author: JUSTICE WEBER

text:
    FARMERS UNION MUTUAL INSURANCE COMPANY, a Montana Corporation, Plaintiff and Appellant, v. DOUGLAS BLAIR, Debra Blair, David Blair, and Troy Osburn, Defendants and Respondents.
    No. 91-209.
    Submitted on briefs Aug. 1, 1991.
    Decided Sept. 24, 1991.
    Rehearing Denied Oct. 31, 1991.
    250 Mont. 52.
    817 P.2d 1156.

      James M. Ramlow, Murray & Kaufman, Kalispell, for plaintiff and appellant.
    Jeffrey D. Ellingson, Ellingson Law Offices, Kalispell, for defendants and respondents.
   JUSTICE WEBER

delivered the Opinion of the Court.

In a declaratory action, the District Court of the Eleventh Judicial District, Flathead County, determined that Farmers Union Mutual Insurance Company (Farmers Union) had a duty to defend and indemnify David Blair (Blair), the named insured’s son, in an underlying negligence action between Blair and Troy Osburn (Osburn), the injured party. Farmers Union appeals this decision. We affirm.

The issues raised for our review are restated as follows:

1. Was the District Court correct in finding that David Blair (Blair) was a resident of his parents’ household?

2. Was the District Court correct in declaring that the policy’s automobile exclusion did not apply to the underlying negligence action?

The following facts are not in dispute. On March 6,1989, Mitchell Klindt (Klindt) accidentally shot Osburn with Blair’s gun while attending a party at a Kalispell residence. The night of the shooting, Blair drove Klindt and another friend from one house party to another in his employer’s car. Blair had his loaded revolver in an unlocked compartment of the car. Prior to the shooting, Blair and Klindt were asleep in the car outside the residence where the shooting occurred. Klindt awoke, removed Blair’s gun from the car, placed the gun in his pants and went inside the residence. Once inside the house, Klindt accidentally shot Osburn while removing the revolver from his pants.

In the underlying negligence action, Osburn filed suit against Blair alleging that Blair proximately caused his injury by negligently providing Klindt access to alcohol and a loaded handgun. Farmers Union filed this declaratory action to determine if they had a duty to defend and indemnify Blair in that action.

In September 1987, David Blair’s parents, Douglas and Doris Blair, purchased a homeowner’s policy from Farmers Union. This policy was in effect on March 6, 1989, and contained the following provisions:

“Definitions
«H< Hi H< H« ‡ * ‡ Hí
“ ‘insured’ means you and residents of your household who are ... your relatives ...
“Exclusions
Hi Hi Hi ^ ^ ^ H<
“Personal liability and medical payments to others do not apply to bodily injury ... arising out of the ownership, maintenance, use, loading or unloading of motor vehicles ...”

In this case Farmers Union contends that Blair’s alleged negligence is not covered by the policy because Blair is not a resident of his parents’ household. Further, they contend that even if Blair is a member of the household, this accident arose out of the use, loading or unloading of a motor vehicle and is excluded from coverage under this policy.

In March 1989, Blair was 19 years of age. Sometime prior to the shooting, he had vacated his apartment and moved back into his parents’ Kalispell residence. Three days per week Blair worked as a chauffeur in Darby, Montana, and stayed at his employer’s home. The other four days per week Blair traveled back to Kalispell and stayed at his parents’ home where he shared a bedroom with his younger brother. Blair kept his personal belongings at his parents’ residence and used a suitcase to transport his personal effects from Kalispell to Darby.

Blair received all of his mail at his parents’ address and consistently listed his parents’ address as his residence. Although Blair did not eat or wash clothes at his parents’ house, Blair’s truck was registered in his father’s name in Flathead County, he banked in Kalispell and occasionally gave his parents money to “help out” with expenses.

I.

Was the District Court correct in finding that David Blair was a resident of his parents’ household?

Farmers Union contends that the term “resident of the named insured’s household” is clear and must be strictly construed according to the terms of the insurance policy. Osburn contends that under these facts the language is ambiguous and should be interpreted in favor of coverage. In this case, we do not conclude that the issue of ambiguity is controlling.

In Iowa Nat’l Mutual Ins. Co. v. Boatright, (1973), 33 Colo.App. 124, 516 P.2d 439, the insurance carrier sought subrogation from the father of the named insured who negligently caused a fire at his daughter’s home. The court examined a number of factors to determine if the insured’s father was a “resident of the household” under the homeowner’s policy. The court stated:

“In ascertaining the meaning of the term ‘residents of his household,’ a number of factors have been designated as being important. Among them are the following:
“The subjective or declared intent of the individual, Hardware Mutual Casualty Co. v. Home Indemnity Co., 241 Cal.App.2d 303, 50 Cal.Rptr. 508 [(1966)]; the formality or informality of the relationship between the individual and the members of the household, Pamperin v. Milwaukee Mutual Insurance Co., 55 Wis.2d 27, 197 N.W.2d 783 [(1972)]; the existence of another place of lodging by the alleged resident, State Farm Mutual Automobile Insurance Co. v. Holloway, 423 F.2d 1281 (10th Cir. [1970]); and the relative permanence or transient nature of the individual’s residence in the household, Hardware Mutual Casualty Co. v. Home Indemnity Co., supra.
“No one factor by itself is determinative of the ultimate issue. All must be considered in the light of the basic consideration of whether the parties to the insurance contract intended that coverage would extend to the alleged insured. Emphasis added.]”

Boatright, 516 P.2d at 440.

We adopt the Boatright factors in this case and conclude that Blair was a resident of his parents’ household. First, Blair’s conduct is consistent with an intent to reside with his parents. He consistently listed his parents’ address as his residence. Blair generally stayed at his parents’ home four days per week, received his mail at that address, and kept his personal possessions there.

Next Blair had an informal relationship with the members of his parents’ household. Although he did not launder his clothes or consistently eat meals with the members of the household, they interacted as a family. Blair “helped out” with household expenses, and his truck was registered in his father’s name.

Further, Blair had no other place of lodging. Although he stayed at his employer’s home three days per week, Blair transported his possessions from Kalispell to Darby by suitcase. He conducted his banking in Kalispell, registered his truck in Kalispell, and resided in Darby only while working.

Finally, Blair permanently resided at his parents’ home. A few months prior to the shooting, Blair had vacated his Kalispell apartment and moved in with his parents. At the time of the shooting, he had no immediate plans to move and was in fact still residing with his parents in July 1990.

Given the facts presented above, we conclude that the parties to the insurance contract intended that coverage would extend to Blair, the named insured’s son.

Although the lower court found that resident of the household is an ambiguous term, we do not find it necessary or appropriate to analyze the term from that perspective. Under the Boatright analysis, we hold that the District Court was correct in finding that Blair was a resident of his parents’ household.

II.

Was the District Court correct in declaring that the policy’s automobile exclusion did not apply to the underlying negligence action?

Farmers Union contends that Osburn’s shooting arose out of the use of an automobile, and they cite cases which denied homeowner coverage under automobile exclusions. In Wyoming Farm Bureau Ins. Co. v. Mobile Ins. Co. (10th Cir. 1972), 467 F.2d 990, the court denied homeowner coverage when the passenger injured a pedestrian by throwing a bottle from a moving car. The court held that the injury was incident to the use of the vehicle and that the accident was excluded under the homeowner’s policy. Wyoming Farm Bureau, 467 F.2d at 995.

In another case, as a passenger outside the vehicle was preparing to load, a rifle inside the vehicle discharged. Colorado Farm Bureau Mut. Ins. Co. v. West American Ins. Co. (1975), 35 Colo.App. 380, 540 P.2d 1112, 1113. That court denied homeowner coverage for resulting injuries. It held that the accident would not have occurred but for the loading of the motor vehicle and therefore fell within the Bureau automobile exception of the homeowner’s policy. Colorado Farm Bureau, 540 P.2d at 1114.

We find these cases dissimilar from the present case. In the present action, the accident occurred inside a house and during a party, after the passenger had left the car. Although Blair had the gun stored in the car prior to the shooting, we find no connection between the use of the car, the removal of the weapon from the car, and the shooting. Therefore, we conclude that the accident is not excluded from coverage under this homeowner’s policy’s automobile exclusion because it did not arise from the use, loading or unloading of the vehicle.

We hold that the District Court correctly found that the automobile exclusion in Blair’s homeowner’s policy did not apply to this shooting.

Affirmed.

JUSTICES GRAY, HARRISON, HUNT and McDONOUGH concur.


source: Caselaw Access Project

author: JUSTICE HUNT JUSTICE HARRISON,

license: Public Domain

text:
    SAMUEL J. GRENZ, Plaintiff and Appellant, v. MEDICAL MANAGEMENT NORTHWEST, INC., Robert D. Schimpff, M.D., John V. Stephens, M.D., John W. Hilliboe, M.D. and Edward H. Trontel, Ph.D., Defendants and Respondents.
    No. 91-100.
    Submitted on briefs June 6, 1991.
    Decided September 18, 1991.
    250 Mont. 58.
    817 P.2d. 1151.

      Samuel J. Grenz, pro se.
    James R. Halverson, Herndon, Hartman, Sweeney & Halverson, Billings, Leonard L. Kaufman, Murray & Kaufman, Kalispell, James E. Aiken, Jardine, Stephenson, Blewett & Weaver, Great Falls, Todd A. Hammer, Warden, Christiansen, Johnson & Berg, Kalispell, for defendants and respondents.
   JUSTICE HUNT

delivered the opinion of the Court.

