she was located and observed that “there was blood everywhere.” Stratemeyer found the victim, a 17-year-old girl, being held by her father who was rocking her back and forth and telling her to keep breathing. Observing that the father was unable to help her, Stratemeyer forcibly took the girl from her father’s arms and began administering cardiopulmonary resuscitation. He continued doing so, holding the dying young woman in his arms, until the ambulance arrived. When the ambulance arrived, Stratemeyer carried the girl to a gurney so that she could be transported to the hospital.

After escorting the ambulance to the hospital, Stratemeyer returned to work and was dispatched to an accident. However, before the shift ended, he was informed that the girl had died.

That night, and for several days and nights thereafter, Stratemeyer was plagued by the memory of the dying girl and her father. He second guessed the wisdom of taking the girl from her father’s arms during the last moments of her life. He continued to report to work, but began to experience an inability to concentrate and mental disorientation. He became increasingly distraught and developed emotional problems that interfered with his work and his personal life. He could not sleep, was continuously exhausted, and felt the need to escape the town in which he lived and worked.

Finally, on May 14, 1990, he was taken to the hospital by ambulance in a tearful state where the psychologist who examined him observed that “[h]e was obsessing about the suicide of the young girl, the flashback of her face superimposed on that of his son’s, he feared he was going crazy. ...”

Stratemeyer was given a tranquilizer and diagnosed with post traumatic stress disorder.

Prior to the traumatic experience that he had during the course of his employment on May 4, 1990, Stratemeyer was known as an outstanding member of the Lincoln County Sheriff’s Department. He was self-sufficient and conscientious. He was capable of supporting himself and his family. He is now markedly dysfunctional, unable to return to work, and unable to function normally in his personal life. His physical symptoms include problems with his stomach, diarrhea, and periodic vomiting. He experiences periodic tingling and numbness in his arms.

His employer does not dispute the nature of his mental injury nor the extent of his disability. Nor is there any doubt that his injury resulted from an unexpected traumatic incident identifiable by time and place of occurrence, caused by a specific event on a single day and identifiable by the body part affected. The only reason that he is denied compensation for his disability is the fact that his injury is to his mind, rather than to some other part of his body. Had Stratemeyer injured his back while carrying this 17-year-old girl to the ambulance, the consequences to him and his family may have been much less significant. However, Montana’s workers’ compensation laws would have provided him full medical coverage for his injuries and disability benefits so long as bis earning capacity was affected. This type of legislative injustice is exactly what the equal protection clause was intended to prevent. Yet, because of the majority opinion, future Gary Stratemeyers will have no constitutional protection in Montana from similar discriminatory treatment by legislators anxious to please influential constituents.

The majority opinion is the best example yet for the belief by many constitutional scholars that the “rational basis” test is no test at all. Based on the majority opinion in this case, it can clearly be said that the determination of which standard of review applies determines the outcome of any equal protection analysis under Montana constitutional law. Under the majority’s “rational basis” standard of review, the Legislature need offer no reason for its discriminatory classifications. The beneficiary of the discrimination need offer no evidence in District Court that the statutory distinction is rationally related to a legitimate government objective, and the District Court need have no factual or evidentiary basis for upholding discriminatory legislation.

According to the majority opinion, the only limit on the Legislature’s authority to draw arbitrary classifications among its citizens is the creative ability of the majority of the justices on this Court. If the majority can imagine some speculative but unsubstantiated basis for discriminating among Montana’s citizens, then it is okay for the Legislature to do so. Under this standard, the notion of equal protection in our Constitution is truly illusory.

The major problem with the majority’s reasoning is that it proceeds from the faulty assumption that it is limited to a two-tiered analysis of equal protection cases. Limiting the Court’s scope of review to a two-tiered analysis has been discredited long ago in both federal and state case law, and for good reason.

