author: MR. CHIEF JUSTICE TURNAGE

text:
    NANCY PAPP, Individually and as Personal Representative of the Estate of Alex Papp, Plaintiff and Appellant, v. ROCKY MOUNTAIN OIL AND MINERALS, INC., Petro-Lewis Corp., and Petro-Lewis Funds, Inc., and Partnership Properties, Co.; Buckeye Energy Corp., and Balcron Oil Company, Defendants and Respondents.
    No. 88-87.
    Submitted Jan. 12, 1989.
    Decided March 2, 1989.
    Rehearing Denied April 4, 1989.
    769 P.2d 1249.

      Ugrin, Alexander, Zadick & Slovak, John D. Alexander and Neil E. Ugrin argued, Great Falls, for plaintiff and appellant.
    Moses Law Firm, Charles F. Moses, Dorsey and Whitney, James L. Jones, Billings, argued for Rocky Mountain Oil.
    McNamer and Thompson, Mark S. Werner, Billings, argued for Petro-Lewis.
    Keefer, Roybal, Hanson, Stacey & Jarussi, Neil S. Keefer, Billings, argued for Buckeye & Balcron.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

This is an appeal from an order of the Thirteenth Judicial District, Yellowstone County, granting summary judgment to respondents, Rocky Mountain Oil, Petro-Lewis Corporation, and Buckeye Energy Corporation. Appellant, Nancy Papp, brought suit in strict liability in tort and negligence for the wrongful death of her husband. Alex Papp died of lethal inhalation of hydrogen sulphide (H2S) gas while working for Balcron Oil Company. Appellant claims the facility in which Papp was working and its components were defective and unreasonably dangerous. The court granted summary judgment in favor of defendants. We affirm.

The issues here are:

(1) Whether the District Court properly found that respondents were entitled to summary judgment as a matter of law on the grounds that the claim for strict liability does not fulfill the requirements of Restatement (Second) of Torts, § 402A.

(2) Whether the negligence issue must be dismissed on the grounds that the builders of the separator facility are too remote.

(3) Whether Buckeye Energy Corporation and Balcron Oil are joint venturers in the State B lease, thus immunizing Buckeye from appellant’s negligence claim.

FACTS

In 1951, the State of Montana, State Board of Land Commissioners, entered into an oil and gas lease agreement with Phillips Petroleum Company and Ada Oil Company for property located southwest of Conrad, Montana. Known as the “State B” lease, it was assigned to Rocky Mountain Oil and Minerals, Inc. (Rocky Mountain) in August 1971. On September 1, 1978, Rocky Mountain sold its interest to the Petro-Lewis Corporation, Petro-Lewis Funds, Inc., and Partnership Properties Co. (Petro-Lewis), reserving a 50 percent interest in the leasehold estate. On October 4, 1981, PetroLewis sold by way of assignment, bill of sale, and conveyance, oil and gas leases in Pondera County, including the State B lease, to Buckeye Energy Corp. (Buckeye), who, in the same meeting, sold two-thirds interest in its Pondera County oil and gas leases to Balcron Oil Co. (Balcron).

In 1979, Alex Papp was hired by Balcron as an oil and gas pumper and worked for Balcron from 1979 until the date of his death, June 6, 1985. He spent up to 90 percent of his time in the gas fields and 10 percent working in the oil fields. On the State B lease southwest of Conrad was an oil “treater” or “separator” facility. The facility’s purpose was to separate water and gas from the crude oil being pumped out of the ground. There are two tanks in the separator facility, the water knock-out tank and the gun barrel tank. An incoming flow line enters the facility from an underground pipe depositing oil into the knock-out tank. The tank separates salt water from the oil and allows hydrogen sulphide gas (H2S) to separate from the crude oil and vent into the atmosphere. Once the initial impurities are separated and siphoned out, the oil is transferred to the gun barrel tank where it is heated to remove any remaining impurities. The treated oil is then put into storage.

Prior to the State B lease acquisition by Rocky Mountain, the treater facility had become worn from use. After the acquisition by Rocky Mountain, Rocky Mountain dismantled and rebuilt the facility and its components, completely enclosing it.

After Balcron took over the lease in 1985, it began replacing the flow pipes entering the facility. Balcron replaced PVC pipe, which was inflexible and brittle, with a more flexible poly pipe. Alex Papp and Larry Ranney were assigned to complete an auxiliary flow line in the facility. On June 6, 1985, shortly after lunch, Papp and Ranney went to finish the flow line. Later that afternoon, Jerry Griggs, another employee of Balcron, went to the facility and found both men overcome by H2S inhalation.

Hydrogen sulphide is a deadly gas, exposure to which can quickly cause death. The building which houses the separator facility had at the time of Papp’s death only one door for ingress and egress and no ventilation. There were no signs warning against the H2S gas. Both decedents were aware of the presence of H2S gas in the oil and at least some of its dangers. However, employees of Balcron were given no formal training concerning the dangers of H2S gas.

When Griggs arrived at the treater facility, Papp was found sitting against the east wall with his feet under the steel flow line. Larry Ranney was found twelve feet from Alex Papp against the inside west wall, with a wrench in his hand. Griggs realized that there was the presence of H2S gas in the air. Despite the presence of the gas, he went inside and pulled Alex Papp out. Another employee arrived and pulled out Larry Ranney.

Oil was steadily flowing out of the pipes into the facility and both Papp and Ranney were covered with dirt and oil which had apparently sprayed from a cracked PVC pipe.

After the deaths, employees of Balcron were given formal H2S training. Furthermore, changes in the treater facility were made. These included constructing an additional entrance for cross-ventilation, erecting warning signs of H2S gas, and finishing the replacement of the PVC pipe.

The Occupational Safety and Health Administration (OSHA) issued to Balcron Oil citations for violations of the Occupational Safety and Health Act. Specifically, Balcron was cited for inadequate warning of H2S gas and for not providing respirators for the employees.

Decedent’s wife, Nancy Papp, received workers’ compensation benefits from the death of her husband, paid out by Balcron Oil. She later filed a complaint on behalf of herself and on behalf of the estate of Alex Papp, against Rocky Mountain, Petro-Lewis, Buckeye, and Balcron, alleging strict liability, negligence, and negligent failure to warn on the basis that the separator facility and its components were defective and unreasonably dangerous. After the defendants answered the complaint, plaintiff took the depositions of three of Papp’s fellow employees and filed sets of interrogatories. In February, March, and April, 1987, defendants filed motions for summary judgment. Plaintiff thereafter moved to compel discovery, and filed briefs in opposition to the motions for summary judgment. On December 10, 1987, the District Court granted the motion for summary judgment on the grounds that no dispute as to material facts existed and that the defendants were entitled to summary judgment as a matter of law.

DISCUSSION

The first issue is whether the District Court properly granted summary judgment on the grounds that appellant failed to show that the treater facility was within the Restatement (Second) of Torts, § 402A definition of “product.”

“PRODUCT” DEFINITION

The standard of review for granting or denying a motion for summary judgment is the same as that used by the trial court — that is, the moving party is entitled to judgment at law if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P.; Frigon v. Morrison-Maierle, Inc. (Mont. 1988), 233 Mont. 113, 760 P.2d 57, 45 St.Rep. 1344; Sevalstad v. Glaus (Mont. 1987), [227 Mont. 117,] 737 P.2d 1147, 44 St.Rep. 930; Kronen v. Richter (1984), 211 Mont. 208, 683 P.2d 1315; Reagan v. Union Oil Company of California (1984), 208 Mont. 1, 675 P.2d 953.

Appellant alleges that there are material facts in dispute — namely, whether the design and manufacture of the facility and its component parts were defective or whether it was negligent use or misuse of the equipment by Papp himself which caused his death. The reason for the death, according to appellant, was that the treater facility was defective and unreasonably dangerous. The facility lacked ventilation, there was insufficient ingress and egress, and there were no signs warning of the dangers of H2S. Moreover, Papp had received no formal training regarding the dangers of the gas.

To prove that the respondents are liable under strict liability, appellant must demonstrate that the treater facility was a “product” within the § 402A definition, that this product was built and maintained by the respondents, and that the product was in a defective condition unreasonably dangerous. If the appellant is unable to show that the separator facility was a product, then § 402A is inapplicable to this case, and the summary judgment order will be affirmed. Respondents allege that the appellant has not met the requirements of the § 402A strict liability claim. To find strict liability of the seller of the facility, the facility and its component parts must be a “product” for § 402A purposes.

Restatement (Second) of Torts, § 402A states in pertinent part:

“(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product ...”

From the time that the second Restatement was published in 1965, courts have struggled to find an all-inclusive definition for the term “product.” The Restatement writers themselves began the list in the official comments following § 402A. The list included the sale of food for human consumption, or other products for intimate bodily use. The authors of the Restatement also embraced any product which reached the consumer or ultimate user in substantially the same condition in which it was intended, such as an automobile, an airplane, a grinding wheel, a water heater, a gas stove, a power tool, a riveting machine, a chair, or an insecticide. It also included any product which harmed the consumer’s chattels or land.

Since 1965, the list has expanded tremendously and courts have adopted policy reasons for defining a product, rejecting a strict dictionary definition of the word “product.” The social policy justifications for determining whether a “product” is found have been discussed by this Court in Brandenburger v. Toyota Motor Sales, U.S.A., Inc. (1973), 162 Mont. 506, 514-515, 513 P.2d 268, 273. The policy considerations applicable to the case at bar include:

“(3) It is in the public interest to discourage the marketing of defective products;

“(4) It is in the public interest to place responsibility for injury upon the manufacturer who was responsible for its reaching the market;

“(5) That this responsibility should also be placed upon the retailer and wholesaler of the defective product in order that they may act as the conduit through which liability may flow to reach the manufacture, where ultimate responsibility lies;

“(7) That the consumer does not have the ability to investigate for himself the soundness of the product;

“(8) That this consumer’s vigilance has been lulled by advertising, marketing devices and trademarks.”

