text:
    GEORGE MADDUX, d/b/a/ Mom’s Old Fashioned Gravy, Plaintiff, Appellant and Cross-Respondent, v. LYNN BUNCH, FBS Insurance Montana Hoiness LaBar, Inc., and United States Fidelity and Guarantee Company, Defendants, Respondents and Cross-Appellants.
    No. 89-104.
    Submitted on Briefs Oct. 20, 1989.
    Decided Jan. 10, 1990.
    784 P.2d 936.

      James C. Capser, Billings, for plaintiff, appellant and cross-respondent.
    Neil S. Keefer, Keefer, Roybal, Hanson, Stacey & Walen, Billings, for defendants, respondents and cross-appellants.
   JUSTICE SHEEHY

delivered the Opinion of the Court.

Plaintiff George Maddux filed suit in the District Court, Thirteenth Judicial District, Yellowstone County, charging United States Fidelity and Guaranty Company (hereinafter USF & G) with breach of contract of insurance and unfair claim settlement practices. The jury found that a contract of insurance existed at the time of plaintiff’s loss, defendant breached the contract, and owed plaintiff $23,378.95 in damages. On post-trial motion, the judgment was reduced to $7,792.98. From that judgment, both parties appeal. We affirm.

The issues raised by Maddux are:

1. Whether the District Court erred in granting USF & G’s motion for directed verdict on the issue of punitive damages.

2. Whether the District Court erred in refusing to amend the jury’s damage award to include lost profits.

3. Whether the District Court erred in reducing the award to $7,792.98.

4. Whether the District Court erred in denying pre-judgment interest on the award.

The issues raised on cross-appeal by USF & G are:

1. Whether the District Court erred in not granting USF & G’s motion for a directed verdict.

2. Whether the court erred in not reducing the award to zero.

Appellant George Maddux conceived the idea of a commercial gravy manufacturing and sales business in October of 1985. His preparations for business included the purchase of a new building, ordering various pieces of equipment, including a freezer, and the electrical work necessary to make the operation ready for business. In addition, Maddux contacted his insurance agent, Lynn Bunch, of Hoiness LaBar Agency, regarding insurance for the new operation.

It is uncontested by the parties that due to problems with the refrigeration system, 2,748 cases of gravy product ultimately spoiled and had to be disposed of. Maddux was paid $39,078.08 by the insurance carrier of the electrical contractor for faulty wiring, $25,000 by the insurance carrier of the refrigeration supplier Brodie-Dohrman, for improper installation and defective product, and $5,000 by Hoiness LaBar, Inc. and Lynn Bunch. Maddux proceeded to trial against USF & G, the insurance carrier for the Maddux policy.

Strongly contested at trial was whether coverage existed to insure against product spoilage and whether USF & G’s refusal to pay constituted breach of contract and bad faith. The jury found that a contract existed, that USF & G breached the contract, and that the refusal to pay constituted bad faith. The jury awarded Maddux $23,378,95 for his losses, but declined to award Maddux anything for emotional distress, despite the determination of its existence.

USF & G made post-trial motions to reduce the jury verdict pro tanto to zero, and to tax costs. The court in its order stated:

“Now that the jury has rendered its verdict we have the hindsight to perceive the whole situation as it should have been. We now know that there was an insurance contract and that defendant should have provided coverage for plaintiff’s damages for his loss of gravy in the amount of $23,378.95.
“We have known all along that when the insurance company declined coverage that plaintiff went out and did what his insurance company should have, to wit: recovered his damages for his gravy loss. Apparently plaintiff also recovered other damages unrelated to the insurance coverage, but it cannot be seriously contested that plaintiff was [not] paid for his gravy loss. Accordingly, the jury verdict must be reduced (sic).
“However, it is not proper to reduce the verdict to zero as requested by defendant because plaintiff incurred attorney fees in doing what we now know the insurance company should have done. Those fees are apparently a one-third contingency and the verdict should be reduced to one-third or $7,792.98 in order that plaintiff recover his attorney fees on the amount we now know he was damaged.”

Plaintiff’s motions for prejudgment interest and to amend the jury verdict were denied. This appeal and cross-appeal followed.

I.

Did the District Court err by granting USF & G’s motion for a directed verdict as to punitive damages?

Maddux’s claim for punitive damages is based on failure to conduct reasonable investigation of the claim.

Maddux maintains that USF & G intentionally avoided learning facts pertaining to coverage, such as what coverage Maddux believed he had acquired. In conference, counsel, prior to jury deliberation, conceded that USF & G did not seek out this information. However, the court states that this lack of fact-finding did not create a high degree of risk of harm to the substantial interests of Maddux, as required by § 27-1-221(2), MCA.

The court went on to state:

“. . . plaintiff notes that the Court should let punitive damages go to the jury not only because plaintiff thinks that is right but also because if it is wrong it would be a simple matter for the Supreme Coiirt to subtract out any punitive damages.
“. . . [I]n the long run considering all the many cases these days in which punitive damages are sought this avenue is deceptive, misleading and inefficient. Reviewing courts are loathe to overturn juries and defendants should not have to run the risk that a jury will award punitive damages and reviewing court (sic) will not overturn a jury in cases where punitive damages should not have been considered by the jury in the first place. Judicial economy demands that the trial court not pass the buck. Judicial economy demands a trial court not present to a jury those issues for which insufficient evidence exists.”

It is evident from the record that the testimony of Maddux and Agent Lynn Bunch was hopelessly conflicting. Section 27-1-221(5), MCA, states that “all elements of the claim for punitive damages must be proved by clear and convincing evidence.” Here, the district judge, after hearing the evidence and observing the witnesses, was in the best position to make a determination whether the requirements of proof of punitive damages had been met. Tague v. John Caplice Co. (1903), 28 Mont. 51, 72 P. 297.

Maddux next contends that the District Court erred in refusing to amend the jury findings to conform to evidence presented on amount of loss. At issue is simply whether Maddux was entitled to a 40 percent markup from the value of the gravy. A breakdown of the figures is helpful.

2,748 cases at $12.96 per case $35,614.08 Less 40% 14,245.63

$21,368.45

Plus: cleanup costs 1,610.50

lost bar code 400.00

Jury computation total $23,378.95

From the testimony and evidence, it is reasonably clear that Maddux had neither sold nor contracted to sell any of his product when the loss occurred. With that in mind and instructions on damages, the jury made its determination. Instruction No. 26 reads:

“Damages must be reasonable. If you should find that plaintiff is entitled to a verdict, you may award him only such damages as will reasonably compensate for such injury and damages as you find from a preponderance of the evidence in the case, that he has sustained as a proximate result of the incident.
“You are not permitted to award speculative damages. So you are not to include in any verdict compensation for any prospective loss, which although possible, is not reasonably certain to occur in the future.”

An award of lost profits on a product with no proof of marketability might certainly be construed as speculative damage. From evidence and testimony presented, the jury determined what it thought to be reasonable damages. The District Court, presented with Maddux’s motion to amend the jury’s findings, did not see fit to substitute its judgment for that of the jury. Due to the speculative nature of lost profits, it was not error for the court to leave the jury verdict undisturbed. Section 27-1-311, MCA. Swanson v. St. John’s Lutheran Hospital (1980), 189 Mont. 259, 615 P.2d 883.

Maddux’s next contention is that the District Court erred in reducing the jury damages to $7,792.98.

Maddux argues that subrogation is not proper in this case, as the insurance policy states that USF & G will be subrogated to the insured’s right of recovery “in the event of payment under this policy” and no payment under the policy has taken place. Further, Maddux contends that subrogation is simply an acquisition of rights of the insured against other parties, and those parties were released, all after USF & G refused payment. As further argument against subrogation, Maddux cites Western Media, Inc. v. Merrick (1988), [232 Mont. 480,] 757 P.2d 1308, 1311, 1312, 45 St.Rep. 1212, 1216, which stated:

“It is the position of this Court that once a contract has been breached, its terms may not be unilaterally resumed. A non-breaching party has no duty to perform the terms of the contract once it has been breached.
“It is a maxim of jurisprudence that “no one can take advantage of his own wrong.” § 1-3-208, MCA. A party who breaches a contract cannot take advantage of his own act or omission to escape liability thereon. (Cites omitted.) Merrick’s breach may not have been willful or intentional. However, the breach occurred and the contract was severed.”

Maddux argues that the breach of the contract of insurance by USF & G severed the contract, and USF & G no longer has standing to assert any rights arising from the breached contract.

Maddux’s claim against USF & G was unquestionably based on insurance coverage for spoilage of gravy product. The damages awarded by the jury were directly related to damages for spoilage. There is testimony and evidence that the pretrial settlements amounting to $69,078.08 compensated Maddux for his gravy loss. Maddux released those tortfeasors upon settlement, and then proceeded against USF & G for damages, including payment for gravy loss. The judge instructed the jury not to consider the settlements, that they should determine damages as if no settlements had occurred, and that the court would “make all adjustments to the award of damages as may be required by law . . . .”

Those pretrial settlements prevented contribution or indemnity claims by USF & G. In State ex rel. Deere & Co. v. District Court (1986), 224 Mont. 384, 730 P.2d 396, this Court determined that a joint or concurrent tortfeasor who settles with a claimant before judgment on the claim is entered in District Court is not subject to claims for contribution or indemnity from nonsettling joint or concurrent tortfeasors against whom judgment may be rendered. With no possibility of indemnity, Maddux would stand to be paid for his gravy loss twice.