As pointed out by Justice Marshall in his dissent in Massachusetts Board of Retirement v. Murgia (1976), 427 U.S. 307, 318, 96 S.Ct. 2562, 2569, 49 L.Ed. 2d 520, 527-28 (Marshall, J. dissenting):

Although there are signs that its grasp on the law is weakening, the rigid two-tier model still holds sway as the Court’s articulated description of the equal protection test. Again, I must object to its perpetuation. The model’s two fixed modes of analysis, strict scrutiny and mere rationality, simply do not describe the inquiry the Court has undertaken — or should undertake — in equal protection cases. Rather, the inquiry has been much more sophisticated and the Court should admit as much. It has focused upon the character of the classification in question, the relative importance to individuals in the class discriminated against of the governmental benefits that they do not receive, and the state interests asserted in support of the classification.

Although the two-tier model employed by the majority offers a simple mechanical approach to equal protection analysis, Marshall very clearly explained the inadequacy of such an approach for enforcing this important constitutional right. He pointed out that:

If a statute invades a “fundamental” right or discriminates against a “suspect” class, it is subject to strict scrutiny. If a statute is subject to strict scrutiny, the statute always, or nearly always, see Korematsu v. United States, 323 U.S. 214 [65 S.Ct. 193, 89 L.Ed 194] (1944), is struck down. Quite obviously, the only critical decision is whether strict scrutiny should be invoked at all. ...
But however understandable the Court’s hesitancy to invoke strict scrutiny, all remaining legislation should not drop into the bottom tier, and be measured by the mere rationality test. For that test, too, when applied as articulated, leaves little doubt about the outcome; the challenged legislation is always upheld. It cannot be gainsaid that there remain rights, not now classified as “fundamental,” that remain vital to the flourishing of a free society, and classes, not now classified as “suspect,” that are unfairly burdened by invidious discrimination unrelated to the individual worth of their members. Whatever we call these rights and classes, we simply cannot forego all judicial protection against discriminatory legislation bearing upon them, but for the rare instances when the legislative choice can be termed “wholly irrelevant” to the legislative goal. McGowan v. Maryland, 366 U.S. 420, 425 [81 S.Ct 1101, 1105, 6 L.Ed.2d 393] (1961). [Citations omitted.]

Murgia, 427 U.S. at 319-20, 96 S.Ct at 2569-70.

It is no wonder that in The Supreme Court 1971 Term —Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection 86 Harv. L. Rev. 1, 8 (1972), Professor Gerald Gunther observed that the Warren Court applied either “scrutiny that was ‘strict’ in theory and fatal in fact,” or “minimal scrutiny in theory and virtually none in fact.” The minimal scrutiny applied by the majority in this case was in fact no scrutiny.

Perhaps in response to the legitimate concerns articulated so clearly by Justice Marshall, the U.S. Supreme Court recognized a middle tier of analysis in Plyler v. Doe (1982), 457 U.S. 202, 102 S. Ct. 2382, 72 L. Ed. 2d 786. In that case, the State of Texas denied the children of illegal aliens free public education. The question presented to the Supreme Court was whether that denial was consistent with the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. In concluding that the Equal Protection Clause was violated, the majority of the Court recognized that undocumented aliens are not a suspect class and that education is not a fundamental right. Therefore, the discriminatory classification reviewed in that case was not subject to strict scrutiny. However, the Court also recognized that because of the importance of education in the lives of children, and because of the significant social costs when selected groups are denied an education, an intermediate level of scrutiny would be applied. As part of that intermediate level of scrutiny, the Court held that the burden would be on the State of Texas to prove that the discriminatory classification furthered some substantial goal of the State. Finding no evidence in the record of such a substantial interest, the Court held that:

If the state is to deny a discrete group of innocent children the free public education that it offers to other children residing within its borders, that denial must be justified by a showing that it furthers some substantial state interest. No such showing was made here. Accordingly, the judgment of the Court of Appeals in each of these cases is Affirmed.

Plyler, 457 U.S. at 230, 102 S.Ct at 2401-02.