See also: Lechurga, Inc. v. Montgomery (1970), 12 Ariz.App. 32, 467 P.2d 256; Nalbandian v. Byron Jackson Pumps, Inc. (1965), 97 Ariz. 280, 399 P.2d 681; Greenman v. Yuba Power Products, Inc. (1962), 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897; Escola v. Coca Cola Bottling Co. of Fresno (1944), 24 Cal.2d 453, 150 P.2d 436; “Products Liability Symposium: What is or is not a Product within the Meaning of § 402A,” 57 Marq. L. Rev. 623 (1974).

Therefore, courts analyzing a cause of injury to see if the injury-causing thing is a “product” within the confines of a strict liability definition for § 402A purposes, test the injury-causing thing against these preceding policy justifications. If it passes muster, it is then deemed to be a product.

In applying the policy justifications, most courts have refused to adopt the contention that a building is a “product.” In Lowrie v. City of Evanston (1977), 50 Ill.App.3d 376, 8 Ill.Dec. 537, 365 N.E.2d 923, decedent died from a fall in a parking garage. The Illinois Appellate Court held that neither the parking ramp nor the parking space was a “product” within the product liability definition. In Trent v. Brasch Manufacturing Co., Inc. (1 Dist. 1985), 132 Ill.App.3d 586, 87 Ill.Dec. 784, 477 N.E.2d 1312, the plaintiff was injured while “checking a thermostat” of the heating, ventilation, and air-conditioning system (HVAC) in a building. Defendants claimed that the HVAC was a component and indivisible part of the building. The court disagreed, reasoning that the HVAC was attached to real estate. The court applied the social policy considerations, ultimately sending the issue back to the trial court. See also: Immergluck v. Ridgeview House, Inc. (1977), 53 Ill.App.3d 472, 11 Ill.Dec. 252, 368 N.E.2d 803 (in which a sheltered-care facility was held not to be a product); and Heller v. Cadral Corp. (1980), 84 Ill.App.3d 677, 40 Ill.Dec. 387, 406 N.E.2d 88.

Other jurisdictions have also held that buildings are outside the scope of the “product” definition area. In Messier v. Association of Apartment Owners (Hawaii App. 1987), 735 P.2d 939, plaintiff was injured during a storm by an allegedly defective metal panel which dislodged from the roof of his condominium. The Hawaii court held that the condominium was not a product.

The Washington Appellate Court in Charlton v. Day Island Marina, Inc. (1987), 46 Wash.App. 784, 732 P.2d 1008, held that a boathouse builder was not liable for the deaths of plaintiffs’ decedents who died from carbon monoxide poisoning after being overcome by exhaust fumes caused by the boat’s running engine within the boathouse. The plaintiffs claimed that there was inadequate ventilation in the boathouse. The court found that the plaintiffs failed to show that the boathouse was a product given its similarities with other buildings.

For more cases which regard buildings to be outside the purview of “products” for strict liability in tort, see: McClanahan v. America Gilsonite Co. (D.C. Colo. 1980), 494 F.Supp. 1334; and K-Mart Corp. v. Midcon Realty Group of Connecticut, Ltd. (D.C. Conn. 1980), 489 F.Supp. 813.

A case which is nearly identical in terms of facts to the case at bar is Cox v. Shaffer (1973), 223 Pa.Super. 429, 302 A.2d 456. In Cox, the decedent died by asphyxiation while working in a silo. The Pennsylvania court held that a silo constructed in place on an employer’s land is not a product.

Some states have alternatively held that a building is a product within the scope of strict liability in tort, but only under limited circumstances. In 1965, the New Jersey Supreme Court was the first court to extend strict liability to home development in Schipper v. Levitt & Sons, Inc. (1965), 44 N.J. 70, 207 A.2d 314. In Schipper, a child of plaintiffs was scalded by hot tap water and plaintiffs sued the builder-vendor for failure to install a mixing valve to reduce the water temperature after the water left the heating boiler. In holding the builder-vendor strictly liable, the court stated:

“When a vendee buys a development house from an advertised model, as in a Levitt or in a comparable project, he clearly relies on the skill of the developer and on its implied representations that the house will be erected in reasonably workmanlike manner and will be reasonably fit for habitation. He has no architect or other professional adviser of his own, he has no real competency to inspect on his own, his actual examination is, in the nature of things, largely superficial . . .”

Schipper, 207 A.2d at 325. The court continued, saying that if injuries are the result of defective construction, the builder should bear the cost.

In 1969, California followed new Jersey in adopting strict liability for mass production and sale of tract homes in Kreigler v. Eichler Homes, Inc. (1969), 269 Cal.App.2d 224, 74 Cal.Rptr. 749. Defendant had constructed over 4000 homes in which steel tube radient systems had been installed in the concrete floor. Kreigler was injured when the floor collapsed from corrosion of the steel tubing. The California court, in holding defendant strictly liable, analogized mass-production of homes and mass-production of cars, stating that the buyer is not in a position to protect himself and that the policy reasons for “product” status were the same.

In Kanecko v. Hilo Coast Processing (1982), 65 Haw. 447, 654 P.2d 343, the Hawaii Supreme Court also held in favor of strict liability in cases of construction of prefabricated buildings. See also: Lantis v. Astec Industries, Inc. (7th Cir. 1981), 648 F.2d 1118.

An alternative view in a few states is that the home itself is not a “product” but that the component parts or additions to the building are “products” within the § 402A definition. In Philadelphia National Bank v. Dow Chemical Co. (E.D.Pa. 1985), 605 F.Supp. 60, one of Dow’s products, Sarabond, was a chemical in the mortar used in erecting plaintiff’s bank building. The Sarabond corroded metals embedded in the mortar and brick panels of the building, causing structural damage. Defendant’s alleged that the mortar had become incorporated in the structure and indivisible from the building. The court rejected this argument holding that the Sarabond was a product and not part of the real property or a fixture thereto. In S.L. Rowland Construction Co. v. St. Paul Fire and Marine Ins. Co. (1967), 72 Wash.2d 682, 434 P.2d 725, the court held that in cases where an insurance policy limited liability in case of fire, the house itself was not a product, but the component parts therein were products.

Another dimension of “product” definition was added by the Nevada Supreme Court in Elley v. Stephens (Nev. 1988), 760 P.2d 768. There, the Supreme Court of Nevada held:

“. . . even if we assumed, arguendo, that a prefab house is a product subject to the law of strict products liability, a strict liability theory is not applicable to an occasional seller of a product, who does not, in the regular course of his business, sell such a product. [Emphasis added.]”

Elley, 760 P.2d at 771.

The foregoing discussion sets out the development of case law considering buildings in terms of “product” definition. In summary, a “product” is defined by policy considerations. Where a building is the alleged product, most jurisdictions do not subject defendants to strict liability scrutiny unless the homes are prefabricated and mass-produced and the defendants are in the business of constructing or selling these types of homes, thus eliminating the unique status of most buildings.

PRODUCT LIABILITY IN MONTANA

Strict liability is not new to Montana. Section 402A was first adopted in Brandenburger, in which we discussed the policy reasons for applying strict liability in tort. There are two decisions in Montana which are pertinent here. The first is Thompson v. Nebraska Mobile Home Corp. (1982), 198 Mont. 461, 647 P.2d 334; the second, McJunkin v. Kaufman (Mont. 1987) [229 Mont. 432] 748 P.2d 910, 44 St.Rep. 2111. In Thompson, the plaintiff complained of defects in her 1972 Magnolia Futurama Mobile Home, including loose shingles on the roof and poor seals in the corners of the home. We held that strict liability was expanded to those instances where there is damage only to the defective product. Personal injury is not required.

In McJunkin, a K & B Mobile Home had numerous alleged defects shortly after the home was purchased. It was held that the plaintiff failed to show that the product was defective. We also held that the phrase “defective condition unreasonably dangerous” in § 402A is an indivisible requirement to be proved by the plaintiff. Defendants contended that the plaintiffs were required to prove that the mobile home was both in a defective condition and unreasonably dangerous.

Montana, however, has not addressed the initial question of whether the injury-causing thing is a product. We did not consider whether the mobile homes were “products” in Thompson or McJunkin, although, in the case of prefabricated homes and mobile homes which are mass-produced and sold in the stream of commerce, they may qualify as “products.”

We hold that the summary judgment decision that the treater facility was not a “product” by the District Court must be upheld because:

(1) The respondents were not in the business of selling separator facilities as required by the Restatement;

(2) The alleged product did not reach the stream of commerce nor was the decedent a consumer as defined by the policy considerations in Brandenburger; and

(3) The treater facility, a building, is not a product.

Section 402A refers specifically to “one who sells a product in a defective condition,” where the selling is engaged in the business of selling the product. The respondents here are not sellers of treater facilities. They engage in the business of extracting oil and gas for refinement. They are, therefore, not sellers within the § 402A definition. This provision was incorporated in our statutes in 1987. See § 27-1-719, MCA.

In testing the alleged cause of death for “product” status, it is necessary to test the alleged product against the list of policy considerations. According to the policy considerations in Brandenburger, whether the product is in the stream of commerce is relevant. See also: Immergluck v. Ridgeview House, Inc. (1977), 53 Ill.App.3d 472, 11 Ill.Dec. 252, 368 N.E.2d 803; Boddie v. Litton Unit Handling Systems (1 Dist. 1983), 118 Ill.App.3d 520, 74 Ill.Dec. 112, 455 N.E.2d 142; Moorman Manufacturing Co. v. National Tank Co. (1980), 92 Ill.App.3d 136, 47 Ill.Dec. 186, 414 N.E.2d 1302, rev’d in part, aff’d in part (1982), 91 Ill.2d 69, 61 Ill.Dec. 746, 435 N.E.2d 443. This is apparent in three specific policy considerations, i.e., the public interest in discouraging the marketing of defective products, the limitations and solicitations of the manufacturers to the purchaser of the product, and the ability of the consumer to inspect the product.

