author: MR. JUSTICE SHEEHY

text:
    In re the MATTER OF THE ACTIVITIES OF THE DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION, Their Board of Directors, Larry Fasbender, Director of DNRC, and Gary Fritz, Administrator, Department of Natural Resources Division, To Place Under MAPA, the Examination Procedures Conducted Pursuant to Section 85-2-243, MCA.
    No. 86-397.
    Submitted Feb. 10, 1987.
    Decided March 31, 1987.
    740 P.2d 1096.

      Donald D. MacIntyre argued, Dept, of Natural Resources, G. Steven Brown argued, Helena, for appellant.
    W.W. Lessley argued, Chief Water Judge, Bozeman, B.W. Thomas, Water Judge, Chinook, Robert M. Holter, Water Judge, Libby, Roy Rodeghiero, Water Judge, Roundup, Edward Steinmetz argued, Water Master, Bozeman, for respondent.
    K. Paul Stahl argued, Montana Power Co., Helena, R. Blair Strong, Washington Water Power Co., Spokane, Wash., for amicus curiae.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

We interpret and define in this case to the extent raised by the issues the respective statutory authorities granted by present law to the water courts, the chief water judge and the water court judges of Montana, on the one hand, and the Department of Natural Resources and Conservation (DNRC) and the Board of Natural Resources and Conservation (BNRC) on the other hand.

This cause is before us on appeal by the BNRC and the DNRC from two orders of the chief water judge restraining or prohibiting the BNRC and the DNRC from adopting administrative rules in the examination and determination of water rights. We do not have before us the record from a particular water right dispute as the underlying basis for the appeal. The orders were issued by the chief water judge upon his learning of the proposed or imminent adoption of administrative rules by the BNRC.

The essence of the dispute here is whether the Montana Administrative Procedures Act (MAPA) applies to activities undertaken by the Department of Natural Resources when acting under the direction of the water court pursuant to Section 85-2-243, MCA.

On July 23, 1986, W.W. Lessley, chief water judge of the Montana Water Courts, with the concurrence and agreement of the remaining water judges, Honorable Bernard W. Thomas, Honorable Robert M. Holter, and Honorable Roy C. Rodeghiero issued an order directed to the parties named in the caption hereof, essentially the DNRC and the BNRC, that “all activities of the DNRC under Section 85-2-243, MCA, shall not be placed as an agency under MAPA”; and that in the alternative, DNRC could comply with the order by proceeding to the adoption of rules as may be agreed upon between the DNRC and the water courts, without placing such rules under MAPA.

The order of July 23, 1986 was accompanied by a memorandum from the chief water judge setting forth the facts and the legal basis for the court’s decision to issue the order.

On August 8, 1986, the chief water judge, again with the concurrence and agreement of the remaining water judges, issued a further order directed to the same parties, reciting that apparently the DNRC was mailing out copies of proposed examination instructions relating to water right claims rules; that the DNRC should not take any further action to seek public review and comment on proposed examination instructions without the authorization of the Montana Water Court; and that any future failure to comply with the July 23, 1986 order or the August 8, 1986 order would be contempt of court.

It is from the aforesaid orders that the DNRC and the BNRC have appealed to this Court.

We have received amicus briefs in this cause from Washington Power Company, and Montana Power Company, each supporting the position of the DNRC and the BNRC.

ISSUES

Although the two orders issued by the chief water judge relate to activities of the DNRC under Section 85-2-243, MCA, the BNRC and the DNRC cast the issue more comprehensively. The appellants state the issue to be whether the BNRC or the DNRC must comply with the rule making provisions of the Montana Administrative Procedure Act prior to implementing their statutory responsibilities under Title 85, Chapter 2, Part 2, MCA.

Montana Water Courts pose the issues to be decided as follows:

1. Whether the DNRC has any independent statutory authority to examine water right claims under the present adjudication process.

2. Whether Montana Water Court’s July 23, 1986 orders prohibiting the BNRC, and DNRC from adopting the claimed examination instructions as administrative rules under MAPA were proper.

