text:
    STATE OF MONTANA, Plaintiff and Respondent, v. TODD COLIN OATMAN, Defendant and Appellant.
    No. 94-618.
    Submitted on Briefs November 30, 1995.
    Decided February 7, 1996.
    53 St. Rep. 74.
    275 Mont. 139.
    911 P.2d 213.

      For Appellant: Larry D. Mansch and Marcia M. Jacobson, Public Defender’s Office, Missoula.
    For Respondent: Honorable Joseph P. Mazurek, Attorney General; John Paulson, Assistant Attorney General, Helena; and Karen S. Townsend, Deputy County Attorney, Missoula.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Todd Colin Oatman appeals from his conviction of five counts of robbery, in a jury trial in the Fourth Judicial District Court, Missoula County. We affirm.

The issue is whether the District Court erred in denying Oatman’s motion in limine to ban any mention at his trial of the guilty pleas made by Victor and Gene Camp to the same charges.

Just after midnight on August 22, 1993, Marla Wollgast, the shift supervisor at the Pizza Hut restaurant on Brooks Avenue in Missoula, Montana, noticed a car drive around the restaurant and then stop in the parking lot. Three men got out of the car and entered the restaurant, which had no other customers at that hour. The men were dressed in camouflage jackets and wore gloves. The tallest man appeared to be in his twenties and wore sunglasses and a black wig. One of the others, who appeared older, wore prescription glasses and a camouflage hat with ear flaps.

Waitress Sabrina Dulak asked the men if they preferred smoking or nonsmoking seating. They gave conflicting responses. Then one of them announced that they were undercover police officers on a drug bust and were placing everyone under arrest. The tallest man pulled out a revolver, pointed it at Wollgast and Dulak, and forced the women back into the kitchen, where Elizabeth Olson was doing dishes. The men ordered the three women to lie down on the floor and tied their hands behind their backs with baling wire.

Mark Alexander, another Pizza Hut employee, returned from delivering pizzas a few minutes later. The men forced him to lie down in the kitchen and tied him up with baling wire like they had the other employees.

Demanding instructions from the employees on how to operate the restaurant’s tills, the men opened each till and removed the money from inside. They then took the employees’ wallets, purses, and money. The robbers left the restaurant after telling the employees to stay put or get hurt.

After the robbers left, Wollgast was able to untie herself and the others. Dulak called the police. The employees gave the investigating officers descriptions of the robbers, and Alexander made sketches of two of them.

Approximately a month later, an article appeared in the local newspaper concerning four suspects in an attempted robbery of an armored car. The article contained photographs of Oatman, Victor Camp, Gene Camp, and Daniel Koening, and indicated that the men had also been linked to the Pizza Hut robbery. The Pizza Hut employees recognized the three Pizza Hut robbers from the newspaper photos and contacted the police. The employees later picked out the robbers from photo lineups.

Investigators searched Oatman’s residence, Gene Camp’s residence, and a mini-storage unit rented by Gene Camp. They recovered a camouflage jacket at Oatman’s residence and two revolvers at Gene Camp’s residence. From the mini-storage unit they recovered a black bag containing two wigs. Under FBI questioning on September 25, 1993, Oatman initially identified the black bag as his, but when he saw the wigs inside he said that it probably wasn’t his bag.

Oatman, Gene Camp, and Victor Camp were each charged with five counts of robbery at the Pizza Hut (a count for robbing each of the four employees, and a fifth count for robbing the restaurant). The Camps both pled guilty to the charges.

Prior to his trial, Oatman filed a motion in limine asking the District Court to prohibit any mention of the convictions of himself and Victor and Gene Camp on federal charges arising from the robbery of the armored car. The motion also asked the court to prohibit testimony about a conversation in which Daniel Koening and Gene Camp discussed Oatman’s participation in the Pizza Hut robbery, and to prohibit the robbery victims from mentioning their recognition of Oatman through the newspaper article. The court granted the first two requests. As to the third request, the prosecution and defense stipulated that the robbery victims would be allowed to testify that they identified Oatman through the newspaper photograph but the newspaper article itself would not be admitted into evidence and the witnesses would not mention the article’s description of the robbery of the armored car.

Oatman also moved the court to prohibit any mention of the guilty pleas, plea bargain agreements, or convictions of Victor and Gene Camp on the Pizza Hut robbery charges. The motion was considered and denied on the first day of trial. In taking judicial notice of the guilty pleas at trial, the court instructed the jury:

Members of the jury, the Court may take judicial notice of public acts, places, facts, and events. You may treat such fact as conclusive. But since you are the triers of fact in this case, you are not required to do so.
The Court takes judicial notice of the pleas of guilty in Cause Nos. 10878 and 10879 by Victor Wayne Camp and Gene Austin Camp.

A Missoula police detective testified that he was in court when the Camps admitted to their participation in the Pizza Hut robbery.

Wollgast identified Oatman at trial as the tall robber with the gun and wig. The other three Pizza Hut employees identified Oatman as one of the robbers, as well. The jury also heard testimony from witnesses for Oatman that he had been residing with Victor Camp and had a close association with Gene Camp.

Oatman’s defense was that he had been misidentified as the tall robber. His attorney stressed the discrepancies between the Pizza Hut employees’ original description of the height of the tall robber (six feet) and Oatman’s actual height (six feet, five inches).

During closing argument, the prosecuting attorney stated:

Now we know who robbers number two and number three were. They were Gene Camp, a friend of the Defendant’s father, and Victor Camp, the Defendant’s roommate at the time.
Gene Camp has pled guilty to those five robberies at the Pizza Hut. Victor Camp has pled guilty to those five robberies at the Pizza Hut.
Notice that all four victims of these five robberies selected Gene Camp out of the six-person photo spread as being one of the individuals in the robbery. . . .
You also saw some wigs, two wigs, that were found during a search of Gene Camp’s storage facility, Gene Camp, a friend of the Defendant and a close friend of the Defendant’s father... .

The prosecuting attorney also commented in closing:

You will remember that they, each and every one of them, identified Gene Camp from the photo line-ups... .
Was Marla Wollgast accurate about picking out Gene Camp as one of the robbers that night? Of course, she was. We know that, because he’s pled guilty.
Was Mark Alexander accurate about picking out Gene Camp as one of the robbers that night? Of course, he was. He was one of the robbers. Pleaded guilty.
Was Sabrina Dulak accurate about picking out Gene Camp as one of the robbers? He’s pled guilty.
Was Elizabeth Olson accurate about picking out Gene Camp as one of the robbers? Yes, she was, because he’s pled guilty.

The prosecutor went on to argue that the Pizza Hut employees were likewise accurate in their identification of Oatman as one of the robbers, despite the discrepancies which Oatman had pointed out between the victims’ original estimates of the height of the tall robber and Oatman’s actual height.

The jury convicted Oatman on all five counts of robbery charged against him. Oatman appeals.

Did the District Court err in denying Oatman’s motion in limine to ban any mention at his trial of the guilty pleas made by Victor and Gene Camp to the same charges?

Oatman contends that the convictions of Victor and Gene Camp for the Pizza Hut robberies did not make it more probable that he was the third robber. He maintains that evidence of the Camps’ guilty pleas was irrelevant under Rule 401, M. R. Evid. Moreover, he asserts that the danger of unfair prejudice from informing the jurors of the guilty pleas outweighed any probative value of that information, rendering the evidence inadmissible under Rule 403, M. R. Evid.