The separator facility did not enter the stream of commerce. It was part of the property passed from one lessee to another. The facility was not a product which was in the stream of commerce. Because Papp was not a “consumer,” using the treater facility after it had reached the stream of commerce, there was no issue of disparity in bargaining power or a manufacturer’s use of persuasive advertising or marketing devices to cause the consumer to buy the product. Moreover, no issue has arisen as to whether the decedent was able to inspect the facility. The treater facility is not a product under the widely used policy considerations.

A “product” is narrowly defined in the area of buildings, and the treater facility and the building which houses it do not fit within the definition prescribed by the Restatement. Leading cases have held that a building is not a “product,” unless the building is mass-produced or prefabricated. The separator facility is not mass-produced but is unique in nature. Considering that the structure which houses the separator facility is a building, the facility is not a “product” within a strict liability definition.

Other jurisdictions have held that components within a building are “products.” However, even though the cracked PVC pipe is a component and is known to be brittle and of poorer quality than the poly pipe, it is not that component alone which caused the death here. The H2S gas leaking from the pipe was deadly because it was not allowed to evaporate into the atmosphere, but was confined within the housing structure. The building and its component parts are indivisible in this case. We hold that the building is not a “product” within the definition of § 402A of the Restatement.

NEGLIGENCE

The second issue is whether the claim of negligence must be dismissed on the ground that the builders of the separator facility cannot be liable for negligence once they have sold the facility and released all control of it.

Appellant alleges that the respondents were negligent in their construction of the building and in their failure to warn decedent. Each of the defendants — Rocky Mountain, Petro-Lewis, Buckeye, and Balcron — denied liability, declaring instead that the decedent was negligent in misusing the components of the facility, specifically, putting too much strain on the PVC pipe while replacing it, causing the crack. Also, once the pipe had cracked, the decedents took improper steps in preventing the H2S gas from filling the facility and did not use caution to save themselves. Rocky Mountain and PetroLewis also blamed subsequent lessees for not properly inspecting and preventing any hazards.

Restatement (Second) of Torts, §§ 352 and 353, propose that liability of builders is terminated once they have relinquished ownership and control of the property. The California Supreme Court has addressed the issue of a former owner’s liability in a negligence claim. In Isaacs v. Huntington Memorial Hospital (1985), 38 Cal.3d 112, 134, 695 P.2d 653, 664, the court stated that:

“[a] defendant cannot be held liable for the defective or dangerous condition of property which it did not own, possess, or control. Where the absence of ownership, possession, or control has been unequivocably established, summary judgment is proper.”

Furthermore, in Preston v. Goldman (1986), 42 Cal.3d 108, 227 Cal.Rptr. 817, 720 P.2d 476, in a case where a previous owner was sued for injuries to a child who fell in a pond built by the former owner, the court held that a former owner is not subject to liability for injuries sustained on the property long after he had relinquished ownership and control.

We apply the same reasoning here and hold that Rocky Mountain and Petro-Lewis are not liable to the appellant for decedent’s death. They do not own, nor are they in possession of, the treater facility. Even as builders, the respondents should not be held responsible for reasons similar to the accepted “work rule doctrine.” Once the builders finished the work on the facility and relinquished control of it to the subsequent owners, the subsequent owners accepted the property as finished. Therefore, the builders of the facility are not liable. Harrington v. LaBelle’s of Colorado, Inc. (1988), [235 Mont. 80,] 765 P.2d 732, 45 St.Rep. 2176.

JOINT VENTURE

The third issue is whether Buckeye is immune from negligence liability as a joint venturer with Balcron Oil.

Appellant was awarded workers’ compensation benefits from Balcron. Pursuant to § 39-71-411, MCA (1985), if a claimant is awarded workers’ compensation benefits, workers’ compensation is the exclusive remedy, and employers are immune from further liability. If Buckeye and Balcron are joint venturers, Buckeye is an employer and is immune from negligence liability. Appellant claims that there is no joint venture and Buckeye is a separate owner and liable to appellant.

Buckeye and Balcron must meet the four elements of a joint venture, to qualify as joint venturers. They are as follows: 1) an express or implied agreement or contract creating the joint venture; 2) a common purpose among the parties; 3) community of interest; and 4) an equal right of control of the venture. Bender v. Bender (1965), 144 Mont. 470, 480, 397 P.2d 957, 962.

On October 26, 1984, Petro-Lewis sold its interest to Buckeye who sold two-thirds of its interest to Balcron Oil on the same day. The parties arranged an agreement which declared that Buckeye held a one-third investment interest and Balcron held a two-thirds operations interest. Information income tax returns are filed as a joint venture and their respective income taxes are calculated thereon. Buckeye reimbursed Balcron for one-third of the wages and workers’ compensation insurance premiums.

We hold that the four elements have been met here. From the agreement between the parties, it can be discerned that they have entered into an agreement which created a joint venture. Co-ownership is not sufficient by itself to establish a joint venture, however. Sunbird Aviation, Inc. v. Anderson (1982), 200 Mont. 438, 651 P.2d 622. The two companies have a common purpose, that being the financing and operation of oil fields. The operation of the State B lease also shows the community of interest between Buckeye and Balcron.

Appellant contends that the fourth element has not been met because Buckeye’s two-thirds interest is not an equal share and they are not actively involved in the business affairs of the alleged venture. However, we have established that the parties can choose to delegate management duties to one venturer and still establish equal right of control. Murphy v. Redland (1978), 178 Mont. 296, 583 P.2d 1049. Buckeye has sufficiently established that a joint venture is present.

Therefore, as a joint venturer with Balcron, Buckeye is an employer of the employees working in the State B lease oil and gas fields and is immune from negligence liability pursuant to § 39-71-411, MCA.

CONCLUSION

The District Court found that because the § 402A requirements were not met and there were no material facts at issue, summary judgment would be granted in favor of respondents. We affirm the summary judgment decision. The treater facility is not a “product” and, therefore, strict liability is not applicable as a matter of law. Furthermore, Rocky Mountain and Petro-Lewis were not negligent at the time of decedent’s death, and Buckeye, as an employer, is immune from negligence claims.

The appellant has failed to show that the treater facility was a product and concomitantly has failed to show any genuine issue of material fact. If the movant has met the initial burden of showing no genuine issue of material fact, “it then shifts to the non-moving party to demonstrate a genuine issue of material fact.” Gamble Robinson Co. v. Carousel Properties (1984), 212 Mont. 305, 312, 688 P.2d 283, 287; Frigon v. Morrison-Maierle, Inc. (Mont. 1988), [233 Mont. 113,] 760 P.2d 57, 45 St.Rep. 1344. Appellant has failed to show a genuine issue of material fact regarding respondents PetroLewis and Rocky Mountain.

Moreover, appellant has failed to show any genuine issue of material fact that any of the respondents are liable in negligence. The District Court was correct in ordering summary judgment.

Affirmed.

MR. JUSTICES HARRISON, GULBRANDSON, HUNT, SHEEHY, WEBER and McDONOUGH concur.


source: Caselaw Access Project

author: MR. JUSTICE HARRISON

license: Public Domain

text:
    FIRST BANK WESTERN MONTANA MISSOULA, Plaintiff and Respondent, v. VERNON T. GREGOROFF and Luanne Gregoroff, Defendants and Appellants.
    No. 88-392.
    Submitted Jan. 10, 1989.
    Decided March 2, 1989.
    770 P.2d 512.

      David L. Holland, argued, David J. Wing, argued, Butte, for defendants and appellants.
    Corette, Smith, Pohlman & Allen, Lisa Swan Semansky argued, and R.D. Corette, Jr., argued, Butte, for plaintiff and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

Appellants Vernon and Luanne Gregoroff challenge the constitutionality of Montana’s Claim and Delivery statutes, under which their trailer was seized by the Butte-Silver Bow County Sheriff. Appellants allege they were denied procedural due process when the District Court, upon motion of respondent First Bank Western Montana, ordered the seizure of the trailer without providing notice of or opportunity for an immediate post-seizure hearing. The appellants’ motion to quash the claim and delivery order was denied, and respondent’s motion for summary judgment was subsequently granted. This appeal arises from the District Court’s order and judgment entered against the appellants. We affirm, but remand for clarification of the judgment.

In 1983, Gregoroffs purchased a fifth-wheel trailer from Rangitsch Brothers in Missoula, Montana. The purchase was financed through respondent First Bank Western Montana (hereinafter referred to as the Bank). Gregoroffs simultaneously executed a retail installment contract which granted a security interest in the trailer to the Bank.

Gregoroffs ultimately defaulted on the installment contract, and the Bank was unable to locate the trailer for several months after the default. After locating the Gregoroffs, the Bank unsuccessfully attempted to have the note payments brought current. The Gregoroffs were informed by Bank employee Donna Duffy that they must either make the late note payments under the contract or turn the trailer over to the Bank. Mr. Gregoroff informed Duffy that he would not surrender the trailer, but would be taking a job in Arizona which would enable him to make the note payments. Although he informed Duffy that he, Mrs. Gregoroff and their young daughter were living in the trailer, he did not specifically state he was taking his family or the trailer to Arizona.

On September 16, 1986, the Bank commenced a Claim and Delivery action against the appellants, as provided for under § 27-17-101 et seq., MCA. Lisa Swan Semansky, counsel for the Bank, made an ex parte appearance before District Judge Arnold Olsen for Claim and Delivery of the trailer. No notice was given to the Gregoroffs that the Bank was seeking a court ordered delivery.

Because Judge Sullivan was not available, the matter was heard by Judge Olsen. At the request of the Judge, the Motion was presented in the Clerk of Court’s office, not in the courtroom, and therefore, no record was made of the hearing.