Samuel J. Grenz, pro se, brought suit against the defendants in the District Court for the Eleventh Judicial District, Flathead County, alleging fraud, professional negligence, conspiracy, and bad faith against the defendants. The defendants’ motions for dismissal, which were treated as motions for summary judgment, were granted by the District Court. Grenz appealed. We affirm.

The issues on appeal are:

1. Did the District Court err in granting summary judgment for the defendants?

2. Should this Court assess sanctions/damages against the appellant?

On August 22, 1984, appellant injured his right elbow while working for the American Stud Company in Flathead County, Montana. This accident and subsequent disputes over the compensation benefits to which appellant is entitled, have been the source of a flood of litigation instituted by appellant. The various defendants in these suits have included essentially everyone even peripherally involved with appellant’s claim of entitlement to benefits. Appellant has made numerous appearances in both District Court and the Workers’ Compensation Court in furtherance of his claim to benefits. Additionally, excluding the present appeal, appellant has appealed to this Court on five other occasions, all involving issues arising from the same accident. Grenz v. American Stud Company and EBI/Orion Group (appeal dismissed Sept. 27, 1989); Grenz v. Orion Group (1990), 243 Mont. 486, 795 P.2d 444 (District Court’s dismissal of appellant’s complaint affirmed); Grenz v. Prezeau (1990), 244 Mont. 419, 798 P.2d 112 (District Court’s granting of defendant’s summary judgment motion affirmed); Grenz v. Stangle and Vocational Resources Inc., pending Supreme Court Cause No. 91-195; and Grenz v. Fire and Casualty Ins. Co. of Connecticut, pending Supreme Court Cause No. 91-221.

The facts pertinent to a determination of the present appeal are similar to those set out in Orion and Prezeau. At the time of appellant’s injury, his employer was enrolled under Workers’ Compensation Plan II. The insurer assumed liability for the injury and paid compensation and medical benefits to and for the appellant. Appellant received temporary total disability benefits.

In June 1987, the law firm of Garlington, Lohn and Robinson (GLR) was hired by the insurer to review appellant’s claim. Mr. Daue, a partner in GLR assumed responsibility for the file. On January 19, 1988, Mr. Daue, pursuant to § 39-71-605, MCA, requested appellant undergo a physical examination for the purpose of evaluating his disability and the feasibility of his returning to work. Appellant did not contest the insurer’s right to require him to submit to such an evaluation. Mr. Daue made arrangements with Medical Management Northwest, Inc. (MMN) to assemble and coordinate a panel of physicians and medical care specialists to carry out the examination. MMN is designed to provide parties involved with medical or legal issues a source of expert, impartial evaluations of medical conditions. MMN accomplishes this task by assembling a multi-specialty panel of physicians to examine the individual in question. In February 1988, defendant doctors Schimpff (neurologist), Stephens (physical medicine and rehabilitation), Hilleboe (orthopedic surgeon) and Trontel (clinical psychologist), all participated in the examination/evaluation of appellant at the request of MMN. A panel report, written primarily by Dr. Stephens, summarized and consolidated the results of the various examinations. The panel made several findings concerning appellant’s physical condition and the feasibility of future employment.

Following the panel’s written report appellant sent a letter to the insurer detailing numerous objections, including: (1) the Panel’s diagnosis overlooked many of his work-related injuries; (2) the examination did not properly address his mental and emotional state; (3) he was not informed by his attorney of the need for obtaining various records and X-rays; and (4) one of the physicians had consulted records of appellant obtained from his associate without appellant’s consent.

On the basis of extensive medical, psychological, and vocational data that had been received, Mr. Daue recommended to the insurer that appellant’s benefits be reduced from temporary total disability to permanent partial disability. On August 24, 1988, appellant’s benefits were reduced as recommended.

Subsequent to the reduction in his benefits, appellant requested a mediation of his claim. The mediation was held and ultimately appellant’s temporary total disability benefits were reinstated on December 15,1988, retroactive to August 24, 1988.

Appellant filed a complaint on January 29,1990, in which he made the following allegations against the defendants:

“[Defendants, [members of the panel] individually and/or collectively, limited there (sic) evaluation/examination of the plaintiff to such an extent as to deny him the ... [benefits to which he was entitled].
“Defendants, individually and/or collectively, during such time as before mentioned, with actual fraud and/or malice, conspired and/or neglected there (sic) legal and/or moral and/or professional responsibility, within the scope of there (sic) profession to the Plaintiff.
“.... Defendants, knowingly and willingly, partook in and/or contributed to such activities as to endanger the Plaintiff and/or his interest. Furthermore, such bad faith and/or tortious conduct contributed to Plaintiffs’ present condition of Permanent Total Disability.”

I.

Did the District Court err in granting defendants’ motions for summary judgment?

Initially all defendants made motions to dismiss the complaint. Defendant Trontel then moved for summary judgment. The District Court heard oral argument on the motions and also considered additional matters outside of the pleadings. Inasmuch, the motions to dismiss pursuant to Rule 12(b)(6), M.R.Civ.P., were treated as motions for summary judgment under Rule 56, M.R.Civ.P. The District Court granted defendants’ motions for summary judgment.

Summary judgment is proper when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. Initially, the moving party must show the absence of genuine factual issues. To prevail, the nonmoving party must set forth facts demonstrating that a genuine issue exists. O’Bagy v. First Interstate Bank of Missoula (1990), 241 Mont. 44, 46, 785 P.2d 190, 191. The Court is under no duty to anticipate proof to establish a material or substantial issue of fact. Tucker v. Trotter Treadmills, Inc. (1989), 239 Mont. 233, 235, 779 P.2d 524, 525. The standard that this Court applies in reviewing a grant of summary judgment is the same as that initially utilized by the trial court under Rule 56, M.R.Civ.P. McCracken v. City of Chinook (1990), 242 Mont. 21, 24, 788 P.2d 892, 894.

Appellant alleges in his complaint conspiracy by the defendants, committed during their panel examination. To prove civil conspiracy in Montana the following elements are required: (1) Two or more persons, and for this purpose, a corporation is a person; (2) an object to be accomplished; (3) a meeting of the minds on the object or course of action; (4) one or more unlawful overt acts; and (5) damages as the proximate result thereof. Duffy v. Butte Teachers’ Union No. 332 (1975), 168 Mont. 246, 251, 541 P.2d 1199, 1202. Additionally, this Court stated in Duffy “that it is not really the conspiracy which gives rise to a right of action, but the torts which may be committed in furtherance thereof.” Duffy, 541 P.2d at 1202. Appellant contends the respondents agreed prior to the evaluation to act so as to deprive him of the benefits he was receiving at the time. Aside from his naked allegations there is absolutely no evidence of any conspiracy. The record is barren of any evidence of either an unlawful act or object by the respondents, or of any damages to appellant. The evidence merely indicates that the respondents examined appellant at the request of the insurer pursuant to § 39-71-605, MCA. The District Court found appellant failed to show the existence of any tort or conspiracy. We agree.

In his complaint, appellant alleges fraud on the part of the respondents, without setting forth any factual allegations with respect to the nine elements this Court has indicated are required to prove fraud. Lee v. Armstrong (1990), 244 Mont. 289, 293, 798 P.2d 84, 87. More important than the technical inadequacy of the pleading is the finding by the District Court that appellant failed to produce any evidence supporting his claim for fraud. We agree. The record is completely devoid of any evidence concerning fraud.

Appellant also claimed a cause of action based on the tort of bad faith. As this Court has previously stated, the tort of bad faith applies only in exceptional circumstances. Story v. City of Bozeman (1990), 242 Mont. 436, 451, 791 P.2d 767, 776. Absent a specific statutory provision providing for a bad faith claim, or a contract between the parties involving a special relationship as described in Story, no cause of action will lie. There is no specific statutory basis for the claim in this instance. Additionally, there was no special relationship between the parties. In fact, there was not even a contract. We affirm the District Court’s grant of summary judgment on this issue.

Finally, appellant’s claims of professional negligence must also fail. There is no evidence of negligence anywhere in the record.

The proper course of action for an aggrieved worker in these circumstances was set forth by this court in Grenz, 798 P.2d 112, 115. There we indicated that “[sjhould a medical examination result in denial or reduction of benefits, the claimant can challenge the insurer’s action through a mediation procedure or in a hearing before the workers’ compensation judge.” Appellant followed this procedure and his benefits were retroactively restored in full. The restoration of his benefits should have been the end of litigation over this matter.

II.

Should this Court assess damages/sanctions against the appellant?

The issue of sanctions has been raised on appeal. A request for damages for having to defend against an appeal without merit is governed by Rule 32, M.R.App.P., which states:

“If the supreme court is satisfied from the record and the presentation of the appeal in a civil case that the same was taken without substantial or reasonable grounds, such damages maybe assessed on determination thereof as under the circumstances are deemed proper.”