It has been the standard practice in Montana that a plaintiff’s recovery is diminished pro tanto, that is, given a dollar credit based on the consideration paid by the settling tortfeasor. This encourages compromise, lends finality to such compromises, and provides a single satisfaction for a single injury. Deere, supra; Azure v. City of Billings (1979), 182 Mont. 234, 596 P.2d 460; Black v. Martin (1930), 88 Mont. 256, 292 P. 577. We hold that the precepts of Deere, et al. were correctly found by the lower court to apply in this case. Maddux is entitled to but a single recovery for his gravy loss, which he received in his earlier settlements. The lower court’s reduction of the award to $7,792.98 was proper. The $7,792.98 adequately and fairly compensates Maddux for his attorney fees and costs in pursuing the settlements and this claim.

Maddux’s final claim is that the District Court erred in refusing prejudgment interest under § 27-1-211, MCA. Section 27-1-211, MCA, provides as follows:

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

Maddux claimed a loss of $35,614.08. The jury awarded $23,378.95. Clearly, Maddux did not show damages capable of being made certain by calculation as required by § 27-1-211, MCA. As the amount of damages due upon breach was not clearly ascertainable until determined by the trial court, prejudgment interest was not appropriate. Swenson v. Buffalo Bldg. Co. (1981),_Mont___, 635 P.2d 978; Carriger v. Ballenger (1981),_Mont._, 628 P.2d 1106.

II.

Issues on cross-appeal:

USF & G’s first contention is that the District Court erred in not reducing the jury verdict to zero. USF G G maintains that, under Deere, Maddux had been fully credited for his gravy loss prior to trial. As such, the verdict should have been adjusted to zero. USF & G is correct in asserting that Maddux was compensated for his loss of gravy product. However, the $7,792.98 does not represent a portion of that loss. Rather, it is the court’s determination of reasonable costs in the form of attorney fees. As the District Court noted, those costs are proper “because plaintiff incurred attorney fees in doing what we now know the insurance company should have done,” i.e, investigate and pay the claim. As such, it was not error for the District Court to retain $7,792.98 in damages as reasonable attorney costs.

The second contention is that the District Court erred in not granting USF & G’s motion for a directed verdict. A motion for a directed verdict is properly granted only in the complete absence of any evidence to warrant submission to the jury. Britton v. Farmers Ins. Group (1986), 221 Mont. 67, 721 P.2d 303. The court must view the motion in a light most favorable to the non-moving party. Dieruf v. Gollaher (1971), 156 Mont. 440, 481 P.2d 322. Clearly, there was evidence in this case of the existence of an insurance contract covering the loss, and subsequent breach by the insurer. As such, a directed verdict is not proper.

Affirmed.

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


source: Caselaw Access Project

author: JUSTICE SHEEHY

license: Public Domain

text:
    PATRICIA WOODHOUSE, Plaintiff and Respondent, v. FARMERS UNION MUTUAL INSURANCE COMPANY, Defendant and Appellant.
    No. 89-122.
    Submitted Oct. 17, 1989.
    Decided Jan. 10, 1990.
    785 P.2d 192.
    Donald L. Ostrem argued, Graybill, Ostrem, Warner & Crotty, Great Falls, for defendant and appellant.
    Howard F. Recht argued, Recht & Greef, Hamilton, for plaintiff and respondent.
   JUSTICE SHEEHY

delivered the Opinion of the Court.

This is an appeal from the District Court of the Fourth Judicial District, Ravalli County. Plaintiff Patricia Woodhouse brought suit, seeking a declaratory judgment that the loss of her personal property by fire be covered by her insurer, Farmers Union Mutual Insuranee Co. Defendant (hereinafter “Farmers”) counterclaimed, seeking a declaratory judgment excluding coverage for the loss. The District Court found in plaintiffs (hereinafter “Woodhouse”) favor on a motion for summary judgment. Farmers appeals from that order. We reverse.

The issue raised by appellant Farmers is:

Whether the District Court erred in its determination that Farmers is obligated to provide coverage for an insured whose co-insured destroyed the property by arson.

Patricia and Alan Woodhouse were divorced on September 24, 1986. Alan Woodhouse was awarded the trailer house the parties had acquired during the marriage. The trailer house and its contents were insured by Farmers, with Patricia and Alan named as the insureds on the policy.

Following the divorce, Patricia Woodhouse left many items of personal property in the dwelling due to lack of storage space elsewhere.

On January 5, 1987, Alan Woodhouse intentionally set fire to the trailer house, and committed suicide within the burning dwelling. The dwelling was totally consumed by the fire.

Patricia Woodhouse submitted a claim to Farmers Insurance for the value of her personal goods lost in the fire. Farmers denied the claim on the basis that coverage was excluded because the loss was intentionally caused by an insured party.

Farmers maintains that this is a clear contract case. They submit that the “intentional loss” exclusion of the Woodhouse insurance policy acts to deny coverage in this situation. The provision reads as follows:

“We do not insure for loss caused directly or indirectly by any of the following . . . h. Intentional Loss, meaning any loss arising out of any act committed: (1) by or at the direction of an insured; and (2) with the intent to cause a loss.”

Arson by an insured, Farmers maintains, is not, therefore, an insured risk. Alan Woodhouse was an insured party who clearly committed an intentional loss. Patricia Woodhouse is a named coinsured party and is therefore bound to the contractual provisions of the policy.

Farmers cites several cases for the premise that clear and unambiguous language of the contract controls. In Amick v. State Farm Fire and Casualty Company (8th Circuit 1988), 862 F.2d 704, the court stated:

“The court sees no injustice in requiring the company to pay only those risks it insured, where, as here, the coverages are spelled out in clear and unambiguous language. Bryan v. Employers National Insurance (Ark. 1988), [294 Ark. 219,] 742 S.W.2d 557, 577. An innocent co-partner [can] not recover under a policy where arson was committed by a partner because the language of the policy specifically barred recovery. West Bend Mutual Insurance Co. v. Salemi (Ill. 1987), [158 Ill.App.3d 241, 110 Ill.Dec. 608,] 511 N.E.2d 785.
“The key factor is whether the policy provision barring recovery by an innocent co-insured is clear and unambiguous.”

Farmers cites the exclusion clause contained in the policy noted in Spezialetti v. Pacific Employers Insurance Co. (3rd Cir. 1985), 759 F.2d 1139, which reads:

“[The] insurance shall not apply to loss or damage . . . [resulting from] any dishonest act or omission by any insured . . . .”

The court in Spezialetti denied the innocent spouse’s claim for insurance proceeds, based on the exclusionary language.

Finally, Farmers takes issue with the District Court’s reliance on Kulubis v. Texas Farm Bureau Underwriters Insurance Co. (Tex. 1986), 706 S.W.2d 953, for the proposition that an insurer’s obligations under such insurance policies are “several and not joint, the wrongful acts of one coinsured cannot be imputed to another as a basis for denying coverage.” This, Farmers states, unfairly places the burden of proving the innocence of the non-acting spouse on the insurer. Farmers contends that Kulubis is bad policy, stating that:

“The law should assiduously seek ... to avoid holding out any incentive to such actions [as arson] and should be diligent to assure that it permits no benefits to be derived from them by their perpetrators. We conclude that it would be a strange rule indeed that guaranteed the would-be arsonist a minimum of one-half of the insured value of his building . . . even were he found guilty of the act, as long as he arranged matters so that the insurance company could not prove that he had let his spouse in on the scheme.”

In summary, Farmers contends that the lower court erred by not ruling that the language of the exclusionary clause barred coverage. They maintain that the “clear and unambiguous” policy language of not covering intentional loss applies in the case of arson. All insured parties are thereby denied coverage. To hold otherwise would negate clear contractual provisions and create potentially harmful precedent.

Woodhouse contends that of the several jurisdictions that have considered this same question, the majority have ruled that the innocent coinsured should recover. Woodhouse states that equity and public policy considerations, the basis of many of these rulings, should also apply in the case at bar. Woodhouse cites Hoyt v. New Hampshire Fire Insurance Co. (N.H. 1942), 92 N.H. 242, 29 A.2d 121, as one of the first such cases tending to allow the co-insured to recover. In Hoyt, the court reasoned that an ordinary person “not versed in the nice distinctions of insurance law” would naturally assume their individual interests covered by the insurance policy. The insurer argued in that case, as in the present, that the policy was a contract and the terms were clear and enforceable. The court in Hoyt ruled that as a matter of equity and of public policy, the wrongs of one individual should not be imputed to another. The test, the court stated, was not how the insurer construed the policy language, but what a reasonable person in the position of the insured would have understood it to mean.

Some courts have focused on the language of the policy to make their determination. Woodhouse cites Hildebrand v. Holyoke Mutual Fire Insurance (Me. 1978), 386 A.2d 329, where the court scrutinized the term “insured.” The insurer argued, as does Farmers, that the word “insured” included all named insureds. The policy excluded coverage if the loss was caused by an “insured.” The court determined that the definition of “insured,” when a claim is denied, must be limited to include only the insureds who intentionally cause the loss.