A district court has broad discretion to determine whether evidence is relevant and admissible. The test of relevance is whether an item of evidence will have any value, as determined by logic and experience, in proving the proposition for which it is offered. State v. Oman (1985), 218 Mont. 260, 264, 707 P. 2d 1117, 1119. The court’s determination is subject to review only for abuse of discretion. State v. Sadowski (1991), 247 Mont. 63, 69, 805 P. 2d 537, 541. Atrial court’s weighing of potential prejudice against probative value will likewise be upheld absent an abuse of discretion. State v. Laird (1987), 225 Mont. 306, 312, 732 P. 2d 417, 421.

Oatman argues that the prosecution’s comments in closing argument, set forth above, confirm that the purpose for which information about the Camps’ guilty pleas was offered was as evidence of his guilt. We disagree. The prosecution’s comments shown above are addressed to the credibility of the Pizza Hut employees — specifically, their credibility in identifying the robbers. The credibility of the Pizza Hut employees’ identification of him was an issue raised by Oatman.

This Court has not previously addressed the precise issue of whether a nontestifying codefendant’s guilty plea is admissible to corroborate an eyewitness’s identification of the defendant as one of the perpetrators of the crime. We have noted “the general principle that evidence of a codefendant’s guilty plea is inadmissible.” State v. Price (1988), 234 Mont. 144, 150, 762 P. 2d 232, 236. We have recognized, however, the exception to this general principle when evidence of a codefendant’s guilty plea is offered to aid the jury in assessing the credibility of a codefendant who testifies at the defendant’s trial. Price, 762 P. 2d at 236. In so doing, we cited United States v. Halbert (9th Cir. 1981), 640 F. 2d 1000, in which the Ninth Circuit Court of Appeals expounded upon the admissibility of codefendants’ guilty pleas.

As a principle of general acceptance, the guilty plea or conviction of a codefendant may not be offered by the government and received over objection as substantive evidence of the guilt of those on trial. While the evidence may not be used to establish a defendant’s guilt, it may properly be considered by the jury in evaluating witness credibility. Admissibility of the plea turns on the purpose for which it is offered. When that purpose is to further the jury’s difficult task of evaluating credibility, it is relevant and admissible without reference to the identity of the offering party.

Halbert, 640 F. 2d at 1004 (citations omitted).

In the present case, the prosecutor asked the District Court to take judicial notice of the Camps’ guilty pleas as probative of the accuracy of the Pizza Hut employees’ identification of the robbers. In granting that request, the court stated:

Well, the Court is going to allow the questions about the guilty pleas and the plea bargain based on the arguments of counsel here. It seems that the credibility of those witnesses and their identifications are at issue, and that their testimony about the process of identifying the Camps is relevant to their credibility and will assist the jury in making a final determination[.]

This statement of the purpose for the court’s decision to inform the jury that it took judicial notice of the guilty pleas corresponds to the purpose for which such evidence is admissible under the law as discussed by the Ninth Circuit Court of Appeals above.

As stated above, Oatman’s defense to the charges against him was that the Pizza Hut employees had misidentified him as one of the robbers, especially because of the height issue. The employees’ credibility in identifying the robbers was thus placed at issue. The employees’ correct identification of the Camps as two of the robbers bolstered their credibility. On balance, we conclude that the court did not abuse its discretion in deciding that the probative value of informing the jury that the court had taken judicial notice of the Camps’ guilty pleas outweighed the prejudicial potential of that information. We conclude that under the circumstances here presented, evidence of the Camps’ guilty pleas was admissible.

Finally, this Court has ruled that taking judicial notice of proceedings against a codefendant does not taint the fairness of the defendant’s trial if the court instructs the jury that it has the prerogative to accept or reject the judicially-noticed facts as evidence. State v.Hart (1981), 191 Mont. 375, 389, 625 P. 2d 21, 29, cert. denied,(1981) 454 U. S. 827, 102 S. Ct. 119, 70 L. Ed. 2d 102. The jury was so instructed at Oatman’s trial.

We affirm the judgment of the District Court.

JUSTICES GRAY, HUNT, NELSON and TRIEWEILER concur.


source: Caselaw Access Project

author: JUSTICE ERDMANN

license: Public Domain

text:
    LEE KNUDSEN, SHIRLEY KNUDSEN, JAMES KNUDSEN, and JANICE KNUDSEN, Plaintiffs and Appellants, v. CLAUDE E. EREAUX, a/k/a EZZIE EREAUX, N.W. DOBSON, a/k/a NORRIS W. DOBSON; ESTHER ARLETTA DOBSON, a/k/a ARLETTA DOBSON; CITY OF MALTA, an Incorporated Political Subdivision of the State of Montana; and MAYOR BYRON EREAUX, CITY COUNCIL MEMBERS KARL HARMS, WILLIAM CROWDER, DAVE BROADBROOKS, and DELMAR DEMARAIS, individually and as members of the City Council of the City of Malta, Defendants and Respondents.
    No. 95-422.
    Submitted on Briefs January 11, 1996.
    Rehearing Denied March 7, 1996.
    Decided February 8, 1996.
    53 St.Rep. 83.
    275 Mont. 146.
    911 P.2d 835.

      For Appellants: Vicki Knudsen, Attorney at Law, Roundup; Mark D. Parker, Parker Law Firm, Billings.
    For Respondents: Jack Jenks, Malta City Attorney, Bosch, Kuhr, Dugdale, Martin & Kaze, Havre; Don Cole, Cole & Amestoy, Malta.
   JUSTICE ERDMANN

delivered the Opinion of the Court.

Plaintiffs appeal from an order issued by the Seventeenth Judicial District Court, Phillips County, dismissing their amended petition for lack of standing. We affirm.

We restate the issues on appeal as follows:

1. Did the District Court err by failing to notify the parties that it was treating the motion to dismiss as a motion for summary judgment?

2. Did the District Court correctly determine that the plaintiffs did not have standing to challenge a municipal annexation made pursuant to Title 7, Chapter 2, Part 46, Montana Code Annotated (1993)?

FACTS

This case has no adjudicated facts. It comes before this Court from the dismissal of plaintiffs’ amended petition for declaratory judgment and injunctive relief. No hearing was conducted and the only facts are those contained in the parties’ pleadings and supporting documents.

On April 12, 1994, the City of Malta approved a petition to annex property pursuant to § 7-2-460 l(3)(b), MCA (1993), which allows annexation by petition to the local legislative body. On February 28, 1995, the City approved a plan for extension of services for the annexed property and on March 7,1995, the City filed the resolution annexing the property.

On April 27,1995, the plaintiffs filed their petition for declaratory judgment and injunctive relief alleging the annexation was invalid, illegal, and in violation of statutory authority. On May 15, 1995, the City, Mayor Ereaux, and the City Council filed a motion to dismiss plaintiffs’ petition and on May 22, 1995, filed a supporting brief. On June 15, 1995, defendants Claude Ereaux, Norris W. Dobson and Esther Dobson filed their response.

On June 27, 1995, the plaintiffs filed a motion to amend their petition to address the issue of standing which the City had raised in its motion to dismiss. The District Court granted plaintiffs’ motion to amend and on June 29, 1995, the plaintiffs filed their amended petition. The District Court reviewed the pleadings, written arguments, and supporting documentation and considered the City’s motion to dismiss as a motion for summary judgment for dismissal. On August 30, 1995, the District Court issued its order granting the City’s motion to dismiss the amended petition for lack of standing. This appeal followed.