The Bank’s motion for Claim and Delivery was supported by a bond in an amount double the value of the property, as required by § 27-17-205, MCA. The bond ensures the defendant is protected in the event the seizure is determined to be unlawful. Additionally, Semansky attached to the motion the Bank’s complaint and an affidavit of Donna Duffy. The affidavit stated in part:

“10. Based on information and belief, Gregoroffs are using and living in the 1982 40 Foot Aluma Lite fifth-wheel trailer, Serial No. KR381V29DW002152, and thereby are decreasing its value.

“11. The . . . trailer ... is decreasing in value by virtue of the fact that such property decreases in value with age.

“14. Based on her conversation with Defendant Vernon Gregoroff on September 15th, 1986, when he refused to relinquish possession of the 1983 40 foot Aluma Lite fifth-wheel trailer, this affiant believes that Gregoroffs will take the trailer to Arizona some time within the next week.”

Judge Olsen signed the order and the seizure was completed the evening of September 17, 1986, by the Butte-Silver Bow County Sheriff. The trailer, which contained most of the Gregoroffs’ personal belongings, was taken to Rangitsch Brothers’ lot in Missoula.

On October 1, 1986, GregorofFs filed a motion to quash the order. District Judge Mark Sullivan denied this motion, nearly fourteen months later, on December 31, 1987. The Bank then filed a motion for summary judgment on its complaint January 20, 1988. This motion was granted, and judgment was entered for the Bank on May 18, 1988. GregorofFs appeal from this judgment.

GregorofFs raise four issues for review:

1. Does § 27-17-203(2), MCA, violate the due process clause of the Fourteenth Amendment of the United States Constitution?

2. Does § 27-17-203(2), MCA, violate Article II, § 17 of the Montana Constitution?

3. Did the District Court err in granting its order to seize the property without a hearing in open court as required by the statute?

4. Did the District Court err in granting the order based on a fatally defective affidavit?

Issue Nos. 1 and 2

Does § 27-17-203(2), MCA, violate due process guarantees of the United States and Montana Constitutions?

Appellants argue § 27-17-203(2), MCA, is unconstitutional because it allows a court ordered seizure of property without requiring notice of or opportunity for an immediate post-seizure hearing. We disagree.

Section 27-17-203, MCA, provides:

“The sheriff shall make no seizure unless an order from a judge of the court having jurisdiction of the cause is attached to the affidavit. The judge may sign such an order if he is satisfied:

“(1) that the party seeking possession of the property has made a prima facie showing of his right to possession and the necessity for seizure at a show cause hearing before him with at least 3 days’ notice to the person in possession of the property; if such person cannot be found for personal service, notice posted on the property and in three public places in the county where the property is located is sufficient service for this purpose; or

“(2) that the delay caused by notice and a hearing would seriously impair the remedy sought by the party seeking possession. Evidence of such impairment must be presented in open court, and the court must set forth with specificity the reasons why such delay would seriously impair the remedy sought by the person seeking possession.”

In Mitchell v. W.T. Grant Co. (1974), 416 U.S. 600, 94 S.Ct. 1895, 40 L.Ed.2d 406, the Supreme Court modified its earlier position that a hearing must always precede a court ordered seizure of property. The Court held that Sniadach v. Family Finance Corp. (1969), 395 U.S. 337, 89 S.Ct. 1820, 23 L.Ed.2d 349, and Fuentes v. Shevin (1972), 407 U.S. 67, 92 S.Ct. 1983, 32 L.Ed.2d 556, did not categorically require a pre-seizure hearing in every situation.

“Their import, however, is not so clear as petitioner would have it; they merely stand for the proposition that a hearing must be had before one is finally deprived of his property and do not deal at all with the need for a pre-termination hearing where a full and immediate post-termination hearing is provided. The usual rule has been ‘[w]here only property rights are involved, mere postponement of the judicial inquiry is not a denial of due process, if the opportunity given for ultimate judicial determination of liability is adequate.’ Phillips v. Commissioner, 283 U.S. 589, 596-597, 51 S.Ct. 608, 611, 75 L.Ed. 1289 (1931).”

Mitchell, 416 U.S. at 611, 94 S.Ct. at 1902.

Similar to Louisiana’s sequestration procedure outlined in Mitchell, Montana’s Claim and Delivery procedure balances and protects the interests of both parties involved in the action. Subsection (2) of § 27-17-203, MCA, is an extra-ordinary remedy, and we in no way countenance abuse of its provisions. However, we conclude the statutes do provide the constitutional safeguards required by the United States and Montana Constitutions.

A pre-hearing seizure may only be obtained under circumstances which indicate the plaintiff’s remedy would be seriously impaired. The plaintiff must swear to facts which support this claim, and must file a bond in an amount double the value of the property to protect the defendant. Additionally, the delivery order can only be obtained from, and under the supervision of, a judge or justice of the peace, not a court clerk or administrative officer. Moreover, Montana’s statutes allow the defendant to file a bond to immediately regain possession of the property.

While § 27-17-203(2), MCA, does not provide for a post-seizure hearing, a defendant may immediately apply for a motion to quash the order, which the appellants did in this action. Additionally, under Rule 1, M.R.App.P., a defendant can promptly seek review by this Court of a denial of that motion. Furthermore, as mentioned in Mitchell, a final judicial determination of liability follows the seizure, at which time the defendant can challenge the validity of the Claim and Delivery order.

The appellants knew they had defaulted under the terms of the retail installment contract. The terms of the contract gave the Bank the right to repossess the trailer when the appellants defaulted. Such a property interest distinguishes this case from Fuentes, supra. Furthermore, the appellants were notified by the Bank in writing, and by Duffy in person, that the trailer would be repossessed if a resolution could not be reached. No satisfactory effort to resolve the delinquency was made and, therefore, it came as no surprise to the appellants when the trailer was seized.

As noted in Mitchell, 416 U.S. at 610, 94 S.Ct. at 1901, “[t]he requirements of due process of law ‘are not technical, nor is any particular form of procedure necessary.’ ” We conclude the substantial rights of the appellants have been protected and that the Claim and Delivery statutes are not unconstitutional.

Issue No. 3

Appellants argue the District Court erred because the Bank’s attorney met with Judge Olsen, and the order was signed, in the Clerk of Court’s office, not in “open court” as required by the statute. While appellants raise a technical argument, the Judge’s decision to meet with Semansky and hear the evidence in the Clerk of Court’s office does not constitute reversible error.

Subsection (2) of § 27-17-203, MCA, only requires the evidence be presented in open court. It does not require a record of the hearing be made. The “open court” language requires the plaintiff or his attorney be present before the judge or justice when the ex parte motion for Claim and Delivery is made, and prevents the plaintiff from obtaining the order merely upon written application. Judge Olsen was acting in his official, judicial capacity when he heard the evidence and concluded sufficient evidence was present to issue the order.

Issue No. 4

Finally, appellants argue it was error to issue the order based on an affidavit which contained the conclusory allegations of employee Duffy. We again disagree. Section 27-17-201, MCA, requires that an affidavit, by the person claiming the property or someone in his behalf, state:

“(1) facts which establish reasonable belief that the person claiming the property is the owner or is lawfully entitled to possession and that the seizure is necessary to prevent the removal or destruction of the property;

“(2) that the property is wrongfully detained by the defendant;

“(3) that the same has not been taken for a tax, assessment, or fine, pursuant to statute, or seized under an execution or an attachment against the property of the person claiming the property or, if so seized, that it is by statute exempt from seizure; and

“(4) a particular description of the property and the actual value of the property.”

The affidavit contained these required statements and alleged two grounds for a Claim and Delivery order: that the trailer was depreciating by the appellants’ daily use of the trailer, and that Gregoroff s employer had just completed work in Butte, Montana and was beginning another job in Arizona within the next week. While mere depreciation was not the type of serious impairment contemplated by the statute, threat of removal of the property from the jurisdiction does satisfy that requirement.

The statutes require the judge be satisfied by the evidence that the delay caused by a hearing would seriously impair the remedy sought. As disclosed by the Claim and Delivery order, Judge Olsen found that a delay would seriously impair the remedy.

“Evidence indicates that Defendant Vernon T. Gregoroff is employed by Acme Cement and Concrete of Spokane, Washington. The job that Acme Cement and Concrete was doing in Butte, Montana ended the week of September 15th, 1986. Acme Cement and Concrete will begin a new job in Arizona. Defendant Vernon T. Gregoroff will continue to be employed by Acme Cement and Concrete in Arizona. Since Vernon T. Gregoroff and Luanne Gregoroff live in the property described in Exhibit ‘A’, they will be moving the property described in Exhibit ‘A’ to Arizona. Removing the property described in Exhibit ‘A’ to Arizona would preclude Plaintiff from recovering possession of the property described in Exhibit ‘A’.”

Judge Olsen subsequently submitted two affidavits which express his understanding of the procedures of this case. The first affidavit states he signed the order without any hearing. The second affidavit states he signed the order because sufficient evidence was presented which satisfied him “that any delay caused by notice and a hearing would seriously impair repossession of the trailer by plaintiff-claimant in this case.” We conclude Duffy’s affidavit, supported by the verified complaint presented sufficient evidence to enable the Judge to conclude that notice and delay would seriously impair the Bank’s remedy of repossession.

Finally, we recognize a problem in the judgment. The judgment states the Bank is entitled to recover $16,058.67 plus legal interest and costs, but it does not account for the value of the trailer which has been seized. It is not disputed that the Bank is not entitled to both the trailer and its value. Section 27-17-401, MCA, entitles a plaintiff to judgment for possession of the property (or the value of the property if delivery cannot be had). Since the Bank is now in possession of the trailer, it is not also entitled to its value. Additionally, while the order and judgment mentions attorney’s fees in the amount of $10,000.85, it apparently only entitles the Bank to the value of the trailer, legal interest and costs, but no attorney’s fees. However, we do not rule on this issue, but point out that, in any case, the contract does limit attorney’s fees to 15% of the amount owed.

