author: MR. JUSTICE GULBRANDSON MR. JUSTICE SHEEHY,

text:
    IVAN and GERALDINE ADAMS, et al., Plaintiff and Appellants, v. The DEPARTMENT OF HIGHWAYS OF the STATE OF MONTANA, and Missoula County, Defendants and Respondents.
    No. 87-148.
    Submitted Dec. 8, 1987.
    Decided Feb. 18, 1988.
    Rehearing Denied March 17, 1988.
    753 P.2d 846.
    Milodragovich, Dale & Dye, Lon Dale argued, Missoula, for plaintiffs and appellants.

      Steve Garrison argued, Dept, of Highways, Helena, Robert Deschamps, III, Co. Atty., Joan Newman argued, Deputy, Missoula, for defendants and respondents.
    Jim Nugent, City Atty., League of Cities & Towns, Missoula, for amicus curiae.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

This is an appeal from the Fourth Judicial District, Missoula County. Summary judgment was granted defendants/respondents Missoula County (County) and the State of Montana (State) on an inverse condemnation claim brought by landowners who lived close to Reserve Street in Missoula, Montana. The landowners, Ivan and Geraldine Adams and a number of other property owners (Landowners), appeal.

We affirm.

The issues are as follows:

1. Did the District Court err in granting summary judgment to the County because the County could not be found liable as a matter of law in inverse condemnation for construction on a federal-aid secondary state highway?

2. Did the District Court err in granting summary judgment on the merits because Landowners suffered no compensable injury under Montana law?

3. Did the District Court err in granting summary judgment to the State as a matter of law on statute of limitations for inverse condemnation and laches?

This suit arose out of the construction of a bridge on Reserve Street in Missoula. The completion of the bridge allowed for a west-side thoroughfare between Highway 93 on the south of Missoula and Interstate 90 on the north. Landowners are a number of Missoula property owners who own property adjacent to Reserve Street. Prior to the opening of the bridge on June 19, 1979, Reserve Street was a rural neighborhood with occasional traffic. After the opening, there was immediate traffic increase, including heavy trucks, and an increase of noise, air pollution, and dust accumulation. Some of the Landowners claim respiratory problems due to this increase along with adverse consequences of pollution, excessive noise, dust, and inability to conveniently ingress and egress. The gravamen of their claim is based on property devaluation.

Reserve Street was originally designated as a federal-aid secondary highway system and is a state highway. No part of the construction of the Reserve Street Bridge project occurred any closer than one-quarter of a mile away from any residence of the Landowners. The right-of-way was “granted and donated to the use of the public forever” prior to purchase by any of the landowners. No right-of-way had to be acquired by the State and therefore no eminent domain proceedings ever were instituted.

Due to increased traffic on Reserve Street, the Missoula County Commissioners, after two years of planning and public hearings, adopted new zoning regulations permitting single and multi-family residential, professional offices and commercial development upon application for, and receipt of, a permit for specific use.

This suit is based on inverse condemnation alleged to have been caused by the increased traffic. The complaint was filed January 26, 1984 with no claim that the zoning was a taking, regulatory or otherwise, nor does it attempt to invalidate the zoning of the area. The complaint was filed over four years and seven months after the bridge was opened.

A motion to dismiss was filed by the State. On February 2, 1986, the District Court denied the motion to dismiss stating it was undecided whether a statute of limitations barred the claim and it was unclear whether the case of Knight v. Billings (1982), 197 Mont. 165, 642 P.2d 141, with the most important discussion of inverse condemnation under Montana law, applied.

The State and County filed motions for summary judgment in June of 1986. The District Court granted the County’s motion for summary judgment on October 28, 1986 on grounds that, despite having input in to the construction of highways in its area, the County did not have legal authority nor legal responsibility on final decisions as to where and how construction of federal-aid highways occurred. The State’s motion for summary judgment was granted January 13, 1987 based on the statute of limitations and violation of the doctrine of laches along with a statement of noncompensability.

Landowners noticed a hearing and filed a motion for reconsideration on January 19, 1987. A hearing was held January 28, 1987 and despite objections of the State, Landowners presented a number of exhibits and called numerous witnesses. The County was never formally served for the hearing on this motion but did have individuals in attendance.

Despite the additional evidence, no modification action was taken by the District Court within 45 days and therefore the motion was deemed denied and Landowners filed this appeal.

The standard of review on summary judgment has been made clear by this Court.

“On review, we will uphold the summary judgment if there is no genuine issue of material fact and the evidence shows the moving party is entitled to judgment as a matter of law. Sevalstad v. Glaus (Mont. 1987), [227 Mont. 117,] 737 P.2d 1147, 1148, 44 St.Rep. 930, 932 . . .

“When the movant has met this initial burden, the party opposing the motion must supply evidence supporting the existence of a genuine issue of fact. Flemming v. Flemming Farms, Inc. (Mont. 1986), [221 Mont. 237,] 717 P.2d 1103, 1106, 43 St.Rep. 776, 779. Rule 56(c), M.R.Civ.P.”

Vogele v. Estate of Schock (Mont. 1987), [229 Mont. 133,] 745 P.2d 1138, 44 St.Rep. 1950, 1953.

We initially note that the County was granted summary judgment prior to the State, yet testimony was still allowed as to County activity at the January 28, 1987 hearing. The District Court ruling releasing the County was based on the fact that the County could not be held liable for inverse condemnation as a matter of law where the State has exclusive jurisdiction over the state’s highways. Although the District Court did not certify this summary judgment as final under Rule 54(b), M.R.Civ.P., Missoula County was never given notice by the Landowners in subsequent proceedings. We note the Landowners produced no authority in opposition to the County’s motion for summary judgment and there was never any claim that the area was improperly zoned.

The County cooperates with the State in highway projects but there is no legal authority or responsibility in regards to state highway projects that is vested in the County. The State has the ultimate authority and responsibility for any state highway pursuant to Section 60-1-102, MCA. “State and federal-aid highways” are defined in Sections 60-1-103(12) through (16) and (24) as any public highway planned, laid out, constructed, reconstructed, improved, repaired, maintained or abandoned by the department of highways. These include federal-aid secondary system highways of which Reserve Street was made a part over thirty years ago.

We have held that where a city sufficiently proves that a road is part of the state highway system, the city cannot be held liable for claims of negligent design, defect, regulation, or maintenance. State ex rel. City of Helena v. District Court (1975), 167 Mont. 157, 536 P.2d 1182. We believe this same doctrine applies to counties and was satisfied by the County in this case. Therefore, we find that the District Court did not err in granting the County’s motion for summary judgment. The District Court appropriately stated:

“[T]he Court is satisfied, as a matter of law, the State of Montana, acting through its State Highway Commission, has the exclusive authority to determine the location of state highways such as are involved here. Therefore, the County of Missoula cannot, as a matter of law, be held liable for the consequences of the location and construction as ultimately approved by the State Highway Commission.”

We also hold that the District Court did not err in granting the State’s motion for summary judgment on the merits of this case due to the fact that the Landowners have at the most, suffered a noncompensable injury and Knight, supra, does not apply.

The Montana Constitution, Article II, Section 29 provides as follows:

“Private property shall not be taken or damaged for public use without just compensation to the full extent of the loss having been first made to or paid into court for the owner. In the event of litigation, just compensation shall include necessary expenses of litigation to be awarded by the court when the private property owner prevails.”

The Landowners rely upon this constitutional statement in bringing this action. The claim is not brought for nuisance, a tortious act which does not allow recovery of expenses of litigation. Additionally, the claim is not strictly by eminent domain because there was no actual “physical taking.” The Landowners instead rely on the doctrine of inverse condemnation. Inverse condemnation is [a] cause of action against a governmental defendant to recover the value of property which has been taken in fact by the governmental defendant, even though no formal exercise of the power of eminent domain has been attempted by the taking agency.” Thornburg v. Port of Portland (Or. 1962), 376 P.2d 100, 101, citing State by and through State Highway Comm. v. Stumbo et al. (Or. 1960), 352 P.2d 478, 480.

We have held that it is not a complete defense to an inverse condemnation action for the governmental defendant to claim that it was exercising its police power. Nor is it required that an actual physical “taking” occur. Knight, supra, 642 P.2d at 144. In Knight, we stated that inverse condemnation could occur without physical invasion of the property.

“Under constitutions which provide that property shall not be ‘taken or damaged’ [as the Montana Constitution so provides] it is universally held that ‘it is not necessary that there be any physical invasion of the individual’s property for public use to entitle him to compensation.”

Knight, supra, 642 P.2d at 145, citing Less v. City of Butte (1903), 28 Mont. 27, 72 P. 140, 141.

The Knight decision relied heavily on a test developed by the former chief judge of the Court of Appeals for the Tenth Circuit, Hon. Alfred Murrah, who wrote in a dissent:

“As I reason, the constitutional test in each case is first, whether the asserted interest is one which the law will protect; if so, whether the interference is sufficiently direct, sufficiently peculiar, and of sufficient magnitude to cause us to conclude that fairness and justice, as between the State and the citizen, requires the burden imposed to be borne by the public and not by the individual alone.” [Emphasis added.]

Batten v. United States (10th Cir. 1962), 306 F.2d 580, 587, cert. den., 371 U.S. 955, 83 S.Ct. 506, 9 L.Ed.2d 502.

In this case, we are faced with a determination of whether the interference caused by increased traffic, which occurs when a bridge is opened, is of direct, peculiar and sufficient magnitude to allow for compensation.