ISSUE 1

Did the District Court err by failing to notify the parties that it was treating the motion to dismiss as a motion for summary judgment?

Rule 12(b), M.R.Civ.R, allows the district court to convert a motion to dismiss into a motion for summary judgment if “matters outside the pleading are presented to and not excluded by the court ....” In the present case, the City attached to its motion to dismiss made pursuant to Rule 12(b)(6), M.R.Civ.R, an affidavit from the president of the Phillips County Abstract Company, as well as a certificate of abstractor indicating the chain of title to the annexed property. The District Court considered the supporting documents in making its ruling and without notifying the parties converted the City’s motion to dismiss into a motion for summary judgment.

The plaintiffs argue that the District Court committed reversible error by converting the City’s motion without providing notice to the parties. The City counters that even if notice had been given and a hearing had been conducted, the result would have been the same and therefore any error committed was harmless error.

Rule 12(b), M.R.Civ.R, states that if a motion to dismiss is converted into one for summary judgment “all parties shall be given reasonable opportunity to present all material made pertinent to such motion by Rule 56.” Accordingly, we have held that before a court can convert a motion to dismiss into a motion for summary judgment, it must give notice to the parties of its intention to convert the motion. Hoveland v. Petaja (1992), 252 Mont. 268, 271, 828 P.2d 392, 393 (citing State ex rel. Dept. of Health and Environmental Sciences v. City of Livingston (1976), 169 Mont. 431, 436, 548 P.2d 155, 157; Graveley v. MacLeod (1978), 175 Mont. 338, 344, 573 P.2d 1166, 1169). Formal notice by the court gives the party opposing the motion an opportunity to produce additional facts by affidavit or otherwise which would create a genuine issue of material fact to preclude summary judgment under Rule 56, M.R.Civ.P. Hoveland, 828 P.2d at 394 (citing First Federal Savings and Loan v. Anderson (1989), 238 Mont. 296, 299, 777 P.2d 1281, 1283).

We therefore conclude that the District Court erred in not notifying the parties that it converted the City’s motion to dismiss into a motion for summary judgment. However, based on our holding on Issue 2 below, we conclude this error was harmless and does not affect the outcome of the case.

ISSUE 2

Did the District Court correctly determine that the plaintiffs did not have standing to challenge a municipal annexation made pursuant to Title 7, Chapter 2, Part 46, Montana Code Annotated (1993)?

We must first note that even though the District Court in reaching its decision considered supporting documents beyond the pleadings, we determine it is not necessary to go beyond the pleadings in this case. We reach our conclusion based solely on our review of the pleadings, and therefore, we review the District Court’s order as being based on a motion to dismiss and not on a motion for summary judgment.

In considering a motion to dismiss made pursuant to Rule 12(b)(6), M.R.Civ.R, a court must view the allegations in a light most favorable to the plaintiff, admitting and accepting as true all facts well-pleaded. Farris v. Hutchinson (1992), 254 Mont. 334, 336, 838 P.2d 374, 375 (citing Devoe v. Missoula County (1987), 226 Mont. 372, 374, 735 P.2d 1115, 1116; United States Nat’l Bank of Red Lodge v. Dept. of Revenue (1977), 175 Mont. 205, 207, 573 P.2d 188, 190). A court should not dismiss a complaint for failing to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his or her claim which would entitle him or her to relief. Farris, 838 P.2d at 375.

The District Court in this case relied on O’Donnell Fire Service and Equipment v. City of Billings (1985), 219 Mont. 317, 711 P.2d 822, and concluded that the plaintiffs did not have standing to challenge the City’s annexation resolution. In O’Donnell, the City of Billings annexed several parcels in the Billings Heights area, five of which were annexed pursuant to the same statutory authority used by the City of Malta. O’Donnell filed a complaint in district court seeking an injunction against further annexations and a declaratory judgment that the annexations were illegal and void. In concluding that O’Donnell did not have standing to challenge the annexations, we relied on the rule set forth in Sharkey v. City of Butte (1916), 52 Mont. 16, 155 P. 266, and Nilson Enterprises, Inc. v. City of Great Falls (1980), 190 Mont. 341, 621 P.2d 466. We held that:

[T]he annexations would have to be void ab initio and the challenger would have to be a property owner who would suffer tax increases before the annexation could be set aside in a direct attack. O’Donnell owns no property in the annexed area. ... Given these facts, O’Donnell has no standing to challenge the annexations done pursuant to Part 46 ....

O’Donnell, 711 P.2d at 824 (emphasis added).

In their amended petition, the Knudsens state “[p]etitioners own land in Malta, Phillips County, Montana, adjacent to the land purported to be annexed ....” (emphasis added). Thus, we determine from the pleadings that the plaintiffs did not own property in the annexed area and therefore lacked standing to challenge the City’s annexation of the property.

The Knudsens also attempt to collaterally attack the annexation by challenging the agreement for services made between the City and the developer. We stated in O’Donnell that:

If it [O’Donnell] lacks standing to directly attack the annexations, it should not be permitted to pursue a collateral attack. Montana has never permitted such a collateral attack and we will not do so in this case.

O’Donnell, 711 P.2d at 825.

O’Donnell is dispositive of all issues presented in this case. Recognizing this the Knudsens urge us to modify our holding in O’Donnell to allow a party to challenge an annexation if the “party’s land is directly and uniquely affected by the annexation.” We decline such an invitation to either modify or overrule our longstanding holding in O’Donnell. We therefore conclude that since the plaintiffs did not own property within the proposed annexation they do not have standing to directly or collaterally attack the annexation resolution. Without standing to state a claim the plaintiffs can prove no set of facts in support of their action which would entitle them to relief.

We affirm the District Court’s order dismissing the plaintiffs’ amended petition for lack of standing. The error committed by the District Court in failing to notify the parties that it was converting the City’s motion to dismiss to a motion for summary judgment is harmless error.

JUSTICES NELSON, TRIEWEILER, GRAY and LEAPHART concur.


author: CHIEF JUSTICE TURNAGE JUSTICE NELSON JUSTICE TRIEWEILER JUSTICE LEAPHART,

text:
    JOAN REEVES, Petitioner and Appellant, v. LIBERTY MUTUAL FIRE INSURANCE COMPANY, Respondent and Insurer for UNITED PARCEL SERVICE, Employer.
    No. 95-317.
    Submitted on Briefs November 16, 1995.
    Decided February 12, 1996.
    53 St.Rep. 88.
    275 Mont. 152.
    911 P.2d 839.

      For Appellant: Michael P. Sand and Julianne C. Burkhardt, Sand Law Offices, Bozeman.
    For Respondent: Larry W. Jones, Missoula.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Joan Reeves appeals a decision of the Workers’ Compensation Court denying her request for rehabilitation benefits to permit her to pursue a master’s degree in counseling. We affirm.

The sole issue raised is whether Reeves is eligible for a rehabilitation plan pursuant to § 39-71-2001, MCA (1993). Therefore we do not address the important issue discussed in the concurring opinion.

Joan Reeves injured her back in January 1994 while employed as a driver for United Parcel Service (UPS). After she reached maximum medical healing, she was restricted to work with medium physical demands, preventing her from returning to her job at UPS. She settled her workers’ compensation claim for permanent partial disability in August 1994, specifically leaving open her claim for rehabilitation benefits pursuant to § 39-71-2001, MCA (1993).