It is clear the appellant is frustrated at not obtaining all the benefits to which he feels entitled. It is also true, as the appellant’s brief argues, that the courts of this state should be freely open to citizens of the state who seek determination or enforcement of their legal rights. However, this access to the courts is not without limits. The judicial resources of the state are finite and must be used efficiently. Additionally, individuals must be protected from having to spend their time, energy, and money defending themselves against claims without merit. As discussed above, the appellant has instituted litigation concerning his claim for benefits against nearly every conceivable party involved. His claims have been summarily rejected at the District Court level and he has appealed in every instance. We find the present appeal to have been taken without substantial or reasonable grounds. Further appeals to this court regarding these settled matters will result in an award of damages against appellant.

The District Court’s grant of summary judgment to the respondents is affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES GRAY and McDonough concur.

JUSTICE HARRISON,

concurring in part and dissenting in part:

I concur in the majority’s opinion affirming the District Court’s grant of summary judgment to the defendants; however, I dissent to this Court’s holding of not assessing sanctions/damages against the appellant, Samuel J. Grenz.

Samuel J. Grenz is not an unfamiliar litigant to this Court or to the District Court of the Eleventh Judicial District, Flathead County. At the present time, this Court has four current or “open” cases pending our decision involving Samuel J. Grenz as the appellant; and four decided or “closed” cases involving Samuel J. Grenz as the appellant. The respondents in these appeals brought by Samuel J. Grenz have been required to hire counsel and go through the painful procedure required in the appeal’s process.

Rule 32, M.R.App.P., as stated in the majority opinion, notes that “If the supreme court is satisfied from the record and the presentation of the appeal in a civil case that the same was taken without substantial or reasonable grounds, such damages may be assessed. ...” After reviewing the record concerning Samuel J. Grenz, I am certainly satisfied and find it proper to assess sanctions/damages against Samuel J. Grenz in the amount of $250 and would so hold.


author: JUSTICE McDONOUGH

text:
    CONTINENTAL INSURANCE COMPANY, Plaintiff and Respondent, v. GENE BOTTOMLY and Van Bottomly, Defendants and Appellants.
    No. 91-012.
    Submitted on briefs Aug. 1, 1991.
    Decided Sept. 24, 1991.
    Rehearing Denied Oct. 31, 1991.
    250 Mont. 66.
    817 P.2d 1162.

      I. James Heckathorn, Murphy, Robinson, Heckathorn & Phillips, Kalispell, for defendants and appellants.
    Donald R. Herndon, Herndon, Hartman, Sweeney & Halverson, P.C., Billings, for plaintiff and respondent.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

Gene Bottomly and Van Bottomly appeal from an order of partial summary judgment granted by the District Court of the Eleventh Judicial District, Flathead County, in favor of plaintiff Continental Insurance Company. The District Court held that neither of the defendants were “residents of the household” of the named insured Richard Bottomly within the meaning of Continental Insurance Company Preferred Farmowner’s policy.

We reverse.

The issues on appeal are:

1) Whether the District Court erred in granting partial summary judgment to Continental Insurance Company (Continental) which in effect ruled Continental had subrogation rights against Gene and Van Bottomly.

2) Whether an insurance carrier has a right of subrogation against a parent for the negligent acts of his minor child.

3) If an insurance carrier has no right of subrogation, are the appellants entitled to a counterclaim for damages?

A fire destroyed the “Bottomly Cabin” on August 4,1982. The fire apparently resulted from an electric blanket which had been accidentally left on the high setting by Van Bottomly. Sometime prior to the fire, Continental through their agent Richard Green, issued a Preferred Farmowner’s Policy covering the Bottomly cabin to Richard V. Bottomly (Appellant Gene Bottomly’s brother and Appellant Van Bottomly’s uncle). Green was aware that the insured property was recreational in nature and would be used by members of the Bottomly family. No discussions took place between Green and Richard Bottomly as to who additional insureds were under the policy.

A brief history of the Bottomly cabin is necessary. Richard and Gene Bottomly’s father, R.V. Bottomly, Sr. homesteaded on Lake McDonald prior to the establishment of Glacier National Park. After R.V., Sr. died in 1961, his widow, Mrs. Mouriel Bottomly became sole owner of the cabin. According to the testimony of appellant Gene Bottomly, sometime prior to Mrs. Bottomly’s death in 1979 it was decided that the cabin would be left to the family members who would put time and money into remodeling the cabin. This devise was made with the understanding that all the family members could use the cabin. Mrs. Bottomly subsequently left the cabin to Richard and James Bottomly, Gene Bottomly’s brothers.

Gene Bottomly, spent part of every summer at the cabin from 1929 or 1930 throughout his school years and during his adulthood with the exception of the time between 1948 and 1952 while he served in the armed forces and attended the university.

Due to the size of the Bottomly’s extended family (some twenty-six or twenty-seven grandchildren) and as a matter of course, Gene Bottomly always asked permission to use the cabin. Prior to his mother’s death he would call her for permission. Afterwards he would call his brother Richard Bottomly because he was the oldest. Gene Bottomly was never denied permission to use the cabin. Over the past twenty years Richard and Gene Bottomly have been at the cabin at the same time on approximately fifteen occasions.

The Bottomly cabin was equipped with dishes, sheets, utensils, and other necessities. Almost every year Gene bought something for the cabin. He put in a new stove and a refrigerator. He also donated smaller items such as silverware, sheets, and towels. Gene did not contribute to the utility bills or to the taxes on the property. The general, unwritten family rule was that each family member was to replace any lost, used or damaged items occasioned during their stay.

Continental paid the named insured, Richard Bottomly the loss. Two years later, Continental instituted a subrogation suit against Gene and Van Bottomly. This appeal followed.

The case before us is one of first impression. All material facts are uncontested. Our standard of review is to determine if the District Court’s determination as to the law is correct. Steer, Inc. v. Dept. of Revenue, [245 Mont. 407,] 47 St.Rep. 2199, 803 P.2d 601. There is a dearth of authority pertaining to the applicable law under these facts. That is, who qualifies under a homeowner’s policy as an insured for subrogation purposes when the subj ect matter of the policy is a family seasonal dwelling?

The insurance policy before us contained the following language:

“1. ‘insured’ means
“(a) the Named insured stated in the Declaration of this policy;
“(b) if residents of the Named insured’s household, his spouse, the relatives of either, and any other person under the age of twenty-one in the care of the insured;

It is not disputed that Gene and Van Bottomly are related to the named insured Richard Bottomly.

Continental sets forth several cases from various jurisdictions construing similar language contained in the Bottomly policy. However, these cases involve year round residential dwellings, and questions of initial coverage under uninsured automobile policies, or homeowner policies. They do not involve equitable subrogation questions.

The Oklahoma Supreme Court has stated “[Sjubrogation is a fluid concept depending upon the particular facts and circumstances of a given case for its applicability. To some facts subrogation will adhere — to others it will not.” Sutton v. Jondahl (Okl.App. 1975), 532 P.2d 478, 482, citing Home Owners’ Loan Corp. v. Parker (1937), 181 Okl. 234, 73 P.2d 170. Also see Iowa National Mutual Insurance Co. v. Boatright (1973), 33 Colo.App. 124, 516 P.2d 439, where a father negligently caused a fire at his daughter’s home while a temporary resident and subrogation did not adhere.

In Home Ins. Co. v. Pinski Brothers (1972), 160 Mont. 219, 500 P.2d 945, Home Insurance Company, which paid an explosion loss, claimed subrogation rights against a policyholder who held a liability policy with one of Home’s subsidiaries. Id. at 226, 500 P.2d at 949. In Pinski we held as follows:

“No right of subrogation can arise in favor of an insurer against its own insured since, by definition, subrogation exists only with respect to rights of the insurer against third persons to whom the insurer owes no duty .... [t]o allow subrogation under such circumstances would permit an insurer, in effect, to pass the incidence of the loss, either partially or totally, from itself to its own insured and thus avoid the coverage which its insured purchased. Id., 500 P.2d 949.”

Gene and Van Bottomly maintain that Reeder v. Reeder (1984), 217 Neb. 120, 348 N.W.2d 832, is controlling. In Reeder, when Theodore Reeder moved to Texas his brother Bernard Reeder moved into Theodore’s home temporarily while his own underwent construction. Theodore agreed to keep the insurance on the house with the intent that while Bernard and his family occupied it their interests would be protected. Id. 358 N.W.2d at 833. The Nebraska Supreme Court determined that while the relationship created by the two brothers could be likened to both landlord/tenant and licensor/licensee it was neither. Reeder at 834.

The Reeder court reasoned that the question was “whether the carrier by seeking to recover from Theodore Reeder’s ‘guest,’ is in effect, seeking to recover from the insured himself for the very risk that the carrier insured and for which it received premiums.” Reeder at 835. The court stated that however the relationship is characterized, “that by permitting the carrier to sue the brother, in effect the carrier is suing the insured. This we believe the carrier may not do.” Reeder at 836. We agree with the Nebraska Supreme Court.

Further, we stated in St. Paul Fire & Marine v. Thompson (1967), 150 Mont. 182, 187, 433 P.2d 795, 798, “[T)he test is not what the insurer intended the words to mean but what a reasonable person in position of an insured would understand them to mean.”

In the case before us Richard Bottomly purchased an insurance policy for the family cabin. In his sworn affidavit he stated he believed that his brother, Gene Bottomly, and nephew Van Bottomly, were members of his household and that their interests were protected under the policy.