We affirm, but remand this case to the District Court to clarify its judgment on these points accordingly.

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


author: MR. JUSTICE McDONOUGH MR. JUSTICE SHEEHY,

text:
    IRENE WOOD, Claimant and Appellant, v. ULMER’S CAR AND TRUCK, Employer, and State Compensation Insurance Fund, Defendant, Respondent and Appellant.
    No. 88-252.
    Submitted on Briefs Dec. 16, 1988.
    Decided March 7, 1989.
    769 P.2d 1264.

      R.V. Bottomly, Bottomly Law Offices, Great Falls, for claimant and appellant.
    Mike McCarter, Hughes, Kellner, Sullivan & Alke, Helena, for defendant, respondent and appellant.
   MR. JUSTICE McDONOUGH

delivered the Opinion of the Court.

This appeal and cross-appeal from the Worker’s Compensation Court involves a claim for widow’s benefits. The State Compensation Insurance Fund (Fund), appeals the lower court’s decision finding claimant’s husband suffered an injury resulting in death under the Montana Worker’s Compensation Act. The claimant, Irene Wood, cross appeals contending that the lower court erred in refusing to provide attorney fees due from the insurer in a lump sum. We affirm the lower court’s decisions in regard to the appeal and the cross-appeal.

Appellant’s Issue

Whether the Worker’s Compensation Court erred in awarding benefits to the widow of a worker based on the conclusion that the worker’s exposure to carbon monoxide caused his heart attack?

The relevant facts are as follows: Irene’s husband, Duane Wood, worked approximately ten years as a mechanic at Ulmer’s Car & Truck in Great Falls. Duane suffered from hypertension and an enlarged heart, musculoskeletal problems, low potassium levels, and cardiovascular disease. Duane was 49 years old when he died of a heart attack on October 29, 1984.

Duane’s doctor had diagnosed and treated most of his various ailments, but had no knowledge of his moderate to severe coronary artery disease until after Duane’s autopsy. The autopsy revealed moderate to severe narrowing due to coronary arteriosclerosis.

Duane smoked a pipe. He had switched from cigarettes to a pipe a few years before his death. Irene testified he did not inhale the pipe smoke. Duane also liked to drink one or two beers after work. The last two years his pace in completing repairs at Ulmer’s slowed considerably.

Duane worked the Friday before his death. On Friday evening Duane skipped dinner and went straight to bed complaining of extreme fatigue and shoulder pain. On Saturday morning he collapsed and was taken to the hospital. When he arrived at the hospital he was suffering from cardiac arrest probably due to ventricular fibrillation. Two days later he died. Duane’s behavior on Friday night indicated he experienced the onset of a myocardial infarction.

Irene testified that approximately two months before his death Duane began to exhibit loss of balance and appetite. During this period he also lost weight and experienced breathlessness and coughing. These symptoms, according to Irene, increased in September of 1984. Duane also complained of cold and fumes at work.

Ulmer’s Car & Truck operates in a building containing seven service bays. The business employs five mechanics and two mechanic’s helpers. The helpers perform routine service and the mechanics handle minor to major repairs. The bays are often full with vehicles undergoing servicing or repair.

Carbon monoxide escapes into the air from the exhaust of cars driven in and out of Ulmer’s shop. When an auto is run in the shop, workers hook a hose to the auto’s tail pipe. The hoses channel the carbon monoxide outside the building. Even when exhaust escapes outside through the hoses, leaky manifolds and other sources associated with running the cars inside contribute to the presence of carbon monoxide in the air of the garage.

A twenty four inch fan in the wall of the garage and two ceiling fans help to circulate air and dissipate the carbon monoxide. Employees also help to rid the garage of the gas by opening windows and the doors that access the bays. Employees open the doors and windows more often on warmer days than on colder days. The high temperature recorded in Great Falls on Duane’s last day of work has 51 degrees Fahrenheit.

Irene hired Dr. Anderson to testify on the possible effects of carbon monoxide on individuals with cardiovascular disease. Anderson testified that individuals suffering from cardiovascular disease risk precipitating a heart attack by breathing carbon monoxide. The risk exists, according to Anderson, because carbon monoxide molecules bond more strongly to hemoglobin than oxygen molecules. Anderson testified that where concentrations of carbon monoxide in the air exist, the strength with which carbon monoxide binds to hemoglobin allows it to displace a portion of the oxygen one would normally obtain by breathing. The already reduced ability of individuals suffering from cardiovascular disease to supply the heart with oxygen, when combined with the effects of breathing air contaminated by concentrations of carbon monoxide, may precipitate a heart attack, according to Anderson.

Anderson considered the likelihood that inhalation of carbon monoxide caused Duane’s heart attack. Testing done on February 26, 1985, when the high temperature in Great Falls reached 43 degrees Fahrenheit demonstrated the presence of carbon monoxide in the air of the garage. Anderson testified that the levels of the gas present at that time could have posed a health risk to Duane. Anderson also noted inhalation of the gas in amounts sufficient to cause oxygen deprivation may result in headaches, dizziness, confusion, and coughing. Amounts too small to cause symptoms in ordinary individuals may nevertheless affect those suffering from cardiovascular disease.

Based on the presence of carbon monoxide concentrations in the garage, the compatibility of Duane’s symptoms with the effects of carbon monoxide in the blood, and a lengthy hypothetical propounded by claimant’s counsel incorporating Irene’s testimony and Duane’s autopsy report, the following exchange occurred:

“Q. Taking into account the symptoms suggested by the question over the preceding month period and on the night of decedent’s collapse, and taking into account the levels of carbon monoxide concentrations reported in the question, in your opinion did such levels of carbon monoxide aggravate his underlying heart disorder?

“A. It certainly is probable that it did.

“Q. Would the symptoms listed by the decedent be consistent with the levels of carbon monoxide reported in the question?

“A. Yes.

“Q. Taking into account the decedent’s heart condition, as reported in the autopsy, and the levels of carbon monoxide reported, could these levels trigger or precipitate a new stage of pathology or a new dysfunction in the heart condition?

“A. Yes, it could.

“Q. In your opinion, did the levels of carbon monoxide aggravate, hasten, trigger or precipitate a new stage of pathology or a new dysfunction in his heart condition?

“A. It was a precipitating factor, I think.

“Q. And in your opinion, did they do so?

“A. All I can say is that it’s probable that the high levels of carbon monoxide were a precipitating factor in the final stage of events that led to his death.”

On cross-examination, Anderson testified as follows:

“Q. Okay, I think I asked you earlier, but as I understand it, it is not your opinion that the carbon monoxide exposure triggered his heart attack?

“Mr. Bottomly (claimant’s counsel objecting): Wait a minute, that is contrary to his opinion.

“Q. Well, let’s ask you what your opinion is.

“A. Okay, my opinion is that it’s a risk factor that certainly could have triggered — we don’t know, you know, it did with certainty, but it’s certainly a risk factor.

“Q. It’s a risk factor, but you don’t know for certain?

“A. Right.

“Q. And there were a number of other risk factors in this case?

“A. That’s correct.

“Q. The cigarette smoking, the hypertension; correct?

“A. Right, for developing coronary artery disease, right.

“Q. Was carbon monoxide any greater risk factor than those factors?

“A. Carbon monoxide was a risk factor just in the final event, not in the development of the coronary artery disease, so the others played a role in developing the coronary artery disease, put him at higher risk for having a myocardial infarction but the carbon monoxide was only with respect to having symptoms from coronary disease and eventually developing a myocardial infarction.

“Q. I guess what I’m asking here is can you attribute his heart attack and his sudden death to carbon monoxide as opposed to cigarette smoking, hypertension or anything else, for that matter.

“A. No.”

The Fund contends that Irene failed to carry the burden of proving inhalation of carbon monoxide caused an injury resulting in death under §§ 39-71-721(1), 39-71-119, MCA (1983):

“39-71-721. Compensation for injury causing death.

(1) if an injured employee dies and the injury was the proximate cause of such death . . .

“39-71-119. Injury or injured defined.

‘Injury’ or ‘injured’ means:

“(1) a tangible happening of a traumatic nature from an unexpected cause or unusual strain resulting in either external or internal physical harm and such physical condition as a result therefrom and excluding disease not traceable to injury, except as provided in subsection (2) of this section . . .

“(3) death resulting from injury.”

The Fund cites several cases where this Court affirmed the Worker’s Compensation Court because the claimant failed to demonstrate causation even though “medical possibility” evidence existed. See, Brown v. Ament (Mont. 1988), [231 Mont.158,] 752 P.2d 171, 45 St. Rep. 508; Currey v. 10 Minute Lube (Mont. 1987), [226 Mont. 445,] 736 P.2d 113, 44 St. Rep. 790, Ferdinand v. Lodge No. 456 (Mont. 1986), [221 Mont. 436,] 719 P.2d 775, 43 St. Rep. 955, Wheeler v. Carlson Transport (1985), 217 Mont. 254, 704 P.2d 49, 42 St. Rep. 1177. The Fund contends that the similarity of this case to the cited cases mandates the conclusion that Irene failed to demonstrate causation. We disagree.

In Brown, the claimant failed to come forward with sufficient evidence to corroborate testimony revealing the medical possibility of causation. Brown, 752 P.2d at 175. In Currey, the medical evidence conflicted. Currey, 736 P.2d at 116. The medical experts in Ferdinand never offered testimony that the claimed injury more probably than not caused claimant’s heart attack. Ferdinand, 719 P.2d at 777. And in Wheeler, conflicting evidence also led this court to affirm denial of benefits. Wheeler, 704 P.2d at 54.