Although the results are undeniably harsh for Patricia Woodhouse, the clear meaning of the contract must govern here. We concur with Farmers that this is, plainly and simply, a contract case. The provision clearly and unequivocally states that a loss caused by an intentional act of an insured party bars coverage. Alan Woodhouse was clearly an “insured,” and his act was clearly intentional. Accordingly, we find that the loss was not covered, and reverse the decision of the District Court.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, Mc-DONOUGH, HUNT, WEBER and BARZ concur.


author: JUSTICE McDONOUGH

text:
    CANYON CREEK EDUCATION ASSOCIATION, affiliated with the Montana Education Association and Karen Tinnes, Plaintiffs and Appellants, v. BOARD OF TRUSTEES, YELLOWSTONE COUNTY SCHOOL DISTRICT NO. 4, Defendant and Respondent.
    No. 88-624.
    Submitted on Briefs Nov. 21, 1989.
    Decided Jan. 11, 1990.
    785 P.2d 201.
    Emilie Loring, Hilley & Loring, Missoula, for plaintiffs and appellants.
    Charles E. Erdmann, Erdmann & Wright, Helena, for defendant and respondent.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

This is an appeal from a judgment of the Thirteenth Judicial District, Yellowstone County, finding that the Respondent, Board of Trustees, did not breach the terms of the Collective Bargaining Agreement entered into with the Appellant, Canyon Creek Education Association. We find that the District Court was without jurisdiction to hear the matter and therefore remand for dismissal without reaching the substantive issues concerning breach of contract.

The sole issue on appeal is:

Whether the District Court has jurisdiction to hear and decide an action alleging breach of a collective bargaining agreement, when the plaintiff has not first brought the case before the County Superintendent.

Karen Tinnes (Mrs. Tinnes), the plaintiff in this action, had been employed by the School District as a nontenured substitute teacher and as a teacher’s aid in the 1983-84 school year. In the 1984-85 and 1985-86 school years, she had been employed as a full time teacher.

In the spring of 1986, it became evident to the School Board that the School District was facing financial uncertainty for the upcoming school year. State funding was reduced and an attempt to pass a local mill levy had failed. Due to such financial problems, the School Board decided to meet on March 26, 1986, at a special meeting to address the status of the nontenured teachers. A two day notice of the meeting was given. At the meeting, the financial status of the District was discussed and a decision was made not to renew nontenured teachers. A letter was sent to all nontenured teachers, including Mrs. Tinnes who was not present at the meeting, informing them of the Board’s action.

Eventually Mrs. Tinnes was recalled to fill a one-quarter time position for the 1986-87 school year. She was not, however, recalled to fill six other positions which opened during the year. Three of these positions — an elementary counselor, a seventh grade school teacher, and a music teacher, required special endorsements or experience which Mrs. Tinnes did not have. However, she was qualified to fill the other three positions. She was not given an opportunity to fill these positions because the District decided to fill them with a teacher who had prior experience teaching in the grades where the openings occurred.

In 1987, the District was again experiencing financial difficulties and uncertainty. The Board met without giving any type of notice to the nontenured teachers on February 16, 1987 to determine their status. The decision was made to non-renew their contracts. Later in 1987, as the financial situation for the District stabilized, the District recalled and hired new teachers for various positions. Mrs. Tinnes was not among those recalled.

Following her non-renewal in 1986, Mrs. Tinnes filed a complaint in District Court alleging that the School Board had breached the Collective Bargaining Agreement entered into by the School District and the teachers association. In December of 1987, she filed an amended complaint which contained additional allegations for the 1987-88 school year. Trial was held on July 12, 1988 and the District Court found in favor of the School District. This appeal followed.

On July 12,1988, the same day that trial was held on this case, this Court issued a decision in Throssell v. Board of Trustees (Mont. 1988), [232 Mont. 497,] 757 P.2d 348, 45 St.Rep. 1228. In Throssell, we held that under § 20-3-210, MCA, the County Superintendent must hear and decide all matters of controversy arising as a result of decisions of the Board of Trustees. Section 20-3-210, MCA, states in pertinent part that:

“. . . the county superintendent shall hear and decide all matters of controversy arising in his county as a result of decisions of the trustees of a district in the county.”

In Throssell, the plaintiff relied upon McBride v. School District No. 2 (1930), 88 Mont. 110, 290 P. 252, in support of his position that actions for money owed pursuant to a contract are not contemplated within the meaning of § 20-3-210, MCA. In McBride, this Court held that when a teacher brings an action for a money judgment based upon breach of contract, the rule of exhausting one’s administrative remedies does not apply. McBride, 290 P. at 254. The plaintiff in Throssell argued that because his complaint sought solely monetary damages, the rule of McBride applied.

We disagreed and held that as a general rule a claimant in the school system must exhaust his administrative remedies before filing a complaint or petition in District Court. Throssell noted this general rule has three limited exceptions. These exceptions are situations where state agencies have been directly granted primary jurisdiction, where the matter is governed by a specific statute or where the Board has acted without or in excess of its jurisdiction. Throssell, 752 P.2d at 349-50. Because the plaintiff’s cause of action in Throssell did not come under any of these exceptions, we held the District Court had no jurisdiction.

The case now before us involves two Collective Bargaining Agreements. The first agreement was effective between June 30, 1984 and June 30, 1986 and was in force when Mrs. Tinnes was non-renewed in 1986. The second agreement was effective from July 1, 1986 through June 30, 1988. This Collective Bargaining Agreement was applicable to the 1987 non-renewal.

Following her non-renewal in 1986, Mrs. Tinnes filed an appeal before the Yellowstone County Superintendent of Schools. In this matter, she alleged that the reasons given by the School Board for her non-renewal were not true. The Superintendent found in favor of the School District on July 14, 1986, and dismissed the appeal.

Mrs. Tinnes continued, following this ruling, to pursue her administrative remedies, on the grounds stated, and appealed to the State Superintendent of Public Instruction. However, on November 17, 1986, she also filed the District Court action now on review, alleging breach of contract, due to the School District’s failure to comply with notice and layoff-rehire provisions in the Collective Bargaining Agreement. The complaint was amended in December of 1987 to include breach of contract allegations arising out of the 1987 non-renewal. The State Superintendent, on April 6, 1987, affirmed the decision of the County Superintendent and dismissed Mrs. Tinnes’ administrative appeal.

From the above facts, it is apparent that the District Court did not have jurisdiction to hear Mrs. Tinnes’ complaint. The action before the lower court was based upon completely different theories than that presented to the County Superintendent for the 1986 non-renewal and were never presented for administrative review. Furthermore, the allegations arising out of the 1987 non-renewal also were never presented for administrative review.

In light of Throssell, in order for the District Court to have jurisdiction, it is necessary for the litigant to exhaust her administrative remedies. Accordingly, we hold that the District Court was without jurisdiction to hear Mrs. Tinnes’ complaint and the complaint is to be dismissed.

As a final point, we note that Mrs. Tinnes relies heavily upon McBride in support of her theory that she need not exhaust her administrative remedies before filing her complaint in District Court. This confusion on her part may be partly caused by our failure to affirmatively overrule McBride in Throssell. Therefore, in order to prevent further confusion, we hereby affirmatively overrule McBride, and hold that unless a claimant’s cause of action falls under the three exceptions enumerated in Throssell, he/she must present his/ her claim to the County Superintendent, invoking and completing the administrative process first before resorting to the courts.

Remanded for dismissal.

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


author: JUSTICE WEBER

text:
    In re the MARRIAGE OF MARSHA LYNN MAGER, Petitioner and Respondent, and JAY FRANKLIN MAGER, Respondent and Appellant.
    No. 89-057.
    Submitted on Briefs Nov. 21, 1989.
    Decided Jan. 11, 1990.
    785 P.2d 198.

      McKinley Anderson, Bozeman, for respondent and appellant.
    Michael Lilly; Berg, Lilly, Stokes, Andriolo, Tollefsen, & Schraudner, Bozeman, for petitioner and respondent.
   JUSTICE WEBER

delivered the Opinion of the Court.

After a hearing, the District Court for the Eighteenth Judicial District, Gallatin County, awarded the mother sole custody of the minor children of the marriage and ordered the marital property remaining in wife’s possession sold to pay marital debts with any excess to go to her for back child support. The husband appeals. We affirm.

The issues presented on appeal are:

1. Did the District Court err in not following the oral stipulations between the parties regarding child custody?

2. Did the District Court err in awarding the proceeds of the sale of the marital assets to respondent for back child support?

3. Did the District Court err in its determination of net worth of the parties?

The parties were married on December 10, 1971. Neither party contributed any real or personal property of value to the marriage. They had two children. During the marriage, Mrs. Mager (respondent) worked as a full-time housewife and mother and also held various jobs.

In 1983, the couple operated a business known as “Airline Cable”. In June, 1983, they were required to file Chapter 11 bankruptcy with a total debt of $105,000. The District Court found they had a total of $83,000 in property.

In 1985, the parties separated. Mr. Mager (appellant) left the family, leaving respondent to operate the business and care for the children. After he left, appellant rarely saw his children and provided no support for the children, respondent or the business. Without the aid of appellant, respondent completed the Chapter 11 bankruptcy and all of the $105,000 debt was either paid in full or discharged in bankruptcy. However, the District Court determined that $24,778.64 in marital debt remained and $56,915 in property remained that respondent had not yet liquidated.

At the time of the proceedings in the District Court, appellant was employed as a machine operator in Vancouver, Washington with an annual taxable income between $18,000 and $25,000. He was unmarried and his work required him to spend long days away from home. Respondent remarried and her husband has a good relationship with her children. Respondent submitted monthly expenses of $1,136.