Generally, the testimony and exhibits offered by the Landowners at the subsequent hearing on the motion for reconsideration of the granting of summary judgment would not be allowed. Rule 52(b), M.R.Civ.P. outlines the procedure for amendment of the findings and it may be raised with a Rule 59 M.R.Civ.P. motion for new trial. However, any motion for a new trial “[s]hall state with particularity the grounds therefor . . .” No new trial, allowing additional evidence, is generally to be granted in cases tried without a jury except for the explicit grounds enunciated in Section 25-11-102, MCA, Subsection (1), irregularity in the proceedings or abuse of discretion, (3), accident or surprise, or (4), newly discovered evidence. Section 25-11-103, MCA.

The rules should be followed at all times by any practicing attorney. In this case, the Landowners’ counsel failed to abide by the mandates and did not specifically set out grounds on which any hearing should have occurred. Considerable evidence was allowed subsequent to the District Court’s order granting summary judgment. Nonetheless, we have stated that the rules encourage disposition of cases on their merits and therefore we will consider all evidence presented to the District Court. White v. Lobdell (Mont. 1984), [208 Mont. 295,] 678 P.2d 637, 642, 41 St.Rep. 346; Rambur v. Diehl Lumber Co. (1964), 144 Mont. 84, 394 P.2d 745, 749.

Landowners strenuously argue the application of Knight in this case along with a citation from 2A Nichols on Eminent Domain Section 6.31 [2], pp. 6-221-6-222, which states:

“Personal inconvenience or discomfort to the owner or interference with the business conducted on the land is not compensable unless such results are causative factors in the depreciation in value of the land.”

They claim that testimony of the “unique” character of Reserve Street was presented by the individual landowners and their expert, Barney Olson, an MAI appraiser and owner of Olson Appraising and Consulting, thereby raising a question of fact. It was through this testimony that the Landowners argue they have satisfied the test of Knight that the interference is sufficiently peculiar for compensation. We disagree.

The Knight opinion stated “[u]nder the unique facts of this case . . .” and “[w]e caution that this holding is limited to the situation here . . .” The case itself involved a claim for inverse condemnation by landowners not only for increased traffic and resulting inconvenience caused by the widening of 24th Street West in Billings, but also for limited zoning placed on the neighborhood by the City of Billings.

The area involved in Knight was zoned residential only. This was a significant factor because:

“[T]he interference with plaintiffs’ properties has been direct; it is peculiar in the sense that the facts here are unique; and the interference is of sufficient constitutional magnitude since the proof in this case showed that there had been a 20 to 30 percent reduction in the value of the individual residential properties, and that the value of each ‘as is’ is $10,000 to $15,000 less than their values if the area were zoned residential professional. Though no physical taking has occurred, the result of the City’s actions has been to impose a servitude, a limitation upon the use and marketability of plaintiffs’ properties as residential.”

Knight, supra, 642 P.2d at 145.

Additionally, there was a condemnation of property on the east side of 24th Street West and these landowners received compensation either in eminent domain proceedings or by agreement with the City of Billings. There has been no similar singling out of one group or individual in the case at bar.

Missoula County zoned the area in question in a manner which allows not only residential, but commercial and professional office use under a permit program. The District Court took judicial notice of the findings of the Missoula District Court in Cause No. 57548, an action for an injunction brought by many of the same claimants in this action, in which it was stated:

“[T]he permit system contains specific standards which, when applied to multi-family residential and non-residential uses, reduce the impact of more intensive uses on adjacent residential uses.
“[T]he purposes . . . foster a mixture of uses along Reserve Street, including commercial uses, while protecting the residential property values of land adjacent to the district, to minimize traffic congestion and reduce traffic hazards, and to promote development which can withstand the noise generated from Reserve Street.”

Mike Kress, of the Missoula Office of Community Development, testified that although there were complaints about understanding the zoning permit procedures, no application for a zoning change to “commercial” had been denied.

The Landowners rely on the conclusion of Olson in a report he submitted in regard to the Reserve Street Project that the Reserve Street corridor is unique. Olson noted that the traffic count along Reserve Street increased from 7,648 daily vehicles in 1978, prior to the date when the bridge was opened, to 13,940 in 1979 and 13,700 in 1980. This increase directly correlated with decreases over the four other major bridge crossing routes connecting Missoula’s south and north sides during this same period of time.

Olson asserted the “hybrid” zoning allowing residential, commercial and business office use did not lend itself to any of these uses adequately. Therefore, he concluded, the properties did not increase in value with the normal expected market demand. The District Court, however, stated in its conclusions of law in granting the motion for summary judgment that “[t]he present plaintiffs’ property may be used for not only office use, but also limited commercial.” Although this conclusion was made prior to either Kress’ or Olson’s testimony, it clearly shows the District Court determined that the zoning was not only appropriate but sufficient to maintain value in the Landowners’ properties.

Additionally, Olson’s claim that the property was unique cannot be accepted by this Court. Any property that is adjacent to an improved roadway is going to suffer the adverse consequences of traffic increase. To allow recovery for the Landowners in this case would open a Pandora’s Box which would, as the State, County and Amicus Curiae have argued, make development or improvement of highways and roadways in the State of Montana cost-prohibitive.

The District Court appropriately stated:

“The benefits which come and go from the changing currents of travel are not matters in respect to which any individual has any vested right against the judgment of the public authorities. State v. Peterson, 134 Mont. 52, 68, 328 P.2d 617 (1959); 4A Nichols on Eminent Domain, Section 14.15[4], P. 14-340 (Rev. 3d Ed.). To say otherwise would allow any property owner or resident of land adjacent to a public roadway to file legal claims against the governmental agency responsible for the maintenance/construction of the roadway whenever vehicle traffic upon the roadway increased to a point where the resident/owner objected. This is not the status of the law in this area.”

We sympathize with the plight of the Landowners. However, the wheels of progress shall not be slowed. There is no doubt that increased traffic volume, traffic fumes, noise, dust and difficulty of ingress and egress caused inconvenience or discomfort to the property owners when the Reserve Street Bridge was opened. Nonetheless, we find these detriments to be noncompensable. The benefit that these Landowners will receive is that more traffic generally is a bonus to commercial property. No substantial evidence was ever presented showing that this property was not valuable if used in a commercial fashion.

In 5 Nichols on Eminent Domain, Section 16.101[2], p. 16-13, it is stated:

“Certain types of damage caused by the laying out of a highway have been rejected as compensable elements bearing upon the depreciation in value of the remainder area. Thus, where the injury complained of is not peculiar to the tract out of which the land taken was carved, but is, in fact, an injury common to all land in the neighborhood and to the public in general it may not be considered. Increased traffic . . . ha[s] been rejected on this account. Diversion of traffic, too, and the resulting loss of business, have been denied consideration. The fact that an owner’s property would have been enhanced in value to a greater extent by the location of the highway at a different point does not give rise to an element of damage meriting legal recognition.”

Courts that have considered the claim advanced by the Landowners have rejected compensation on the grounds of damages caused by increased traffic.

“Accordingly, the considerable increase in noise levels at Dreher Park caused by passing traffic on 1-95 is no more than a “taking” than has been inflicted on countless tens of thousands of Florida residences (not to mention an abundance of parks and golf courses) whose occupants endure the consequences of endless traffic noise from adjacent arterial highways . . . The damage to Dreher Park is no different in kind from that suffered by anyone else similarly situated . . .”

Division of Administration v. West Palm Garden Club (Fla.App.1977), 352 So.2d 1177, 1181.

“Yet if no part of an adjoining property owner’s land is taken, that neighbor will receive no compensation for the loss he may have suffered by virtue of his property now being close to a noisy expressway.”

Washington Market Ent., Inc. v. City of Trenton (1975), 68 N.J. 107, 343 A.2d 408, 413.

“In this case the effect of the construction is not limited to the neighborhood, or even to plaintiff and her three neighbors, and certainly not to the plaintiff alone. All the owners of such property, like the plaintiff here, must suffer the noise of traffic and must view less pleasant surroundings. In the metropolitan areas through which Interstate 10 passes, literally hundreds of houses which once had ingress and egress by direct routing of streets are now situated below elevated multi-lane highways and are reached by circuitous or more inconvenient routes. These are not in themselves special damages; they have not been and are not recoverable. [Citations omitted.] Even when, as in the instant case, an actual diminution in market value of the property is found to exist because of these factors, this diminution is not compensable. Damages which cause discomfort, disturbance, inconvenience, and even sometimes financial loss as an ordinary and general consequence of public improvements are not compensable, and are considered damnum absque injuria.”

Reymond v. State Department of Highways (1970), 255 La. 425, 231 So.2d 375, 384.

“[P]laintiff argues that the value of his property has been decreased by the flow of traffic on the newly constructed highway. It is clear, however, that not every conceivable kind of injury to the value of adjoining property resulting from highway construction is ‘damage’ in the constitutional sense. [Citations omitted.] Thus, while a reduction in property values may result from the noise, light, vibration, or fumes produced by the proximity of increased vehicular traffic on a newly constructed highway, such consequential damage is not usually treated as ‘damage’ in the constitutional sense. [Citations omitted.] Noise, light, vibration, and fumes from traffic on modern four-lane highways are ‘inconveniences that are reasonably incident to the prosecution of necessary public enterprises’ and as such must be and are borne by the public at large. [Citations omitted.] The cost of compensating all owners of property adjacent or proximate to newly constructed highways affected by these side effects would be so prohibitive that it would effectively halt the construction of highways by the State. [Citations omitted.]”