Reeves subsequently proposed a rehabilitation plan to UPS’s insurer, Liberty Mutual Fire Insurance Company, under which she would pursue a two-year program leading to a master’s degree in counseling. Liberty Mutual rejected the proposal. Reeves then petitioned the Workers’ Compensation Court for a hearing on whether she was entitled to rehabilitation benefits to pursue her plan.

The Workers’ Compensation Court held a hearing on May 31,1995, after which it denied Reeves’ request for rehabilitation benefits. The court ruled that Reeves’ proposed plan was not reasonable because she did not establish a reasonable expectation that the plan would improve her position in the job market. Reeves appeals.

Is Reeves eligible for a rehabilitation plan pursuant to § 39-71-2001, MCA (1993)?

Section 39-71-2001(1), MCA (1993), provides:

Rehabilitation benefits. (1) An injured worker is eligible for rehabilitation benefits if:
(a) the injury results in permanent partial disability or permanent total disability as defined in 39-71-116;
(b) a physician certifies that the injured worker is physically unable to work at the job the worker held at the time of the injury;
(c) a rehabilitation plan completed by a rehabilitation provider and designated by the insurer certifies that the injured worker has reasonable vocational goals and a reemployment and wage potential with rehabilitation. The plan must take into consideration the worker’s age, education, training, work history, residual physical capacities, and vocational interests.
(d) a rehabilitation plan between the injured worker and the insurer is filed with the department. If the plan calls for the expenditure of funds under 39-71-1004, the department shall authorize the department of social and rehabilitation services to use the funds.

We previously interpreted and applied this statute in State of Montana ex rel. Cobbs v. Montana Department of Social and Rehabilitation Services (1995), [274 Mont. 157], 906 P.2d 204. However, that case did not involve the issue here presented.

Liberty Mutual concedes that Reeves has met the requirements of subsections (l)(a) and (b) above. However, Liberty Mutual refused to participate in documenting Reeves’ plan, instead merely assigning a rehabilitation counselor to offer her job placement assistance. Liberty Mutual did not designate Reeves’ rehabilitation plan as a plan representing “reasonable vocational goals and a reemployment and wage potential with rehabilitation,” pursuant to subsection (l)(c), above. As a result, no plan was filed with the department pursuant to subsection (l)(d) above.

Reeves contends that Liberty Mutual admitted that she would earn $32,000 per year as a licensed practical counselor in private practice. This contention is based upon a proposed finding submitted to the Workers’ Compensation Court by Liberty Mutual: “The Claimant plans, if she receives her master’s degree, to work as a licensed practical counselor earning approximately $32,000.00 a year counseling clients in private practice.”

Reeves’ contention is without merit. A statement of an opposing party’s plan does not equate to a statement of belief in the merits of the plan. The statement of Reeves’ plan was not a concession that Reeves would actually earn the amount she planned to earn.

The Workers’ Compensation Court heard evidence that, prior to her employment with UPS, Reeves earned a bachelor’s degree in home economics with a family science option and that she held a long-term goal of obtaining a master’s degree in counseling. Reeves had been working at UPS to save money to return to college to continue her schooling. She did not utilize her undergraduate degree to work in the field of social services for several reasons.

First, she could earn more money as a driver for UPS. Reeves’ time-of-injury earnings with UPS were $12.82 per hour. Average wages for the social work/counseling field with a bachelor’s degree were $9.62 per hour.

Second, Reeves did not wish to work with the type of clientele with whom she would have to work, with only an undergraduate degree. In her own words:

THE COURT: [Your] degree is with the family services options and you are interested in family counseling. Why haven’t you looked for jobs in the family services area?
THE WITNESS: Because those jobs — the salaries for those jobs are — I guess basically that is not where I want to be. I’ve always wanted to be in family practice. There is a whole different clientele between entry-level jobs with my degree and the clientele that I would be working with as a counselor.
Q. What I would like you to do, Joan, is maybe explain for the judge the difference in the type of work that you would do with the bachelor’s degree that you presently hold as opposed to the type of work you would expect to do with a master’s degree.
A. Okay. Let’s take an example that maybe I was like a social worker. I don’t know that I could be an actual social worker, but something in that field.
Basically, in my opinion, you would be dealing with kids, families who were in deep trouble, financial trouble, you know, possibly abuse situations, just some real sad case scenarios. That has just never beenyou know, kids that probably are not being taken care of properly and that sort of thing.
My clientele who I would like to work with are more just couples that are having problems, people that are coming to you who want to get well, who can get well, who have the — who are there because they want to solve the problem.
A lot of these other jobs you can’t help people. I mean they are in these situations by circumstance. They are, you know, due to poverty or some sort of situations, I mean in some ways beyond their control and, secondly, things that they don’t want to change. I don’t care to be involved in those situations.
I choose to be involved in situations where I feel like I can more make a difference. You get kids and their parents are abusing them and that sort of thing, and you just have no control over that. Those are not situations that I care to be involved with.
So marriage and family therapy, people come in who want to get well. They are real motivated to get well. They are paying you for a service and, you know, they want to get well. That’s who I want to work with. That’s who I’ve always wanted to work with.
Q. Would the primary difference be the type of individual that you are working with?
A. Yes.

Reeves testified that at the time of the hearing she was earning $9.81 per hour as a telemarketer and ad salesperson for the Bozeman Daily Chronicle newspaper. She further testified that, once she earned her master’s degree, she planned to be self-employed as a counselor. She stated that her father had offered to provide her with start-up costs of opening her own office.

Liberty Mutual concedes that Reeves’ rehabilitation plan is reasonable inasmuch as she has the ability to do graduate college work. Susan Kern, the rehabilitation counselor to whom Liberty Mutual referred Reeves, testified by deposition that Reeves’ vocational goal of obtaining a master’s degree in counseling is reasonable for her to attain and that Reeves has the intellectual ability to complete the program. The Workers’ Compensation Court noted “it’s reasonable to expect that she’s capable of completing the master’s program and obtaining certification as a certified counselor.”

However, the evidence as to other aspects of the reasonableness of Reeves’ plan was less favorable. Reeves testified she intends to continue living in Bozeman, Montana. Kern testified that the Bozeman area is saturated with professional counselors.

Q. As a vocational counselor what is your independent impression for what this young lady should do?
A. Well, I thought — I think she’s somewhat unrealistic about her view of what therapy in the private sector is like. I think, if that’s truly her goal — and that’s her personal choice, if she wants to pursue it or not — I think it’s going to be very difficult to establish a practice in Bozeman.

In her deposition, Kern stated:

I think that Bozeman has a very competitive market, particularly in the self-employed, private counseling area. There are 52 LPC’s [licensed professional counselors] here. That’s not counting the people who have Master’s in social work or clinical psychology. So it’s very competitive. It would be very hard to start a business here unless you had a completely new or unusual background that was really in demand to people.

Other than the fact that she knows many people in Bozeman, Reeves presented no evidence of special experience or education that would set her off from her competitors in opening a counseling practice.

The Workers’ Compensation Court reasoned that Reeves’ own testimony proved that her expectations regarding employment as a private counselor were not reasonable and realistic. The court was not persuaded that, as a new counselor in the saturated counseling market of Bozeman, Montana, Reeves would be able to attract the kind of clientele to whom she wishes to limit her work.

The court concluded Reeves would be most likely to find counseling work with a social services agency. Kern testified that her investigation revealed there was often no pay differential between persons with bachelor’s and master’s degrees in agency work in the Bozeman job market. With a master’s degree, the wage could rise to as much as $14.42 per hour, but for most positions in that market, entry-level wages were the same for a person with a master’s degree as for one with a bachelor’s degree. At any rate, Reeves does not wish to do agency work because it involves the type of clientele she wishes to avoid.