I

Did the District Court err in not following the oral stipulations between the parties regarding child custody?

At the beginning of the hearing before the District Court, the parties stipulated to the granting of joint custody. However, in its conclusion, the District Court awarded sole custody of the children to respondent. Appellant contends that oral stipulations regarding custody are binding, thus it was error for the District Court to disregard the agreement. We disagree.

As respondent correctly notes, this issue is addressed directly by statute. It is mandatory that the district court determine custody according to the best interests of the child. In its determination, the district court must consider at least the following factors:

1. the wishes of the child’s parent or parents as to his custody;

2. the wishes of the child as to his custodian;

3. the interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child’s best interest;

4. the child’s adjustment to his home, school, and community;

5. the mental and physical health of all individuals involved;

6. physical abuse or threat of physical abuse by one parent against the other parent or the child; and

7. chemical dependency, as defined in § 53-24-103, or chemical abuse on the part of either parent. See § 40-4-212, MCA. Section 40-4-201(2), MCA, provides that separation agreements providing for support, custody and visitation of children are not binding. Although the case before us deals with an in-court stipulation rather than a separation agreement, the difference is meaningless. Parties cannot make binding agreements, oral or written, as to support, custody or visitation of children. The best interests of the children are paramount. As we said in Marriage of Neiss (1987), 228 Mont. 479, 743 P.2d 1022, “it is the children, not the parents, who are beneficiaries of child support decrees”, and “the custody and support of children are never left to contract between the parties.” The record reveals that the District Court properly considered the children’s best interests. We hold the District Court did not err in refusing to follow the oral stipulations between the parties regarding child custody.

II

Did the District Court err in awarding the proceeds of the sale of the marital assets to respondent for back child support?

Appellant maintains it was error for the District Court to award all the marital assets to the wife as back child support and that the court was without jurisdiction to do so. He also contends that after the sale of the property, there was an excess over and above the marital debt that should have been divided between the parties.

Respondent contends that the divorce decree specifically stated that upon becoming employed, appellant would be responsible for child support, and that when he did become employed he did not pay such support. She urges that there is no evidence of excess over marital debt and that because a final accounting had not yet been filed, it would have been impossible to arrive at the figures appellant relies on. We agree. We also note that at the hearing on this matter, appellant specifically stated that he had no objection to allowing any excess equity to be used as past due child support. A district court will not be held in error for a procedure in which the appellant acquiesced at trial and to which he had not objected. In re Marriage of West (Mont. 1988), [233 Mont. 47,] 758 P.2d 282, 285, 45 St.Rep. 1281, 1283. Furthermore, the record before us on appeal reveals that the District Court properly considered § 40-4-204, MCA, in its award of past due child support, We hold the District Court did not err in awarding the proceeds of the sale of the marital assets to respondent for back child support.

III

Did the District Court err in its determination of net worth of the parties?

Appellant maintains that because the District Court made no findings as to the value of respondent’s personal property, its determination of the net worth of the parties was in error. He contends that respondent had a car, jewelry and furniture which the court failed to include in its determination of net worth. Appellant relies on Marriage of Dirnberger (Mont. 1989), [237 Mont. 398,] 773 P.2d 330, 46 St.Rep. 898, in which we held that the trial court was required to make findings of fact on liabilities of the parties and on the husband’s personal property before dividing the marital property.

In Dirnberger, appellant alleged before the trial court that the items of personal property were of substantial value. The case before us is distinguishable, as respondent urges. Appellant did not allege the car, jewelry and furniture were of substantial value, nor did he raise this issue before the District Court. This Court will not address on appeal an issue not presented to the District Court. Sperry v. Montana State Univ. (Mont. 1989), [239 Mont. 25,] 778 P.2d 895, 46 St.Rep. 1482. Furthermore, respondent’s testimony reflects that the personal property in question was either sold off or refinanced after the divorce. We hold the District Court did not err in its determination of the net worth of the parties.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES BARZ, HUNT and McDonough concur.


text:
    LAWRENCE A. CHAPEL, Plaintiff and Appellant, v. JAMES G. ALLISON, Defendant and Respondent.
    No. 88-550.
    Submitted Oct. 17, 1989.
    Decided Jan. 12, 1990.
    785 P.2d 204.

      Monte Beck argued, Larry W. Moran, Bozeman, for plaintiff and appellant.
    Gary L. Walton argued, and John Davis, Poore, Roth & Robinson, Butte, for defendant and respondent.
    W. William Leaphart argued, Montana Trial Lawyers’ Assoc., R. Stephen Browning, Browning, Kaleczyc, Berry & Hoven, Montana Hosp. Assoc., Helena, Gerald J. Neely, Montana Medical Assoc., Billings, for amicus curiae.
   JUSTICE SHEEHY

delivered the Opinion of the Court.

Lawrence A. Chapel sued Dr. James G. Allison for malpractice in the District Court, Sixth Judicial District, Park County. At the close of Chapel’s case in chief, before a jury, the District Court granted Dr. Allison’s motion for a directed verdict on the basis that Chapel failed to present sufficient evidence to meet his burden of proof. Chapel appeals the judgment in directed verdict to this Court. We reverse and remand for a new trial under the conditions hereafter set forth.

The sole issue upon which we base our reversal is that the District Court erred by granting Dr. Allison’s motion for a directed verdict.

Chapel was injured when he was kicked by a horse on February 18, 1983. He was taken to the emergency room at Livingston Memorial Hospital where he was treated by Dr. James G. Allison. The doctor diagnosed the fracture as “comminuted undisplaced fracture of the infra condylar region of the left tibia” after viewing X-rays. There was an open wound proximal to the tibia. He applied a long leg cast extending from Chapel’s mid-thigh down to and including his foot.

Chapel was released from the hospital on February 21, 1983. He was readmitted on February 25, 1983 for treatment of a blood clot which had lodged in his lung. By stipulation of counsel this case does not involve any allegation of negligence of Dr. Allison because of the blood clot.

The cast was removed May 2, 1983. Chapel’s leg exhibited a varus deformity (bow-leggedness) which required surgery, a procedure called an “osteotomy,” to straighten the bowed leg. This surgery was performed September 19, 1984 in Billings, Montana, at St. Vincent Hospital by Dr. Richard Snider who removed a piece of bone from Chapel’s leg.

I.

Dr. Allison practices in Livingston, Montana, as a licensed nonboard-certified general practice physician (thus legally entitled to treat Chapel’s injuries). He treated Chapel at the emergency room of Livingston Memorial Hospital and did not refer Chapel to an orthopedic specialist.

Chapel had been a patient of Dr. Allison’s for nearly 20 years, the doctor treating ailments from common illnesses up to and including sprains, fractures, and an initial treatment for a ruptured disc.

Chapel’s injury was of the kind which would fall within the area of practice of an orthopedic surgeon. It would also fall within the area of practice of a properly qualified general practitioner who possessed the requisite degree of knowledge and skill for treating his patient, but a general practitioner is not trained, excluding experience, at a level a board-certified orthopedic surgeon would be trained. Dr. Allison did not hold himself out to Chapel to be anything other than a general practitioner when he undertook the treatment of Chapel. Dr. Allison claimed during the litigation that he possessed the requisite degree of knowledge for treating Chapel because of his 24 years of practice in which he had treated 1,000 fractures, 50 of which involved the tibia and 15 of which involved the tibial plateau, and one instance of the same injury, but without the wound overlying the fracture site.

The expert testimony produced by the plaintiff Chapel came from an orthopedic surgeon from Denman, Massachusetts, Dr. Stephen Sand, board-certified in the speciality of orthopedic surgery. His testimony was as follows:

“Q” Based upon what you have learned by reviewing all of the documents that we mentioned, have you been able to form a reasonable judgment on what the standards of care are in the Livingston-Bozeman area in Montana for the care and treatment of an injury such as was sustained by Mr. Chapel by a general practitioner?

“A. My opinion, based on the review of the information that you have stated, and my contact with a general practitioner in the area, is that a general practitioner would not, under ordinary circumstances, handle this type of case or injury.”

After testimony was admitted, the court allowed extensive voir dire examination by opposing counsel of Dr. Sand and upheld the propriety of his opinion over objection.

At the close of Chapel’s case in chief, counsel for Dr. Allison moved for a directed verdict on the issue of liability, contending that Chapel had failed to sustain his burden by a preponderance of the evidence that any problems with his leg resulted from the negligence of Dr. Allison. The court granted the motion for a directed verdict,

Later, in dismissing the jury, the District Court stated reasons for the directed verdict. The District Court said that proof of the competency of Dr. Sand to testify in the matter was “very shaky;”that the plaintiff did not call Dr. Kurtz, a Bozeman doctor, upon whom Dr. Sand had relied for information as to the area of practice for a general practitioner; that Dr. Allison had testified that, in his opinion Chapel was bow-legged before the accident and despite the leg injury and disc surgery the same year, that Chapel was able to go elk hunting in the mountains for a two-week period; that the other doctors whose testimony appeared in the case have all in effect said that there was no fault [which came from depositions not used at the trial]; that the reports of the radiologist showed no displacement of Chapel’s bones in the X-rays; that the plaintiff had failed to rebut Dr. Allison’s testimony that plates, screws and bolts should not be used in an open fracture treatment because of possible risk of infection, or Dr. Allison’s testimony that it would be improper to insert a needle or orthoscopic instrument in Chapel’s knee; or that general anesthesia was not used and should not be used; that Dr. Allison further testified that further manipulation of the bones might have done more possible harm than good, and other elements of the testimony. In effect, the District Court weighed the testimony as opposed to the evidence of Dr. Sand that “a general practitioner would not under ordinary circumstances handle this type of case or injury.”