Thomsen v. State (1969), 284 Minn. 468, 170 N.W.2d 575, 579.

“[T]he court found that the remaining land of the defendants was further depreciated in the sum of $3,896 for greater traffic noises due to the fact that the travel portion of the improved highway is now closer to the residence of the defendants than was formerly the case. The court disallowed this item of damage upon the grounds and for the reason that such damage is not special, unique and peculiar to the property of the defendants.”

State Road Commission v. Williams (1969), 22 Utah 2d 331, 452 P.2d 881, 882.

“[Defendants argue that their right to be free from the increase of noise, fumes and annoyances which the presence of the freeway will entail is a part of their abutting land owners’ right of light, air and view ... In City of Berkeley v. Von Adelung, supra (1963) 214 Cal. App. 2d 791, 29 Cal.Rptr. 802, the city in rounding off the angle of a street corner took a portion of defendant’s corner lot. ‘Defendant offered to prove that the effect of the project as a whole would be to approximate triple traffic past defendant’s lot, with resultant increase in fumes and traffic noises.’ [Citation omitted.] The court held that any decrease in the value of defendant’s remainder because of this was uncompensable that it was an inconvenience ‘general to all property owners in the neighborhood and not special to defendant.’ ”

People v. Presley (1966), 239 Cal.App.2d 309, 48 Cal.Rptr. 672, 677.

“Assuming, without deciding that there was damage, it was incidental to the construction of the freeway. A constitutional provision such as Article II, Section 17 [virtually identical to Montana’s Article II, Section 29], does not contemplate damage incidental to the building of a highway where there is no physical invasion of a plaintiff’s property . . . Any other interpretation would require the State to anticipate any and all damages that might indirectly occur to property and the payment of money in court before a highway could be constructed.”

Rutledge v. State (1966), 100 Ariz. 174, 412 P.2d 467, 471.

“It is established that when a public improvement is made on property adjoining that of one who claims to be damaged by such general factors as change of neighborhood, noise, dust, change of view, diminished access and other factors similar to the damages claimed in the instant case, there can be no recovery where there has been no actual taking or severance of the claimant’s property ... To thus enlarge the scope of the state’s liability under Article I, Section 14, would impose a severe burden on the public treasury and, in effect, place ‘an embargo upon the creation of new and desirable roads.’ ”

People v. Symons (1960), 54 Cal.2d 855, 9 Cal.Rptr. 363, 366, 367, 357 P.2d 451, 454, 455.

Historically, Montana claimants have been faced with the problems of increased traffic on public thoroughfares. In Kipp v. Davis-Daley Copper Co. (1910), 41 Mont. 509, 110 P. 237, citizens of Butte attempted to obtain an injunction to restrain the railroad company from building and operating a railway through the city of Butte. The District Court granted the injunction and this Court reversed. In that opinion, the policy in regard to development of public transportation was adequately supported:

“For a highway is created for the use of the public, not only in view of its necessities and requirements as they exist, but also in view of the constantly changing modes and conditions of travel and transportation, brought about by improved methods and required by the increase of population and the expansion in the volume of traffic due to the ever-increasing needs of society. Were this not so, any change in these respects would require a readjustment of rights as between the public and the abutting property owner, because the result of it would of necessity be held an imposition of a new burden upon the highway, and hence upon the property of the abutting owner. For these changing public uses the owner must be presumed to have received compensation when the highway was created.”

Kipp, supra, 110 P. at 240.

The Landowners have not shown that their situation is any different from the quandary facing the citizens of Butte over 75 years ago. They have received benefit from the mere fact that although their property may have decreased in value as residential property, it has undoubtedly increased as commercial property.

The respondents appropriately point to Bolinger v. City of Bozeman (1972), 158 Mont. 507, 493 P.2d 1062, 1066, in which the Court stated:

“Indeed, many of what are now urban highways were merely country roads when the public acquired its easement in them, and doubtless many highways that are now merely country roads will in time become urban streets. When such changes occur, will the abutting owners be entitled to new compensation . . . Where land is conveyed for a public highway the implication must be that it will be used as the convenience and welfare of the public may demand, although that demand may be augmented by the increase of population. The benefits which an owner of the servient estate receives from the increase in population and consequent building up of the community usually far more than compensate him for the increased burden he may claim to have suffered.
“Where land is dedicated or appropriated for a suburban road, the implication must be that it shall be used as the convenience and welfare of the public may demand, although that demand may be augmented by the increase in population, or by a town or city springing up in the territory traversed by the road.” (Emphasis in original.)

The Landowners have not shown that their situation is any different from any other property owner who suffers the affects of living adjacent to a roadway with increased traffic.

We find it unnecessary to determine which statute of limitation applies to inverse condemnation cases as this opinion sets out the noncompensability of the Landowners’ claim. Both the Landowners, who claim that a constitutional right violation has no statute of limitations, and the State, which argues the Landowners are limited to the two-year statute of limitation for damage, waste or trespass to real property pursuant to Section 27-2-207, MCA, present interesting and feasible arguments. We find that the District Court did not err in granting summary judgment.

We affirm.

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

MR. JUSTICE SHEEHY,

dissenting:

This appeal is really from the orders of the District Court dated October 28, 1986 and January 13, 1987, granting respectively summary judgments to the county and the state.

At least it may be said for the order of October 28, 1986 in favor of the county that is a decision based upon law as the District Court perceived it. However, the summary judgment in favor of the county was improper, because genuine issues of material fact exist as to whether the county, by its lack of enforcement of its truck routes, and its zoning policies, has jointly damaged the property owners here.

The summary judgment in favor of the state is peculiar. It is founded on findings of fact and conclusions of law by the District Court, adopted verbatim from a submission by counsel for the state. In its findings, the District Court resolved issues of fact in favor of the state, a most improper procedure when deciding a motion for summary judgment. By the very act of deciding factual issues, the District Court shows that there were genuine issues of material fact, which would preclude summary judgment without a trial. The District Court concluded its order of January 13, 1987, saying:

“From the foregoing Findings of Fact and Conclusions of Law, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that defendants’ June 30, 1986 Motion for Summary Judgment is properly made and submitted; is supported by the evidence submitted to the Court, and is hereby granted to these defendants and against the plaintiffs to this action.”

I would reverse the summary judgments and remand for trial.


source: Caselaw Access Project

author: MR. JUSTICE HARRISON

license: Public Domain

text:
    MICHELLE M. DANIELS, Claimant and Appellant, v. KALISPELL REGIONAL HOSPITAL, Employer, and EBI/Orion Group, Defendant and Respondent.
    No. 87-368.
    Submitted Jan. 12, 1988.
    Decided Feb. 18, 1988.
    750 P.2d 455.

      Terry N. Trieweiler argued, Whitefish, for claimant and appellant.
    Paul C. Meismer argued, Garlington, Lohn & Robinson, Missoula, for defendant and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

Michelle Daniels, age 32, suffers from anaphylactic reactions that first occurred while she was wearing latex surgical gloves and working as a nurse’s aide at the Kalispell Regional Hospital, a Plan II employer. The Workers’ Compensation Court determined that Ms. Daniels was permanently and totally disabled and entitled to $128.35 in compensation per week after adjustment for Social Security offsets. It denied conversions to lump sum totaling nearly $140,000 to allow her money to purchase a house and also to start a backhoe excavation business. Ms. Daniels appeals the denial of the lump sum request. The insurer likewise appeals claiming Ms. Daniels suffers from an occupational disease not an injury.

On April 2, 1985, Ms. Daniels wore surgical gloves for the first time as a nurse’s aide. The gloves are coated with a fine talc powder to ease in wearing and removing them. Ms. Daniels’ hands immediately began to burn and itch so she removed the gloves. She then rubbed her eyes, which also became inflamed. Dr. Marise Johnson saw the claimant, believed her to be suffering an allergy attack, and controlled the problem with administration of Benadryl. On May 21, 1985, Ms. Daniels completed her workshift and then saw Dr. Johnson about cramps and nausea. Dr. Johnson conducted a pelvic-rectal examination, including a barium enema. As the enema began, Ms. Daniels became anxious and her pulse increased while her blood pressure dropped. Dr. Johnson diagnosed this as anaphylactic shock, which is a potentially life-threatening physiological condition caused when the patient comes into contact with an element to which she is sensitive, causing the patient’s blood vessels to dilate and leaving the heart with less blood to pump to the lungs, kidneys, brain and other vital organs.

Dr. Johnson and specialists in Missoula and at the University of Washington Medical School have concluded the talc powder on surgical gloves triggered Ms. Daniels’ initial reactions. Ms. Daniels has since left the hospital job, but her exposure to the talc on the observation gloves harmed her immune system resulting in an increased tendency to have anaphylactic reactions. She attended training for certain clerical jobs, the stress of which caused reactions forcing her to give up the retraining.

She and her family live thirty miles from Kalispell and the nearest medical help. The area is not served by ambulance. She contends that because neither she nor her husband has a job they cannot afford a telephone. Husband claims he is unable to leave the house to look for work since Ms. Daniels then would have no access to medical care.

Ms. Daniels sought to convert $39,000 of her award to a lump sum to finance the start-up of an excavation business in which she would do office work out of the home and her husband would operate the backhoe. She also sought $100,000 in lump sum for purchase of a house nearer to Kalispell — but not in town — that would be large enough for the couple’s home and the business office and would have a shop with sufficient space for storing a backhoe and equipment.