In analyzing the circumstances which will give rise to the heightened level of scrutiny applied by the Supreme Court in the Plyler decision, Lawrence Tribe offers the following explanation:

Broadly speaking, there are two circumstances that trigger heightened scrutiny. The first involves infringement of “important,” although not necessarily “fundamental,” rights or interests. The extent to which the Court’s scrutiny is heightened depends both on the nature of the interest and the degree to which it is infringed. Thus, in Plyler v. Doe, the Court adopted a requirement that the state’s goal be “substantial” when faced with a classification which served to deprive illegal alien children of any education, an interest which the Court explicitly held to be “important” in “maintaining our basic institutions.” Significant in the Court’s decision to heighten scrutiny was the risk that such deprivation would serve to “create and perpetuate ... a subclass of illiterates within our boundaries.”
Likewise, in Hampton v. Mow Sun Wong, infringement of the interest of aliens in employment in the federal competitive civil service was struck down specifically because of how broadly the “liberty” of aliens is restricted by their exclusion from such a large part of the economy. ...
A second broad circumstance in which intermediate review has been triggered involves government’s use of sensitive, although not necessarily suspect, criteria of classification.

Lawrence Tribe, American Constitutional Law, § 16-33 (2d Ed. 1988).

Similarly, our Court has recognized a middle tier of analysis where important rights are involved, even though those rights are not considered fundamental. In Butte Community Union v. Lewis (1986), 219 Mont. 426, 430, 712 P.2d 1309, 1311, this Court was asked to decide whether legislation which linked eligibility for welfare benefits to a person’s age violated the Equal Protection Clause found in Article II, Section 4, of the Montana Constitution. We noted that:

Equal protection analysis traditionally centers on a two-tier system of review. If a fundamental right is infringed or a suspect classification established, the government has to show a “compelling state interest” for its action. If the right is other than fundamental, or the classification not suspect, the government has only to show that the infringement or classification is rationally related to a governmental objective which is not prohibited by the Constitution.

We held that to be a fundamental right under Montana’s Constitution, the right must be found in Montana’s Declaration of Rights or be a right “without which other constitutionally guaranteed rights would have little meaning.” Lewis, 712 P.2d at 1311. We held that although mentioned in the Constitution, the right to welfare was not a fundamental right. However, since it was an important enough right to be mentioned elsewhere in the Constitution, we held that its abridgement required something more than a rational relationship to a governmental objective. We stated that:

A need exists to develop a meaningful middle-tier analysis. Equal protection of the law is an essential underpinning of this free society. The old rational basis test allows government to discriminate among classes of people for the most whimsical reasons. Welfare benefits grounded in the Constitution itself are deserving of great protection.
... Where constitutionally significant interests are implicated by governmental classification, arbitrary lines should be condemned. Further, there should be balancing of the rights infringed and the governmental interest to be served by such infringement.

Lewis, 712 P.2d at 1314.

For these reasons, we adopted the following standard of review for those interests which we deemed significant enough to warrant a middle tier of analysis:

We hold that a finding that HB 843 is constitutional requires the State to demonstrate two factors: (1) that its classification of welfare recipients on the basis of age is reasonable; and (2) that its interest in classifying welfare recipients on the basis of age is more important than the people’s interest in obtaining welfare benefits.

Lewis, 712 P.2d at 1314.

Based upon that test, we held in language relevant to the issue raised in this case that:

[T]he State’s objective in enacting HB 843 — saving money — must be balanced against the interest of misfortunate people under the age of 50 in receiving financial assistance from the State. The trial record does not show the State to be in such a financially unsound position that the welfare benefit, granted constitutionally, can be abrogated.

Lewis, 712 P.2d at 1314.

In State ex rel. Bartmess v. Board of Trustees of School District No. 1 (1986), 223 Mont. 269, 275, 726 P.2d 801, 804-05, we reaffirmed our commitment to a middle tier of scrutiny and held that a high school student’s right to participate in extra-curricular activities was an interest of sufficient magnitude that its abridgement would warrant middle-tier scrutiny, rather than simply speculation about a rational basis. We stated that:

We therefore hold that the middle-tier constitutional analysis is to be applied in determining whether the 2.0 rule violates students’ right to participate in existing extracurricular activities. We further hold that this right is not a fundamental right under the Montana Constitution; but that such right is clearly subject to constitutional protection and that a middle-tier analysis is to be applied for constitutional equal protection purposes.