This court stated in Britton v. Farmers Insurance Group (1986), 221 Mont. 67, 721 P.2d 303, 317, the following:

“A motion for directed verdict is properly granted only in the complete absence of any evidence to warrant submission to the jury, and all inferences of fact must be considered in the light most favorable to the opposing party. Jacques v. Montana National Guard (1982), 199 Mont. 493, 649 P.2d 1319; if the evidence viewed in a light most favorable to plaintiff indicates reasonable men might differ as to the conclusions drawn from the evidence, a directed verdict is not proper. Weber v. Blue Cross of Montana (1982), 196 Mont. 454, 643 P.2d 198.”

Chapel himself testified that it was obvious to him that his leg was crooked as it was cast, that it caused him a good deal of pain about which he complained to the doctor and about which the doctor did nothing. Mrs. Chapel also testified that she was concerned about her husband and informed Dr. Allison that she wanted her husband to receive the best possible medical attention and to let her know if the doctor could not handle the case. Chapel inquired of the doctor whether his leg would remain in the shape that it was cast.

The findings relied on by the District Court in this case show that it weighed the plaintiff’s evidence, ultimately finding in favor of the defendant. The power of weighing the evidence belongs to the jury. Therefore, on the basis that the District Court improperly granted a directed verdict, we reverse and remand the cause for further proceedings in accordance with this opinion.

II.

During pretrial procedures before the District Court, the plaintiff made a motion in limine that the “same locality rule” (infra) was not applicable in this case. The court denied the motion, saying:

“The court specifically determines that the rule applicable in this case is that Dr. Allison will be held to the standard of care in February 1983 of a licensed general practitioner, who is not board certified, in the same or similar communities within Montana. Provided, however, experts from elsewhere and in other specialties will be considered competent to testify if they are medically qualified and if they are in fact familiar with the standards for a general practitioner in Livingston or similar communities in Montana at the time in question.”

The order of the court correctly reflected the status of the law in Montana relating to the standard of care applicable to general practitioners.

Formerly, the standard of care required of a physician or surgeon in treating a patient was to exercise as reasonable care and skill which “is usually exercised by physicians or surgeons of good standing of the same system or school of practice in the community in which he resides, having due regard to the condition of medical or surgical science at that time.” Hansen v. Pock (1920), 57 Mont. 51, 59, 187 P. 282, 285. The “same locality rule” restricted the geographical area from which the degree of care exercised by a physician or surgeon could be determined to the community in which the doctor resided.

In Tallbull v. Whitney (1977), 172 Mont. 326, 564 P.2d 162, this Court examined the “same locality rule” and determined that the foundation for it no longer existed. The reasons given were that the accessibility of medical literature, the frequency and availability of national, regional and state medical meetings, advances of communication of medical knowledge, transportation advances, and the opportunity for rural community doctors to gain medical knowledge in the same manner as doctors in more populous regions in the state, all made the “same locality rule” outdated. In Tallbull, this Court expanded the rule saying:

“For the foregoing reasons, we hold that Montana’s ‘locality rule’ imposes on a physician undertaking the care of a patient the legal duty of possessing and exercising that reasonable and ordinary degree of learning, skill and care possessed and exercised by physicians of good standing of the same school of practice in the same or similar locality in Montana. A similar locality in Montana within the meaning of this rule is a locality of similar geographical location, size and character in a medical context.”

172 Mont. at 335, 564 P.2d at 166, 167.

The Tallbull rule was modified insofar as it applied to an orthopedic surgeon in Aasheim v. Humberger (1985), 215 Mont. 127, 695 P.2d 824. There, this Court recognized that the defendant was a nationally board-certified orthopedic surgeon and had received comparable training and passed the same national board certification tests as all other board-certified orthopedic specialists in the nation. On that basis, this Court held that when a defendant in a medical negligence action was a board-certified specialist, his skill and learning would be measured by “the skill and learning possessed by other doctors in good standing, practicing in the same speciality and who hold the same national board certification.” Aasheim, 215 Mont. at 130, 695 P.2d at 826. Thenceforth, board certified specialists in Montana would be subject to a national standard of care.

In Glover v. Ballhagen (1988), 232 Mont. 427, 756 P.2d 1166, this Court answered a certified question posed by the Federal District Court of Montana again with respect to the standard of care applicable to national board-certified specialists. In this case, the doctor was a board-certified family practitioner. In Glover, we concluded that:

“. . . the standard of care to which a board certified family practitioner will be held is that skill and learning possessed by other doctors in good standing, practicing with the same national board certification.
“that the party presenting witnesses an expert must establish, to the satisfaction of the trial court, that the witness possesses the requisite knowledge, skill, experience, training, or education to testify as to the diagnosis and treatment in question as to the standard of care applicable to the physician charged with negligence.”

Glover, 756 P.2d at 1168.

Thus, in the action against Dr. Ballhagen, this Court held that the expert witness “must be qualified pursuant to Rule 702 to testify as to the standard of care required of a board certified family practitioner.”

Not answered in the foregoing cases, and raised as an issue in this case, is whether a non-board-certified general practitioner, practicing in a Montana community, who treats a patient for an injury of a kind which would fall within an area of practice of an orthopedic surgeon should be held to the degree of care, knowledge and skill of the specialist; or whether, as the District Court determined here, as a general practitioner, in treating a patient for an injury which would fall within the area of practice of an orthopedic surgeon, the general practitioner should be held to that degree of care, knowledge and skill of a general practitioner practicing in the same or similar communities in Montana.

Because of the broad implications to the medical community and to injured patients lurking in whatever decision we made on this issue, we ordered rebriefing and oral argument on the issue and invited briefs from amici curiae.

Here are the arguments marshaled by each side:

Counsel for Chapel maintains that in an age of increasing specialization, a doctor in general practice is under a legal duty, in diagnosing or treating a patient, to seek consultation with or refer a patient to a specialist when the doctor knows or should know in the exercise of reasonable care that the services of a specialist are indicated. Chapel further argues that if there is another mode of treatment that is likely to be more successful for which the physician does not have the facilities or the training to administer, but which is available from specialists, it is the doctor’s duty to so advise the patient, and failure to apprise the patient of these facts would constitute a breach of that duty. Chapel also argued the duty to refer does not end with diagnosis. He contends that the general practitioner must also evaluate what progress is made in treating his patient and that if he knows or has reason to know that his method of treatment has failed or has not proven effective, he is under a continuing duty to consult or to refer. Chapel further points out that in this case, the orthopedic treatment of his leg was not an emergency, and could have been done in later days.

Dr. Allison’s brief contends that the Tallbull rule should continue to be applied to general practitioners. Dr. Allison points out that a general practitioner in a small community such as Livingston has an advantage over general practitioners in larger or more populated areas because doctors such as Dr. Allison have occasion to treat many more types of cases than would a general practitioner in a metropolitan area. Dr. Allison had treated 15 injuries similar to Chapels. Dr. Allison also contends that restricting the degree of care to the same or similar communities in Montana is proper because he confronts illnesses and injuries in serving his community whereas practitioners in a larger city devote much of their practice to initial diagnoses with referral to a specialist for anything beyond routine care. Dr. Allison also relies on the Restatement (Second) of Torts, § 299A, Comment G (1965), in support of the Tallbull rule. Dr. Allison also contends that it would be impracticable to require a general practitioner to be held to the standard of care of whatever area of expertise in which his treatment might fall, including an orthopedic surgeon, a dermatologist, a neurologist, an obstetrician, an internist, and so on.

An amicus brief was filed by the Montana Trial Lawyers Association. In it, the Trial Lawyers emphasize that all physicians today receive a standardized education with ongoing common access to sources of medical information in authoritative journals through electronic data retrieval and in continuing medical education seminars. Trial Lawyers point out that Montana has no medical school, and thus, doctors coming into this state to practice necessarily have received a standardized education, and therefore the degree of care they exercise in treating patients is subject to review on a national basis. Trial Lawyers contend that there is a trend away from the locality rule in most states which apply a national standard of care typically defined as “a physician is under a duty to use that degree of care and skill which is expected of a reasonable competent practitioner in the same class to which it belongs, acting in the same or similar circumstances.” Trial Lawyers contend that the phrase “the same or similar circumstances” allows the trier of fact to take into account and to weigh local conditions when the standard is applied, so as to reflect the same “general facilities, services, and options” which were available to the treating doctor. Trial Lawyers contend that limiting expert testimony to the standard of care reflected in the same or similar communities in Montana is too restrictive, and that uniform standards should be applicable to a given situation regardless of locality and that the lack of familiarity of the expert with practice in a particular locality should not disqualify the expert. Trial Lawyers contend that in such cases as presented here, a general practitioner who knows or should have known that a patient’s ailment is beyond his knowledge or technical skill is under the duty to disclose the situation to his patient.