While § 39-71-2001, MCA (1993), encourages rehabilitation training for persons injured on the job, the statute does not obligate the insurer to pay for every rehabilitation plan which may be conceived by a qualified injured worker. If it did, subsection (l)(c) of the statute would have no purpose.

Section 39-71-2001, MCA (1993), must also be viewed in light of the purpose of the Workers’ Compensation Act to return a worker to work as soon as possible after a work-related injury or disease. Section 39-71-105(2), MCA. That purpose would not be furthered by removing a worker from the work force for two years of “rehabilitation” which will not put the worker in a better position to obtain employment.

The decision of the Workers’ Compensation Court was based upon an absence of a reasonable expectation that Reeves’ rehabilitation plan would improve her position in the job market and on the unreasonableness of the career envisioned in Reeves’ proposed rehabilitation plan as a means of employment, given her goals and self-imposed limitations. Reasonableness is a question of fact. Robertson v. Aero Power-Vac, Inc. (1995), 272 Mont. 85, 89, 899 P.2d 1078, 1080. We review the Workers’ Compensation Court’s findings of fact to determine whether they are supported by substantial evidence. Stordalen v. Ricci’s Food Farm (1993), 261 Mont. 256, 258, 862 P.2d 393, 394. Substantial evidence in the record supports the Workers’ Compensation Court’s determination that Reeves’ proposed plan did not represent “reasonable vocational goals and a reemployment and wage potential with rehabilitation,” as required under § 39-71-2001(l)(c), MCA (1993). We affirm the decision of the Workers’ Compensation Court.

JUSTICES ERDMANN and GRAY concur.

JUSTICE NELSON

specially concurring.

I concur in the resolution of the issue raised on appeal, but believe that the threshold and dispositive issue was never presented to the Worker’s Compensation Court and, therefore, is not addressed or resolved by this Court.

Reeves appeals from the decision of the Workers’ Compensation Court denying her rehabilitation benefits under § 39-71-2001, MCA (1993). Basically, Reeves contends that she is entitled to rehabilitation benefits because, on the basis of the rehabilitation plan which she proposed, her vocational goal (to obtain a masters degree in counseling) is both reasonable and attainable and in accordance with her previous education, training, etc.

Liberty Mutual contends that Reeves’ plan of obtaining a masters degree in counseling with the goal of counseling only a limited sort of clientele in Bozeman is not reasonable and has virtually no chance of success. Without going into detail, the Workers’ Compensation Court appears to have adopted the view of Liberty Mutual — i.e., that Reeves’ plan is neither reasonable nor attainable.

I suggest that because of the posture in which this case was presented to the Worker’s Compensation Court by the parties, the court did not have the opportunity to rule on the threshold and dispositive legal problem here. Section 39-71-2001(l)(c), MCA (1993), provides that an injured worker is eligible for rehabilitation benefits if:

a rehabilitation plan completed by a rehabilitation provider and designated by the insurer certifies that the injured worker has reasonable vocational goals and a reemployment and wage potential with rehabilitation. The plan must take into consideration the worker’s age, education, training, work history, residual physical capacities, and vocational interests.

Section 39-71-1011(4), MCA (1993), defines a “rehabilitation plan” as:

an individualized plan to assist a disabled worker in acquiring skills or aptitudes to return to work through job placement, on-the-job training, education, training, or specialized job modification.

That same section at (5) defines a “rehabilitation provider” as:

a rehabilitation counselor certified by the board for rehabilitation certification [defined in subsection (1)] and designated by the insurer to the department or a department of social and rehabilitation services counselor when a worker has been certified by the department of social and rehabilitation services under 39-71-1003. I submit that the threshold problem in this case is that there never

was a “rehabilitation plan” before the Workers’ Compensation Court. That conclusion follows from the fact that no “rehabilitation provider” designated by the insurer ever formulated a “rehabilitation plan” while taking into consideration the requirements of the applicable statutes.

To the contrary, Liberty Mutual simply hired Susan Kern, a rehabilitation counselor and, at the outset, instructed her that she was to assist Reeves with job placement but was not to assist her in preparation of a rehabilitation plan which included further education. In other words, Liberty Mutual, up front, simply dictated that there would be no rehabilitation plan formulated by the professional person whose job it was, under § 39-71-2001(l)(c), MCA (1993), to come up with a plan. Rather, Liberty Mutual made the decision as to what rehabilitation benefits Reeves would be entitled to — i.e., job placement assistance only — and then directed the rehabilitation counselor to carry out that decision.

I suggest that implicit in § 39-71-2001, MCA (1993), in general, and in subsection (l)(c), in particular, is the obligation on the part of the insurer to, in good faith, designate a “rehabilitation provider” and then to let the “rehabilitation provider” formulate a “rehabilitation plan,” taking into consideration the statutory criteria — the worker’s age, education, training, work history, residual physical capacities, and vocational interests. See § 39-71-2001(l)(c), MCA. Apian developed in accordance with that statute may include “job placement, on-the-job training, education, training, or specialized job modification,” or, presumably, any combination of those. See § 39-71-1011(4), MCA (1993).

The point is that it is the rehabilitation provider’s job to formulate the rehabilitation plan, not the insurer’s. See § 39-71-2001(l)(c), MCA (1993). If the insurer can simply dictate at the outset what the plan will or will not encompass and, coincidentally, what benefits will or will not be provided, then there is, obviously, no need for the services of a trained, experienced and certified rehabilitation provider, much less any input from the injured worker. Under those circumstances the entire statutory scheme is frustrated and the resultant “plan” is nothing less than a sham.

This interpretation is consistent with the purpose of the statute to provide rehabilitative benefits to injured workers. Moreover, I suggest that what the insurer cannot do is exactly what Liberty Mutual did in this case — i.e., refuse the claimant the opportunity for rehabilitative benefits consistent with a rehabilitation plan formulated by a rehabilitation provider in accordance with the statutory criteria and on the basis of the counselor’s professional knowledge, training and experience, and work with the claimant. That is the threshold problem here as regards Liberty Mutual.

On the part of Reeves, the statute clearly does not authorize her to come up with her own rehabilitation plan as she is not a rehabilitation provider under the statute nor has she been designated in that capacity by the insurer (assuming that she had the professional qualifications in the first place). Moreover, simply because the claimant comes up with a plan of how she wants to be rehabilitated, that does not obligate the insurer to agree with her plan nor does it obligate the department or the court to approve it.

Here, whether Reeves’ plan was unrealistic and -unworkable, given the market and the type of practice she wanted to establish was not the issue. Rather, in my view, the court was put into the position of having to simply assume that the claimant’s plan was the statutory “rehabilitation plan.” I suggest that there was, in fact, no rehabilitation plan before the court as the statutory requirements for formulating such a plan had not been even minimally followed by Liberty Mutual. Furthermore, Reeves had no statutory authority to come up with her own plan.

If the parties were required to follow the statutory scheme, Liberty Mutual would be obligated to designate a “rehabilitation provider” as defined in § 39-71-1011(5), MCA (1993), and then allow the rehabilitation provider to independently work with the claimant and develop a rehabilitation plan for presentation to the insurer. Section 39-71-2001(l)(c) and (d), MCA (1993). Assuming that the rehabilitation provider and the plan certified that the injured worker had reasonable vocational goals and reemployment and wage potential with rehabilitation and that the plan is designed to accomplish those, taking into consideration the requirements of § 39-71-2001(l)(c), MCA (1993), then it seems to me, that at a minimum, the statutory framework has been honored.