SUMMARY OF THE ARGUMENTS OF DNRC-BNRC

The holding in Arizona v. San Carlos Apache Tribe (1983), 463 U.S. 545, 103 S.Ct. 3201, 77 L.Ed.2d 837, ended the competitive vying between federal authorities representing the Indian tribes and the states representing state water interests to get their cases filed first, in the federal courthouses by the former and in the state courthouses by the latter. In San Carlos Apache Tribe, the United States Supreme Court would give deference to the more comprehensive state processes and thus avoid the potential for duplicative and wasteful litigation resulting in inconsistent dispositions should federal and state water rights proceedings both continue on parallel tracks. For this reason the legislative thrust to expedite and facilitate the adjudication of water rights of Montana no longer gets its impetus from the need to win the race to the courthouse, nor is there an immediate danger of imposed water allocation among the Missouri Basin states.

DNRC (for the rest of this opinion we will use “DNRC” for the combined arguments of DNRC and BNRC, unless otherwise specified) contends, in a nutshell, the legislature mandated an expeditious judication program not to encourage a hastily-achieved adjudication controlled exclusively by the judiciary but rather one that would be the least expensive, least time consuming, and with the minimum involvement of attorneys. The adjudication must go forward in a manner compatible with the doctrine of separation of powers and with due process rights fully protected.

The orders issued by Chief Water Judge Lessley are improper in that there was no pending issue of adjudication before the judge at the time the orders were issued, nor was any hearing or opportunity for hearing granted to DNRC prior to the issuance of the orders.

The legal issues raised in this appeal are (1) separation of powers issue raised by Section 85-2-243 (1985), MCA, and (2) the necessity of MAPA compliance by an executive agency in the statutory construction of 85-2-243, MCA.

Since DNRC is an executive agency with rule making power lodged in BNRC, the function of DNRC under 85-2-243, MCA, is to provide technical assistance and information to the water judges. Therefore each element of each claim must be analyzed by DNRC technical personnel, and report must be made to the water court considering the technical accuracy and consistency of each claim. MAPA guarantees to each citizen the fundamental constitutional right to participate in their government. The administrative code committee of the legislature has determined that DNRC and BNRC should operate under MAPA. MAPA fulfills the public’s right to know.

The DNRC technical role is an executive agency action for the purposes of MAPA, and the water court may not set the parameters of an executive agency’s investigation. The Water Court’s ability to “direct” the DNRC is limited to general directions concerning the water court’s judicial requirements and procedures. The water court cannot set the policies and procedures for examining claims, and also sit in judgment of the validity of those policies and procedures because it would then cease to be an impartial decision-maker. The DNRC proposed water right claims rules are the result of stipulation between the parties in Montana Department of Fish, Wildlife, and Parks, et al. v. Water Court of the State of Montana, Nos. 85-345, 85-468, and 85-493, pending in this Court. Through the course of litigation, the water courts have changed the standards and procedures used by them in adjudicating water claims, and there is a necessity for public review under MAPA of DNRC examination procedures before they are applied to the elements of individual water rights claims. The imposition of executive or administrative duties on the court, if Section 85-2-243, MCA, is interpreted that way, violates the principle of separation of powers.

A due process problem exists because various Indian tribes have raised the due process issue based on the involvement of the DNRC in the adjudication process.

SUMMARY OF ARGUMENTS OF THE WATER COURTS

The orders from the chief water judge of July 23 and August 3, 1986, were justified and necessary because the DNRC had made a decision to proceed under MAPA despite the clear opposition by the water courts. The orders followed several meetings between the DNRC director and its legal staff, on the one hand, and members of the water court staff on the other, as well as letters sent to the DNRC director expressing opposition and stating reasons. The orders did not issue until DNRC announced its decision to go ahead under MAPA.

DNRC cannot cite clear legislative authority given to it to adopt claims examination rules under MAPA because there is no such authority. For six years, since the adoption of the Water Courts Act, the DNRC has investigated claims without seeking to adopt MAPA rules. If MAPA rules were necessary, all of the work done so far by the water courts would be open to objection, a disastrous development.

The history of the water adjudication acts shows that the legislature intended a limited function for the DNRC in the adjudication, rather than an expansive one. In 1979, the Water Adjudication Act was adopted after the legislature showed dissatisfaction in the progress that was being made under a former act when the DNRC was investigating all claims but had not reached a single conclusion.

The legislature opted to place the adjudication of water rights in a judicial system and for that purpose established a statutory water claims procedure and a system for water courts to adjudicate water claims.