The Workers’ Compensation Court considered the two aspects of the lump sum request separately. It ruled that the $39,000 business request was not justified:

“Claimant’s business proposal fails in two respects. First, claimant’s involvement in the business is so marginal that this is more of a passive investment than a business venture. Second,. . . the court is unconvinced that the business has a chance of success reasonable enough to justify risking a substantial portion of claimant’s entitlement.”

It noted that the $100,000 housing request could not be severed from the business request:

“The proposed utilization of a lump sum to purchase living quarters to suit the very unique needs of this claimant and her family would be appropriate under different evidence. At bar, the housing acquisition was dependent on the business to replace the lost compensation money when the advance was credited. Since we are convinced that the business had little likelihood of success, the financing of the home would reduce claimant’s family income to the point where they could not afford to pay for groceries, utilities and other basic needs. Thus, the use of funds to buy a home would not be in claimant’s best interests since the family would not be able to keep it.
“While this court is very sympathetic toward claimant and appreciates the dilemma she has, the court cannot increase her entitlement beyond that allowed by law. Under the facts presented here, the court has no options, but if suitable housing could be located and found at a price which would allow a lump sum advance, but still retain sufficient monthly income to sustain claimant’s family, the court would encourage the parties to come to an agreement. Or — if need be — to return to court.”

Basically, four issues are presented for review:

(1) Did Ms. Daniels suffer an injury or an occupational disease?

(2) Is Ms. Daniels’ condition stable enough to be designated permanent and total, thus allowing a determination of disability and an award of benefits?

(3) Does substantial credible evidence support the Workers’ Compensation Court’s denial of a $39,000 lump sum for the business?

(4) Does substantial credible evidence support that court’s denial of a $100,000 lump sum for more adequate housing?

We affirm the court’s judgment as it was issued.

ANAPHYLACTIC CONDITION AS INJURY

Section 39-71-119, MCA (1983), defined an injury as “a tangible happening of a traumatic nature from an unexpected cause or unusual strain resulting in either external or internal physical harm ..." An injury is distinguished from disease by time definiteness and unexpectedness. Wise v. Perkins (1983), 202 Mont. 157, 166, 656 P.2d 816, 820. When a worker is exposed to a harmful substance at one instant or during one distinct period, the result may be an injury. In Wise, the claimant was a bartender who was suddenly rescheduled to operate a tavern by herself during the New Year’s holidays. This entailed working double shifts to clean the bar during the day, open the bar in the early evening and lastly to close the bar. Subsequently, she contracted phlebitis. Two doctors testified that the amount of standing required by this situation contributed to her phlebitis, which provided a time definite and qualified the condition as an injury. The presence of an underlying disease does not preclude recovery under the Workers’ Compensation Act. Wise, 656 P.2d at 820.

The insurer claims that no time definite can be found here because Dr. Johnson testified that Ms. Daniels suffers from an underlying disease that lay dormant until she first wore the surgical gloves. We rejected that argument in Bremer v. Buerkle (Mont. 1986), [223 Mont. 495,] 727 P.2d 529, 43 St.Rep. 1942. There we concluded that an auto body repairman who had worked with certain chemicals for nine years had suffered both an occupational disease and an injury when one exposure to the chemicals produced allergic contact dermatitis. Because it was both an occupational disease and an injury, this Court said he could choose his remedy. Bremer, 727 P.2d at 533, citing Ridenour v. Equity Supply Co. (1983), 204 Mont. 473, 665 P.2d 783.

It appears in Bremer that the claimant’s condition could not have been expected since he had worked with the chemicals for nine years with no difficulties until February 17, 1983. This is in contrast with Greger v. United Presstress, Inc. (1979), 180 Mont. 348, 590 P.2d 1121. In Greger, a cement company changed the chemical additives it used. The claimant noticed an allergic reaction on his hands but continued to work until being laid off. When he was called back to work the allergic contact dermatitis began again at which point he saw a doctor. The doctor diagnosed claimant’s allergic reaction to the chemical additives. We held that the claimant qualified only for occupational disease benefits since he had suffered from the condition previously and the condition was not totally unexpected. Greger, 590 P.2d at 1124.

Like the claimant in Bremer, Ms. Daniels meets the requirements of Wise. It is undisputed that her first reaction occurred on April 2, 1985. Furthermore, her reaction was unexpected since she had been around the hospital for several months as a trainee, had learned how to wear and to remove the gloves during her training, and had not suffered any ill effects. She also has a history of at least two surgeries by gloved surgeons that produced no reactions. We find that there is substantial evidence for the decision of the Workers’ Compensation Court and refuse to reverse it. Ms. Daniels’ anaphylactic condition is marked by a time definite and was unexpected, thus qualifying as an injury under the Workers’ Compensation Act.

MEDICAL STABILITY AND BENEFITS

The Workers’ Compensation Court found that Ms. Daniels has been unable to undergo further training because of her anaphylactic condition and that Dr. Johnson testified the condition could not be cured. The insurer argues this is an inadequate basis for permanent total disability since the physician did not testify that Ms. Daniels had attained medical stability.

Section 39-71-116(13), MCA (1983), defined permanent total disability as:

“[A] condition resulting from injury as defined in [the Workers’ Compensation Act] that results in the loss of actual earnings or earning capability that exists after the injured worker is as far restored as the permanent character of the injuries will permit and which results in the worker having no reasonable prospect of finding regular employment of any kind in the normal labor market . .

The claimant must prove by a preponderance of medical evidence that she has no reasonable prospect of re-entering the normal labor market to qualify as permanently totally disabled. Bundtrock v. Duff Chevrolet (1982), 199 Mont. 128, 131, 647 P.2d 856, 857-58. Because Ms. Daniels could not be cured, Dr. Johnson testified that she could not return to a job where she could not control her environment. Ms. Daniels has worked as a bartender, a convenience store clerk, and as a nurse’s aide. Because a worker in such jobs typically cannot control the job environment, Ms. Daniels cannot return to them. That being so, the Workers’ Compensation Court did not err in designating the claimant as permanently and totally disabled. Wise, 656 P.2d at 819. The court then properly made the award of the weekly rate that the parties had agreed to.

PARTIAL CONVERSION OF BENEFITS TO LUMP SUM

Although benefits generally are to be paid on a periodic basis, Section 39-71-741, MCA (1983) allows lump sum awards if they would be to the claimant’s best interests. Utick v. Utick (1979), 181 Mont. 351, 355, 593 P.2d 739, 741. Lump sums also may be made to clear up a claimant’s outstanding debts or to satisfy her pressing needs. Belton v. Carlson Transport (Mont. 1986), [220 Mont. 194,] 714 P.2d 148,150, 43 St.Rep. 286, 288; Willoughby v. Arthur McKee & Co. (1980), 187 Mont. 253, 257, 609 P.2d 700, 702. This Court will not, however, disturb a denial of lump sum unless the claimant can show an abuse of discretion. Krause v. Sears Roebuck & Co. (1982), 197 Mont. 102, 107, 641 P.2d 458, 460; Ruple v. Peterson Logging Co. (Mont. 1984), [209 Mont. 276,] 679 P.2d 1252, 1254, 41 St.Rep. 704, 706.

Was the refusal to provide a $39,000 lump sum for the business an abuse of discretion?

A vocational counselor, whose husband coincidentally ran a backhoe operation, drew up the Danielses’ plan relying on the experience of the counselor’s husband. The plan estimated start-up costs of between $34,000 and $39,500, and net income of more than $11,000 for the Danielses in the first year increasing to as much as $22,000 by the third year. However, the tax records for consultant’s husband showed his operation, which had been in business for several years, had a net income of $7,472 in 1985. Ms. Daniels’ husband, who had worked as a diesel mechanic for Anaconda Minerals Company in Butte, acknowledged that he had operated a backhoe only occasionally and had never bid on an excavation job.

A University of Montana business and economic analyst considered the plan on behalf of the insurer. He testified by deposition that the data used in the plan were not the most recent and that the construction industry had since declined. He further noted that already there are some thirty backhoe businesses in the Flathead Valley and also that the Danielses’ plan made no provisions for either labor costs or depreciation.

The court denied a lump sum on this evidence reasoning that the plan was too speculative and Ms. Daniels’ role too tangential to justify risking a substantial portion of her benefits. The Workers’ Compensation Court is in a much better position than are we to acquaint itself with the needs of the claimant and to rule accordingly. Where the evidence does not clearly preponderate against its decision, we will not reverse it. Krause, 641 P.2d at 461. The claimant has the burden to prove that her business proposal has a reasonable chance of succeeding. Bundtrock, 647 P.2d at 858. The record before us does not show such evidence. We hold that the Workers’ Compensation Court properly exercised its discretion.

Was the refusal to provide as much as $100,000 in a lump sum for housing an abuse of discretion?