Under § 39-71-2001(l)(d), MCA (1993), if the injured worker and the insurer agree with the rehabilitation plan, then the plan is filed with the department of labor and benefits are provided in accordance with the plan. If either the insurer or the claimant disagree with the rehabilitation plan, the insurer or claimant then has an avenue of review through mediation, the Workers’ Compensation Court and, ultimately, this Court.

This interpretation of the statutory framework is consistent with our recent decision in State ex rel. Cobbs v. Montana Department of Social and Rehabilitation Services (1995), [274 Mont. 157], 906 P.2d 204, 208-09, wherein we noted that the rehabilitation plan under § 39-71-2001, MCA (1993), is “developed by the insurer, claimant and rehabilitation provider and filed with the Department of Labor.” We also stated that “Entitlement to rehabilitation benefits sought pursuant to § 39-7-2001, MCA (1993), is determined by the worker, the insurer, the private ‘rehabilitation provider,’ the Department of Labor and, in the event of a dispute, the workers’ compensation mediator and the Workers’ Compensation Court.” Cobbs, 274 Mont. 157, 906 P.2d at 208-09.

In the instant case, had the statutory framework been followed, a rehabilitation plan might have been developed with and for Reeves that would have satisfied both the insurer and the claimant, or if not both, at least the court, on review. As it is, the statutes were ignored and Reeves has been denied rehabilitation benefits altogether. A no less satisfactory consequence of this case is that our opinion (which is only the secondinterpretingthis section of the code), seemingly approves of the procedures used here — procedures that do not even minimally comport with the statutory scheme enacted by the legislature.

JUSTICE GRAY concurs in the foregoing special concurrence.

JUSTICE TRIEWEILER

dissenting.

I dissent from the majority opinion.

By affirming the Workers’ Compensation Court, the majority has placed an impossible burden on injured workers who wish to restore some of their lost earning capacity by availing themselves of the rehabilitation benefits provided for in the Workers’ Compensation Act.

Joan Reeves proved that her earning capacity had been substantially reduced due to a job-related disability; her earning capacity could be substantially improved by furthering her education; and she was qualified by intellect, training, and disposition for the program in which she sought to enroll. These facts are uncontroverted and are sufficient to satisfy the requirements of § 39-71-2001, MCA (1993).

Instead of applying the simple terms of the rehabilitation statute, the Workers’ Compensation Court, and the majority of this Court, have required that before completing a two-year graduate program, the claimant know exactly what kind of counseling she is going to do, what kind of market there is for that counseling, and how she would overcome professional obstacles that she is not even in a position to anticipate. What the court has done is no different than concluding that it is unreasonable for someone to enter law school unless they first know what their specialized area of practice is going to be, how many other people are currently engaged in that specialized area, and what their marketing strategy is going to be for competing with already established lawyers. Most lawyers would agree that applying these same requirements to their own profession would be absurd. Applying these requirements to Joan Reeves is no less absurd.

The uncontroverted evidence established the following:

Joan Reeves has a bachelor’s degree in home economics with a family science option. The family science option was recommended for students intending to obtain a master’s degree in family counseling. She satisfied the requirements for a family science option because it was always her intention to obtain a master’s degree and become a family counselor.

Joan maintained a “B” average in high school and a “B+” average in college. Everyone concedes that she is academically and intellectually qualified to enter and successfully complete a master’s degree program which would qualify her to become a licensed practical counselor providing marriage and family therapy.

After her graduation from MSU in June 1991, before entering a master’s program, she first went to work to pay off debts that she had accumulated during college and to save money for her graduate education. At the time, entry level jobs for which she would have qualified with her college degree paid from $7.00 to $8.00 per hour. However, by doing physical labor for her father she was able to earn $10.00 an hour. She later earned $11.00 an hour as her starting wage for UPS. At the time of her injury she was earning $12.82 an hour as a package car driver. Evidence at the trial was that after two years on the job her wage would have increased to $18.84 an hour.

On January 4,1994, while working for UPS, Joan sustained a back injury. As a result of her injury she cannot return to her job. She has been unable to find employment related to her education and instead does telemarketing and other part-time work for the Bozeman Chronicle. Her average hourly wage, including commissions, is $9.81 an hour.

She explained that her interest in obtaining a master’s degree was based on two factors. First, she stated that she could not otherwise qualify for the specific type of counseling that she was interested in. Second, she testified that counselors with a master’s degree earn substantially more than counselors with a bachelor’s degree.

Reeves was not, as the Workers’ Compensation Court found, unrealistically selective about the kind of work she wanted to do as a counselor. Following cross-examination by the Workers’ Compensation Court Judge, she tried to provide the following explanation for preferring private practice to agency work:

THE COURT: I understand the kind of people that you want to counsel; but, in my mind immediately is are those the kind of people who are going to be coming to marriage counselors?
THE WITNESS: You made a comment earlier that, you know, that I assumed that there were just going to be husbands and wives without kids and stuff. I just wanted to clear that up. I mean I assume that husbands and wives are going to come in with kids who probably have drug problems or are acting out and those sort of things. I realize there are other types of situations.
My clarification is that I think the difference being those people are coming to you for help. I mean they are not people who have been assigned to you by someone else. I mean those are people [who] actually want help.

In other words, Reeves’ innocent statement which has been blown out of proportion by the Workers’ Compensation Court was that given her choice she would rather counsel people in the private sector who are interested in solving their problems than people assigned to her at a government agency who are there simply because they have to comply with some court or agency directive.

The idea that this person who has not even enrolled in her master’s degree program should somehow be able to anticipate exactly who her clientele will be or how she will adapt her education to the realities of the market place is strange to begin with. Nevertheless, doing her best to respond to the trial judge’s concerns, she later explained during re-examination that in a worst case scenario if she could not successfully establish a private practice, but had a master’s degree, she could go to work for an agency earning more than she would earn with a bachelor’s degree and still eventually attempt to work into a private practice.

The testimony of Susan Kern, the rehabilitation counselor hired by Liberty Mutual, did nothing to dispel the obvious conclusion that Reeves’ vocational rehabilitation proposal was reasonable.

Kern agreed that Reeves’ earning capacity, without further education, was between $7.00 and $10.73 per hour, but that with a master’s degree her entry level wage for a mental health agency would be $12.30 per hour.

Kern agreed that Reeves was intellectually capable of completing the master’s program. She agreed that with some employers she would have a greater long-term earning capability with a master’s degree than with a bachelor’s degree, and she agreed that there were differences in the job descriptions for people with bachelor’s degrees, as opposed to master’s degrees. Most critically, Kern, who was retained and paid for by Liberty Mutual, gave the following testimony:

Q. I asked you in your deposition a question about whether you had enough information about Joan to form an opinion as to whether you thought her vocational goal of getting a master’s degree was a reasonable goal for her. What is your opinion in that regard?
A. I think it’s reasonable for her.

Section 39-71-2001, MCA (1993), does not require the impossible. It simply requires that before a claimant qualifies for rehabilitation benefits he or she have a partial disability, be unable to return to the job at which the claimant was injured, and have a rehabilitation plan, including “reasonable vocational goals.” All of those requirements were satisfied in this case. To deny Reeves benefits because prior to even entering the graduate program she was not absolutely certain about the kind of clientele she would counsel, the feasibility of the type of counseling she thought she would prefer, or the marketing strategy she would employ to be successful, suggests a preoccupation on the part of the trial court with denial of claimant’s benefits, rather than an objective application of the statutory requirement.