Based on our previous decisions, the fact that there is no fundamental right to those disability benefits provided for in the Workers’ Compensation Act should not be the end of our equal protection analysis. The interest of an injured worker in a disability benefit with which to sustain himself and his family is of sufficient magnitude that the denial of those benefits based on an arbitrary classification deserves a higher level of scrutiny than is provided for under the majoritys toothless “rational basis” test.

The benefits provided for under the Workers’ Compensation Act will, in many cases, be the difference between a famifys subsistence and its financial ruin. The ability to provide for a famifys housing, transportation, food, and clothing may depend on an injured worker’s entitlement to disability benefits. The eligibility for health care expenses alone may be the difference between a family’s survival and destruction.

The public policy consideration for workers’ compensation benefits is clearly stated in § 39-71-105(1), MCA, which provides that:

It is an objective of the Montana workers’ compensation system to provide, without regard to fault, wage supplement and medical benefits to a worker suffering from a work-related injury or disease.

The vital importance of a basic disability benefit for injured workers in Montana is so clearly evident as a matter of public policy that all but a few exempt employers are required by law to provide coverage under the Workers’ Compensation Act for their employees. Section 39-71-401, MCA. The failure to provide coverage is a felony punishable by ten years in prison and a $50,000 fine. Section 45-7-501, MCA. This requirement is considered so significant to the social and economic well-being of our citizens that employers who fail to carry workers’ compensation insurance can be ordered to completely cease operation of their business until they elect to be bound by a compensation plan. Section 39-71-507, MCA. Any employer who fails to comply with an order to cease operations is guilty of a misdemeanor.

Certainly the interest of an injured and disabled worker in his or her disability benefits is as significant as an alien child’s interest in education, the right of other Montana citizens to welfare benefits, and the right of school children to participate in extra-curricular activities. To argue otherwise is to ignore the despair and futility experienced by any family whose primary wage earner has lost the ability to provide his or her family with financial support. To hold otherwise is to ignore the reality that unless disabled workers are compensated for their disability by the industry in whose service they were damaged, the obligation to support these workers and their families falls upon the taxpayers in general who have had no direct benefit from the worker’s services, and who have a much less compelling obligation to contribute to that unfortunate family’s subsistence.

Under the heightened middle-tier scrutiny that I would apply to the Legislature’s arbitrary denial of disability benefits to Gary Stratemeyer, the decision of the Workers’ Compensation Court would necessarily be affirmed. Under that level of scrutiny, the burden would be on the State of Montana to show that this discriminatory classification is reasonable and that the State interest served is more important than Gary Stratemeyer’s interests in these basic disability benefits. There is no such evidence in the record before this Court.

No purpose for this discriminatory legislation was offered by the Legislature. No purpose was demonstrated by Stratemeyer’s employer in the trial court. The Workers’ Compensation Judge was left to speculate without any factual or evidentiary basis to justify treating injuries to the mind differently from injuries to the back or leg.

Since the trial judge found no justification for this discriminatory treatment, the majority has manufactured justifications. The majority speculates that excluding injuries to the mind from coverage under the Workers’ Compensation Act might be cost effective. The same could be said for excluding injuries to the left leg, as opposed to the right leg, or excluding injuries to the neck. Presumably, if the Legislature chooses to do so, the majority would have no difficulty finding a rational economic basis for its decision.

The majority’s effort to rationalize discriminatory treatment of the claimant is speculative at best. We have no evidence in this record of the frequency of claims for stress prior to the 1987 amendment to the Workers’ Compensation Act, nor do we have any evidence of the overall impact that such claims had or would have on the cost of providing workers’ compensation coverage to the average employer in Montana. What we do know is that the impact of such an injury on this claimant has been devastating and that his family’s need for disability benefits is desperate.

What we also know from the public information that has been disseminated is that since allegedly “cost saving measures” like this one were enacted in 1987, the unfunded liability of the State Compensation Insurance Fund has quadrupled and rates for workers’ compensation coverage for most employers in Montana have increased by 100 percent. There is good reason why the majority has found it necessary to substitute its own speculation for any factual record in this case.