The Workers’ Compensation Court may award lump sums for purchase of housing if, considering the claimant’s age and health, such an award would be in her best interests. Belton, 714 P.2d at 150; Polich v. Whalen’s O.K. Tire Warehouse (Mont. 1981), [_ Mont. _,] 634 P.2d 1162, 1165, 38 St.Rep. 1572, 1575, aff’d on remand, (1983), 203 Mont. 280, 661 P.2d 38; Garmann v. E.R. Feggert Co. (Mont. 1987), [226 Mont. 432,] 736 P.2d 123, 125, 44 St.Rep. 781, 784. The court noted Dr. Johnson’s testimony about claimant’s housing needs:

“38. Dr. Johnson testified that claimant needs to live ‘in a place where the roads will be reasonably accessible in all weather circumstances so that she (claimant) or ambulance personnel can get her the treatment she needs if she’s in a desperate situation.’ . . . However, Dr. Johnson does not want claimant to be exposed to the city on a daily basis and prefers claimant live in a rural surrounding . . . Claimant should also have telephone access to medical assistance

The court had no evidence as to the cost of appropriate housing. The claimant’s real estate broker testified about four specific properties that fit the claimant’s needs but also were properties large enough to run the excavation business and store the backhoe and equipment. These prices ranged from $89,500 to $105,000. The witness had no idea what appropriate housing without the business aspects might cost except to say it “probably” would cost at least $75,000. It is the claimant’s burden to introduce evidence substantial enough to justify a lump sum. Belton, 714 P.2d at 150; Garmann, 736 P.2d at 125. The Workers’ Compensation Court concluded that there was insufficient evidence to justify a lump sum award for the backhoe excavation business; it also concluded that claimant’s evidence included costs for a house large enough to operate the backhoe excavation business. Despite the extremely pressing nature of Ms. Daniels’ condition it had no evidence on which to base a lump sum for appropriate housing. To award the $100,000 would be to waste some portion of Ms. Daniels’ rightful benefits. The denial of a lump sum for housing, considering the nature of the evidence and the court’s invitation to reconsider the request on more appropriate evidence, is not an abuse of discretion.

Affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES WEBER, GULBRANDSON, SHEEHY, HUNT and McDONOUGH concur.


author: MR. JUSTICE HUNT MR. JUSTICE GULBRANDSON,

text:
    In re the MARRIAGE OF MARJORIE A. STEVENS DOW, Petitioner and Appellant, and KENNETH WILLIAM DOW, Respondent and Respondent.
    No. 87-268.
    Submitted on Briefs Nov. 24, 1987.
    Decided Feb. 22, 1988.
    750 P.2d 1064.

      Paulette C. Ferguson, Missoula, for petitioner and appellant.
    Charles H. Recht, Hamilton, for respondent and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

Marjorie Stevens Dow filed a petition for dissolution of marriage. After a hearing, the District Court, Fourth Judicial District, Ravalli County entered findings of fact and conclusions of law and an order on February 26, 1987. Petitioner appeals. We affirm in part, reverse in part and remand with instructions.

The issues on appeal are:

1. Did the trial court err by failing to award wife any share of husband’s assets acquired before the marriage?

2. Did the trial court err by failing to award wife maintenance?

Marjorie A. Stevens and Kenneth W. Dow were married on January 12, 1983. This was the third marriage for both of them and the second marriage to each other. After 3 years this last marriage was dissolved on February 18, 1986.

Wife is 66 years of age and in fair health but with progressive vision difficulties. She is not employed now but worked in clerical positions for several years. She owns her home.

Husband is 70 years of age and also in fair health. He suffered a heart attack in 1982 and had surgery, but appears to have fully recovered. His income is a pension he receives as a retired law enforcement officer.

The wife came into the marriage with her own home worth $105,000, Guarantee Security life certificates worth $31,000, and miscellaneous furniture and other assets. The husband came into the marriage with his pension, and some escrow accounts, two vehicles worth $9,000, and a checking account of $18,000. He also has an investment account worth $70,000 for the children from his first marriage.

Two weeks after the parties’ remarriage both executed wills to which waivers signed by the other party were attached. The following waiver by the wife was entered into evidence:

“WAIVER
“I, MARJORIE STEVENS DOW, hereby specifically waive my right as a surviving spouse to ALL RIGHTS in the property or estate of my husband, KENNETH W. DOW, except such property, if any, which I may acquire as a surviving joint tenant of my husband, and such property as may be specifically devised by me. It is my intention by this Waiver to also waive my rights to the elective share, homestead allowance, exempt property and family allowance from the property or estate of my husband.
“DATED this 24th day of January, 1983.”

The District Court divided the estate by returning each party’s property to them. No maintenance was awarded.

The District Court in its finding of fact No. 20 found that the wife had stated she would make no claim against the husband’s property and that she signed a release to that effect, referring to the waiver. Appellant contends that the court improperly interpreted this waiver and that it improperly influenced the court’s property division and the decision to refuse maintenance. We agree.

The waiver in question is a waiver of all rights to the husband’s property that the wife may have at his death.

Section 72-2-102, MCA, in Montana’s version of the Uniform Probate Code, reads as follows:

“The right of election of a surviving spouse and the rights of the surviving spouse to homestead allowance, exempt property, and family allowance or any of them may be waived, wholly or partially, before or after marriage, by a written contract, agreement, or waiver signed by the party waiving after fair disclosure. Unless it provides to the contrary, a waiver of ‘all rights’ (or equivalent language) in the property or estate of a present or prospective spouse or a complete property settlement entered into after or in anticipation of separation or divorce is a waiver of all rights to elective share, homestead allowance, exempt property, and family allowance by each spouse in the property of the other and a renunciation by each of all benefits which would otherwise pass to him from the other by intestate succession or by virtue of the provisions of any will executed before the waiver or property settlement.”

A reading of the official comments to this section reveals that one of the purposes of this statute is to ensure parties who enter into second and later marriages that the property brought into the second marriage from the first marriage will go to issue of the prior spouse instead of to a later spouse.

A survey of Montana and other jurisdictions adopting the Uniform Probate Code reveals no case on point. It is clear, however, that the kind of waiver involved here was meant to operate upon the death of the spouse and not in the event of marriage dissolution. Wife waived her rights “as a surviving spouse.” She is not a surviving spouse. It is the law of judicial construction that if the language of a contract or agreement is clear on its face the court must enforce it as it is written. Wortman v. Griff (1982), 200 Mont. 528, 536, 651 P.2d 998, 1002; Schulz v. Peake (1978), 178 Mont. 261, 267, 583 P.2d 425, 428; Gropp v. Lotion (1972), 160 Mont. 415, 421, 503 P.2d 661, 664.

We hold that it was error for the District Court to consider the waiver as a release from the wife of all claims to the marital property in the event of a dissolution.

In addition to her argument on the waiver, appellant argues that she is entitled' to a greater share of the marital assets because the couple lived in her home, thereby saving the husband rent and contributing significantly to the maintenance of his assets. Because of this contribution on her part the husband was able to save about $1,000 per month and to increase his bank account accordingly.

When dividing property acquired before the marriage the court must consider the nonmonetary contribution of the homemaker and the extent to which this contribution has helped maintain prior-acquired property. Section 40-4-202, MCA. In Re Marriage of Jacobson (1979), 183 Mont. 517, 521-22, 600 P.2d 1183, 1186. The District Court found that the wife did not contribute significantly to the preservation of the husband’s property and was not persuaded by wife’s argument that the husband saved significant amounts of money by living in her home. There is substantial evidence that a large amount of the monies in husband’s accounts came from transferring between other accounts and the cashing in of some investments. The District Court did not abuse its discretion with regard to these findings.

Appellant also faults the court’s finding that wife did not resign from her job at her husband’s request. She argues that her resignation was in reliance on the marriage and is a valid factor the court must consider to divide the property equitably. There was conflicting testimony on this point. This Court will not substitute its discretion for that of the trial court. The evidence is sufficient to uphold this finding.

Although we hold that the District Court erred in considering the waiver, it was harmless, and we affirm the court’s division of property.

For her second issue, appellant asks that we hold that the trial court abused its discretion in not awarding her maintenance. The trial court found that the wife had sufficient property under Section 40-4-203, MCA, to provide for her reasonable needs.

The main asset of the wife is her home which is a non-income producing asset. The term “sufficient property” has been interpreted by this Court to mean income-producing property. In re Marriage of Laster (1982), 197 Mont. 470, 477, 643 P.2d 597, 601. Although the wife’s total property award amounts to $145,500.00, she receives only $3,462.97 per year from it as income. She additionally receives $3,000.00 per year from Social Security. Even with this supplemental income, this may not be sufficient to support her.

For an award of maintenance a spouse must lack sufficient property and be unable to support himself through employment. Section 40-4-203, MCA. The trial court found that the wife was employable. While there is evidence of her employability before the marriage there is almost no evidence as to her current employability. This needs clarification. We reverse and remand for a redetermination of the award of maintenance consistent with this opinion.

Affirmed in part, reversed in part and remanded with instructions.

MR. JUSTICES HARRISON, SHEEHY and WEBER concur.

MR. JUSTICE GULBRANDSON,

dissenting:

In my opinion, the majority has misconstrued the rulings and findings of the trial court in holding that it was error for the trial judge to consider the described waiver as a release of all claims to the marital property in the event of a dissolution of marriage. The pertinent portions of findings of fact No. 20 are as follows:

“. . .Wife stated to Husband and to Husband’s children that each of the parties would maintain separate property. Wife also stated that she would never make a claim on Husband’s property and releases were signed to that effect and attached to the wills prepared by the parties . . .”

Nowhere in the findings of fact, conclusions of law and order did the trial judge indicate that he considered the signed release as a waiver of all claims in the event of a dissolution. It is obvious that he referred to the signed releases only after he found that the wife had stated to husband and his children that each party would maintain separate properties and that she would never make a claim on husband’s property. In findings of fact No. 23, the trial judge found:

“Due to the short duration of the marriage, the parties’ intention not to make a claim against the other’s property and the fact that the property of the marital estate was largely acquired prior to the marriage, it is equitable that each party’s property be returned to them.”