Specifically, the legislature gave to the water courts the authority to obtain supplementary information through directions to the DNRC. There is no current statutory language which carries over the DNRC’s independent investigation authority which it enjoyed prior to 1979.

The provisions of the statutes authorizing the water courts to obtain the information and assistance of the DNRC are constitutional. They do not offend the principle of separation of powers. It is well recognized that legislative or administrative authority which is merely incidental to the exercise of the judicial function does not offend separation of powers.

The due process violations claimed by the DNRC are unfounded. While the water courts direct the DNRC as to the necessity and scope of the examination process, the water courts in no way influence what the DNRC will find or how it analyzes the facts. Since no particular factual situation demonstrating a due process denial is being alleged here, the DNRC is clearly challenging Section 85-2-243, MCA, on its face. The combination of judging and the direction for investigation vested in a judicial tribunal when used as a function of the judicial process has been upheld in the courts.

HISTORY OF THE WATER ADJUDICATION PROCESS

The constitutional convention in 1972 adopted what became Art. IX, Section 3 of the 1972 Mont. Const., in part as follows:

“All existing rights to the use of any waters for any useful or beneficial purpose are hereby recognized or confirmed.
“(4) The legislature shall provide for the administration, control, and regulation of water rights, and shall establish a system of centralized records, in addition to the present system of local records.”

In response to this constitutional mandate, the legislature in 1973 substantially overhauled our statutes relating to water rights. The legislature imposed upon the DNRC, under former Section 89-870, R.C.M. (1947), the duty to determine existing rights. The statute said:

“(1) The department shall establish a centralized record system of all existing rights, and the department shall, as soon as practicable, begin proceedings under this act to determine existing rights. To accomplish this, the department shall gather data essential to the proper understanding and determination of those existing rights.
“(2) The department may select and specify areas or sources where a need for determination of existing rights is most urgent, and first begin proceedings under this act to determine the existing rights in those areas or sources.”

Section 6, Ch. 452, Laws of Montana (1953).

The power of the DNRC to gather data under the 1973 enactment included the use of court decrees, declarations of existing rights, groundwater records, notice of appropriations, findings of water resource surveys earlier conducted, and “the findings of inspections, surveys, reconnaissance, and investigations of the area or source involved as the department makes.” Section 89-871, R.C.M. (1947).

The District Courts were to be utilized by the DNRC for the determination of existing rights, commenced by the DNRC filing in the District Court, a request for such a determination. The request on petition was to be filed within a reasonable time after the DNRC had gathered all necessary data as aforesaid (Section 89-874, R.C.M. (1947)) and that section also provided that if the District Court determined that additional data was necessary prior to a preliminary decree in order to determine the extent of an existing right, the District Court could direct the department or the person claiming the right to obtain the necessary data. (Section 89-874(3), R.C.M. (1947).)

Thereafter, when presumably the District Court had before it all of the necessary data, the District Court would issue a preliminary decree with respect to the area or source, which would eventually ripen into a final decree.

The determination under the 1973 laws proceeded slowly. Albert Stone, Professor of Water Law at the University of Montana, observed:

“. . . by 1979, 6 years after its beginning, the adjudication of the Powder River Basin was in its initial stages. One of the difficulties with the 1973 adjudication provisions was that representatives for the Department of Natural Resources were required to go into the field, walk the old ditches and laterals, and physically discover all of the unrecorded, unasserted, and unknown water rights. So the legislature became restless over the evident prospect of a century or more which would be needed to adjudicate the water rights for the entire state. It sought procedures needed for the improvement and acceleration of the process.”

Stone, Montana Water Law for the 1980’s, Univ. of Montana (1981).

In 1979, the legislature revamped its process for adjudication of water rights. It repealed former Sections 89-870-879, R.C.M. (1947), including the statutes granting the powers above described to the DNRC.

In 1979, the legislature established a system of water courts, providing for water divisions, water judges, water masters, disqualification of judges and masters, and jurisdiction. Title 3, Ch. 7, parts 1, 2, 3, and 4, MCA. Jurisdiction for the determination of existing water rights was placed exclusively in the water courts, sitting in the respective water divisions. Section 3-7-501, MCA.