Richard Green, the selling agent, testified by deposition that he was aware the Bottomly cabin was a seasonal dwelling used for recreational purposes by members of the Bottomly family and friends.

Under these circumstances, it was reasonable for an insured to believe the insurance covered such family members. We therefore conclude Gene and Van Bottomly qualified under a homeowner’s policy covering a family seasonal dwelling, as insureds for subrogation purposes.

Because we do not hold that Continental has the right of subrogation under the facts we do not reach the issue of whether Gene Bottomly can be liable for the negligence of his son Van Bottomly.

Gene and Van Bottomly maintain that the summary judgment issued on their counterclaim for damages against Continental should be reversed. Because appellant’s brief does not set forth an argument on the issue we regard the issue as abandoned.

The District Court’s order for partial summary judgment on behalf of Continental Insurance Company is

Reversed.

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


author: CHIEF JUSTICE TURNAGE JUSTICE TRIEWEILER,

text:
    ELIZABETH EISELEIN, Plaintiff and Appellant, v. MONTANA BANK OF ROUNDUP, Montana Bancsystems, Inc., Defendant and Respondent.
    No. 90-599.
    Submitted on briefs June 27, 1991.
    Decided September 9, 1991.
    250 Mont. 71.
    818 P.2d 365.

      Patrick F. Hooks, Hooks Law Firm, Townsend, Thomas A. Budewitz, Helena, Robert D. Moore, Moore, McDonough & Norton, Salt Lake City, Utah, for plaintiff and appellant.
    James A. Ragain and Kyle A. Gray, Holland & Hart, Billings, for defendants and respondents.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Plaintiff Eiselein appeals from a summary judgment granted to defendants by the Montana Fourteenth Judicial District Court, Musselshell County. We affirm.

The issues are:

1. Did the District Court err in denying Eiselein’s motion for partial summary judgment?

2. Was summary judgment for defendants improper because there are genuine issues of material fact or the defendants are not entitled to judgment as a matter of law?

Plaintiff Eiselein is the assignee for several persons who operated the Eiselein Ranch (Ranch) in Musselshell County, Montana. The Ranch borrowed operating funds from defendant Montana Bank of Roundup (Bank) for a number of years. Defendant Montana Bancsystem, Inc., is the Bank’s holding company.

Plaintiff contends that in January 1987, the Bank’s president, Richard Swanz, told the manager of the Ranch, Lou Grosskop, that the Bank would lend $30,000 to the Ranch in 1987 for “anything we wished to buy.” Plaintiff also contends that in April 1987, Swanz made a verbal commitment to Grosskop to lend the Ranch approximately $150,000 to buy 200 to 250 head of cattle.

In June of 1987, the Bank made a $35,000 loan to the Ranch. That loan was memorialized in a promissory note. The Ranch bought swine with the loan proceeds, granting the Bank a security interest in sixty-four pigs.

In September of 1988, following financial difficulties, plaintiff filed this lawsuit on behalf of the Ranch, claiming damages for the Bank’s failure to keep a commitment to loan the Ranch $150,000. Her complaint includes counts of breach of warranty, fraud, negligent misrepresentation, promissory estoppel, breach of the obligation of good faith imposed under the Uniform Commercial Code, and breach of an implied covenant of good faith and fair dealing. The District Court dismissed the claim for breach of warranty and Eiselein has conceded judgment on her claim for tortious breach of the covenant of good faith and fair dealing.

In the order from which this appeal is taken, the District Court denied Eiselein’s motion for partial summary judgment that the Bank committed to loan the Ranch $150,000. The court granted defendants’ motion for summary judgment, ruling, inter alia, that even if the alleged April 1987 commitment was made, it was extinguished by the June promissory note pursuant to the doctrine of merger.

I.

Did the District Court err in denying Eiselein’s motion for partial summary judgment?

Summary judgment is proper only when the pleadings, depositions, answers to interrogatories, and admissions, together with any affidavits filed, show that there are no genuine issues of material fact and that the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. In arguing for partial summary judgment, Eiselein cites the testimony of Jon Eiselein and Ranch manager Grosskop that, on or about April 6, Bank president Swanz told Grosskop to go ahead and start buying cattle and told Jon Eiselein that the loan would go through. She also cites Swanz’s deposition testimony that he did not recall the conversations in question and that they could have occurred.

Eiselein argues that Swanz’s affidavit submitted in connection with the motions for summary judgment is too conclusory to serve as a reason to deny her motion for summary judgment. In his affidavit, Swanz stated that

“Although Ms. Grosskop may conceivably have made such a request, I did not make a commitment to loan approximately $150,000.00 to the Eiselein Ranch in 1987 .... The only amount I committed to loan to the Eiselein Ranch in 1987 was $35,000.00.”

Attached to his affidavit was a copy of the $35,000 promissory note.

We conclude that Swanz’s affidavit is sufficient to demonstrate that there is a genuine dispute of fact as to whether an oral commitment was made to make the $150,000 loan. This precludes Eiselein’s request for summary judgment on this issue. See Reaves v. Reinbold (1980), 189 Mont. 284, 615 P.2d 896. We hold that the District Court did not err in denying Eiselein’s motion for summary judgment.

II.

Was summary judgment for defendants improper because there are genuine issues of material fact or the defendants are not entitled to judgment as a matter of law?

In granting defendants’ motion for summary judgment, the District Court relied on the doctrine of merger: evidence of prior oral agreements is inadmissible where there is a subsequent written agreement as to the same subject, into which it is assumed all prior oral agreements are merged. First Nat. Mont. Bank of Missoula v. McGuiness (1985), 217 Mont. 409, 417, 705 P.2d 579, 584. The court ruled that any verbal obligation to loan $150,000 to the Ranch was merged into the subsequent written agreement to loan the Ranch $35,000. Under the doctrine of merger, the factual dispute about whether Swanz made a verbal commitment to loan $150,000 is irrelevant, because any evidence as to such a verbal commitment would be inadmissible in court.

Eiselein argues that the doctrine of merger does not apply in this case. She cites this Court’s opinion in Blome v. First Nat. Bank of Miles City (1989), 238 Mont. 181, 776 P.2d 525. In one part of that opinion, this Court stated that “no oral representations by any bank officers may be found which would bind the Bank to perform as the Blomes contend.” Blome, 776 P.2d at 528. But, as defendants point out, that statement did not appear within and was not relevant to this Court’s discussion of the doctrine of merger.

Eiselein also argues that the Bank’s commitment to make a $150,000 loan to the Ranch was for cattle and was completely separate and distinct from its commitment to make the loan for hogs consummated in the June promissory note. She asserts that the doctrine of merger does not, therefore, apply.

We disagree. In Blome, the Blomes brought suit against their bank for failure to comply with an agreement to provide them with financing for their farming operation as long as they needed it with repayment to be made when they were able. This Court ruled that the doctrine of merger applied and that it barred the Blomes’ claims, even though the alleged oral promise was for the purchase of feeder cattle and the later loans into which that promise was merged were for such things as a grain hopper and a truck. Blome, 776 P.2d at 527, 528. In the present case, ranch manager Grosskop characterized all funds sought from the Bank as for “our year’s operation.” She also admitted that she was aware at least by May 11, 1987, that the $150,000 loan would not be made. She nevertheless accepted and signed the promissory note for $35,000.

We agree with the District Court that the alleged $150,000 commitment and the $35,000 promissory note both dealt with financing for operation of the Eiselein Ranch. We also agree with the District Court’s statement that “[t]o argue that the existence of an oral representation can preclude merger is contradictory and insupportable.” We hold that the District Court did not err in granting summary judgment for defendants.

Affirmed.

JUSTICES HARRISON, HUNT and WEBER concur.

JUSTICE TRIEWEILER,

specially concurring:

I agree that the District Court was correct when it denied plaintiff’s motion for partial summary judgment. I also concur with the majority that the District Court’s order granting the defendants’ motion for summary judgment should be affirmed. However, I disagree with the reasons set forth by the majority for their decision.

This is clearly not a case where the undisputed facts bar plaintiff’s claim pursuant to the doctrine of merger.

It is correct that evidence of prior oral agreements is not admissible to alter a subsequent written agreement so long as the written agreement deals with the same subject matter. However, a written agreement will not preclude evidence of a prior oral agreement that deals with a different subject matter and which was not merged in the written agreement. That rule is clear from the concluding language in First National Bank of Missoula v. McGuiness (1985), 217 Mont. 409, 705 P.2d 579, where we stated:

“Under case law in Montana, it is clear that evidence of prior oral agreements is not admissible for the purpose of altering subsequent written agreements dealing with the same subject, and that the prior oral agreements and the written agreement will merge into the subsequent written agreement unless they are distinct and can stand independently of one another. Reaves v. Reinbol[d] (1980), [189 Mont. 284, 289-290,] 615 P.2d 896, 899, 37 St.Rep. 1500, 1504.”

McGuiness, 705 P.2d at 584 (emphasis added).

In this case there was clear evidence from the testimony of the plaintiffs ranch manager, Mrs. Lou Grosskop, that the promise that plaintiff sought to enforce was different and independent from the promise which became the subject of plaintiffs written loan agreement with the defendant. Plaintiff sought to enforce a promise to loan her $150,000 for the purchase of cattle. The promise which became the subject of the written agreement relied upon by the majority was to loan the plaintiff approximately $30,000 for the purchase of pigs.