The majority also surmises that a rational basis for excluding mental injuries from coverage under the Workers’ Compensation Act may be the fact that mental injuries are more difficult to prove than physical injuries. However, this is a poor case in which to assert that argument. The claimant’s injury in this case and the extent of his total disability is uncontested by his employer or its insurer. Neither was there any basis in the legislative history for § 39-71-119, MCA, to conclude that mental injuries were excluded because of the difficulty proving them. The notion that mental injuries are difficult to prove and document is a carry-over from the dark ages. In the modern practice of psychiatry and psychology, there are many objective tests for the documentation and measurement of mental disease or defect. Conversely, in spite of many advances in medicine, there are no objective means of documenting or measuring many types of physical injuries, including injuries to muscles, ligaments, tendons, and nearly every other soft tissue found in the human body.

Any conclusion that difficulties with proof are a justification for excluding mental injuries from coverage under the Workers’ Compensation Act finds support only in the editorial pages of this State’s daily newspapers which, for the past year, have bullied and threatened this State’s courts over the issue presented in this case. These uninformed opinions are certainly no basis for resolving a constitutional issue of the magnitude that this case presents.

The majority opinion is based on an inadequate and faulty analytical approach to the Equal Protection Clause of the Montana Constitution. It employs an approach which for all practical purposes eliminates the protections provided for in Article II, Section 4, of the Montana Constitution, by concluding that virtually any reason will justify the discriminatory treatment of Montana’s citizens under Montana’s laws. For these reasons, I dissent from the opinion of the majority. I would affirm the Workers’ Compensation Court.

JUSTICE HUNT

dissenting.

I dissent. Like Justice Trieweiler, I can find no evidence to support the erroneous conclusion of the majority opinion. If giving benefits to a dedicated police officer, injured in the performance of his duty while trying to save the life of a young girl, requires more than claimant has provided here, we are indeed in woeful economic straits.

I would affirm the Workers’ Compensation Court.

      Chris Sykes, A Heavy Toll: What Workers’ Comp Cost and How Montana Rates, GREAT FALLS TRIBUNE. Feb. 14,1993, at 4A.

      Editorial, Stress Could Break Workers’ Comp Bank, GREAT FALLS TRIBUNE, May 19, 1992, at 4A.
      Editorial, Court Cases Add to Work-Comp Woes, INDEPENDENT RECORD, May 24,1992, at 5C.
      Editorial, They’re Stressed Out in California, INDEPENDENT RECORD, Jan. 31,1993, at 5C.
      Editorial, Letter to Marc Racicot and Montana State Legislature From Tribune Editorial Board, GREAT FALLS TRIBUNE, Feb. 16,1993, at 6A.

        Editorial, Ten Steps Needed to Cure Workers’ Comp, GREAT FALLS TRIBUNE, Feb. 17, 1993, at 6A.


text:
    ACTION ENTERPRISES, INC., by and through shareholders DUANE B. LINDEMAN and MILDRED E. LINDEMAN, Plaintiffs and Appellants, v. CHARLES E. McCALLA, shareholder, Defendant and Respondent.
    No. 92-458.
    Submitted on Briefs January 21, 1993.
    Decided June 23, 1993.
    50 St.Rep. 743.
    259 Mont. 167.
    855 P.2d 111.

      For Plaintiffs and Appellants: Karl Knuchel, Attorney at Law, Livingston.
    For Defendant and Respondent: Charles R. Cashmore, Crowley, Haughey, Hanson, Toole & Dietrich, Billings.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

This is an appeal from a decision of the District Court of the Sixth Judicial District in Park County, Montana, which held that plaintiffs’ cause of action is barred by the three-year statute of limitations set forth in § 27-2-202(3), MCA, and granted summary judgment in favor of defendant. We affirm.

The sole issue on appeal is whether the District Court erred when it held that plaintiffs’ cause of action was barred by the statute of limitations?