I do not disagree with the majority’s comments regarding Section 72-2-102, MCA, although they seem superfluous in light of the majority’s affirmance of the order that “each party’s property be returned to them.”

I do disagree, however, with the reversal of the order denying maintenance to the wife and the remand for clarification of wife’s current employability. The record discloses that wife has a substantial checking account, a vacant lot valued at $15,000, a residence valued at $90,000, automobile, and investment certificates valued at $31,000. There is substantial evidence in the record to support finding of fact No. 25.

Wife is not entitled to maintenance as the property distribution provides for her reasonable needs and she is able to obtain limited employment.

I would affirm.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICE McDON-OUGH join in the forgoing dissent of MR. JUSTICE GULBRANDSON.


author: MR. JUSTICE SHEEHY

text:
    MARYETTA F. BAUER, Plaintiff and Respondent, v. KAR PRODUCTS, INC., Life Insurance Company of North America, Great-West Life Assurance, Charles W. Lea and Herbert Mayberry, Defendants and Appellants.
    No. 87-26.
    Submitted Nov. 5, 1987.
    Decided Feb. 29, 1988.
    749 P.2d 1385.

      James M. Ramlow argued, Murray, Kaufman, Vidal & Gordon, S.Y. Larrick, Kalispell, Mark A. Squires, Philadelphia, Pa., for defendants and appellants.
    Douglas'J. Wold argued, Poison, for plaintiff and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

In this case, we determine that the District Court, Twentieth Judicial District, Lake County, properly granted partial summary judgment against defendant Life Insurance Company of North America (LINA) and in favor of Maryetta F. Bauer, holding that an accident policy issued by LINA to Maryetta F. Bauer provided policy coverage for her accidental injuries.

On May 14,1986, while LINA’s accident policy was in effect, plaintiff Maryetta F. Bauer was accidentally thrown from a horse and she suffered a severe spinal cord injury which resulted in total paralysis below her midback, including total loss of use of both legs. The uncontradicted affidavit of Dr. R. Stephen Irwin, filed in support of her motion for summary judgment, stated that Maryetta Bauer’s spinal cord has been severed at T-8 (midback) and that she remains permanently and totally paralyzed below midback. Dr. Irwin concluded that “for all practical purposes Ms. Bauer has lost her legs.”

In September and October, 1982, while Maryetta F. Bauer was an employee of Kar Products, Inc., an Illinois corporation, she was furnished a brochure entitled “Personal Accident Insurance for Full-time Employees of Kar Products, Inc. and Their Families.” After examining the brochure and receiving representations concerning coverage, Maryetta F. Bauer applied for the personal accident insurance, which was underwritten by LINA. On October 1, 1982, LINA issued its certificate of insurance on a family plan to Maryetta F. Bauer, wherein the principal sum was designated to be $100,000.00. The policy of insurance was in effect when Maryetta F. Bauer sustained her injuries.

The certificate of insurance contains a “Description Of Coverage” which in pertinent part provides as follows:

“Loss of Life, Limb, or Sight Indemnity: If such injuries shall result in any one of the following specific losses within one year from the date of accident, the company will pay the benefits specified as applicable thereto, based upon the Principal Sum stated in the Schedule of Insureds; provided, however, that not more than one (the largest) of such benefits shall be paid with respect to injuries resulting from one accident.
“Loss of two or more members . . . the principal sum.
“ ‘Member’ means hand, foot or eye. ‘Loss’ means with regard to hand or foot, actual severance through or above the wrist or ankle joints . . .”

Maryetta F. Bauer made a claim under LINA’s certificate of insurance contending that the severance was the cause of the total paralysis below her midback, the complete loss of the use of her legs, and was a “loss of two or more members.” Coverage was denied by LINA, and she brought suit in the.District Court for the recovery of insurance benefits, and for other claims. Both Maryetta F. Bauer and LINA moved the District Court for a partial summary judgment on her claim under the certificate of insurance. On December 17, 1986, the District Court issued partial summary judgment in favor of Maryetta F. Bauer and against LINA, holding that she was entitled to the principal sum under the accident insurance policy on three grounds: (1) that her claim was supported by the objectively reasonable expectation test; (2) that a grammar analysis of the policy language provided her coverage; and, (3) if there was any ambiguity, the policy as a whole should be construed against LINA.

The District Court certified in its order granting summary judgment that it was granted as a final judgment between Maryetta F. Bauer as to the issue of coverage for plaintiff’s injuries by the insurance policy, and that there was no just reason for delay. Thus, under Rule 54(b), M.R.Civ.P., appeal was taken by LINA to this Court from the order granting partial summary judgment.

On appeal, LINA contends that to establish a loss under the certificate of insurance, the “member” must be actually severed, not “some part of the body.” It relies on the holdings in Sitzman v. John Hancock Mutual Life Insurance Company (1974), 268 Or. 625, 522 P.2d 872; Juhlin v. Life Insurance Company of North America (Minn. 1980), 301 N.W.2d 59; Reid v. Life Insurance Company of North America, Inc. (4th Cir. 1983), 718 F.2d 677; Francis v. INA Life Insurance Company of New York (S.D.N.Y. 1986), 638 F.Supp. 1117; Horvatin v. Allstate Life Insurance Company (C.D. Cal. 1986), 631 F.Supp. 1271; and Perry v. Connecticut General Life Insurance Company (E.D. Va. 1982), 531 F.Supp. 625.

LINA further contends that the informational brochure first shown to Maryetta F. Bauer did not create an objectively reasonable expectation that the policy would cover paralysis of the limbs. Upon this issue, LINA contends that “dismemberment” cannot mean “paralysis,” relying on Cunninghame v. Equitable Life Assurance Society of the United States (2d Cir. 1981), 652 F.2d 306.

Finally, LINA contends that the policy is not ambiguous, relying on Universal Underwriters Insurance Company v. State Farm Mutual Automobile Insurance Company (1975), 166 Mont. 128, 136, 531 P.2d 668, 673.

A case similar to this came before the Supreme Court of the State of Washington in Neer v. Fireman’s Fund, American Life Insurance Company (1985), 103 Wash.2d 316, 692 P.2d 830. In that case Neer fell 50-60 feet to the ground while topping a tree and as a result his spinal column was severed depriving him of all nerve and muscle function below his midback. The policy coverage in Neer defined “loss” as “complete severance through or above . . . ankle joint.” (In this case, loss is defined with regard to a hand or foot as “actual severance through or above the wrist or ankle joints.) In Neer, as here, the respondent insurance company urged the court to adopt an interpretation that required a complete separation of the feet from the body before payment on the policy was required. The court considered many of the cases relied on in this case by LINA, and in determining, made the following statement:

“In the policy language in dispute, complete severance has no direct object after it. As a result, the policy does not require ‘severance of the feet’ but rather accidental loss resulting from severance of some portion of the body through or above the ankle. Moreover, severance does not require separation from the body. ‘Severance does not mean amputation. A hand may be severed but need not be amputated. Amputation is irreparably cutting off of a limb while to sever may limit its use, but not necessarily cause amputation.’ Mifsud v. Allstate Insurance Company (1982), 116 Misc.2d 720, 721, 456 N.Y.S. 316, 317 (bone of upper arm detached from shoulder in revolving door and left hanging was a covered loss when policy provided coverage for loss defined as ‘severance at or above the wrist.’)
“If ambiguous, the policy language must be construed in a manner most favorable to the insured (citing a case). Were we to consider the term loss defined as a complete severance ambiguous, reading the contract in a manner most favorable to the petitioner, we would have to find coverage. Read as a whole, however, the contract is not ambiguous. “It provides broad coverage for loss resulting from compíete severance through or above the ankle. Neer lost the use of both feet as the result of a complete severance of the spinal column, a severance above the ankle. A practical and reasonable interpretation of the contract requires coverage.”

692 P.2d at 833.

We adopt the holding of the Washington Supreme Court in its interpretation of the contract in Neer as applicable to the certificate of insurance issued by LINA to Maryetta Bauer. The interpretation is reasonable and entirely consistent with the language of the certificate of insurance which nowhere mentions “amputation” or “dismemberment,” but rather speaks of “severance.” Because we agree with this interpretation, the resolution of the issue is dispositive and there is no need for us to consider the other objections raised by LINA to the partial summary judgment. We therefore affirm the partial summary judgment as entered by the District Court.

While this case was pending on appeal, LINA moved this Court for leave to file a supplemental brief in which LINA sought to argue an entirely new theory of the case based on the Employment Retirement Income Security Act (ERISA). Maryetta Bauer objected to the consideration of the application of ERISA on the grounds that the issue had not been raised and discussed by the District Court when it entered partial summary judgment.

In submitting its supplemental brief, LINA contended that two recent cases of the United States Supreme Court, Metropolitan Life Insurance Company v. Taylor (1987), _ U.S._, 107 S.Ct. 1542, 95 L.Ed.2d 55 and Pilot Life Insurance Company v. Dedeaux (1987),_U.S._, 107 S.Ct. 1549, 95 L.Ed.2d 39, had determined that ERISA was the exclusive vehicle for actions asserting improper denial of benefits under ERISA-covered employee benefit plans.