The deposition testimony of Mrs. Grosskop which was offered in opposition to the defendants’motion for summary judgment is replete with testimony describing the difference between the two promises. She gave the following answers to the following questions regarding the loan for the hog operation:

“Q. My first question I would like to ask is, in 1987, did the Montana Bank of Roundup ever make any unconditional promise or commitment that it would continue to provide money for the operating expenses of the Eiselein Ranch?
“A. Yes.
“Q. Who made that promise?
“A. Dick Swanz.
“Q. And when did Mr. Swanz make that?
“A. January.
“Q. January of 1987?
“A. Yes.
“Q. Tell me what Mr. Swanz said.
“A. We received a $30,000 line of loan at that time. I can’t repeat the exact words.
“Q. To the best of your recollection.
“A. We received $30,000 to start an operation to do with some of the things we’d talked about in the past. We had talked of putting in a hog operation, a sheep operation, and these were just talking about different types of projections we were going to work on. That’s basically it.”

Mrs. Grosskop gave the following testimony regarding a second promise to loan money for a cattle operation:

“Q. At any other time in 1987 did anyone at the Montana Bank of Roundup make an unconditional promise or commitment to continue to provide money to the Ranch?
“A. Yes.
“Q. Okay. Who was that?
“A. Dick Swanz.
“Q. And when?
“A. In April.
“Q. April 1987?
“A. Yes.
“Q. Tell me what Mr. Swanz said during this conversation.
“A. We had been working with a budget projection of buying cattle, and I had called and asked if he had reviewed it and we were going to go ahead with this, and he said yes, he’d okay it.
“Q. How much was that budget for?
“A. That particular budget, we was looking at buying about 200 to 250 head of cattle at that time.
“Q. Okay. In terms of a dollar amount, what were you asking for?
“A. Around the $150,000 mark. We hadn’t set an exact figure, depending on the price of cattle.”

(Emphasis added.)

Mrs. Grosskop testified that in order to obtain the loan for the pig operation, she submitted a budget proposal pertaining to that operation. However, when applying for the cattle operation, she had to submit an entirely different budget proposal. The following testimony is illustrative of how independent the two loan transactions were:

“Q. Now in light of what you’ve told me, did the new budget that you prepared only relate to the cattle purchase, or did it also relate to these other aspects of your total program that you were talking about, the swine and the sheep, et cetera?
“A. The swine budget he already had because we already had the money for that. This proposal would have pertained basically to the 150 head run at that time.”

The fact that the loan promised in January was intended solely for the pig operation is further evidenced from the fact that the security agreement entered into as part of that loan seemed “64 pigs” and made no mention of any other collateral.

In Reaves v. Reinbold (1980), 189 Mont. 284, 615 P.2d 896, we reaffirmed that,

“This Comt has consistently held that the party moving for summary judgment has the burden of showing the complete absence of any genuine issue as to all the facts which are deemed material in light of those substantive principles which entitle him to judgment as a matter of law.”

Reaves, 615 P.2d at 898 (citations omitted).

We further stated that:

“It is clear that the party opposing a motion for summary judgment will be afforded the benefit of all reasonable inferences which may be drawn from the offered proof. Mally v. Asanovich (1967), 149 Mont. 99, 423 P.2d 294; Harland v. Anderson, supra.”

Reaves, 615 P.2d at 898.

Based upon these principles, we held that a plaintiff in that case relying on a written agreement was not entitled to summary judgment where the defendant asserted contrary rights based on an alleged oral agreement. We stated:

“Plaintiff’s argument is based on the allegation that the written agreements entered into on November 21, 1975, which included the ‘Submitted Annualized Commission Agreement,’ superseded any prior oral negotiations or agreement between the parties. In support of this argument, plaintiff cites sections 28-2-904 and 28-3-203, MCA.
“As stated in plaintiff’s brief, there is abundant case law in Montana which holds that prior oral agreements or conditions are not admissible to alter or vary the terms of a later written contract. Davidson v. Casebolt (1969), 154 Mont. 125, 461 P.2d 2; Heckman and Shell v. Wilson (1971), 158 Mont. 47, 487 P.2d 1141; Kinjerski v. Lamey (1979), [185 Mont. 111], 604 P.2d 782. It should be noted, however, that such case law has only dealt with an application of the rule as to prior oral agreements and subsequent contracts between the same parties in regard to the same matter. It should also be noted that distinct collateral agreements even as between the same parties, will not merge so as to preclude a prior oral agreement. See Story v. Monforton (1941), 112 Mont. 24, 113 P.2d 507; 17 C.J.S. Contracts § 381 at 451.
“In reviewing the relationship of the two agreements in a light most favorable to defendant we note that the alleged oral agreement is collateral as opposed to ancillary. Both agreements were entered into at approximately the same time and deal with an arrangement whereby defendant is to receive monies for selling insurance. One agreement, however, is with Lincoln Benefit Life Company and provides for a repayment of advances made. The other separate agreement is with plaintiff and allegedly provides that he personally will guarantee a set salary no matter how much defendant is required to repay the insurance company. Each agreement is distinct, separate, involves a different party and is able to stand independent of the other. With this being the case, we cannot find as a matter of law that the written agreement would supersede the alleged oral agreement.”

Reaves, 615 P.2d at 899.

The testimony of one witness which is disputed by another is sufficient to raise an issue of fact which precludes summary judgment on that issue. In this case, the testimony of Mrs. Grosskop was sufficient, if believed, to establish that defendants’January promise to loan money for pigs was separate and independent from its April promise to loan money for cattle. If that fact was established, then the written agreement which resulted from the January promise did not merge with the April promise and did not preclude the evidence which plaintiff sought to offer.

I believe, however, that defendants were entitled to summary judgment for different reasons. Assiuning that the testimony of Mrs. Grosskop is true and that the defendant did promise to loan her $150,000 to finance the purchase of cattle, that promise alone is not sufficient to form the basis for plaintiff’s cause of action. We have previously stated that “there is no legal duty requiring a bank to loan money to a customer absent a clear contractual commitment.” Mann Farms, Inc. v. Traders State Bank of Poplar (Mont. 1990), [245 Mont. 234,] 801 P.2d 73, 77, 47 St.Rep. 2094, 2099.

Under § 28-2-102, MCA, the essential elements of a contract are:

“(1) identifiable parties capable of contracting;
“(2) their consent;
“(3) a lawful object; and
“(4) sufficient cause or consideration.”

In this case, the specific elements of a contract were neither alleged nor proven by the plaintiff. Specifically, there was no consideration extended from the plaintiff to the defendant which would establish a binding contract.

Plaintiff in her complaint sought to enforce the defendants’ oral promise based on the principle of promissory estoppel. However, in Keil v. Glacier Park, Inc. (1980), 188 Mont. 455, 462, 614 P.2d 502, 506, we defined the elements of promissory estoppel as:

“(1) a promise clear and unambiguous in its terms; (2) reliance on the promise by the party to whom the promise is made; (3) reasonableness and foreseeability of the reliance; (4) the party asserting the reliance must be injured by the reliance.”

(Citations omitted.)

In this case, there was no evidence that subsequent to April 1987 the plaintiff suffered detriment by the reliance on the Bank’s promise to loan her money. Plaintiff located no cattle, purchased no cattle, and incurred no expense which could be attributed to the defendants’ promise to loan her money for a cattle operation. In fact, within two weeks from the time that the Bank promised to loan her money, plaintiff was notified through Mrs. Grosskop that the promise was being reconsidered and that further financial information was necessary. At that point, all further plans to proceed with expansion of the cattle operation were put on hold.

For these reasons, plaintiff suffered no detriment due to a justifiable reliance on defendants’ promise and has not satisfied the elements of promissory estoppel.

Because there was neither a binding contract nor sufficient detrimental reliance to establish promissory estoppel, I would affirm the District Court’s order granting summary judgment to the defendants.


author: CHIEF JUSTICE TURNAGE

text:
    MARGO PEILE, Petitioner and Appellant, v. DEPARTMENT OF HIGHWAYS, State of Montana, State Compensation Mutual Insurance Fund, Employer, Defendants and Respondents.
    No. 91-191.
    Submitted on briefs August 15, 1991.
    Decided September 17, 1991.
    Rehearing Denied Oct. 3, 1991.
    250 Mont. 81.
    817 P.2d 1149.

      D. Patrick McKittrick, McKittrick Law Firm, Great Falls, for petitioner and appellant.
    Darcy M. Crum, James, Gray & McCafferty, Great Falls, for employer, defendants and respondents.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Margo Peile appeals the denial by the Workers’ Compensation Court of her claim for temporary total disability benefits during retraining. We reverse and remand.

The issues are:

1. Did the Workers’ Compensation Court err in determining that Peile was not entitled to temporary total disability benefits while engaged in a course of vocational rehabilitation through the Department of Social and Rehabilitation Services?

2. Did the court err in determining that Peile was not entitled to the 20 percent penalty pursuant to § 39-71-2907, MCA (1985)?

3. Did the court err in determining that Peile was not entitled to costs and attorney fees under § 39-71-611, MCA (1985)?