The adjudication of water rights under the 1979 enactment was begun by the filing of a petition in this Court by the Attorney General for the State of Montana requesting the Montana Supreme Court to require all persons claiming a water right to file a claim of that right in accordance with the new procedures. In June, 1979, this Court issued a water rights order whereby every person or entity claiming a water right, was ordered to file a statement of that claim with the DNRC. The statement of claim was to include all of the data required to identify the owners of, the extent of, the legal description of, the purpose of, and the times of use of existing water rights. Section 85-2-224, MCA. A claim of an existing right filed in accordance with the new act was to “constitute prima facie proof of its content” until the issuance of a final decree. Section 85-2-227, MCA.

The function of the department in rendering assistance to the water judges was set forth in Section 85-2-243, MCA. That section follows:

“The department subject to the direction of the water judge, shall, without cost to the judicial districts wholly or partly within his water division:
“(1) provide such information and assistance as may be required by the water judge to adjudicate claims of existing rights;
“(2) establish information and assistance programs to aid claimants in the filing of claims for existing rights required by 85-2-221;
“(3) conduct field investigations of claims that the water judge in consultation with the department determines warrant investigation; and
“(4) provide the water judge with all information in its possession bearing upon existing rights, including all declarations filed with and all information gathered by the department with respect to existing rights in the Powder River Basin.”

Any further duties of the department with respect to the adjudication of existing claims may be found in Section 85-2-112, MCA. They include the duty to enforce and administer the adjudication chapter “subject to the powers and duties of the Supreme Court under 3-7-204, MCA;” to prescribe procedures, forms and requirements for claims of existing rights and prescribing information therein; to keep a centralized record system in Helena of such claims of existing rights; to cooperate with and to assist federal, state and local agencies in adjudication matters; and upon request, to assist in advising persons relating to the filing of claims of existing rights.

We have not touched upon the history of claimants of reserved rights, including United States, the reserved or claimed rights of state agencies, or the claimed or reserved Indian rights. Some portion of the history of those entities in the matter of adjudication of existing water rights will appear later in this Opinion.

STATUTORY AUTHORITY IN THE WATER COURTS AND IN DNRC

Two things stand out clearly from the legislative enactments that occurred in 1979: (1) the water judge in each division has jurisdiction over all matters concerning the determination of existing water rights within his division (Section 3-7-501(3), MCA); (2) the role of' the DNRC in the adjudication process, always subject to the direction of the water judge, is to provide such information and assistance as may be required by the water judge, to establish information and assistance programs to aid claimants in the filing of claims, and to conduct field investigations in claims that the water judge, in consultation with the department warrant determines investigation. Section 85-2-243, MCA.

The further duty of the DNRC in Section 85-2-243, MCA, to provide the water judge with all information in its possession relating to existing water rights in the Powder River Basin derived from the fact that the department had prior to 1979 commenced water right determinations in that basin and the holders of water rights in that basin had been exempt from filing further claims under the new adjudication process. Section 85-2-222, MCA.

We note that in Section 89-874, R.C.M. (1947), now repealed, it was formerly provided prior to 1979 that if the District Court in adjudicating a water right determined that additional data was necessary prior to a preliminary decree, the District Court could direct the department or the person claiming the right to obtain the necessary data. That provision of the former law was carried forward and is included in present Section 85-2-243, MCA. However, there is no current statutory language which continues the DNRC’s independent investigation authority in adjudication matters which had been stated in former Sections 89-870 and 89-871, R.C.M. (1947), now also repealed.

However, DNRC contends in this appeal that it is an “agency” which must adopt “rules” which prescribe the procedures and practice requirements to be used by it in implementing Title 85, Ch. 2, Part 2, MCA. It is apparently backed up in this contention by a letter from the committee chairman of the legislature’s Administrative Code Committee which states that DNRC’s proposed rules are substantive rules within the meaning of Sections 2-4-102(10), 2-4-102(11), MCA. (The Administrative Code Committee has not participated in these proceedings, though empowered to do so (Section 2-4-402(d), MCA).

We must, therefore, determine, in the absence of express rulemaking authority as we noted above, whether DNRC may find such authority within MAPA itself. The pertinent statutes are these:

“2-4-102. Definitions. For purposes of this chapter, the following definitions apply:
“(2) (a) ‘Agency’ means any agency, as defined in 2-3-102, of the state government . . .
“(10) ‘Rule’ means each agency, regulation, standard of statement of general applicability, it implements, prescribes law or policy or describes the organization, procedure or practice requirements of an agency . . .
“(11) ‘Substantive’ rules are either:
“(a) legislative rules, which if adopted in accordance with this chapter and under expressly delegated authority to promulgate rules to implement a statute have the force of law and when not so adopted are invalid; or
“(b) adjective or interpretative rules, which may be adopted in accordance with this chapter and under express or implied authority to codify an interpretation of a statute. Such interpretation lacks the force of law.”