When this case was in the District Court, plaintiff had filed a complaint alleging purely state-law claims. In its answer, LINA raised the possibility of ERISA application. Plaintiff thereupon amended her complaint so as to add an ERISA count as the basis for recovery. The motions for summary judgment were presented to the District Court and argued upon state law, and without reference to ERISA. The partial summary judgment entered by the District Court made no reference to ERISA. After LINA had appealed the District Court ruling to this Court, it filed a motion for removal of the cause to the Federal District Court. The Federal District Court considered the removal, and remanded to the state court upon the grounds that the delay of LINA in removing the cause to the Federal District Court had the effect of waiving any right of removal. It was only after the Federal District Court had remanded the cause to the state court that LINA filed its briefs in this Court seeking now to raise the ERISA issues.

Title 29 U.S.C. Section 1132(e) establishes state court jurisdiction over accidents brought to recover benefits under an ERISA-covered insurance policy. There are, however, before us insufficient facts to determine whether in fact ERISA applies to this cause. This Court has established a policy that it will not decide upon appeal issues not first presented to a district court. Whether ERISA applies is a change in theory from that advanced by LINA in the trial court for partial summary judgment and under Chamberlain v. Evans (1979), 180 Mont. 511, 591 P.2d 237, we do not consider on appeal a theory changed or different from that on which judgment was entered in the District Court. We therefore decline at this point to determine or decide any ERISA issues until the District Court has an opportunity to consider the same based upon facts adduced before it.

Counsel for Maryetta F. Bauer have requested sanctions in the form of attorney fees under Rule 11, M.R.Civ.P. because LINA attempted to raise ERISA issues in this appeal. She requested attorney fees because LINA attempted to justify its argument on ERISA on the basis that it “could not have known that ERISA stándards applied to the claims raised in Maryetta Bauer’s pleadings.”

Plaintiff’s counsel contends that LINA argued to the federal court when it attempted to remove the cause from the state court that it was unaware of the ERISA application and the removability of the state law claim until the Supreme Court decision in Pilot Life, supra. The Federal District Court, however, ruled that LINA should have known that ERISA may apply because the pleadings clearly raised an ERISA claim.

While the attempted raising of the ERISA claims on appeal required extensive briefing and documents to be filed by counsel for Maryetta F. Bauer in this Court as well as oral argument thereon, it appears that the raising of the issues in this Court came from appropriate caution by LINA’s counsel and accordingly sanctions in the form of attorney fees will not be required.

The partial summary judgment of the District Court in favor of Maryetta F. Bauer and against LINA is affirmed. The cause is remanded to the District Court for further proceedings.

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


author: MR. JUSTICE HUNT

text:
    LEE SIMMONS, Ken Simmons, and Colleen Simmons, Plaintiffs and Appellants, v. L.V. JENKINS, JR., et al., Defendants and Respondents.
    No. 87-220.
    Submitted on Briefs Jan. 14, 1988.
    Decided Feb. 29, 1988.
    750 P.2d 1067.

      Stephens Law Firm, Robert L. Stephens, Jr., Billings, for plaintiffs and appellants.

      Moulton, Bellingham, Longo & Mather; W.S. Mather, Billings, Lucas & Monaghan; Thomas M. Monaghan, Miles City, for defendants and respondents.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

This is an appeal from the granting of two summary judgments by the District Court, Sixteenth Judicial District, County of Rosebud. We affirm.

Appellants raise three issues on appeal:

1. Did the District Court err in granting judgment in favor of the First State Bank of Forsyth even though there existed material issues of fact which could have allowed the jury to find in favor of Simmons?

2. Did the District Court err in granting summary judgment in favor of Connecticut Mutual Life Insurance Company even though there were material issues of fact that could have allowed the jury to find in favor of Simmons?

3. Should both summary judgments be reversed based upon the failure of the District Court to set forth any reasons or rationale for granting the summary judgments?

Following is a general overview of the relevant facts. More facts will be supplied as necessary throughout the opinion.

On October 29, 1982, the appellants, the Simmons, executed a contract for deed with defendant Dunning Ranch Company (owned by James and Elsie Dunning) for the portion of the Dunning ranch in Rosebud and Custer Counties known as the home place or headquarters unit. The negotiations took place between the Dunnings and the Simmons directly and through a realtor, Ward Fenton. In 1979, the Dunning Ranch Company had mortgaged its entire land holdings to defendant Connecticut Mutual Life Ins. Co. (CML). Before the loan was made a local mortgage banking company, Hall & Hall, made an appraisal of two of the three units making up the Dunning properties. The home place was one of the units appraised. The appraisal showed that the two parcels examined would support a total of 331 cow and calf pairs (animal units). Hall & Hall is a correspondent mortgage banker for CML and originates its loans in the Rosebud area. In addition to the mortgage, the Dunning Ranch Co. had loans from the First State Bank of Forsyth (First Bank). On October 29, 1982, through a memorandum of agreement, First Bank agreed to lend the appellants money should the Dunning Ranch Co. default on the mortgage payments for the land being acquired by appellants.

Appellants have sued for fraud alleging that the Dunnings represented that the home place alone would carry 250 head of cattle when they knew in fact that it would not. They have named First Bank and CML as liable under the theory of constructive fraud. Both First Bank and CML made motions for summary judgment which the District Court granted. The Simmons appeal.

Issue I

As their first issue, appellants contend that the District Court committed error when it granted respondent First Bank’s motion for summary judgment because there existed disputed issues of material fact.

On motions for summary judgment, pursuant to Rule 56, M.R.Civ.P., the party making the motion has the burden of showing lack of any genuine issue of material fact. The movant’s burden is quite strict, requiring him to make a showing that

“ ‘[it] is quite clear what the truth is, and that excludes any real doubt as to the existence of any genuine issue of material fact. * * *’ ” Kober & Kyriss v. Stewart & Billings Deaconess Hospital, 148 Mont. 117, 122, 417 P.2d 476, 478.”

Harland v. Anderson (1976), 169 Mont. 447, 450, 548 P.2d 613, 615.

The party opposing the motion then has a similar burden to show that an issue of material fact does exist. This party must set forth specific facts and cannot rely on speculative, fanciful, or conclusory statements. Kronen v. Richter (Mont. 1984), [211 Mont. 208,] 683 P.2d 1315, 1318, 41 St.Rep. 1312, 1315; National Gypsum Co. v. Johnson (1979), 182 Mont. 209, 212 & 213, 595 P.2d 1188, 1189 & 1190; Cheyenne Western Bank v. Young (1978), 179 Mont. 492, 497, 587 P.2d 401, 404; Barich v. Ottenstror (1976), 170 Mont. 38, 42, 550 P.2d 395, 397. However, the opposing party will be indulged to the extent of all inferences which may be reasonably drawn from the record. Jenkins v. Hillard (1982), 199 Mont. 1, 5, 647 P.2d 354, 356; Equity Cooperative Ass’n. v. Bechtold (1977), 173 Mont. 103, 105, 566 P.2d 793, 794.

Appellant argues that there was a breach of the fiduciary duty or at least the duty of good faith and fair dealing between the Simmons and First Bank and that said breach constitutes constructive fraud pursuant to Section 28-2-406, MCA. The statute reads as follows:

Constructive fraud consists in:

“(1) any breach of duty which, without an actually fraudulent intent, gains an advantage to the person in fault or anyone claiming under him by misleading another to his prejudice or to the prejudice of anyone claiming under him; or
“(2) any such act or omission as the law especially declares to be fraudulent, without respect to actual fraud.”

The appellant bases his argument on several allegations: that First Bank was aware of the sale and had advised the Dunnings to sell; that First Bank knew liquidation of the farm corporation was near and even suggested the terms of sale; that the Bank had a loan commitment to the appellants which was an inducement to buy the farm; and that the Bank would benefit from the sale by a reduction in the Dunning’s loan.

The relationship between a bank and its customer usually does not give rise to a fiduciary duty. Deist v. Wachholz (Mont. 1984), [208 Mont. 207,] 678 P.2d 188, 193, 41 St.Rep. 286, 290. There is an exception, however, when the Bank is thrust beyond the simple role of creditor and into the role of an advisor. In Deist, we held that a bank officer is vested with a fiduciary duty where there is a long history of dealing with the bank and evidence of the bank acting as financial advisor in some past capacity. This duty extended to all bank officers but was limited to the scope of the bank’s and individual officer’s association with any particular transaction.

More recently, however, we encountered a situation where a bank had no fiduciary duty. In Pulse v. North American Land Title Co. (Mont. 1985), [218 Mont. 275,] 707 P.2d 1105, 42 St.Rep. 1578, the appellants, the Pulses, were involved in a land purchase which their bank financed through a mortgage. When problems arose, the Pulses sued for breach of fiduciary duty. We held that because the special circumstances that existed in Deist were not present, the bank had no fiduciary duty to the Pulses. Unlike Deist, the bank had not located buyers for the Pulses; the bank was not a party to the transaction beyond its role as the buyer’s lender; the sale was not a product of the bank’s advice; and the Pulses had not dealt with the bank extensively or exclusively.