Plaintiffs Duane Lindeman and Mildred Lindeman (the Lindemans) owned 50 percent of Action Enterprises, Inc. (the Corporation). Charles McCalla (McCalla) and his wife, Ann McCalla, owned the remaining 50 percent of the Corporation.

During the course of the Corporation’s operation, it borrowed money from the First National Park Bank to build a single-family home. In 1981, McCalla contributed a loan of $44,263.44 to the Corporation to pay off the bank mortgage on the single-family home. On September 10, 1986, the Corporation sold the same home for $45,000 and the money was deposited into the Corporation account.

On September 15, 1986, McCalla issued a check to himself drawn on the Corporation account in the amount of $44,263.44. McCalla asserted that this withdrawal was to repay himself for the money that he loaned to the Corporation to pay off the bank mortgage. On September 21, 1990, the Corporation, by and through its shareholders, the Lindemans, filed a lawsuit against McCalla, demanding the return of funds which the Lindemans alleged McCalla withdrew without corporate authority.

McCalla filed a motion for summary judgment, asserting that the Lindemans’ action was barred by the statute of limitations. The Lindemans also filed a motion for summary judgment. On July 13, 1992, the District Court granted summary judgment in favor of McCalla.

In its order granting summary judgment, the District Court explained that because the check written by McCalla constituted “a purported obligation or liability not founded upon an instrument in writing,” the three-year statute of limitations found in § 27-2-202(3), MCA, was applicable. The court determined that although the Lindemans were aware of the $44,263.44 withdrawal for approximately four years, they failed to commence their lawsuit within the three-year time period prescribed by § 27-2-202(3), MCA. Accordingly, the court concluded that the Lindemans’ action was barred by the statute of limitations and granted summary judgment in favor of McCalla.

On appeal, the Lindemans assert that the District Court erred when it applied the three-year statute of limitations found in § 27-2-202(3), MCA, to their claim against McCalla. The Lindemans contend that the check for $44,263.44 written by McCalla constitutes a “writing,” and therefore, the appropriate statute of limitations is the eight-year period found in § 27-2-202(1), MCA. The Lindemans maintain that because they filed their cause of action within eight years after the “writing” was made, their lawsuit is not barred by the statute of limitations, and they should be allowed to try their case on its merits.

Alternatively, the Lindemans assert that if the check is not a “writing” which constitutes a contract for purposes of the eight-year statute of limitations, then at a minimum, the five-year statute of limitations set forth in § 27-2-202(2), MCA, should apply. For purposes of asserting the applicability of § 27-2-202(2), MCA, the Lindemans contend that the check created an “account” which is not founded upon an instrument in writing; and that the account is recoverable as an unauthorized loan from the Corporation to McCalla.

McCalla also challenges the statute of limitations applied by the District Court. He agrees with the District Court that the Lindemans’ action was barred by the statute of limitations; however, he asserts that the lower court’s application of the three-year statute of limitations was in error. McCalla contends that because this case involved simple conversion, the case should be governed by the two-year statute of limitations found at § 27-2-207(2), MCA. We agree with McCalla.

When deciding which statute of limitations applies, the court will look to the substance of the complaint. Weible v. Ronan State Bank (1989), 238 Mont. 235, 237, 776 P2d 837, 838. “If the gravamen of the action rests strictly on tort theories, the statute of limitations pertaining to torts will apply.” Weible, 776 P.2d at 838.

We conclude that when the District Court determined that the Lindemans’ action involved “a purported obligation or liability not founded upon an instrument in writing,” the lower court was in error. The Lindemans’ complaint sets forth the Lindemans’ theory for their cause of action. The basis of the Lindemans’ suit did not concern an “obligation or liability” incurred by McCalla, but rather an alleged unauthorized withdrawal by McCalla of Corporation funds. The facts in this case are analogous to those reported in Northwest Plating Company v. Hoffman (1988), 234 Mont. 360, 763 P.2d 44. In that case, a corporation filed a lawsuit against a shareholder for recovery of the latter’s unauthorized expenditure of corporate funds. In Northwest Plating, this Court held that unauthorized corporate expenditures incurred by an employee for personal expenses constituted the tort of conversion. 763 P.2d at 46. In the present case, the Corporation, by and through its shareholders, the Lindemans, seeks to recover against McCalla for his alleged unauthorized taking of corporate funds for his own benefit. Like the suit in Northwest Plating, the Lindemans’ cause of action involves an allegation of conversion.