Although the concurring opinion certainly does not have the force of precedent, I am also concerned about some of the views stated therein. I agree that pursuant to the requirements of § 39-71-2001, MCA (1993), the insurer has no right to dictate to the rehabilitation provider what plan is most suitable for a claimant. I also agree that the insurer has an obligation to act in good faith when it selects and designates the rehabilitation provider and when it charges the provider with its responsibility.

However, to assume, as the concurring opinion does, that insurers will not exert total and complete control, even if indirectly, over the rehabilitation providers which it retains at its expense, ignores reality.

Under the current statutory scheme there is little opportunity for, and no funding with which injured workers can consistently retain rehabilitation providers. Insurers and employers are the only parties who can consistently hire them. Any private rehabilitation provider currently operating in this state knows that it cannot long do business without a satisfied clientele of insurers. Therefore, if the only plans the Workers’ Compensation Court can consider are those submitted by the rehabilitation counselor hired by the insurer, no claimant will ever qualify for rehabilitation benefits and the statutory framework which encourages rehabilitation in exchange for a reduction in partial disability benefits would be rendered meaningless. If this Court is going to apply § 39-71-2001, MCA (1993), as narrowly as suggested by the concurring opinion, it might as well interpret the statute to mean “an injured worker is eligible for rehabilitation benefits if his or her insurer decides that it would like to pay an extra 104 weeks of benefits.”

I would conclude that whenever an insurer, or the rehabilitation provider that it hires and pays for, arbitrarily and unreasonably refuses to consider rehabilitation for an injured worker, that worker must necessarily have the option of submitting his or her own rehabilitation plan to the Workers’ Compensation Court for consideration of whether it meets the statutory requirements of § 39-71-2001, MCA(1993). To hold otherwise would give the insurer complete and total control over the eligibility of injured workers for rehabilitation benefits.

Having made this observation, however, I would note that this issue was not before the Workers’ Compensation Court and is not before this Court because even the insurer concedes in its appellate brief that under the circumstances it would be unreasonable to argue that the court should not have considered claimant’s proposed rehabilitation plan. At page 18 of its brief the insurer states:

Additionally, Liberty does not claim rehabilitation benefits are inappropriate because no plan has been filed with the Department. It would be unreasonable for a carrier to defend on this basis when the lack of a rehabilitation plan results from the insurer having instructed the rehabilitation provider to perform an employability assessment and then, after the assessment reveals the claimant can return to work without retraining, authorizes only job placement services.

Joan Reeves proposed the most reasonable rehabilitation plan possible considering her age, education, training, work history, physical limitations, and vocational interests. It was wrong to frustrate her sincere and legitimate efforts to improve her vocational future based on the unreasonable and impossible demands of the trial court.

For these reasons I dissent from the majority opinion and disagree in part with the concurring opinion.

JUSTICE HUNT joins in the foregoing dissenting opinion.

JUSTICE LEAPHART,

dissenting.

I dissent. In my opinion, Reeves’ plan of obtaining a Master’s Degree in counseling was both reasonable and attainable. Although the Court had concerns about the prospects of her success at counseling in the private sector, the record indicates that Reeves would still have the option of seeking employment as a counselor with a governmental agency. With a Master’s Degree, Reeves will, either in the public or private sector, demand a higher salary than with her Bachelor’s Degree.


author: JUSTICE LEAPHART

text:
    VIVIAN MOHL, Plaintiff and Appellant, v. TIMOTHY S. JOHNSON, Defendant and Respondent.
    No. 95-451.
    Submitted on Briefs January 11, 1996.
    Decided February 13, 1996.
    53 St.Rep. 96.
    275 Mont. 167.
    911 P.2d 217.

      For Appellant; Thomas W. White; Sedivy, Bennett & White, Bozeman.
    For Respondent: Michael C. Coil; Angel, Serenar, Coil, Bartlett & Fay, Bozeman.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Vivian Mohl (Mohl) appeals from the Gallatin County, Eighteenth Judicial District Court’s Order and Judgment dismissing her action against Timothy Johnson (Johnson). Pursuant to Rule 19(a), M.R.Civ.P, the District Court determined that Johnson’s employer, U-Haul Company of Montana (U-Haul), was an indispensable party to the action. The court then dismissed the case believing the statute of limitations had run against U-Haul and, thus, that U-Haul could not be joined as a defendant. Mohl raises two issues on appeal:

1. Did the District Court err in determining that U-Haul is an indispensable party to this action and, therefore, under Rule 19(a), M.R.Civ.P, complete relief cannot be accorded among those already parties?

2. If U-Haul is an indispensable party to this action under Rule 19(a), M.R.Civ.R, did the District Court err in not allowing U-Haul’s joinder?

On August 28, 1990, Mohl was driving south on North 7th Street in Bozeman, Montana. Mohl and Johnson collided when Johnson entered North 7th Street from the U-Haul driveway bordering North 7th on the west. Johnson, an employee of U-Haul, was acting within the course and scope of his employment at the time of the accident.

Mohl sued Johnson for damages alleging that Johnson was negligent. After Mohl presented her case and after Johnson finished testifying as the first defense witness, the court dismissed the case on the grounds that U-Haul is an indispensable party. Further, the court reasoned that dismissal was necessary because the court no longer had jurisdiction to join U-Haul because the three-year statute of limitations had expired. Mohl then moved for reconsideration of the order of dismissal. Oral argument was heard and the court denied the motion. Mohl appeals from this denial. We reverse.

1. Did the District Court err in determining that U-Haul is an indispensable party to this action and, therefore, under Rule 19(a), M.R.Civ.R, complete relief cannot be accorded among those already parties?

The parties stipulate and agree to the fact that, when the accident occurred, Johnson was acting within the course and scope of his employment with U-Haul. In its Judgment, the District Court found “that in U-Haul’s ‘... absence complete relief cannot be accorded among those already parties.’Rule 19(a) M.R.Civ.P.” Additionally, the court determined that the statute of limitations as to any claim against U-Haul began to run at the time of the accident and had, therefore, expired.

Rule 19(a)(1), M.R.Civ.P, establishes that persons “shall” be joined as parties if complete relief cannot be accorded without their participation. Rule 19(b), M.R.Civ.P., states that if an indispensable party, as defined by Rule 19(a)(l)-(2), M.R.Civ.R, cannot be made a party, “the court shall determine whether in equity and good conscience the action should proceed ... or should be dismissed. ...” Additionally, Rule 21, M.R.Civ.P., states that “[p]arties may be dropped or added by order of the court on motion of any party or of its own initiative at any stage of the action and on such terms as are just.” The court is given the discretion to determine whether the action will proceed or will be dismissed. In reviewing discretionary rulings by the district court we apply the abuse of discretion standard. Montana Rail Link v. Byard (1993), 260 Mont. 331, 337, 860 P.2d 121, 125. Thus, the District Court’s decision to dismiss an action based on the absence of an indispensable party is reviewed for an abuse of discretion. See Confederated Tribes v. Lujan (9th Cir. 1991), 928 F.2d 1496.