The parties have stipulated to the facts. Peile suffered an on-the-job injury while working as a survey aide for the Montana Department of Highways in Cascade County, Montana, on February 17, 1987. She injured her wrist while pounding stakes with a hammer and has been diagnosed as suffering from “overuse syndrome.” Peile’s employer, the Montana Department of Highways, has accepted liability for her industrial accident. It is insured by the State Compensation Mutual Insurance Fund (State Fund).

Peile’s doctors believe that she cannot return to her prior position at the Montana Department of Highways but that she can return to a job which does not require overuse of her arm. She has been evaluated by a vocational rehabilitation consultant who found that she is motivated to return to the work force as soon as possible. The consultant determined that Peile could perform a position as a janitor, a central supply worker, or a store laborer, but that because of her academic and physical limitations, it is doubtful that she will be able to find employment at wages comparable to those she has earned before without the benefit of vocational counseling and a structured job search.

Peile requested that the State Fund refer her to the Department of Social and Rehabilitation Services for vocational rehabilitation pursuant to Title 39, Chapter 71, Part 10, MCA (1985). The State Fund refused to make the referral on the basis that Peile is employable and not permanently disabled. The Department of Social and Rehabilitation Services nevertheless certified Peile for rehabilitation services and has provided those services to her since September 1988.

Peile received temporary total disability benefits from February 3, 1988, through March 7, 1989. At that time, she had achieved maximum healing and was switched to permanent partial disability benefits. Peile is not receiving temporary total benefits while she is undergoing vocational rehabilitation.

On July 3, 1990, Peile filed a petition with the Workers’ Compensation Court alleging that she is entitled to temporary total disability benefits while undergoing vocational rehabilitation, under the statutes in effect at the time of her injury. The court found that she is not entitled to receive temporary total disability benefits during retraining because, as Peile’s doctor had approved three jobs he deemed appropriate considering her physical restrictions, “[tjhere is no necessity for retraining here.” In addition, the court concluded that a claimant must meet the requirements of temporary total disability in order to be eligible to receive that type of benefits during vocational rehabilitation. As a result of those rulings, the court concluded that Peile was not entitled to the 20 percent penalty under § 39-71-2907, MCA (1985), or to costs and attorney fees.

Did the Workers’ Compensation Court err in determining that Peile was not entitled to temporary total disability benefits while engaged in a course of vocational rehabilitation through the Department of Social and Rehabilitation Services?

The law which was in effect at the time of Peile’s injury governs our consideration of this case. See Buckman v. Montana Deaconess Hosp. (1986), 224 Mont. 318, 730 P.2d 380, aff’d after remand, 238 Mont. 516, 776 P.2d 1210. Section 39-71-1001, MCA (1985), was in effect at the time of Peile’s injury and is applicable. It provided:

“Referral of disabled workers to department of social and rehabilitation services for vocational rehabilitation. The division shall refer to the department of social and rehabilitation services workers who have become permanently disabled as the result of injuries sustained within the scope and course of employment by an employer enrolled under the Workers’ Compensation Act and who, in the opinion of the division, can be vocationally rehabilitated. The department of social and rehabilitation services shall provide for the vocational rehabilitation of the injured workers under the provision of Title 53, chapter 7, parts 1 and 2.

Section 39-71-1003, MCA (1985), also applies to this case:

“Eligibility for benefits under chapter not affected — other expenses payable. The eligibility of any injured worker to receive other benefits under the Workers’ Compensation Act is in no way affected by his entrance upon a course of vocational rehabilitation as herein provided. A person undergoing vocational rehabilitation must be paid temporary total disability benefits ...”

We note that § 39-71-1001, MCA (1985), was repealed in 1987 and § 39-71-1003, MCA (1985), was revised in 1987.

The State Fund contends that under § 39-71-1001, MCA (1985), it was not required to pay benefits during a period of retraining unless the claimant was both permanently disabled and had no job prospects without retraining. That is not what the statute said. It required that the division of workers’ compensation refer to the Department of Social and Rehabilitation Services permanently disabled claimants who, in the opinion of the division, were capable of vocational rehabilitation. The State Fund has conceded that Peile was undergoing vocational rehabilitation at the time of the hearing before the Workers’ Compensation Court. That is tantamount to an admission that she is capable of vocational rehabilitation.

The State Fund argues that it is not required to pay Peile temporary total disability benefits during her retraining because she is not totally permanently disabled. However, § 39-71-1001, MCA (1985), was not limited to persons who were totally permanently disabled. It applied to all permanently disabled claimants.

Section 39-71-104, MCA (1985), also was in effect at the time of Peile’s injury and is applicable to this case. It provided:

“Court to give liberal construction to chapter. Whenever this chapter or any part or section thereof is interpreted by a court, it shall be liberally construed by such comb.”

This statute has been interpreted to mean that, where there is doubt, the doubt shall be resolved in favor of the injured worker. See Gaffney v. Industrial Accident Board (1955), 129 Mont. 394, 287 P.2d 256.

Nothing in the statutes in effect at the time Peile was injured indicated that the benefits of § 39-71-1003, MCA (1985), were contingent on the claimant’s having no prospects for employment without retraining, as the State Fund argues. Section 39-71-1003, MCA (1985), provided that “[a] person undergoing vocational rehabilitation must be paid temporary total disability benefits.” (Emphasis supplied.) We conclude that, under the statutes which apply to this case, Peile is entitled to temporary total disability benefits during retraining.

The remaining issues are whether Peile is entitled to a 20 percent penalty and costs and attorney fees as a result of the State Fund’s refusal to pay her temporary total disability benefits during retraining. We remand this case to the Workers’ Compensation Court for reconsideration of these issues in light of this Opinion.

Reversed and remanded.

JUSTICES HARRISON, GRAY, TRIEWEILER, McDONOUGH, HUNT and WEBER concur.


author: JUSTICE HUNT

text:
    IN RE THE MARRIAGE OF SHERYL ANN REININGHAUS, Petitioner and Respondent, and HAROLD E. REININGHAUS, Respondent and Appellant.
    No. 91-037.
    Submitted on briefs July 11, 1991.
    Decided Sept. 24, 1991.
    Rehearing Denied Oct. 31, 1991.
    250 Mont. 86.
    817 P.2d 1159.

      Harold E. Reininghaus, pro se.
    W. Corbin Howard, Billings, for petitioner and respondent.
   JUSTICE HUNT

delivered the opinion of the Court.

Appellant Harold E. Reininghaus appeals the findings and decree of dissolution of marriage from the Thirteenth Judicial District Court, Yellowstone County, granting sole custody to petitioner Sheryl Ann Reininghaus, and granting appellant reasonable visitation rights.

We affirm.

Appellant appears pro se and raises three issues:

1. Did the District Court err in granting petitioner sole custody of the children?

2. Did the District Court err in granting appellant reasonable visitation rights?

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

Petitioner and appellant were married on August 12, 1972, in Glendive. Two sets of twins were born to the couple. Their ages are 4 and 7. Since the birth of her children, petitioner has mainly devoted herself to motherhood. Since the couple’s separation, the petitioner has been attending college to become a teacher.

Throughout the marriage, appellant has been the sole source of income for the family. He has held 17 jobs in the past 17 years working as a chef. Appellant was last employed at the Billings Sheraton Hotel as a chef in 1989. He and his girlfriend have opened a restaurant. Until the separation, the appellant essentially remained uninvolved with his children.

Since February 1990, petitioner has not received any child support. She manages to support herself and the children by borrowing money from her mother. By obtaining grants and student loans, she is able to continue her education.

The District Court found that appellant was not a credible witness. For example, he explained to his wife that he was dying of cancer in order to cover up an affair with his girlfriend. He has portrayed himself as a Vietnam war hero to his friends, family, and to Sally Holden, the Court Services evaluator. He claimed his brother was in medical school.

The case was tried on March 2,7, and 28,1990. Appellant appeared pro se in District Court. On August 2, 1990, post-trial proceedings were held. On October 3,1990, the District Court issued its decree of dissolution of marriage wherein it granted petitioner sole custody of the children and granted appellant reasonable visitation rights, dependent upon him having a mental health evaluation, and discussing with Dr. Bredehoffc (psychologist) and Judy Starr (professional counselor and school psychologist) how to begin creating a positive, nondestructive relationship with his children. The appellant appeals pro se from the decree and findings.

Appellant argues that the evidence fails to support the granting of sole custody of the children to the petitioner and that §§ 40-4-223 and -224, MCA, mandate the award of joint custody. We disagree.

While it is true that the legislature prefers the awarding of joint custody to the parents, it also grants the District Court broad discretion in determining what is in the best interests of the children. Section 40-4-222, MCA. §§ 40-4-223 and -212, MCA, establish the basic guidelines for the District Court to determine what is in the best interests of the children. In order to decide custody arrangements, the court shall consider, but is not limited to, the following factors:

“(a) [T]he wishes of the child’s parent or parents as to his custody;
“(b) the wishes of the child as to his custodian;
“(c) the interaction and interrelationship of the child with his parent or parents, his siblings, and any other person who may significantly affect the child’s best interest;
“(d) the child’s adjustment to his home, school, and community;
“(e) the mental and physical health of all individuals involved;
“(f) physical abuse or threat of physical abuse by one parent against the other parent or the child; and
“(g) chemical dependency, as defined in 53-24-103, or chemical abuse on the part of either parent.”

Section 40-4-212, MCA.