Here, Anderson testified carbon monoxide was probably a precipitating factor in causing Duane’s death. Irene’s testimony corroborates Anderson’s opinion. Thus, substantial evidence supports the decision of the lower court.

The Fund contends that Anderson contradicted his earlier testimony under cross-examination when he stated that he could not attribute the heart attack to carbon monoxide as opposed to other factors which could have caused the attack. However, the Fund questioned Anderson only on whether or not he was certain that carbon monoxide caused the fatal illness. Anderson never refuted or explained away his opinion that carbon monoxide probably precipitated events leading to Duane’s death. Moreover, the lower court has the duty to resolve conflicts in the evidence, and this Court may not substitute its judgment for the judgment of the lower court when substantial evidence supports the lower court’s decision. Ferdinand, 719 P.2d at 776. Thus we affirm the lower court’s finding on causation.

The Fund also contends that insufficient evidence supports the lower court’s finding that the heart attack met the requirement of time definiteness for finding an injury under § 39-71-119, MCA. We disagree.

Evidence disclosed the worsening effects of oxygen deprivation on Duane’s health two months prior to his death. The lower court found that the night before his death, oxygen deprivation precipitated the heart attack. Anderson testified that Irene’s description of Duane’s symptomatology on the Friday before he collapsed indicated the onset of a myocardial infarction probably triggered by inhalation of carbon monoxide. Thus, while Duane’s cardiovascular disease developed over time, the event that deprived his heart of enough oxygen to continue pumping probably occurred on his last day of work. Under these circumstances, substantial evidence supports the finding of time definiteness by the lower court. Daniels v. Kalispell Regional Hospital (Mont. 1988), [230 Mont. 407,] 750 P.2d 455, 45 St. Rep. 310.

Cross Appellant’s Issue

Whether the lower court erred in denying lump sum attorney fees for future benefits?

On cross-appeal Irene contends that the lower court erred in refusing to provide the attorney fees due from the Fund for future benefits in a lump sum. We disagree. The applicable statute, § 39-71-611, MCA (1983), provides for an award of attorney fees and costs from the insurer. The amount and kind of fees, lump sum or periodic, must be reasonably established by the Worker’s Compensation Court. The lower court acts reasonably and within its discretion by refusing to lump sum attorney fees owed for benefits which may never accrue. Davis v. Jones (Mont. 1987), [229 Mont. 158,] 745 P.2d 362, 365, 44 St. Rep. 1859, 1862. Thus, we affirm the cross appeal.

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

MR. JUSTICE SHEEHY,

concurring in part and dissenting:

I concur with that portion of the opinion that finds that the decedent suffered a compensable injury. I dissent from that portion of the opinion that relates to the attorney’s fees.

When this case first came before our conference for the purpose of classification, I contended that we should have oral argument relating to the attorney’s fee issue. The evolution of the opinion convinces me that my position was correct. The attorney’s fee issue is decided in a single paragraph and its rationale is limited strictly to a conclusion that the Worker’s Compensation Court acted reasonably. A lower court’s decision is not “reasonable” simply because we say it is. Ipse dixit (he said so) is not a substitute for judicial dissection and discussion of an issue.

In this case, we have record evidence that the claimant is in perfect health and has a life expectancy of 25.2 years. The attorney representing her is near retirement age. Actuarially, the claimant will outlive her attorney, and under our decision here, the attorney’s estate may be paid for the work the attorney performed in his lifetime. I hope that does not happen, but the possibility shows how absurd the Worker’s Compensation law has become.

The claimant’s attorney compiled a record in this case which deserves the attention of this Court. He called an expert witness, Gene Picotte, a lawyer with 38 years of practice behind him, who specializes in representing compensation clients. Mr. Picotte testified from his experience that contingent arrangements are “absolutely necessary in representing claimants.” Without the possibility of contingent arrangements, most claimants could not afford attorneys or procure them on a fee basis. Indeed if the attorney must advance the costs, as we must admit occurs many times, long delays in collecting his fees can cause problems with cash flow, as Mr. Picotte testified.

Mr. Picotte also indicated that attorneys in the past have always anticipated that there would be lump sum payments in compensation cases. They anticipate receiving as fees a percentage of future benefits. It was his opinion that lawyers will not take cases with long-deferred fees because they cannot aiford to do so. Denial of lump sum attorney’s fees for future benefits frustrates the public policy of compensation for those who cannot competently represent themselves.

Especially, Mr. Picotte emphasized, long-deferred payments would have an adverse effect on older attorneys whose retirement security is compromised.

That record deserves some discussion. It is as important to the proper legal administration of worker’s compensation cases to have an able claimant’s bar available for workers as it is to have fully compensated defense lawyers for the insurers. We are forcing the available bar to become unbalanced.

The position of this Court that there can be no attorney’s fee recovery for future benefits until received is out of sync "with respected authority in the field. Thus in Quam v. Minnesota (1986), 391 N.W.2d 803, the Minnesota Court said:

“We agree with a respected commentator in the worker’s compensation field, . . ., that ‘[a]s a general matter, the claimant’s attorney’s fee should be based on the facts as to his services in the compensation case as of the time the services were rendered, and should not be at the mercy of subsequent or collateral events over which he has no control.’ 3 A. Larson, The Law of Workmen’s Compensation, § 83.13(i) (1983).

Indeed Larson goes on to say that paying the attorney in driblets from weekly installments over a long period means a disproportionate amount of bother for everyone concerned. § 83.13 (j), id.

There is no statute in Montana requiring that an attorney be required to wait over a period of 25 years for his attorney’s fee as it comes in dribs and dabs. The only requirement of § 39-71-611, MCA, once the right to attorney’s fees is established, is that the fees be “reasonable.” Who can contest that the payment of attorney’s fees for services fully rendered over a score or more years is unreasonable?

The standard of appellate review of attorney’s fees in worker’s compensation cases is whether the Worker’s Compensation Court abused its discretion in determining reasonable attorney’s fees. Con way v. Blackfeet Indian Developers Inc. (1985), 217 Mont. 54, 702 P.2d 970. Here the contingency fee contract was approved but the attorney is deprived of the benefit of his contract. There is no reason why the Worker’s Compensation Court could not award reasonably the attorney a percentage of future benefits by a discount factor to determine the present value of the future payments. The attorney in this case offered such a basis. The offer is completely reasonable and should not be denied simply because the worker might die or the widow might remarry. Certainly the Board has enough experience in its own files to determine how many of its widows remarry during the compensation payment period from which a factor could be derived to be applied. As to the actuarial life expectancy of the claimant, the whole business of insurance relies on actuarial tables and it would not be unreasonable for the Worker’s Compensation Court to rely on tables in computing attorney’s fees for future benefits.

We have a serious problem developing in this field. Reputable attorneys who in the past have represented claimants for worker’s compensation are leaving the practice because of the niggardly compensation afforded them by the Worker’s Compensation Division, by the Worker’s Compensation Court, and lately by this Court. The development of an able compensation bar is being hindered. A chilling effect on the worker’s ability to obtain adequate representation is occurring. Davis v. Homestake Mining Company (App. 1986), 105 N.M. 2, 727 P.2d 941. We have blessed contingent attorney’s fees as necessary in the field, but we abrogate the contingent fee contracts by proceeding as we have here. The requirement that no attorney’s fee be paid for future benefits until received is an invention of this Court and we ought to change it.


text:
    JEANNIE BUHL, Claimant and Appellant, v. WARM SPRINGS STATE HOSPITAL, Employer, and State Compensation Insurance Fund, Defendant and Respondent.
    No. 88-388.
    Submitted on Briefs Feb. 3, 1989.
    Decided March 7, 1989.
    769 P.2d 1258.
    Greg J. Skakles, Johnson, Skakles & Kebe, Anaconda, for claimant and appellant.
    Chris D. Tweeten, Agency Legal Services Bureau, Helena, for defendant and respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Claimant Jean Ann Buhl was injured en route to her employment at Warm Springs State Hospital and filed a workers’ compensation claim for temporary disability pay for the several months of work she missed due to the injuries from the accident. Benefits were denied. The case was submitted to the Workers’ Compensation Court on an agreed set of facts. The parties agreed that the only issue to be determined was whether the claimant suffered injury in the course and scope of her employment. The Workers’ Compensation Court ruled that she did not. Claimant appeals.

We affirm.

The only issue on appeal is whether the Workers’ Compensation Court erred as a matter of law when it concluded that claimant’s conduct at the time of her injury was not within the course and scope of her employment and that it did not come under any exception to the “going and coming” rule.

On August 10, 1985, claimant was riding to work as a passenger in a car driven by co-employee Sue Graves down Highway 48 in Montana from their residence in Anaconda to their employment site at Warm Springs. They were scheduled to go on duty at 3:00 P.M. that afternoon. En route to Warm Springs, they saw a fellow employee, Gene Evans, with his car parked alongside the highway with the hood up. Claimant and the driver mutually agreed to stop their car to see if they could render assistance to their stranded co-worker. Claimant was sitting inside Graves’s parked car when the car was struck by another car. Claimant was injured in that collision.

Claimant argues first that it was the employment relationship that motivated them to stop Graves’s car, and that secondly, by so aiding a fellow employee get to work on time, she was conferring a benefit upon the employer. Both of these bring this conduct under an exception to the “going and coming” rule, according to claimant. We disagree.

To be compensable an injury generally must occur within the course and scope of employment, § 39-71-407, MCA (1985), and travel to work and coming home from work (“going and coming”) is not within the course and scope of employment, Griffin v. Industrial Accident Board (1940), 111 Mont. 110, 106 P.2d 346. Exceptions may apply when additional factors are present, such as when the employer pays for or provides the employee’s transportation. Correa v. Rexroat Tile (1985), 217 Mont. 126, 703 P.2d 160, 42 St. Rep. 1075; Gordon v. H.C. Smith Construction (1980), 188 Mont. 166, 612 P.2d 668. In the instant case, claimant was not compensated by the employer for time spent in transit. The accident occurred while she was off duty and off of the employer’s premises.