The District Court’s entire rationale for dismissal “that in U-Haul’s ‘... absence complete relief cannot be accorded among those already parties.’ Rule 19(a) M.R.Civ.P.” does not provide us with much insight into the court’s reasoning. At the hearing on Mohl’s motion for reconsideration of dismissal, the court asked “[h]ow can complete relief be granted without U-Haul as a party?” In its Judgment, the court emphasized that “Defendant was an employee of the U-Haul Company at the time of the accident. It was also established without contest that at the time of the accident Defendant was acting within the course and scope of his employment.” Although it did not say so, it appears that the court determined that, as Johnson’s employer, U-Haul had a duty to indemnify Johnson based on § 39-2-701, MCA. Section 39-2-701, MCA, provides:

Indemnification of employee. (1) An employer must indemnify his employee, except as prescribed in subsection (2) of this section, for all that he necessarily expends or loses, in direct consequence of the discharge of his duties as such or of his obedience to the directions of the employer, even though unlawful, unless the employee at the time of obeying such directions believed them to be unlawful.
(2) An employer is not bound to indemnify his employee for losses suffered by the latter in consequence of the ordinary risks of the business in which he is employed.
(3) An employer must in all cases indemnify his employee for losses caused by the former’s want of ordinary care.

The court apparently reasoned that, as Johnson’s employer, U-Haul’s participation was necessary to accord complete relief to Johnson, that is, to indemnify Johnson for any costs incurred while in the course of employment. This Court has held that“[t]he right ofindemnity is that where one is compelled to pay money which, injustice, another ought to pay, the former may receive from the latter the sums so paid.” EBI/Orion Group v. State Compensation Ins. Fund (1989), 240 Mont. 99, 104, 782 P.2d 1276, 1279 (citing Raisler v. Burlington Northern R.R. Co. (1985), 219 Mont. 254, 258, 717 P.2d 535, 537). Consequently, it appears the court determined that U-Haul had to be joined as a party to indemnify Johnson and provide complete relief.

Concerning Rule 19(a), M.R.Civ.P., we have held that, “whenever feasible, persons materially interested in the subject of an action be joined so that they may be heard and a complete disposition of the case be made.” Village Bank v. Cloutier (1991), 249 Mont. 25, 29, 813 P.2d 971, 974. Additionally, under Rule 19(a), M.R.Civ.P, a person who is subject to service of process must be joined as a party if he claims an interest relating to the subject of the action and is so situated that the disposition of the action in his absence may leave any of the persons already parties subject to substantial risk of incurring double, multiple or otherwise inconsistent obligations. State ex rel. Boyne USA v. District Court (1987), 228 Mont. 314, 319, 742 P.2d 464, 467. In the instant case, however, we do not consider U-Haul an indispensable party under Rule 19(a), M.R.Civ.P.

Montana’s Rule 19 is modeled on Rule 19 of the Federal Rules of Civil Procedure, thus, we look to interpretation of the Federal Rules for guidance. The Federal Rule 19, clause (a)(1), “stresses the desirability of joining those persons in whose absence the court would be obliged to grant partial or “hollow’ rather than complete relief to the parties before the court.” James W. Moore et al., Moore’s Federal Practice 3a ¶ 19.07-1 [1] (2d ed. 1994)(citing Advisory Committee Note, ¶ 19.01 [5]); see also Jean F. Rydstrom, Who Must Be Joined in Action as Person “Needed for Just Adjudication” Under Rule 19(a), Federal Rules of Civil Procedure, 22 A.L.R. Fed. 765, 789 § 7 (1975). The requirement of clause (a)(1) is related to the third factor of subdivision (b) concerning the adequacy of judgment, and to holdings that the inability to fashion an effective decree in the person’s absence may render him indispensable. Moore et al., ¶ 19.07-1[1], While a party should be joined if his presence is deemed necessary for the according of complete relief, it must be noted that complete relief refers to relief as between the persons already parties, and not as between a party and the absent person whose joinder is sought. Nor is joinder necessary where, although certain forms of relief are unavailable due to a party’s absence, meaningful relief can still be provided. Moore et al., ¶ 19.07-1 [1]. There is no precise formula for determining whether a particular non-party is necessary to an action, consequently the determination is heavily influenced by the facts and circumstances of each case. Confederated Tribes, 928 F.2d at 1498.

Based on Montana law and federal guidance, we agree with Mohl that complete relief can be accorded among Mohl and Johnson as the only parties. U-Haul does not claim an interest in this action. A complete disposition of the negligence claim can be made without U-Haul’s participation. Village Bank, 813 P.2d at 974; Boyne USA, 742 P.2d at 467. Mohl’s action is against Johnson. The wrong, if any, was committed by Johnson, Mohl seeks nothing from U-Haul. See Yonofsky v. Wernick (S.D.N.Y. 1973), 362 F. Supp. 1005, 1023. Judgment in the present case would not subject the parties to the risk of multiple or otherwise inconsistent obligations as the rights and liabilities of the parties under the negligence claim would be finally concluded. State ex rel. Drum v. District Court (1976), 169 Mont. 494, 502-03, 548 P.2d 1377, 1382. Additionally, if U-Haul were joined, it would find itself dragged unwillingly into a suit, with all the accompanying expenses, that essentially presents claims between Mohl and Johnson. See Bevan v. Columbia Broadcasting Sys., Inc. (S.D.N.Y. 1968), 293 F. Supp. 1366, 1369. Finally, it should not be overlooked that the philosophy of Rule 19 is to avoid dismissal whenever possible. Yonofsky, 362 F. Supp. at 1023 (citing Heath v. Aspen Skiing Corp. (D. Colo. 1971), 325 F. Supp. 223, 229).

Assuming that Johnson, as U-Haul’s employee, may have a claim for indemnity against U-Haul, that claim would be separate and distinct from the underlying negligence claim against Johnson. An indemnity claim would not even arise unless and until the employee was found liable for damages. St. Paul Fire Ins. Co. v. Thompson (1969), 152 Mont. 396, 403, 451 P.2d 98, 102. Accordingly, there is no need for the indemnity issue to be resolved simultaneously with the negligence claim. Rather, the indemnity suit would arise out of and be subsequent to the negligence suit. Additionally, concerning the statute of limitations on an indemnity claim, we have held:

that the cause of action for ... indemnity is distinct from the underlying cause of action, and the time from which the statute of limitations for such a cause of action begins to run is when the underlying claim, judgment, or settlement is paid or discharged.

Linder v. Missoula County (1992), 251 Mont. 292, 299, 824 P.2d 1004, 1008 (quoting Schiess v. Bates (Idaho 1984), 693 P.2d 440, 442) (citing St. Paul, 451 P.2d at 102); see also EBI/Orion, 782 P.2d at 1279. Since the underlying negligence case has not yet been decided, an indemnity claim against U-Haul has not yet arisen and the statute of limitations has not yet begun to rim. See Linder, 824 P.2d at 1008. Therefore, the District Court erred in determining that the statute of limitations had run against U-Haul.

U-Haul, as the employer and potential indemnitor is not an indispensable party to the negligence suit against Johnson, the employee. We hold that U-Haul is not an indispensable party under Rule 19, M.R.Civ.R, and that the court abused its discretion in dismissing Mohl’s suit.

Because we hold that the District Court abused its discretion in dismissing this case based on its determination that U-Haul is an indispensable party to this action we need not discuss Mohl’s second issue. Reversed and remanded for a continuation of the trial proceedings consistent with this opinion.

JUSTICES ERDMANN, HUNT, NELSON and TRIEWEILER concur.