The “agency” definition referred to in Section 2-3-102(2)(a), MCA, is the following:

“2-3-102. Definitions. As used in this part, the following definitions apply:
“(1) ‘Agency’ means any board, bureau, commission, department, authority or officer of the state or local government authorized by law to make rules, determine contested cases, or enter into contracts . . . (Emphasis supplied.)”

For the DNRC to have rulemaking authority, its first hurdle, over which it cannot jump, is expressly delegated authority from the legislature to make such rules. As an “agency” it must be authorized by law to make rules. If its “substantive rules” are intended to be legislative, it must have expressly delegated authority to promulgate rules. If its substantive rules are intended to be adjective or interpretative, it must have either expressed or implied authority to codify an interpretation of a statute. Absent any legislative authority, the DNRC has no authority with respect to rulemaking:

“2-4-301, MCA. Authority to adopt not conferred. Except as provided in Part II [not applicable] nothing in this chapter confers authority upon or augments the authority of any state agency to adopt, administer, or enforce any rule.”

If there is any doubt that the DNRC has no such power to adopt the rules proposed in this case, that doubt must be erased in consideration of Section 3-7-103, MCA:

“3-7-103. Promulgation of rules and prescription of forms. As soon as practicable, the Montana Supreme Court may promulgate special rules of practice and procedure and shall prescribe forms for use in connection with this chapter and chapter 85, chapter 2, parts 2 and 7, in consultation with the water judge and the Department of Natural Resources and Conservation.”

Thus clearly is spelled out by the legislature where the power of rulemaking lies with respect to the adjudication of water rights. That power resides in this Court. DNRC has no more than a consultatory function.

Under our statutes only the BNRC has rulemaking authority and the DNRC itself has no such authority. Section 85-2-113, MCA. We are aware that Section 85-2-121 provides that the Montana Administrative Procedures Act governs administrative proceedings conducted under Parts 1 through 4 of Title 85, MCA. Since 1979, however, the adjudication of existing claims for water rights has been a judicial proceeding, and not an administrative proceeding. Section 85-2-121, therefore does not apply in this instance. We are fortified in this by the provisions of Section 85-2-112, MCA, prescribing the department duties, which states:

“85-2-112. Department Duties. The department shall:
“(1) enforce and administer this chapter and rules adopted by the board under 85-2-113, subject to the powers and duties of the Supreme Court under 3-7-204 . . .”

The legislative intent is clearly to be deduced from the statutes foregoing. The power of rulemaking with respect to the judicial proceedings pending before the water court is reserved to the Supreme Court with the department acting in a consultative capacity. Neither the board nor the Department of Natural Resources has any rulemaking authority with respect to procedures in the adjudication of water claims before the water courts.

Having said the foregoing, we hasten to add that nothing in this determination shall be taken to demean or underestimate the crucial role to be played by DNRC in the adjudication of water rights claims. The technical expertise, assistance and information of the DNRC, which all sides recognize, is indispensable for the success of the adjudication process. A lack of departmental cooperation in the furnishing of such technical expertise, assistance or information could bring the judicial adjudication of water rights to a grinding halt. It was to insure ongoing, uninterrupted progress towards ultimate quantification of water rights that the legislature provided in Section 85-2-243, MCA, that the department should be subject to the directions of the water judges in matters affecting adjudication.

When, in the very near future, this Court bends to the task of formulating and adopting rules, it will do so after consultation with the water courts and with the Department of Natural Resources and Conservation. In those rules, this Court will adhere to the legislative directions found in Section 85-2-243. There will be room within those rules for the integrity of DNRC in supplying the information and expertise requested by the water courts. When such rules are promulgated by us, there will be an opportunity for public comment before such rules become finally effective.

85-2-243 AND DUE PROCESS

We have no underlying factual situation in this case, in which an aggrieved water rights claimant has come to this Court contending that he/she has been deprived of due process because of the role played by the DNRC under Section 85-2-243, MCA.