An amicus brief was received from the Montana Hospital Association. Essentially, this brief points out the rather dire prospects faced by rural hospitals in Montana. It states that all of Montana’s 64 hospitals were only marginally profitable for the past five years but that rural hospitals experienced increasing financial losses. The losses are occurring primarily because of reduced utilization of rural hospitals. Some of the reductions are due to public policies and issues undertaken at both the federal and state levels with cutbacks in federal and state Medicare and Medicaid programs. The importance of a rural doctor to a rural hospital is emphasized in the brief and the hospitals contend that the similar locality rule is needed in rural areas to keep physicians there providing essential health services and utilizing local rural hospital services. We are urged by the Hospital Association not to abandon the similar locality rule.

Finally, we have received an amicus brief from the Montana Medical Association. In it, the Association points out that it supports a high degree of access to all forms of medical care, especially obstetrical and other services in rural communities; that it desires to maintain the highest degree of quality of medical care in all of Montana communities; that it seeks the enhancement of the physician-patient relationship and when at any given time there is a change in the appropriate standard of care, medical practitioners should have advance notice of the same.

The brief of the Montana Medical Association recognizes the implications of the problem and seems to be seeking a middle ground for its resolution. Thus, with regard to general practitioners, its brief recommends that we continue to adopt the “same or similar locality” standard, without geographical limitations for general practitioners but allow the “national” specialist standard to be applied to any physician who holds himself or herself out as a specialist. Otherwise the Association contends that one who is educated and trained as a general practitioner should generally not be expected or required to meet the standards or to follow the procedures prescribed for a board-certified specialty and should not be measured by the criteria for that specialty other than his own. The brief suggests that the elimination of the Montana boundary restriction on the locality rule is warranted if the same could be done in this case without modifying the verdict solely as a result of that change, because the concept of advance notice is important when judicial legislation occurs. It points out that if the “same or similar locality” rule for general practitioners is any locality similar in the United States, sound policy reasons support such a change, including: 1) the loss of general practice or family practice services in Montana communities in the rural areas; 2) the lack of specialty care in and of the rural communities for referral of patients; 3) the fact that a general practitioner, though competent to act in areas which overlay specialists’ areas, is not necessarily as skilled as a specialist; and, 4) the increased availability of expert witnesses, the lack of which would be some justification for alterations in the law. The brief contends for a balance to be struck between the right of a negligently injured patient to receive compensation through the availability of expert testimony and the right of a doctor to due process and a fair hearing, by insuring that those experts who do testify possess solid practical experience in the type of practice at issue.

On balance, the position asserted by the Montana Medical Association as to the standard of care applicable in cases of this type, with slight modification, appears suitable for adoption by us. For the same reasons as in Tallbull, we abandon the “locality” rule which is limited to Montana communities. It appears proper to revise the rule that now limits the standard of care to be exercised by a general practitioner to be determined by that standard established in similar communities in Montana. The geographical restriction of the state boundary is too narrow in view of the necessity of expert testimony; yet, as the Association contends, the national standard should not exclude local considerations which face rural general practitioners.

Accordingly, we hold that a non-board-certified general practitioner is held to the standard of care of a “reasonably competent general practitioner acting in the same or similar community in the United States in the same or similar circumstances.” See, Shilkret v. Annapolis Emergency Hospital Association (1975), 276 Md. 187, 349 A.2d 245. “Similar circumstances” permits consideration by the trier of fact of legitimate local factors affecting the ordinary standard of care including the knowledge and experience of the general practitioner, commensurate with the skill of other competent physicians of similar training and experience, with respect to the type of illness or injury he confronts and the resources, facilities and options available to him at the time. Anything in Tallbull to the contrary is hereby reversed, prospectively as hereafter stated.

This opinion applies only to general practitioners, and does not affect board-certified specialists or board-certified general or family practitioners.

We are further persuaded by the brief of the Montana Medical Association that a change of judicial attitude of this nature should be prospective only. We, therefore, order on remand of this case to the District Court that any further proceedings relating to the applicable standard of care of Dr. Allison shall be that standard of care enunciated in the Tallbull case, since that was the standard of care applicable when Dr. Allison treated Chapel.

Moreover, the effect of this opinion with respect to the standard of care required of non-board-certified general practitioners shall be prospective only and shall apply to treatments only by such general practitioners of patients commencing from and after March 31, 1990, so that the effect of this opinion will be made known to the medical profession.

Reversed and remanded for further proceedings in accordance with this opinion. Costs to Chapel.

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


author: JUSTICE HUNT

text:
    THOMAS J. WINCHELL and David Winchell, Plaintiffs and Appellants, v. STATE OF MONTANA, DEPARTMENT OF STATE LANDS, Defendants and Respondents.
    No. 89-292.
    Submitted Sept. 15, 1989.
    Decided Jan. 16, 1990.
    785 P.2d 212.
    Thomas E. Smith, Moulton, Bellingham, Longo & Mather, Billings, for plaintiffs and appellants.
    John F. North, Lyle Manley, Tommy Butler and Richard Thweatt, Dept, of State Lands, Helena, for defendants and respondents.
   JUSTICE HUNT

delivered the Opinion of the Court.

Appellants, Thomas J. (Tom) and David Winchell, leased land from the Department of State Lands (Department). Following the Department’s cancellation of their lease and the Board of Land Commissioners’ adoption of that decision, the Winchells petitioned for judicial review in the Seventh Judicial District Court, Dawson County. The District Court affirmed the decision. The Winchells appeal to this Court. We affirm.

The sole issue raised on appeal is whether sufficient grounds existed to justify the cancellation of State Lease No. 0343 for mismanagement pursuant to § 77-6-113, MCA.

In 1981, the Department of State Lands issued State Lease No. 0343 to appellants, Tom and David Winchell. The 477.9 acres of land covered by the lease formed a portion of the common school lands, which are held in trust by the state of Montana and administered by the Department. Income from the lease of school trust lands is dedicated to the support of the common schools of Montana.

The Winchell family has leased the property in question for over 50 years. The lease that forms the basis of this action was scheduled to run for a 10-year period, from February 28, 1981 through February 28, 1991. Originally, the acreage covered by the lease was to be used for grazing purposes only. However, shortly after the parties executed the agreement, they agreed to reclassify 32 acres as agricultural land. The Winchells intended to develop a water-spreading project for the purpose of cultivating an alfalfa crop on the 32 acres. To this end, and with the financial backing of the Department and the United States Soil Conservation Service (SCS), the Winchells constructed a concrete diversion structure on a stream flowing through the land.

In 1983, the Winchells concluded that the water source for the project was inadequate for producing a profitable alfalfa crop. In 1984, they negotiated a lump-sum settlement to repay the Department for the loan given them to develop the water-spreading system. Apparently, the parties were confused as to whether the settlement payment reclassified the 32 acres to grazing land. This question was resolved in Winchell v. Department of State Lands (Mont. 1988), [235 Mont. 10,] 764 P.2d 1267, 45 St.Rep. 2121 (Winchell I), where we affirmed the District Court’s issuance of a writ of prohibition against the Department. In Winchell I, we held that, upon payment of the lump-sum settlement, the 32 acres reverted to grazing land.

In May, 1984, Sharon Moore, land use specialist for the Department’s Eastern Land Office, visited the lease site. Upon inspecting the land, she discovered a severe overgrazing problem. She observed that the cows on the property were quite thin and, as she completed her inspection, they followed her around bellowing as if they were starving. Moore also noticed that gravel had been removed from a creek bed and a prairie dog town had been established and was thriving and growing.

Moore called the Winchells several days after her visit and sent a follow-up letter dated May 14, 1984. In the letter, she advised that, to prevent further overgrazing problems, the cattle must be removed from the land as soon as possible. She instructed the Winchells to notify her when they removed the cattle, which the Winchells failed to do, although they testified that the cattle were taken off of the lease site immediately after they received Moore’s letter.

Moore visited the site again in August, 1984. Once again, she observed severe overgrazing on the leased area. Some of the land looked like little more than bare dirt. Piles of manure were scattered about, indicating that the fields had been grazed heavily during the summer. Moore also sighted five to ten head of cattle on the property during this inspection.

Following the August inspection, Moore met with Tom Winchell and learned that he had filed for bankruptcy. Moore then performed a reappraisal of the lease site, in which she recommended that the Department cancel the lease for poor management, primarily due to the severity of the overgrazing problem. In October, 1984, she sent a memo to Mark Ahner, area manager of the Eastern Land Office, outlining the problems and recommending cancellation of the lease.

Because of the pending bankruptcy proceedings, the Department believed that it could not cancel the lease as Moore recommended. However, on April 25, 1985, Ahner sent a letter to the Winchells in which he placed several restrictions on the lease. These restrictions included 1) grazing would be prohibited until after seed set in the fall (approximately September 1st); 2) no more than 82 animal unit months would be allowed on the native range land; and 3) no grazing at all would be allowed on the 32-acre alfalfa field. In addition, Ahner instructed the Winchells to notify the Department prior to turning any livestock onto state land and to notify it within three days of removing animals from the property. Ahner also advised the Winchells to repair the concrete diversion structure, which had been damaged.

Moore next visited the property on May 9, 1985. During this inspection, she observed cattle on the land and noted that there remained a serious overgrazing problem. The prairie dog population was not under control and the concrete diversion structure had not been repaired.

Moore again visited the property on July 15, 1985, at which time she observed three horses on the lease site. On September 29, 1985, she observed three horses as well as 16 cow/calf pairs on the land.