Pulse controls in this case. The facts here show that the connection between First Bank and the Simmons is even more tenuous than that between the Pulses and their bank. There is no evidence that the First Bank ever advised the Simmons. There is no evidence that the Simmons ever asked for advice from anyone at the Bank. There is no evidence of a long history of dealings with or reliance upon the Bank by the Simmons. There is evidence from bank manager Robert Thiesen’s deposition that he did suggest terms of sale to real estate agent Fenton but that is relevant more to the bank’s relationship to the sellers, the Dunnings, than to its relationship to the Simmons. In cases where the bank has been held to a fiduciary duty because of its advisory role the duty benefited the party being advised and not some third party. See Deist, [208 Mont. 207,] 678 P.2d 188. The facts, as presented by appellants, do not support the existence of a fiduciary duty.

Appellants also contend that the breach of the separate duty of good faith and fair dealing constitutes constructive fraud. Specifically, they argue that the question of whether this duty exists is one of fact and not susceptible to summary judgment determination.

We have recognized that the duty required by subsection (1) need not rise to that of a fiduciary to satisfy the requirements of Section 28-2-406, MCA. McJunkin v. Kaufman (Mont. 1987), [229 Mont. 432,] 748 P.2d 910, 44 St.Rep. 2111, 2116. This Court discussed a bank’s duty of good faith and fair dealing in Noonan v. First Bank Butte (Mont. 1987), [227 Mont. 329,] 740 P.2d 631, 44 St.Rep. 1124. Where we stated:

“In the past, the Court has extended the implied duty of good faith and fair dealing to cases involving banks dealing with their customers. In Tribby v. Northwestern Bank of Great Falls (Mont. 1985), [217 Mont. 196,] 704 P.2d 409, 419, 42 St.Rep. 1133, 1142, we extended the implied covenant of good faith and fair dealing to the commercial area of bank-customer relations. In Nicholson v. United Pacific Ins. Co. (Mont. 1985), [219 Mont. 32,] 710 P.2d 1342, 1347, 42 St.Rep. 1822, 1828, we noted the extension of the tort theory to banks dealing with customers and cited Tribby and First National Bank of Libby v. Twombly (Mont. 1984), [213 Mont. 66,] 689 P.2d 1226, 41 St.Rep. 1948. In Northwestern Nat. Bank v. Weaver-Maxwell (Mont. 1986), [223 Mont. 33,] 729 P.2d 1258, 43 St.Rep. 1995, we allowed a case of a bank-customer dispute to be remanded for retrial on a bad faith theory.”

Noonan, 740 P.2d at 634. The duty of good faith and fair dealing between a bank and its customer is alive and well in Montana law but as we indicated in Tribby not every contract or statutorily imposed obligation carries such a duty. 704 P.2d at 419. The appellants cannot refer to a contract between the Simmons and First Bank existing at the time of the misrepresentations. Nor do they cite any statutory duty. The record shows no customer-bank relationship between the Simmons and First Bank at the time of the alleged misrepresentations by the Dunnings. In fact the record shows no relationship at all. Neither are there facts that could establish an agency relationship between the Bank and the Dunnings or Ward Fenton. The duty of good faith and fair dealing presupposes the existence of a relationship of some type. 37 Am.Jur.2d Fraud and Deceit Section 15, at 39. The fact that the bank knew of the Dunnings’ negotiations with the Simmons and held loans secured by the ranch property does not establish a relationship with the Simmons.

As appellant notes First Bank and the Simmons did have a memorandum of agreement dated the same day as the contract for deed. Appellant argues that this memorandum is sufficient to establish a duty of good faith. We do not agree. The purpose of the memorandum for agreement was to protect the Simmons in case the Dunnings failed to make the mortgage payment to Connecticut Mutual Life Ins. In the event of default, First Bank agreed to loan Simmons the amount of the difference between their annual payment to the Dunnings and the mortgage payment due.

Appellants have forcefully argued that this memorandum is evidence that First Bank was an active procurer of the sale and in fact attempted to engineer it to its benefit by taking advantage of the Dunnings’ misrepresentation. These inferences, however, are too tenuous to connect the Bank as a party to the fraud allegedly perpetrated by the Dunnings. The appellant cannot rely on suspicions. Cheyenne Western Bank, 587 P.2d at 404. There was no duty of good faith and fair dealing between the Simmons and First Bank with regard to the contract for deed.

Appellants argue that this question is one for the jury. We stated in Morse v. Espeland (Mont. 1985), [215 Mont. 148,] 696 P.2d 428, 42 St.Rep. 251, that the breach of a duty of good faith is a question of fact not susceptible to summary judgment. The existence of such a duty, however, is a question of law properly determined during summary judgment proceedings. Summary judgment in favor of the bank is affirmed.

Issue II

Appellants’ next issue challenges the correctness of the District Court’s summary judgment in favor of respondent, Connecticut Mutual Life Insurance Company (CML). In essence, the Simmons argue that Douglas Hall d/b/a Hall & Hall, was CML’s agent and that therefore the question of the existence of an agency relationship is a material issue of fact in connection with the extent and nature of CML’s prior knowledge regarding the Simmons/Dunning transaction. In addition, appellants complain that CML did not adequately reply to plaintiffs’ request for production of documents.

The respondent replies that the existence of an agency relationship between itself and Hall is irrelevant to any of the appellants’ theories of recovery because no duties were owed to appellants by CML. Additionally, any objections regarding CML’s responses to plaintiffs’ requests for production of documents have been waived. We agree with the respondent.

The appellants have alleged that CML had, first, a duty to use reasonable and ordinary care in approving the mortgage release; second, a duty to investigate the carrying capacity and economic viability of the land unit purchased by the Simmons; and third, a duty to exercise good faith and deal fairly with the appellants that, because of its superior knowledge, required CML to disclose any information that would indicate the nonviability of the land in question. The law regarding these duties has been thoroughly set out in Issue I and need not be repeated here.

Assuming that Hall was acting as agent for CML, there is no evidence that would establish a fiduciary or other relationship between the Simmons and respondent CML to support appellants’ claims. Since 1979, CML has held a mortgage on the Dunnings’ three units of farm property. At that time, Hall & Hall made an appraisal of two of the units including an estimation of carrying capacity of 331 animal units. There is some evidence that Hall spoke on and off with Bob Thiesen, then the manager of the First Bank, and Simmons’ attorney after the contract for deed had been signed. There is no evidence that Hall & Hall or CML had contact with the Simmons before or during their negotiations with the Dunnings. There is no contract between the Simmons and Hall & Hall or CML. CML was asked to approve the sale only after the contract for deed had been signed. This approval was required by CML’s contract with the Dunnings and was not requested by the Simmons. There is nothing that would connect Hall & Hall or CML with the Dunnings’ misrepresentations.

Appellant also finds fault with the fact that summary judgment was entered before CML had provided suitable responses to Simmons’ request for production of documents. The request was for CML’s “home office file” which would ostensibly have shown the extent of CML’s knowledge of the economic feasibility of the Dunning ranch. The failure of CML to adequately respond was brought before the District Court in plaintiffs’ response to motion for summary judgment and was also addressed by defendant’s reply to plaintiffs’ response. CML argues that any objection is waived because plaintiffs never raised this issue since it failed to file a response to the motion for summary judgment and failed to appear at the hearing on the motion.

Apparently appellants’ response was misfiled because it had an incorrect caption and docket number. The District Court had ordered a response to be filed by October 24, 1986. Plaintiff did not attempt to file the response until October 28, 1986, several days after the date ordered by the District Court. In addition, a hearing had been set and was held October 27,1986, with the plaintiffs not appearing. The matter was deemed submitted before the court without the presence of the plaintiffs and without the court having possession of the misfiled brief. CML received a copy of the misfiled brief on October 29, 1986. The District Court apparently never received the misfiled brief. Summary judgment for CML was granted by order dated November 21, 1986.

Since we hold that CML was in no relationship to the Simmons that created a duty to disclose information the question of what CML knew or did not know about the economic viability of the Dunnings’ parcel is irrelevant. CML’s production of its office file would not raise an issue of material fact. Therefore, the summary judgment for CML is affirmed.

Issue III

Finally, appellant argues that it was error for the District Court to grant summary judgment without entering findings of fact and conclusions of law. Such findings are necessary for the reviewing court to determine the basis for the District Court’s decision. The District Court’s action, appellant contends, is contrary to the court’s admonishment in Big Man v. State (Mont. 1981), [_ Mont. _,] 626 P.2d 235, 38 St.Rep. 362, and is therefore in error. We disagree.

Under Rule 52(a), M.R.Civ.P., findings of fact and conclusions of law are not required to be entered upon motions for summary judgment pursuant to Rule 56, M.R.Civ.P. The rule states in pertinent part that “[findings of fact and conclusions of law are unnecessary on decisions of motions under Rules 12 or 56 or any other motion except as provided in Rule 41(b).” This Court has followed this rule on several occasions. See Lewis v. State, Dept. of Revenue (Mont. 1984], [207 Mont. 361,] 675 P.2d 107, 114, 41 St.Rep. 9, 17; Downs v. Smyk (1979), 185 Mont. 16, 19, 604 P.2d 307, 309; Boise Cascade v. First Sec. Bank of Anaconda (1979), 183 Mont. 378, 385, 600 P.2d 173, 178.

Appellant refers us to both the majority and special concurring opinions of Big Man as controlling in this case. Specifically, appellant refers to the special concurring opinion by Justice Shea and joined by Justice Sheehy. Although a concurrence is often insightful and scholarly it is not the holding of the Court and is not accorded the same precedential value. It does not control. Neither the majority nor special concurring opinion in Big Man has relevance to this issue. The District Court did not err in its summary judgment.

Affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, WEBER and GULBRANDSON concur.