DNRC, however, points to an “underlying concern” that if it is not given the power to adopt rules under MAPA, the performances of its duties under Section 85-2-243, may lead eventually to a determination in this Court or some federal court that the procedures utilized deprived a person or entity of due process.

DNRC ties its “underlying concern” to an unresolved issue of due process in State ex rel. Greely v. Confederated Salish & Kootenai Tribes (Mont. 1985), [219 Mont. 76,] 712 P.2d 754. DNRC further points to United States v. Superior Court for Maricopa County (hereafter Maricopa), San Carlos Apache Tribe v. Superior Court for Maricopa (1985), 144 Ariz. 265, 697 P.2d 658, as a benchmark level which our adjudication process must attain to survive a due process frontal attack.

In State ex rel. Greely v. Confederated Salish & Kootenai Tribes, the Assiniboine and Sioux Tribes on the Fort Peck Reservation, the Crow Indian Tribe, Indians of the Crow Reservation and the Northern Cheyenne Tribe of the Northern Cheyenne Reservation and the Confederated Salish and Kootenai Tribes on the Flathead Reservation all raised due process issues involving the DNRC’s various roles in the adjudication process. We determined that such due process claims were not ripe for review, saying:

“Several tribes have claimed that the involvement of the Department of Natural Resources with the water court prior to issuance of preliminary decrees may violate the requirements of due process. Section 85-2-243, MCA, authorizes the department to assist the water court, including collecting information and conducting field investigations of questionable claims. While we recognize that the act places no limits on the matter in which the water court utilizes the information furnished by the department, we will not presume any improper application of the act on the part of the water court. Actual violations of procedural due process and other issues regarding the act as applied are reviewable on appeal after a factual record is established.”

712 P.2d at 765.

DNRC is a holder of water rights, representing the State. As such it has water rights which are subject to the claims registration requirements of the Montana Water Use Act. Thus, DNRC is a claimant in the adjudication process. As a claimant, it may make objections to preliminary decrees in the defense of its water rights. Moreover, the DNRC may object to any preliminary decree, independent of its status as a water rights claimant. Section 85-2-233, MCA. The requirement that the DNRC assume these rules, and at the same time be obliged to supply technical information and expertise to the water courts gives rise to the potential due process objections by the Tribes. DNRC points to the decision in Maricopa in this regard.

In Maricopa County, the Arizona Department of Water Resources was assigned functions of determining the scope of the adjudication, the development of claim forms, and the service of process on potential claimants. It also provided a list of potential water masters to the State court and provided technical assistance to the court or master. But in Arizona, a separate agency was assigned the role of claimant to water rights on behalf of the state, and the Attorney General of that state represents the state with respect to claims asserted on the state’s behalf. The DNRC fears that it may be considered to be “institutionally biased,” because it is both a claimant to water rights, an objector to preliminary decrees, and yet the furnisher of technical expertise and information to the water court. In Maricopa, the adjudication scheme of Arizona was upheld because the adjudicatory functions of its department was separated from the ownership functions of the state which were placed in another department. 697 P.2d 672-674.

There is, of course, a potential of due process problems in Montana’s adjudication plan, but absent a factual record, we may not presume that due process violations have occurred. The Indian tribes, so far, by legislative grant, Section 85-2-217, MCA, have not been involved in the adjudication proceedings. The due process potential problem is greatly ameliorated by the notice of preliminary decree provisions in Section 85-2-232, and the provisions for hearing in 85-2-233. Appeals are preserved in Section 85-2-235, MCA.

Our water courts are aware, we trust, that the United States Supreme Court reserved the right to review state court adjudications of federal reserve water rights in San Carlos Apache (1983), 463 U.S. 545, 103 S.Ct. 3201, 77 L.Ed.2d 837, and said it would give “particularized and exacting scrutiny” commensurate with the powerful federal interests in safeguarding those [Indian] rights from state encroachment. The alternative presented to us by the DNRC in raising its underlying concern about due process is to eliminate completely from Section 85-2-243 any requirement that the water judge control the adjudication by directing the DNRC to provide information and assistance and to investigate claims. Such action would make the water adjudication procedure almost unworkable. In the meantime, as we stated in Confederated Salish and Kootenai, the issue is not yet ripe for review.