By motion dated January 22, 1986, the Department sought an order from the Bankruptcy Court requiring the Winchells to advise in writing whether they assumed or rejected the lease. Pursuant to a stipulation and order dated March 6, 1986, the Winchells agreed to assume the lease, subject to the following terms and conditions:

“1. No grazing will be allowed on the leased premises until after September 15th of each year. The condition will remain a portion of the lease until the state tract has been properly reclaimed as verified by a written re-evaluation from the Department of State Lands.
“2. No more than 82 animal unit months may be utilized from native range land.
“3. Lessee will pay a one-quarter crop share for alfalfa hay cut from the water spreading system (32 acres). There will be no grazing on the alfalfa. In addition, debtor will be required to reseed the areas of the alfalfa fields which were destroyed by overgrazing. Such alfalfa reseeding must be done to SCS specifications. The reseeding must be completed during 1986 unless other plans are approved by the Department of State Lands in writing.
“4. Prior to the turning out of any animal units on to the state land, the Lessee must notify the Eastern Land Office in Miles City in writing as to the number of livestock to be turned onto the state land and the date. The Lessee must notify the Eastern Land Office in writing as to the date when such cattle are removed. Such notice must be given in writing within three days of taking the animal units off state land.
“5. The concrete diversion structure on the water spreading system must be repaired during 1986.
“6. The Lessee is required to adequately control the prairie dog population which exists on state land as required by the lease agreement.
“7. Any variations from this stipulation must receive prior written approval from the Department.”

The stipulation was signed by Lyle Manley, attorney for the Department, and Gerald B. Murphy, attorney for the Winchells.

During 1986, Moore inspected the lease site six times. During one visit in May, 1986, and two visits in July, 1986, she sighted four horses in the alfalfa field. During her second July visit, she also noted that the concrete diversion structure had not been repaired and, as a result, gravel had washed out onto the alfalfa field and the opening where the structure had been had widened considerably.

On September 4, 1986, Moore observed four cow/calf pairs in the alfalfa field. She also encountered evidence indicating that livestock had grazed on other portions of the leased tract.

On October 30, 1986, Moore observed 110 cows and calves in the alfalfa field. The alfalfa field had not been reseeded. The diversion structure had not been repaired. Gravel had been removed from the creek bed.

On November 25, 1986, the alfalfa field had not been reseeded, no hay had been cut and the field was covered with weeds. The prairie dog population was still out of control.

Moore’s final visit to the lease site occurred on May 29, 1987, after the Department had sent notice of cancellation to the Winchells. At that time, she noted an improvement in parts of the alfalfa field, although weeds remained in the center of the field. The prairie dog population appeared to be fairly well under control. However, several head of cattle were on the property.

At no time did the Winchells inform the Department in writing of the dates when livestock were turned onto or taken off of the leased property. At no time did the Winchells repair the concrete diversion structure. At no time did the Winchells ask for or receive permission to remove gravel from the leased land, nor did they pay for the gravel that they removed. At no time did the Winchells receive prior written approval from the Department to allow a variation from the provisions of the stipulation.

In April, 1987, the Bankruptcy Court lifted the automatic stay provided by the Bankruptcy Act. On April 3, 1987, the Department sent notice of cancellation of the lease to the Winchells. Pursuant to the Winchells’ request, a hearing on the matter was held on June 11, 1987. On October 16, 1987, the hearing examiner proposed an order canceling the lease, finding that the Winchells had mismanaged the lease by overgrazing the land, failing to adequately control the prairie dog population and weeds on the land, taking gravel from the creek bed, failing to repair the concrete diversion structure, failing to harvest the alfalfa crop and failing to pay crop-share payments for the alfalfa crop. The Board of Land Commissioners (Board) adopted the hearing examiner’s order on February 25, 1988. The Winchells appealed to the District Court, which affirmed the cancellation order. The Winchells now appeal to this Court.

Prior to the Board’s adoption of the hearing examiner’s order, the Department attempted, in December, 1987, to cancel automatically the lease for nonpayment of agricultural rentals pursuant to § 77- 6-506, MCA. This attempt led to the Winchells’ application for a writ of prohibition, which the District Court granted and we affirmed in Winchell I. (See discussion above.)

The standard of judicial review of a contested administrative case is set out at § 2-4-704, MCA, which provides in pertinent part as follows:

“(2) The court may not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because:
“(a) the administrative findings, inferences, conclusions, or decisions are:
“(i) in violation of constitutional or statutory provisions;
“(ii) in excess of the statutory authority of the agency;
“(iii) made upon unlawful procedure;
“(iv) affected by other error of law;
“(v) clearly erroneous in view of the reliable, probative and substantial evidence on the whole record;
“(vi) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion.”

The Winchells argue that the decision of the hearing examiner, which was subsequently adopted by the Board and affirmed by the District Court, was clearly affected by an error of law, thereby prejudicing their substantial rights. The error of law relied upon by the Winchells is the hearing examiner’s conclusion that 32 acres of the leased land were set aside for agricultural purposes.

We agree with the Winchells that this conclusion was in error for, as we held in Winchell I, the acreage reverted to grazing land in 1984. We do not agree, however, that this erroneous conclusion prejudiced the Winchells’ substantial rights.

The findings of fact and conclusions of law set forth by the hearing examiner demonstrate that the lease was canceled for a number of reasons other than the Winchells’ failure to harvest the alfalfa crop or remit a crop-share payment. Primary among the reasons for cancellation was the Winchells’ mismanagement by overgrazing and by failing to abide by the restrictions placed upon the land by the Department in 1985 and the bankruptcy stipulation and order in 1986.

The hearing examiner specifically determined that the Winchells were in gross violation of § 77-6-113(l)(b), MCA, which provides:

“(1) It shall be a condition of all leases of agricultural or grazing state lands that:
“(b) in the case of grazing lands, the lessee shall observe the ordinary rules for good range management and shall manipulate the numbers, class, distribution, and season of the range use and the handling, feeding, breeding, and marketing of grazing livestock with a view of securing the production of the maximum of livestock and livestock products, consistent with the conservation of the land resources and the perpetuation of its productivity, and to these ends the state land lease may not be abused by overgrazing.”

The facts leading to this conclusion were not clearly erroneous but were supported by substantial credible evidence. The testimony and demonstrative evidence of Sharon Moore graphically illustrated the deplorable condition of the land. Photographic evidence demonstrated that in many places the land had been stripped of vegetation, leaving little more than bare dirt. Photos taken of the fence line between the lease site and a neighbor’s property revealed that the damage extended only as far as the fence line, lending little credence to the Winchells’ contention that the damage was due to hailstorms, drought and grasshoppers, not to overgrazing.

Although the Department directed the Winchells to keep livestock off of the land until the fall of each year, a restriction the Winchells agreed to in the bankruptcy stipulation, the evidence demonstrated that they consistently ignored this restriction. During three visits to the site in 1985, and during five out of six visits to the site in 1986, Moore observed livestock on the land. The Winchells claimed that the livestock was not theirs, that fences periodically washed out, allowing neighbors’ cattle to stray on the land. Even assuming the contention is true, it is not relevant. The Winchells agreed that no grazing would be allowed on the land before September 15th of each year. If neighbors’ cattle strayed onto the land, it was the Winchells’ responsibility to make sure that they were removed.

The gross violation of a state lease by overgrazing mandates cancellation of the agreement. Section 77-6-113(2), MCA. In addition, the Department may cancel a lease in order to do justice to all parties concerned and to protect the interests of the state. Section 77-6-210(l)(e), MCA. The evidence in this case amply demonstrated an abuse of state land. The'Winchells violated the ordinary rules of good range management by allowing overgrazing of the land and by repeatedly refusing to comply with the restrictions placed upon the lease to alleviate the effects of the overgrazing. The Winchells’ disregard for their responsibility for state land justified the cancellation of the lease in order to protect the interests of the state of Montana.

Affirmed.

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


author: JUSTICE BARZ

text:
    ELLIS A. BRUNNER and Gloria A. Brunner, Husband & Wife, Steven Gross, Lyle Grenager, and Alan Davis, Plaintiffs and Respondents, v. LEO R. LaCASSE, and Frieda LaCasse, Husband and Wife, and Henry LaCasse, Helene LaCasse, Defendants and Appellants.
    No. 89-418.
    Submitted on Briefs Dec. 7, 1989.
    Decided Jan. 16, 1990.
    785 P.2d 210.

      Clinton H. Kammerer, Kammerer Law Offices, Missoula, for defendants and appellants.
    Richard Buley, Tipp, Frizzell & Buley, Missoula, for plaintiffs and respondents.
   JUSTICE BARZ

delivered the Opinion of the Court.

This appeal arises from denial of appellants’ motion for new hearing or, in the alternative, relief from judgment entered by the District Court of the Fourth Judicial District, Missoula County, on remand from an earlier appeal to this Court. We affirm.

Respondents brought the underlying action seeking rescission of a real estate contract. Pursuant to the contract, appellants transferred undeveloped agricultural lots to respondents in exchange for cash and respondents’ equity in a Missoula home. The District Court ruled respondents were not entitled to reimbursement of their equity upon rescission. We reversed and remanded for a determination of the value of respondents’ equity in the home, [234 Mont. 368,] 763 P.2d 622 (1988).