Section 27-2-207(2), MCA, sets forth the statute of limitations for conversion. Section 27-2-207(2), MCA, requires that an action for “taking, detaining, or injuring any goods or chattels, including actions for the specific recovery of personal property,” must be commenced within two years.

The injury in question in this case occurred on September 15,1986, the date McCalla withdrew funds from the Corporation account. The complaint was filed on September 21, 1990 — over four years later. The Lindemans’ 1990 claim to recover converted funds is barred by the two-year statute of limitations.

We affirm the District Court’s determination that the Lindemans’ action was barred by the statute of limitations; however, we hold that the two-year statute of limitations for conversion found in § 27-2-207(2), MCA, is the appropriate statute to apply to the facts of this case.

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


author: JUSTICE WEBER

text:
    DENIS ROUANE and PAUL ROUANE, Plaintiffs and Appellants, v. THOMAS J. LYNAUGH, Defendant and Respondent.
    No. 92-550.
    Submitted on Briefs April 22, 1993.
    Decided June 23, 1993.
    50 St.Rep. 745.
    259 Mont. 171.
    855 P.2d 114.

      For Plaintiffs and Appellants: Fredric A. Bremseth, Doshan, Lord & Bremseth, Wayzata, Minnesota; Gerald J. Neely, Billings.
    For Defendant and Respondent: Sidney R. Thomas, Moulton, Bellingham, Longo & Mather, Billings.
   JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal from an order issued on May 19, 1992, by the Thirteenth Judicial District Court, Yellowstone County, granting summary judgment to Thomas J. Lynaugh, attorney admitted to practice in Montana. We affirm.

The only question on appeal is whether the District Court erred in granting summary judgment to Mr. Lynaugh based upon the running of the statute of limitation for filing a legal malpractice claim.

This case involves a claim for personal injuries resulting when an Eastern Airlines aircraft made a forced landing following takeoff in Miami, Florida. Denis Rouane and Paul Rouane, his father (the Rouanes) claim they suffered an injury in that accident.

On November 27,1984, the Rouanes hired Mr. Lynaugh to handle the claim against Eastern Airlines. On October 30,1986, Mr. Lynaugh filed a court action in United States District Court, Billings.

After negotiations with Eastern Airlines failed, Mr. Lynaugh advised the Rouanes that their claim should be venued in Florida and consulted with the law firm of Gaebe, Murphy & Mullen of Coral Gables, Florida. The action in Montana was stayed and Michael J. Murphy (Murphy) then filed suit against Eastern Airlines in Florida state district court on November 6, 1987.

On approximately November 30, 1987, Eastern Airlines filed its answer to the complaint alleging as an affirmative defense that the accident was governed by the Warsaw Convention and, as a result the two-year statute of limitation barred the suit. Eastern Airlines contended that the statute of limitation barred recovery because the claim was not filed until four years after the accident.

On December 3, 1987, the Rouanes hired the law firm of Doshan, Lord & Bremseth of Minnesota. Mr. Lynaugh’s services were terminated and several weeks later, Denis Rouane asked that the Rouane files be sent to the Bremseth law firm. At some point in April of 1988, the Rouanes were advised by the Murphy law firm in Florida that Eastern Airlines was asserting the affirmative defense of statute of limitation based on the Warsaw Convention governing international flights.

On May 30,1988, Denis Rouane sent a letter of complaint concerning Mr. Lynaugh to the Montana Commission on Practice and specifically alluded to the statute of limitation problem:

3. Mr. Lynaugh may have blown the statute of limitations. He says that he filed within the three year statute but I have just recently learned that under a Warsaw agreement he may have had to file it within two years, which he failed to do ....

On October 3,1988, the Florida state district court granted summary judgment to Eastern Airlines. On December 14, 1989, United States District Judge James F. Battin ordered the case of Rouane v. Eastern Airlines dismissed based upon Bremseth’s concession that the case was barred by the applicable statute of limitation.