On facts very similar to these, this Court denied compensation to the claimant based on the “going and coming” rule. Hagerman v. Galen State Hospital (1977), 174 Mont. 249, 570 P.2d 893. In that case, the claimant was an employee at Galen State Hospital who commuted twelve miles to work every day from her residence in Anaconda. She was not personally compensated by the employer for her commuting expenses. She was injured in an auto accident en route to work one day and filed a claim with her employer for compensation. We affirmed the denial of benefits stating:

“Throughout the years this State has had workers’ compensation, this Court has considered a number of cases where injuries were sustained going to or coming from work and has found no recovery unless employee travel pay was covered under the employment contract or that travel allowance was for travel for the special benefit of the employer. [Citations omitted.]

“Unless transportation is made a part of the employment contract or travel to and from work is recognized by legislative enactment or contract, any injuries suffered in such travel are outside the course and scope of the employment.”

Hagerman, 174 Mont. at 251, 570 P.2d at 894. The Workers’ Compensation Court specifically noted that this case was within the Hagerman rule when it denied benefits to claimant.

Claimant argues that her case fits the “special benefit” exception articulated in Hagerman because she conferred a reasonably immediate service to her employer. She argues that she was injured while attempting to help a fellow employee get to work on time, completing the work force for the benefit of the employer.

The Workers’ Compensation Court rejected that argument stating: “If merely securing the employee’s presence at work is in every case a ‘special benefit,’ the exception swallows up the rule.” Because of this, the court found that no exception to the general rule applied based on claimant’s conduct at the time of her injury. We agree.

As we stated in Ogren v. Bitterroot Motors, Inc. (Mont. 1986), [222 Mont. 515,] 723 P.2d 944, 947, 43 St. Rep. 1467, 1471: “It is hard to imagine how traveling to one’s regular work place on a regular workday can be for the special benefit of an employer.” Thus, claimant’s conduct in this case is dispositive. No exception to the general rule would apply under these facts for conduct securing her or Evans’ presence at work at their regularly scheduled time. The Workers’ Compensation Court is affirmed on that ruling.

Here, it should be noted that this case was submitted on an agreed set of facts which do not support claimant’s primary theory: that the purpose of the stop was to aid Evans in getting to work on time, although that might be inferred as one reason for stopping from the context of all the facts taken together. The facts generally indicate that stopping was a voluntary choice by Graves, for humanitarian purposes, because a motorist was stranded. They do not indicate that claimant was concerned with Evans’ timely arrival at work, nor do they indicate that Graves would have passed him by had he not been scheduled to work at 3:00 p.m.

However, the facts point out that the employer did not request, require, or know of claimant’s conduct, and that there is a total lack of employer participation in the activity causing injury.

Claimant next argues that her injury is compensable because her conduct was of “mutual benefit” to the employer and herself and is thus another possible exception to the going and coming rule. We disagree.

The “mutual benefit” exception was recently discussed in Lassabe v. Simmons Drilling, Inc. (Mont. 1987), [228 Mont. 94,] 743 P.2d 568, 570-571, 44 St.Rep. 1369, 1372, where we stated:

“. . . because when some advantage to the employer results from the employee’s conduct, his act cannot be regarded as purely personal and wholly unrelated to the employment.”

Citing, Guarascio v. Industrial Accident Board (1962), 140 Mont. 497, 501, 374 P.2d 84, 86.

However, this rule is inapplicable for the reasons addressed above. Simply securing the employee’s presence at work cannot be a “special benefit” or an “advantage” to the employer. Under these facts, the work area is not a danger zone, such as a construction site; nor is it an entirely remote area, such as a drilling site. The employer in this case is wholly removed from transportation responsibilities and can reasonably expect that employees secure their own transportation to and from work. Such transportation is not within the course and scope of the employment. Absent any additional factors, injuries occurring during transit are not compensable.

Because this case turns on claimant’s “travel status” at the time of injury, and because we have already affirmed that no exceptions can apply to her conduct, we decline discussion on claimant’s four remaining proposed exceptions.

Claimant’s conduct is too far removed from any benefit or logical nexus to the employer to bring this case within an exception to the “going and coming” rule. Her injury is not compensable under our scheme of workers’ compensation. Benefits were properly denied.

Judgment affirmed.

MR. JUSTICES SHEEHY, HARRISON, GULBRANDSON, HUNT, WEBER and McDONOUGH concur.


author: MR. JUSTICE WEBER

text:
    DAVID HAUG, Plaintiff and Respondent, v. BURLINGTON NORTHERN RAILROAD COMPANY, Defendant and Appellant. HERBERT LAY, Plaintiff and Respondent, v. BURLINGTON NORTHERN RAILROAD COMPANY, Defendant and Appellant.
    No. 88-428, 88-470.
    Submitted on Briefs Dec. 9, 1988.
    Decided March 7, 1989.
    770 P.2d 517.

      J. Michael Young, Jardine, Stephenson, Blewett & Blewett, Great Falls, Herbert L. Pierce, III, Crowley, Haughey, Hanson, Toole and Dietrich, Billings, for Burlington Northern R. Co.
    Alexander Blewett, III, Kurt M. Jackson, Hoyt & Blewett, Great Falls, for David Haug and Herbert Lay.
    John W. Larson, Missoula, for amicus curiae.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

The two cases of Haug v. Burlington Northern and Lay v. Burlington Northern have been consolidated for our consideration since the identical issues are raised in each case. In both cases, Burlington Northern appeals the decision of the District Court for the Eighth Judicial District, Cascade County, denying its motion for a change of venue. We affirm the District Court’s denial of that motion.

We rephrase the issues presented as follows:

1. What is the proper county in which to bring a tort action against a nonresident defendant, and does that rule apply in FELA actions?

2. Is the court empowered to change the place of trial of FELA actions based on the doctrine of forum non conveniens or the Montana venue statutes?

The plaintiffs brought separate actions against Burlington Northern (BN) to recover damages under the Federal Employers Liability Act (FELA). 45 U.S.C. § 51 et seq. (1982). Mr. Haug’s suit is based on an injury which occurred in the BN shop in Park County, Montana. Mr. Lay’s suit is based on an injury which occurred in the course of his employment with BN in Lewis and Clark County, Montana.

Both defendants brought claims in state court in Cascade County, which has no connection to either suit. BN filed motions for a change of venue, contending that in each case, the proper county was the county in which the tort occurred. Since the plaintiffs did not choose those counties, BN argued that it was entitled to a change of venue in both cases. The District Court denied BN’s motions and BN appeals.

Some changes were enacted in our venue statutes by the 1985 Session Laws. In those enactments, the legislative history indicates that the legislature was not attempting to change the past venue practices in Montana. The significant sections for the issues in the present cases are set forth as follows:

“25-2-111. Scope of part. The proper place of trial (venue) of a civil action is in the county or counties designated in this part.

“25-2-112. Designation of proper place of trial not jurisdictional. The designation of a county in this part as a proper place of trial is not jurisdictional and does not prohibit the trial of any cause in any court of this state having jurisdiction.

“25-2-113. Power of court to change place of trial. The designation in this part of a proper place of trial does not affect the power of a court to change the place of a trial for the reasons stated in 25-2-201(2) or (3), or pursuant to an agreement of the parties as provided in 25-2-202.

“25-2-114. Right of defendant to move for change of place of trial.

If an action is brought in a county not designated as the proper place of trial, a defendant may move for a change of place of trial to a designated county.

“25-2-115. Multiple proper counties. If this part designates more than one county as a proper place of trial for any action, an action brought in any such county is brought in a proper county and no motion may be granted to change the place of trial upon the ground that the action is not brought in a proper county under 25-2-201(1). If an action is brought in a county not designated as a proper place of trial, a defendant may move for a change of place of trial to any of the designated counties.

“25-2-118. Residence of defendant. Unless otherwise specified in this part:

“(1) except as provided in Subsection (3), the proper place of trial for all civil actions is the county in which the defendants or any of them may reside at the commencement of the action;

“(2) if none of the defendants reside in the state, the proper place of trial is any county the plaintiff designates in the complaint;

“25-2-122. Torts. The proper place of trial for a tort action is:

“(1) the county in which the defendants, or any of them, reside at the commencement of the action; or

“(2) the county where the tort was committed.

“25-2-201. When change of venue required. The court or judge must, on motion, change the place of trial in the following cases:

“(1) when the county designated in the complaint is not the proper county;

“(2) when there is reason to believe that an impartial trial cannot be had therein;

“(3) when the convenience of witnesses and the ends of justice would be promoted by the change.”

We do point out that §§ 25-2-111 to 115, MCA, all were enacted as a part of the 1985 statutes.

I

What is the proper county in which to bring a tort action against a nonresident defendant, and does that rule apply in FELA actions?

From the history in Montana, we conclude that a plaintiff is entitled to bring a tort action against a non-resident defendant in either the county where the tort occurred or in any county of this State. This Court has consistently held that a foreign corporation has no county of residence for venue purposes and can be sued in any county selected by the plaintiff. Hanlon v. Great Northern Railway Co. (1928), 83 Mont. 15, 268 P. 547; Truck Insurance Exchange v. N.F.U. Property and Casualty Co. (1967), 149 Mont. 387, 427 P.2d 50; Foley v. General Motors Corp. (1972), 159 Mont. 469, 499 P.2d 774. The holdings of these cases are consistent with the provisions of § 25-2-118(2), MCA, which in substance states that any county designated by the plaintiff is the proper place of trial if no defendants reside in Montana.