SECTION 85-2-243 AND SEPARATION OF POWERS

Under this heading, DNRC contends that the water court’s orders of July 23, 1986 and August 8, 1986 demonstrate its plan to exert total control over the day by day operations of DNRC. Such, DNRC contends is judicial control over an executive agency and as such an improper incursion by the judiciary on executive powers.

As with DNRC’s due process claims, we do not have a factual record that would establish an improper exercise by the water courts of executive powers in the guise of judicial action. We do have, however, the stipulation entered into between the DNRC, the water courts and other parties in cause Nos. 85-345, 85-468, and 85-493 pending in this Court. In that stipulation, in paragraph 26, page 10, it is stated:

“Pursuant to section 85-2-243, MCA, the water court, after consultation with DNRC, shall issue orders establishing time frames for the completion of verification by DNRC and the submission of verification information to the court. The water court order shall also establish the specific elements of each type of water right claimed to be verified by DNRC. The verification by DNRC shall be limited to factual analysis and the identification of issues. The water court shall refrain from participating in the verification of claims by DNRC, except the water court, upon proper application and for good cause shown, may enjoin DNRC from acting beyond its jurisdiction in the verification process.”

The language of the foregoing stipulation, acceded to by the chief judge of the water court, belies any intention of the water court to override or control the day to day operations of the DNRC. The only effect of the orders of July 23 and August 8, 1986, issued by the water court was to require the DNRC to desist from making rules under MAPA, a procedure which we have already shown to be beyond the power of the DNRC in this case.

Again in the absence of a factual record, we find no intrusion by the water courts in this case upon the executive duties of the DNRC.

CONCLUSION

The orders issued by the water court directed the DNRC dated July 23, 1986 and August 8, 1986, are hereby affirmed.

This Court sees the need for the adoption of rules relating to the verification of water claims in the adjudication process as necessary, and therefore will exercise its discretionary power under Section 3-7-103, MCA, to promulgate special rules of practice and procedure therefor. This Court therefore orders that the chief water judge of the water courts, and the director of the DNRC appoint staff members who shall meet within fifteen days of the date of this Opinion for the purpose of drafting proposed rules for adoption by this Court. Such proposed rules shall be filed in this Court in this cause on or before thirty days from the date of this Opinion. If the parties are unable to agree on any part of such rules, each party shall submit his or its separate version of those rules within thirty days of this Opinion. Thereafter, this Court will set a date for consultation with the chief water judge and the Department of Natural Resources and Conservation pursuant to Section 3-7-103, MCA, to the eventual adoption of proper rules. Jurisdiction in this Court is reserved until the further order of this Court.

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


source: Caselaw Access Project

author: MR. CHIEF JUSTICE TURNAGE

license: Public Domain

text:
    ROZEL CORPORATION, a Montana corporation, Petitioner and Appellant, v. DEPARTMENT OF PUBLIC SERVICE REGULATION, PUBLIC SERVICE COMMISSION, an agency of the State of Montana, and Three Rivers Disposal, a Montana partnership, Respondents and Respondents.
    No. 86-404.
    Submitted Jan. 16, 1987.
    Decided March 31, 1987.
    735 P.2d 282.

      Bryan, Atkins, Anacker, John P. Atkins argued, Bozeman, for petitioner and appellant.
    Robin McHugh argued, Helena, for Public Service Commission.
    Joseph W. Sabol argued, Bozeman, for Three Rivers.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Rozel Corporation appeals a May 6, 1986, order of the Eighteenth Judicial District Court, Gallatin County, which upheld a final order of the Public Service Commission (PSC). The PSC final order denied Rozel’s application to begin a garbage service in the Bozeman area. We affirm the District Court.

Rozel presents two issues for our review:

1. Did the District Court err in holding that the PSC’s regulation of entry into the garbage-hauling business, without regulation of rates, did not violate the “Unfair Trade Practices” statutes, Title 30, Chap. 14, Parts 1 and 2, MCA?

2. As applied to the denial of Rozel’s application, does Section 30-14-105(1), MCA, which exempts the PSC from the purview of the Unfair Trade Practices and Consumer Protection Act, violate Article XIII, Section 1(2), of the Montana Constitution?