Subsequent to presentation of conflicting testimony at hearings held December 16 and 23, 1988, the District Court, in its January 30, 1989 findings of fact, conclusions of law and order, found the value of the home at the time of transfer to be $86,900.00. Respondents filed a Notice of Entry of Judgment on March 10, 1989 and mailed a copy of the same to counsel for appellants.

On March 23, 1989, appellants moved for a new hearing or relief from the judgment entered against them based on the discovery of new evidence. Appellants discovered documentation of their sale of the Missoula home to a third party approximately two years following the transaction from which this litigation arises. According to these documents, the selling price of the Missoula home in September, 1981, was roughly $13,000.00 less than the value found by the District Court. In its opinion and order dated June 14, 1989, the District Court held appellants’ failed to adequately establish grounds for either a new trial or relief from judgment. We agree.

Appellants’ sole specification of error is the District Court’s failure to find the newly discovered evidence warranted a rehearing on the value of respondents’ equity in the Missoula home. Section 25-11-102, MCA, provides as follows:

“The former verdict or other decision may be vacated and a new trial granted on the application of the party aggrieved for any of the following causes materially affecting the substantial rights of such party: (4) newly discovered evidence material for the party making the application which he could not, with reasonable diligence, have discovered and produced at the trial;”

Similarly,

“On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b):”

Rule 60(b) M.R.Civ.P.

Clearly, the moving party must demonstrate due diligence in unearthing the newly discovered evidence before either relief from judgment or a new trial is proper. Schilke v. Bean (Mont. 1988), [232 Mont. 125,] 755 P.2d 565, 568, 45 St.Rep. 930, 933. We find that appellants in the instant case were lax in uncovering the evidence in question. Appellants’ evidence consists of documents prepared in the culmination of their sale of this home two years after their transaction with respondents. However, they sought to glean only one pertinent fact from that evidence: the selling price of the Missoula home. Not only could appellants have obtained this data from any of a number of other sources, copies of the closing documents were no doubt available through discovery.

Appellants’ arguments regarding the diligence with which they pursued this evidence are without merit and we therefore affirm the ruling of the District Court. We further award respondents their attorney’s fees incurred in this appeal.

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


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DARREN KOLBERG, Defendant and Appellant.
    No. 89-361.
    Submitted on Briefs Dec. 1, 1989.
    Decided Jan. 17, 1990.
    785 P.2d 702.

      Channing J. Hartelius, Hartelius, Ferguson & Baker, Great Falls, for defendant and appellant.
    Marc Racicot, Atty. Gen., Patricia J. Schaeffer, Asst. Atty. Gen., Helena, Richard A. Simonton, County Atty., Gary Kalkstein, Deputy, Glendive, for plaintiff and respondent.
   JUSTICE WEBER

delivered the Opinion of the Court.

Defendant, Darren Kolberg, was charged in the District Court for the Seventh Judicial District, Dawson County, with the misdemeanor offense of Driving Under the Influence of Alcohol, Third Offense, in violation of § 61-8-401, MCA. The jury found him guilty as charged. Defendant appeals. We affirm.

The two issues for our consideration are:

1. Was defendant denied his Sixth Amendment Right to effective assistance of counsel?

2. Whether prosecutorial misconduct occurred during the trial?

On July 23, 1988, while on patrol, officers Moccasin and Barsotti observed the vehicle driven by defendant weaving across the center line a number of times as it was driven down the streets of Glendive, Montana. Officer Moccasin testified that they followed the vehicle for more than three blocks before they decided to stop the defendant.

When Officer Moccasin approached defendant and asked for his license, he smelled a strong odor of alcohol on defendant’s breath. Officer Moccasin requested defendant to perform various sobriety tests. First he asked defendant to say the alphabet. Defendant only made it to the letter “G” before he started having trouble, and then stopped at “J”. Officer Moccasin testified that defendant’s speech was slurred, his eyes were bloodshot, he acted confused and he could not keep his balance very well. The officer then asked defendant to do a one leg stand. Defendant told him that he had broken his leg and it was not healed yet, so Officer Moccasin requested he do a “walk and turn” instead. Officer Moccasin testified defendant was unable to keep his balance and failed that test.

At that point, Officer Moccasin called another officer who was qualified to perform a “horizontal gaze nystagmus test” on defendant. Officer Benson testified he performed the test and that defendant failed. Officer Benson concluded that defendant was driving while under the influence. Defendant was then placed under arrest and read his Miranda rights.

An information was filed on August 2, charging defendant with Driving Under the Influence of Alcohol (DUI), Third Offense, in violation of § 61-8-401, MCA. Defendant pled not guilty to the charge. After a trial, the jury convicted him of the charged offense. Defendant appeals.

I

Was defendant denied his Sixth Amendment Right to effective assistance of counsel?

Defendant contends that he was ineffectively represented at trial by his attorney, Mr. Halvorson. He claims Mr. Halvorson failed to timely notify him of trial; failed to properly voir dire the jury; improperly consented to informing the jury that he was charged with DUI, third offense; improperly introduced a police report into evidence; and failed to move for dismissal for the State’s failure to prove venue.

Defendant sent a letter to the District Court informing it that he had not been notified of trial until 24 hours prior to the trial. He maintained he had not had time to consult with his attorney, nor contact two witnesses due to such lack of notice.

Mr. Halvorson sent a letter to defendant’s last known address informing him of the trial date. Defendant was having his mail forwarded. The letter was never returned to Mr. Halvorson and defendant testified he did not receive it. A lengthy in camera discussion between counsel and the judge was held the morning of the trial regarding defendant’s letter to the judge alleging lack of notice. The record reveals that the defense called two witnesses and chose not to call a third. Although no motion was made for a continuance, the District Court concluded that there were not sufficient grounds to grant a continuance and that Mr. Halvorson was sufficiently prepared to proceed with trial. We agree. Defendant has failed to show any prejudice by lack of notice. The record reveals that defense counsel carefully considered the potential value of the third witness and decided it best not to call him. In State v. Leavens (1986), 222 Mont. 473, 723 P.2d 236, we held that:

“a decision on whether to call a witness is a matter of trial tactics, which are normally not grounds for a determination that counsel’s performance was deficient.”

We conclude Mr. Halvorson was prepared for trial, and that defendant failed to show any prejudice as a result of his not receiving notice of trial.

Defendant maintains that the asking of only one question by his counsel during voir dire was inadequate. The record reveals that there was extensive and thorough voir dire by the State. As the State points out, jury voir dire is a very subjective process.

“The purpose of voir dire in a criminal proceeding is to determine the existence of bias and prejudice on the part of prospective jurors and to enable counsel to intelligently exercise their pre-emptory challenges. Any questioning conducted to establish rapport or to educate the jury is extraneous to the legitimate objects of voir dire. (Citations omitted.)”

State v. Brodniak (1986), 221 Mont. 212, 718 P.2d 322. There is no set number of questions counsel is required to ask of the jurors. If counsel can intelligently exercise pre-emptory challenges from the questions which have been asked, the purpose of voir dire has been fulfilled. The record reveals that Mr. Halvorson made his pre-emptory challenges. We conclude from the record that the voir dire was adequate.

Defendant maintains it was prejudicial to allow defense counsel to inform the jury that he was charged with his third offense DUI, and to stipulate to his two prior DUI convictions. The State points out that both counsel and the court erroneously proceeded as though the two prior DUI convictions were elements of this offense. Prior DUI convictions are actually elements to be presented for sentencing to determine the maximum sentence that can be imposed. See State v. Campbell (1980), 189 Mont. 107, 615 P.2d 190. They are not an element of the crime. §§ 61-8-401 and 61-8- 714(3), MCA. However, in view of the mistake on the part of both counsel and the judge that the prior convictions were elements of this offense, we conclude that the inadvertent disclosure to the jury was not prejudicial. We conclude that the mention of the prior DUI’s to the jury does not constitute ineffective assistance of counsel. In addition, we emphasize that the record contains overwhelming evidence against the defendant and almost a total absence of any evidence to the contrary.

We conclude that defendant’s claims as to the introduction of the police report and Mr. Halvorson’s failure to move for dismissal for the State’s failure to prove venue are without merit. In State v. Stewart (Mont. 1988), [235 Mont. 239,] 767 P.2d 296, 45 St.Rep. 2350, we stated:

“Ineffective assistance of counsel requires specific acts or omissions which prejudice defendant’s case and result in the denial of a fair trial. . . First the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the counsel guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense .... To show prejudice, a defendant must show that, but for counsel’s unprofessional errors, there was reasonable probability that the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome of the trial. (Citations omitted.)”

Defendant has failed to show such prejudice. We hold that defendant was not denied his Sixth Amendment Right to effective assistance of counsel.

II

Whether prosecutorial misconduct occurred during the trial?

Defendant maintains that the prosecutor intentionally violated a court order on admissibility of an admission, and intentionally disobeyed a court order on discovery. Defendant claims that after the District Court ruled that statements of defendant at the scene were inadmissible, the county attorney solicited the same statements from Officer Benson when he responded that Mr. Kolberg said he “had a few drinks”. As pointed out by the State, the court properly admonished the jury to disregard this statement. An error in the admission of evidence may be cured if the jury is admonished to disregard it. State v. Conrad, (Mont. 1989) [241 Mont. 1,] 785 P.2d 185. Defendant’s claim regarding failure to comply with discovery is without merit. We hold that no prosecutorial misconduct occurred during the trial.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES SHEEHY, HUNT and BARZ concur.