The District Court must also consider which parent is more likely to allow the child frequent and continuing contact with the noncustodial parent and may not render its decision on the basis of the custodial parent’s sex. Section 40-4-223(l)(b), MCA. Therefore, the District Court is required to presume that joint custody is in the best interest of the child unless the factors set out in § 40-4-212, MCA, warrant an opposite conclusion. If joint custody is not awarded, the District Court shall state the reasons for its decision. In Re Marriage of Jacobson (1987), 228 Mont. 458, 461, 743 P.2d 1025, 1027. It is the best interests of the children, not the parents, that are of paramount consideration of this Court. In Re Marriage of Mager (1990), 241 Mont. 78, 81, 785 P.2d 198, 200.

In its findings, the District Court specifically addressed the issue of joint custody and made several findings.

“1. The petitioner is a good mother and her relationship with her children is normal.
“2. Respondent is manipulative and not credible, uses poor judgment, and lives in a fantasy world.
“3. He places his interests above the children’s interest.
“4. His work history is unstable.
“5. Respondent is sometimes irrational.
“6. There is a damaged relationship between the respondent and at least one child.
“7. The professionals involved in the case, Dr. Bredehoft, a psychologist; Judy Starr, a professional counselor and school psychologist; Sally Holden, from the Court Services’ office recommended that the mother be granted sole custody of the children.
“8. The District Court’s observations and conclusions concur with Dr. Bredehoft’s provisional diagnosis that respondent suffers from a narcissistic personality disorder.
“9. Respondent has lied about tobacco and drug use.

The District Court properly considered the factors set out in § 40-4-212, MCA. The evidence supports the District Court findings and we find no abuse of discretion in its conclusions. Absent an abuse of discretion, we will not overturn the District Court’s conclusions.

Next, the appellant claims that the court did not find that normal, reasonable visitation would endanger seriously the children’s physical, mental, moral, or emotional health, thereby not supporting the District Court’s order for supervised visitation. Although § 40-4-217(1), MCA, requires a showing of endangerment, we will not so narrowly interpret the statute so that the court is unable to design visitation that reflects the child’s best interests. State ex rel. Sorenson v. Roske (1987), 229 Mont. 151, 156-57, 745 P.2d 365, 369. To determine what constitutes reasonable visitation depends on the best interests of the children. Jacobson, 743 P.2d at 1028. We note in this case that contrary to the recommendation of Dr. Bredehoft, Judy Starr, and Sally Holden, the court did not order supervised visitation. Instead, the court ordered that visitation be reasonable and placed the burden upon the petitioner to determine what is in the best interests of the children. The District Court has wide latitude when determining visitation because it is in the unique position of observing the demeanor of the parties and hearing the testimony. Jacobson, 743 P.2d at 1028.

In addition to what has been stated previously, there is ample evidence to support the District Court’s conclusion of reasonable visitation. The children have not bonded well with their father. The father had so crammed previous visitation days with activities, that the children came home hyperactive, exhausted, and overwrought. He has placed the children in the middle of the marital conflict and he has continuously misled his children throughout this episode. The court concluded that these actions were not in the best interests of the children and we agree.

Appellant attached a letter written by a guidance counselor to his reply brief to refute the other experts’ recommendations. We will not consider material outside the record that was not introduced at trial. Cruikshank v. Cruikshank (1986), 222 Mont. 152, 154, 720 P.2d 1191, 1193. We hold that the visitation provisions are reasonable and proper.

Finally, appellant claims that the marital property was not divided equally. This Court will not disturb a District Court’s division of property unless there has been a clear abuse of discretion. In Re Marriage of Banard (1990), 241 Mont. 147, 151, 785 P.2d 1387, 1390. It appears appellant is asking that a 1981 car, student loans, loans from petitioner’s mother, and proceeds from a life insurance not be included in the division of property. We note that the car was an asset granted to appellant. The student loans and loans from petitioner’s mother were properly allocated to the petitioner. Proceeds from the life insurance were not included in the division of property, but instead were ordered to go toward back child support, which appellant has failed to do. We hold there was no abuse of discretion by the District Court.

Affirmed.

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


author: JUSTICE HARRISON

text:
    IRVIN “BUZZ” BUSKIRK Plaintiff and Appellant, v. ADELINE NELSON and Donald Nelson, et al., Defendants and Respondents.
    No. 91-019.
    Submitted on briefs Aug. 1, 1991.
    Decided Sept. 24, 1991.
    250 Mont. 92.
    818 P.2d 375.

      Mort Goldstein, Goldstein Law Firm, P.C., Havre, for plaintiff and appellant.
    William J. Gregoire, Joseph P. Gilligan, Smith, Walsh, Clarke & Gregoire, Great Falls, for defendants and respondents.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from the District Court of the Twelfth Judicial District, State of Montana, County of Hill. This appeal is from a directed verdict in favor of Adeline Nelson and a jury verdict finding no liability on the part of Donald Nelson. From this judgment Irvin “Buzz” Buskirk appeals. We affirm.

In the summer of 1982, Adeline Nelson employed several students of Northern Montana College to construct a garage on her property. She employed a Mr. Wills and another college student to construct her garage from a “garage kit” from the local lumber yard. This kit included all the materials necessary for the construction of a two-car garage, including a sixteen foot wide sectional garage door manufactured by Frantz Manufacturing Company. The garage door operated by means of two large “extension springs” which were located on each side of the garage door and suspended from the ceiling of the garage. These extension springs were used to counter the weight of the garage door for ease of opening and closing. A cable attached to these extension springs ran from the springs to the top of the garage door, over a pulley, and then down to the bottom of the garage door where it was attached to the bottom “roller bracket.” Because the garage door weighed approximately 300 pounds, the springs on each side had a lifting power of 150 pounds when the garage door was fully closed. The roller brackets were located at the very bottom of the garage door to which the cables were attached, and were bolted to the garage door with two nuts and bolts for each bracket.

Approximately six months after the garage had been built, in November of 1982, Adeline attempted to open her garage door, when the garage door bound up and the bottom “rail” (board) at the south end of the garage door developed a foot long split or crack in the wood. Adeline contacted a Mr. Hewitt, owner of “Hewitt Remodeling Service” in Havre, Montana, to repair the cracked bottom rail. Mr. Hewitt installed weather-stripping on the bottom of the garage door to prevent snow or water from coming into the garage under the door. He also bolted metal strapping perpendicularly over the crack, on the inside and outside of the door, thus holding the bottom rail together. Thereafter, the garage door continued to function properly up until the time of the accident.

In December of 1982, Adeline’s son, Donald Nelson, who lived with his mother at her home, purchased an electric garage door opener for her as a Christmas present. To help him install the electric garage door opener, Donald contacted a friend, Irvin “Buzz” Buskirk, the appellant. The installation took several days in January of 1983. Initially, Donald and the appellant attached and installed the garage door opener itself. Then, after electricity was brought to the garage door opener, the appellant attached the electrical wires to the opener. Thereafter the appellant and Donald tested the opener by opening and closing the garage door.

While they were testing the door, it became jammed, and the bottom rail on the north end of the door cracked or separated. This crack or separation was directly underneath the bottom “roller plate” to which the extension spring cable was attached. The panels in the bottom of the door began to fall out, but the appellant and Donald were able to get the panels back into the door, and lowered the door to its fully-down position. The appellant then attempted to repair the crack in the door by using some metal strapping left over from the installation of the garage door opener. The appellant intended to repair the crack in a manner similar to the way Mr. Hewitt had repaired the garage door’s south end crack. In the process of attempting to make the repairs, Donald went around to the outside of the garage to pry up on the bottom of the door. The appellant was left inside the garage. As the two worked on the problem, unbeknownst to Donald, the appellant, in order to determine how to repair the crack, got down on his hands and knees to look at the crack. The appellant’s expert testified that the appellant’s head must have been some nineteen inches from the floor of the garage and within four to six inches from the garage door. The appellant was suddenly struck in the face as the spring-loaded mechanism of the door broke loose, resulting in severe injury to appellant’s eye.

This case has been in the courts for a considerable period of time, having begun under the 1983 comparative negligence statute that required the apportionment of fault among the liable parties. This is the second time that this case has been before this Court. In 1988, the trial judge then sitting, granted summary judgment in favor of the defendants on the issue of a “release” that was allegedly signed by the appellant releasing the defendants through their carrier from all liability for the sum of $1,500 for appellant’s blinded eye. That summary judgment was reversed in Buskirk v. Nelson (1989), 237 Mont. 455, 774 P.2d 398.

The appellant has submitted nine issues for our consideration. The issues are consolidated and set forth as follows:

1. Was there substantial evidence in the record for the jury to find Donald Nelson to be negligence free?

2. Was it error for the court to give a directed verdict in favor of Adeline Nelson where the appellant alleged that Adeline was:

(A) negligent for his injuries;

(B) liable for the alleged negligent acts performed by independent contractors she hired;

(C) liable to the appellant for failing to provide “a safe place to work” for the appellant;

(D) vicariously liable for the appellant’s injuries under a theory of joint enterprise, partnership, principal/agent, or landlord/tenant?