The Rouanes filed a suit against Mr. Lynaugh on June 4, 1991, in substance alleging his failure to comply with the statute of limitation prescribed by the Warsaw Convention to the action against Eastern Airlines. Mr. Lynaugh filed a motion for summary judgment claiming the statute of limitation had run on filing a claim against him for attorney malpractice. Following a hearing on May 15, 1992, the District Court granted summary judgment to Mr. Lynaugh on May 19, 1992 as to Denis Rouane’s claim. Denis Rouane (Mr. Rouane) appeals that order.

Did the District Court err in granting summary judgment to Mr. Lynaugh based upon the running of the statute of limitation for a legal malpractice claim?

Mr. Rouane argues that the Montana statute of limitation does not begin to run until the Florida court determined that the statute of limitation on the underlying action under the Warsaw Convention had run. According to Mr. Rouane, it was not until this date in 1988 that he sustained damage. Mr. Rouane contends that this is a case of first impression in Montana.

Mr. Lynaugh argues that this Court has already decided the issue of when a statute of limitation for a legal malpractice action begins. Mr. Lynaugh contends that Mr. Rouane was required to file his lawsuit within three years of the discovery of his error. Section 27-2-206, MCA, provides:

Actions for legal malpractice. An action against an attorney licensed to practice law in Montana or a paralegal assistant or a legal intern employed by an attorney based upon the person’s alleged professional negligent act or for error or omission in the person’s practice must be commenced within 3 years after the plaintiff discovers or through the use of reasonable diligence should have discovered the act, error, or omission whichever occurs last, but in no case may the action be commenced after 10 years from the date of the act, error, or omission. (Emphasis added.)

The legislature made § 27-2-206, MCA, a “discovery” type statute. The discovery which starts the statute of limitation running is the discovery of the attorney’s error or omission. Burgett v. Flaherty (1983), 204 Mont. 169, 663 P.2d 332. Mr. Rouane argues what is considered to be the “damage rule” and includes discovery of the client’s damage as part of the discovery prerequisite for a statute to begin running.

Arguments for the adoption of the “damage rule” have been made to this Court in the past. Schneider v. Leaphart (1987), 228 Mont. 483, 486-487, 743 P.2d 613, 616. These arguments have failed because of the clear wording of the statute created by our legislature. Peschel v. Jones (1988), 232 Mont. 516, 760 P.2d 51.

This statute states that the action must be commenced within three years after the plaintiff discovers the act, error or omission. Mr. Rouane had three years from discovery of the objectionable activity by Mr. Lynaugh to file a malpractice suit.

The complaint filed by the Rouanes with the Montana Commission on Practice is contained in the letter of May 30,1988. That letter specifically points out that Mr. Lynaugh may have missed the Warsaw Convention statute of limitation.

Despite the May 30, 1988 letter to the Montana Commission on Practice, Mr. Rouane argues he did not have all the facts essential to his cause of action until the Florida court granted Eastern Airlines’ motion for summary judgment on October 4,1988. In Boles v. Simonton (1990), 242 Mont. 394, 791 P.2d 755, this Court concluded that the statute of limitation is not triggered by the damage aspect, stating:

[T]he rule that the statute is not triggered until the client is damaged has been expressly rejected in Montana as in conflict with the statute.

Boles, 242 Mont. at 401, 791 P.2d at 759.

Mr. Rouane knew of the Warsaw Convention statute of limitation when he wrote to the Montana Commission on Practice on May 30, 1988. By that date Mr. Rouane had discovered that Mr. Lynaugh had missed the appropriate statute of limitation. Mr. Rouane did not file his complaint until June, 1991, more than three years from the date on which the record establishes knowledge of Mr. Lynaugh’s omission. We conclude that Mr. Rouane failed to comply with the statute of limitation contained in § 27-2-206, MCA.

We hold that the District Court did not err in granting summary judgment to Mr. Lynaugh based upon the running of the statute of limitation for filing a legal malpractice claim.

Affirmed.

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