If a plaintiff does not designate a proper county in the complaint, § 25-2-201, MCA, requires that the court must, on motion, change the place of trial. Since, under § 25-2-118(2), MCA, any county which the plaintiff selects is a proper county for venue purposes, a nonresident defendant is not entitled to a change of venue for the reason that the plaintiff has chosen an improper county. Morgen and Oswood v. U.S.F. & G. (1975), 167 Mont. 64, 535 P.2d 170. In Morgen, this Court reached that conclusion even where alternative venues were authorized by statute, as in contract or tort actions. Thus, even though a tort cause of action may be brought in the county where the tort occurred, the “any county” option of § 25-2-118(2), MCA, remains a proper county for venue purposes where none of the defendants reside in Montana. See Tassie v. Continental Oil Co. (D. Mont. 1964), 228 F.Supp. 807. Our statutory provisions are consistent with the holdings in the above cases.

Section 25-2-115, MCA, provides that where two or more counties are designated as proper counties, the defendant is not entitled to a change of venue if the plaintiff chose one of those counties. As previously mentioned, § 25-2-118(2), MCA, allows the plaintiff to choose any county if none of the defendants reside in Montana. Section 25-2-122, MCA, provides that the proper place of trial for a tort action is the county where the tort was committed. As a result, under these code sections, in a tort action against a nonresident defendant, the plaintiff may choose either the county where the tort was committed or any county in the State of Montana, and the defendant is not entitled to a change of venue under § 25-2-115, MCA.

BN’s only argument against this statutory interpretation centers onr our holding in the case of McAlear v. Kasak (Mont. 1987), [225 Mont. 113,] 731 P.2d 908, 44 St.Rep. 81, which interpreted the venue statutes following their amendment in 1985. BN argues that the language preceding § 25-2-118, MCA, limits its applicability so that the plaintiffs in these cases are not entitled to choose the “any county” option of § 25-2-118(2), MCA. The language at the beginning of § 25-2-118, MCA, does state, “Unless otherwise specified in this part.” In McAlear, this Court held that because venue is otherwise specified in the tort exception of § 25-2-122, MCA, the only proper county is the situs of the tort. 731 P.2d at 910.

We recognize that the holding in McAlear appears to be a logical conclusion based alone on the wording in §§ 25-2-118 and 112, MCA. However, that holding is not consistent with the previously cited decisions in Montana. As a result, as set forth in the following discussion, we conclude that it is necessary to overrule McAlear.

We recognize that the venue statutes were amended in 1985 and that the language, “Unless otherwise specified in this part” was added to replace the phrase “in all other cases.” However, case law has never interpreted either phrase to be limiting or determinative of whether a plaintiff has an option in choosing a proper county. A review of the case law set forth earlier in this opinion reveals a liberal interpretation of our statutes regarding a plaintiff’s choice of forum between the general rule of venue (now set forth in § 25-2-118, MCA) and the exceptions to that general rule. Furthermore, it is clear from the following stated objectives presented to the legislature by the Supreme Court Commission that the intent was to codify the previous venue decisions of this Court:

“The new statutes proposed in this draft have three objectives:

“(1) to include in the Montana Code Annotated those rules which have been declared and are settled by the Montana Supreme Court but are not now stated in the Code;

“(2) to change the language, without changing the meaning, of the sections that have caused the most litigation (primarily by substituting the designation ‘proper place of trial’ for the ambiguous command that cases ‘shall,’ ‘may,’ or ‘must,’ be tried in particular counties);

“(3) to settle the few matters where there is still a seeming ambiguity, following the general principles along the lines that the Court seems to feel would be best derived from what the Court has held in other situations.”

“Recommendations for Revisions in Venue Statutes Prepared by the Montana Supreme Court Commission on the Rules of Evidence;” Exhibit 1 to Senate Judiciary Committee Minutes of January 22, 1985.

In view of the clear intent not to change the previous venue decisions of this Court, we conclude that the words “unless otherwise specified in this part” in § 25-2-118, MCA, are not limiting words so far as paragraph (2) of that section is concerned. Therefore, if none of the defendants reside in Montana, a plaintiff may choose any county in the state as the place of trial of a tort action, notwithstanding the alternate choice of venue under § 25-2-122, MCA. This conclusion is required under the prior decisions of this Court. We hold that McAlear is overruled.

Whether this conclusion should apply in FELA cases has not been specifically addressed by this Court. The federal statute authorizes an injured plaintiff to file suit in either federal or state court. Actions filed in federal court have three possible places which are proper for venue purposes: (1) the county where the defendant resides; (2) the county where the cause of action arose; or (3) the county where the defendant does business. 45 U.S.C. § 56.

In FELA actions brought in state court, the United States Supreme Court has indicated that venue is properly left to the practice of the forum. Miles v. Illinois Central Railroad (1942), 315 U.S. 698, 703, 62 S.Ct. 827, 830, 86 L.Ed 1129, 1134. While it can be said that our state venue statutes dictate the “practice” of our forum, we are also concerned with certain policies set forth in previous FELA cases in determining our forum practice. Specifically, this Court has stated that the FELA is to be given a liberal construction in favor of injured railroad employees so that it may accomplish humanitarian and remedial purposes, following the policy set forth by the United States Supreme Court in Urie v. Thompson (1949), 337 U.S. 163, 69 S.Ct. 1018, 93 L.Ed. 1282. See State ex. rel. Burlington Northern Railroad Co. v. District Court (Mont. 1987), [229 Mont. 325,] 746 P.2d 1077, 44 St. Rep. 2003; Bevacqua v. Burlington Northern, Inc. (1979), 183 Mont. 237, 598 P.2d 1124; and LaBella v. Burlington Northern, Inc. (1979), 182 Mont. 202, 595 P.2d 1184.

The open door policy expressed in those cases is followed in this opinion. We hold that the plaintiffs in this case were entitled to bring their FELA actions in either the county where the injury occurred, or in any county in this State. Since they have correctly done so, the defendant BN is not entitled to a change of venue under § 25-2-201(1), MCA.

II

Is the court empowered to change the place of trial of FELA actions in light of the doctrine of forum non conveniens and the Montana venue statutes?

The common law doctrine of forum non conveniens allows a court to “resist imposition upon its jurisdiction even when jurisdiction is authorized by the letter of a general venue statute.” Gulf Oil Corp. v. Gilbert (1947), 330 U.S. 501, 507, 67 S.Ct. 839, 842, 91 L.Ed. 1055, 1062. Under the doctrine, a court may decline to exercise its jurisdiction when it believes that the action may be more appropriately and justly tried elsewhere.

This doctrine is codified in Montana at § 25-2-201, MCA, which states in relevant part:

“The court or judge must, on motion, change the place of trial in the following cases:

“(2) when there is reason to believe that an impartial trial cannot be had therein;

“(3) when the convenience of witnesses and the ends of justice would be promoted by the change.”

In the context of FELA cases, this Court has discussed the applicability of the common law doctrine of forum non conveniens without reference to our statutory venue scheme or the codification of that doctrine. These cases are the same as those set forth above in reflecting the “open court policy” and “liberal construction” of the FELA. State ex rel. BN v. District Court, supra; Bevacqua v. BN, supra; LaBella v. BN, supra; see also State ex rel. Great Northern Railway Co. v. District Court (1961), 139 Mont. 453, 365 P.2d 512; Bracy v. Great Northern Railway Co. (1959), 136 Mont. 65, 343 P.2d 848. Recognizing the open court policy stated in our Montana Constitution and the FELA policy favoring the injured railway worker’s choice of forum, this Court has held the doctrine of forum non conveniens inapplicable to FELA actions brought in Montana’s district courts.

We would point out that Montana’s position in this regard is not taken in the federal courts following the enactment of 28 U.S.C. § 1404(a) in 1948. That statute provides:

“For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought.”

This statute was held to apply to FELA actions brought in Federal District Court in Ex parte Collett (1949), 337 U.S. 55, 69 S.Ct. 944, 93 L.Ed. 1207. Collett was also followed by the United States Supreme Court in deciding whether a state court has the power to dismiss a FELA action on the ground of forum non conveniens. Southern Ry. Co. v. Mayfield (1950), 340 U.S. 1, 71 S.Ct. 1, 95 L.Ed. 3. In that case, the Court said that a state was not compelled to entertain FELA cases brought in its courts but could, “According to its own notions of procedural policy . . . reject, as it may accept, the doctrine for all causes of action begun in its courts.” 340 U.S. at 3, 71 S.Ct. at 2.

Montana first rejected the applicability of the doctrine in LaBella, stating that:

“We fully recognize that the state is not constrained by federal law to reject the doctrine of forum non conveniens in FELA actions. However, we find the policy favoring the injured railroad worker’s choice of forum to be highly persuasive. This, in addition to the state’s ‘open court policy’ compels this Court to hold the doctrine of forum non conveniens inapplicable to FELA suits filed in Montana District Courts. We repeat the warning set forth in State ex rel. Great Northern Ry., supra 139 Mont. at 457, 365 P.2d 514. ‘[I]f a substantial increase in this type of litigation is called to our attention in the future we will reexamine the situation in light of what we have herein stated.’

“Our decision is a narrow one. We have not been confronted by the application of forum non conveniens in non-FELA cases and our holding today does not purport to deny or recognize the existence of the doctrine in cases where there is no strong policy favoring plaintiffs selection of forum.”

595 P.2d at 1187.

The holding in LaBella has been followed in subsequent cases. In addition, in no FELA action has there been sufficient proof of a substantial increase in this type of litigation sufficient in quantity to require any limitation on the plaintiffs choice of forum. The foregoing case analysis under the doctrine of forum non conveniens applies equally to the provisions allowing a court to change the place of trial in § 25-2-201, MCA. We therefore hold that in FELA cases neither the doctrine of forum non conveniens, nor the right to change of place of trial contained in § 25-2-201, MCA, is available.

We affirm the denial of BN’s motion for a change of venue.

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