3. Did the trial court err in not giving appellant’s instructions 22A, 22B, 24A, 25A, 31Aand 41 to the jury?

After carefully considering the transcript and the issues set forth above, we conclude that the appeal hinges upon whether there was substantial evidence for the jury to find Donald Nelson negligence free. If so, then the issue of vicarious liability for his mother, Adeline, is without merit, and is moot under the theories of partnership, joint venture, joint enterprise or landlord/tenant. As noted by the respondents, the remaining issue would then be whether Adeline Nelson was entitled to a directed verdict as a matter of law. Since she had nothing to do with the accident herself, the only way she could have been negligent would be if she knew or should have known of some defect on her property which was unreasonably dangerous and failed to warn the appellant of the defect of which he had no independent knowledge.

With this in mind, we note this is an appeal from a finding of a jury and this Court only needs to determine whether there was substantial evidence to support the verdict as to Donald Nelson. This Court in Kitchen Krafters v. Eastside Bank (1990), 242 Mont. 155, 164, 789 P.2d 567, 572, set forth our standard of review that the findings of a jury will not be reversed on appeal unless they are not supported by substantial evidence. Substantial evidence is defined as that evidence that a reasonable mind might accept as adequate to support a conclusion. It can be based upon weak and conflicting evidence, but in order to rise to the level of substantial evidence, it must be greater than trifling or frivolous. See Christensen v. Britton (1989), 240 Mont. 393, 401, 784 P.2d 908, 913. While the appellant argues that Donald Nelson should have been found by the jury to be a non-credible witness, and thus, that the jury had no alternative but to find that he was negligent to some degree, we have held in numerous cases that the issue of credibility is an issue that rests squarely with the jury. In Davis v. Church of Jesus Christ of LDS (1990), 244 Mont. 61, 68, 796 P.2d 181, 185, this Court noted:

‘Where conflicting evidence exists the credibility and weight to be given to the evidence is within the jury’s province. Wheeler, [v. City of Bozeman (1988), 232 Mont. 433,] 757 P.2d at [345], 345. The jury found sufficient evidence that the walkway was unsafe and this Court will not overturn its determination by weighing conflicting evidence on appeal. Wheeler, 757 P.2d at 347.”

Here there was more than ample evidence to support the jury’s verdict. It is uncontested that immediately prior to the accident, Donald and the appellant were operating the garage door with the new electric door opener that they had just installed. The new crack in the bottom of the north end of the door was fully noted by both the appellant and Donald. They disconnected the garage door opener and brought the door to the fully-down position. Thereafter, the two men began to repair the new crack in the door.

The appellant testified that he did not know what Donald was doing at the time he left the garage and had no reason to be on guard for his own safety. This testimony was brought into question by the appellant’s own expert witness, Mr. Udall, who testified that the appellant had told him that he understood that Donald was going to go outside the garage door and pry up on the bottom of the door in order to attempt to close the crack that had developed. Mr. Udall further testified that he was told by the appellant that he, the appellant, then went over and knelt down in front of the spring-loaded bracket to see what was binding up the garage door. This testimony raised a question as to the credibility of appellant’s testimony at trial and was, of course, a question for the jury to decide.

Neither the appellant nor Donald nor any of the expert witnesses could testify exactly as to how the accident occurred. Thus, it became a question for the experts to try to speculate as to what possibly could have taken place. The jury verdict reflects that no one could state to any degree of probability how the accident took place. We conclude that there is substantial evidence to support the verdict of the jury as to the absence of negligence on the part of Donald Nelson.

The next issue concerns the directed verdict in favor of Adeline Nelson. As previously noted, after both the appellant and the respondents rested their cases, both the Nelsons moved the court for a directed verdict in each of their respective cases. The court granted a directed verdict for Adeline Nelson but denied the motion for directed verdict for Donald Nelson. Both parties rely on several Montana cases as to the duty of a landowner to use ordinary care to maintain her or his premises in a reasonably safe condition or to warn those legally on the land of any hidden or lurking dangers. See Luebeck v. Safeway Stores, Inc. (1968), 152 Mont. 88, 90, 446 P.2d 921, 922-23. This principle was most recently stated in Davis. However, the possessor of land is not an insurer against all accidents and injuries to invitees on the premises. See Cassady v. City of Billings (1959), 135 Mont. 390, 393, 340 P.2d 509, 511.

The transcript indicates that at the time of the motion for a directed verdict on behalf of Adeline Nelson, the district judge specifically asked the appellant’s attorney what Adeline Nelson knew or should have known about the garage door that the appellant did not know. Appellant’s counsel was unable to respond to the judge’s question indicating that Adeline Nelson was not in any way involved with the garage door at the time of the accident and, therefore, a ruling was made in her favor.

The judge gave as his reason for granting a directed verdict, that the appellant not only knew about the new crack in the garage door but also knew that the garage door had been previously repaired on the south end with metal strapping prior to the accident. With this knowledge of the cracks, repairs, and with the knowledge of the overall condition of the garage door, the appellant had proceeded in an attempt to repair the garage door. The appellant’s knowledge concerning the condition of the garage door was superior to that of Adeline Nelson. At the time of the ruling in favor of Adeline, there was no evidence presented of a “hidden or lurking danger” on the premises known to Adeline or that Adeline should have anticipated.

Next, the appellant raised the question of alleged negligence of independent contractors imputed to the landowner. It would appear that the appellant is alleging that Adeline is liable for any alleged negligent acts of the contractors who constructed her garage, or Mr. Hewitt, the contractor who repaired the south end of the garage door, regardless of whether she was aware of any dangerous condition they allegedly created. It is the general rule in Montana that an owner is not liable for acts of an independent contractor. Wells v. Stanley J. Thill and Associates, Inc. (1969), 153 Mont. 28, 31, 452 P.2d 1015, 1017.

The appellant’s own expert, Mr. Udall, testified that his only criticism as to how the garage door was installed was the placement of the bottom bracket on the garage door by the installers and that the inside of the door should have been painted. His testimony indicated that the placement of the bottom bracket on the garage door was not something that an ordinary landowner would have expertise in, and in fact, the appellant’s expert was impeached as to where he thought the brackets should be placed on the door in spite of the fact that he had been in the garage door business in excess of thirty years.

All three of the appellant’s experts agreed that the cause of the accident was the cracking of the garage door which took place just prior to the time of the accident. As a matter of law, Adeline Nelson, who was not present when the door cracked, could not be held liable for failure to warn about something of which she had no knowledge.

As to the appellant’s allegation that he was not provided a safe place to work, this issue was not directly raised at the time of trial. It therefore does not warrant consideration by this Court. The issue of whether Adeline Nelson was vicariously liable for appellant’s injuries under a theory of joint enterprise, partnership, principle/agent or landlord/tenant is rendered moot following the jury’s conclusion that Donald Nelson was not negligent.

Finally, we are faced with the issue of whether the court erred in not giving appellant’s proposed instructions 22A, 22B, 24A, 25A, 31A and 41 to the jury. In the judge’s review of the instructions, he told the attorneys that he was going to read the instructions that he intended to give, and that if either party had objection to an instruction that was given or refused, that they should voice that objection when he came to that particular instruction. The only objection made as to any of the instructions was the appellant objecting to the respondents’ instruction 25 which set forth the law in the State of Montana as it relates to independent contractors. That instruction accurately reflects the existing law in Montana as set forth in Storrusten v. Harrison (1976), 169 Mont. 525, 549 P.2d 464 and Dvorak v. Matador Services, Inc. (1986), 223 Mont. 98, 727 P.2d 1306. The appellant’s objection to the instruction was that it should have set forth the two exceptions to the general rule whereby the employer of an independent contractor can be held liable for the contractor’s negligence. He noted that as set forth in Dvorak the two exceptions most commonly raised are: (1) the peculiar risk or inherently dangerous doctrine; and (2) the employer’s liability for his own negligence. Dvorak, 727 P.2d at 1309.

As previously noted there is no evidence or law justifying instructions to a jury on the two exceptions in this case. Here we have an attempt to repair a crack in a garage door which cannot be categorized as a peculiar risk or inherently dangerous activity. As noted, Adeline Nelson could not have possibly been negligent since there was no evidence that she knew or should have known of any defect in the door which arose immediately prior to the accident.

In addition, we note as set forth in the respondents’ brief that the instructions were offered by both parties and primarily argued the evening before the close of the evidence while Adeline Nelson remained a party defendant. Since she was the only person who employed the carpenters to build the garage and Mr. Hewitt to repair the crack on the south end of the door, the instruction was frivolous after she was dismissed from the case by a directed verdict of the court. It would have had no impact on the jury’s decision as to the negligence of Donald. The evidence is clear that the building and prior repairs to the garage was done by persons hired by Adeline without any involvement of Donald.

While the appellant also objected to the court’s failure to give instructions 22B, 24A, 25A, 31Aand 41, these instructions set forth the duties of the possessors of land and the owner of property. Here again, Adeline was dismissed from the case on a directed verdict. No legal relationship existed between her as landowner and Donald Nelson as a person installing the garage door opener, and the duties as set forth in the proposed instructions were not issues to be decided by the jury in their deliberation.

We conclude the refusal by the cotut to give these instructions, in view of its directed verdict in favor of Adeline Nelson, is not error. We conclude the court committed no error in refusing the instructions above mentioned; there being no evidence presented to establish the theory proposed by the appellant.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES TRIEWEILER, HUNT, and WEBER concur.