In August 1984, appellant Rozel applied to the PSC for a Class D Certificate of Public Convenience and Necessity, so that he could begin a garbage-hauling service in Gallatin County and Big Sky, Montana. Respondent Three Rivers Disposal is currently the only private garbage service in the area. Three Rivers filed a protest to Rozel’s application. The PSC held a public hearing on the matter on November 15 and 16, 1984.

On March 11, 1985, the PSC issued a 23-page final order denying Rozel’s application. The order cited the satisfactory service of Three Rivers, the lack of demand for Rozel’s additional service, and the potential adverse effect of Rozel’s service upon Three Rivers’ service. The heart of the PSC’s reasoning is contained in Findings 52 and 53, where it states a preference for service stability over competition:

“52. Some witnesses did contend that competition in the area would tend to decrease garbage rates. This may very well be true in the short run. However, history indicates that in the past it also led to severe financial difficulties for the companies involved and resulted in the ultimate failure of each of those companies. Customers in the area have benefited from periods of competition and relatively low rates; perhaps even below cost at times. However, they have also been subjected to a very unstable and unhealthy industry.
“53. Given that there does not appear to be any unmet demand and that service appears to be adequate and prices reasonable, it seems that what the area really needs at this time is a period of stability. This is not to say that the public should be prepared to tolerate unmet demand or inadequate service or unreasonable rates should they occur in the future. The existing carrier remains on notice that the Commission retains the power to reexamine the situation and grant a new authority should the circumstances merit it. [Emphasis added.]”

The PSC did not consider the fitness and ability of Rozel to meet any perceived additional need. Based upon the “public convenience and necessity” and the “impact to existing transportation services,” the PSC concluded that Gallatin County and Big Sky did not require another garbage carrier.

On April 26, 1985, pursuant to the Montana Administrative Procedure Act, Rozel petitioned the District Court for a review of the PSC order. The District Court heard the case on April 21, 1986. On May 6, 1986, the District Court found no violation of federal antitrust laws or the Montana Unfair Trade Practices and Consumer Protection Act. The District Court also found that the PSC order did not violate due process or equal protection, and that the decision of the PSC was not arbitrary or capricious. On July 15, 1986, the District Court denied Rozel’s motion for reconsideration, because forty-five days had passed since the District Court had filed its order. Rozel appeals the District Court’s May 6, 1986, order.

Issue 1

Did the District Court err in holding that the PSC’s regulation of entry into the garbage-hauling business, without regulation of rates, did not violate the “Unfair Trade Practices” statutes, Title 30, Chap. 14, Parts 1 and 2, MCA?

Our standard of review of PSC determinations is defined in Section 2-4-704(2), MCA:

“The court may not substitute its judgment for that of the agency as to the weight of the evidence on questions of fact. The court may affirm the decision of the agency or remand the case for further proceedings. The court may reverse or modify the decision if substantial rights of the appellant have been prejudiced because the administrative findings, inferences, conclusions, or decisions are:
“(a) in violation of constitutional or statutory provisions;
“(b) in excess of the statutory authority of the agency;
“(e) clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record;
“(f) arbitrary or capricious or characterized by abuse of discretion or clearly unwarranted exercise of discretion; or

On this issue, Rozel’s argument can be reduced to three sentences: The PSC does not have the authority to regulate rates of garbage-haulers. Therefore, the PSC should not have the authority to regulate entry into the garbage-hauling business. Conversely, if the PSC regulates entry, it should also regulates rates. Rozel blends the partial language of several statutes to reach this summary conclusion. Rozel argues that without rate regulation, the public is subject to monopolistic garbage-haulers. Rozel generally asserts that the PSC acted in excess of its statutory authority, in violation of Sections 30-14-101 et seq., and 30-14-201, et seq., MCA. However, Rozel fails to cite any specific instance of excess or statutory violation.

The PSC contends that the regulation of entry into the garbage-hauling business by the PSC does not violate the Consumer Protection Act, Sections 30-14-101 et seq., MCA, because the Act does not cover actions of the PSC. The PSC asserts that Section 30-14-105(1), MCA, specifically exempts the PSC from the scope of the Consumer Protection Act, by stating: “Exemptions. Nothing in this part shall apply to: actions or transactions permitted under laws administered by the Montana public service commission acting under statutory authority of this part or the United States.”

The PSC argues that the word “part” in Section 30-14-105(1) actually means “state” in order to avoid an absurd result; for if Section 30-14-105(1) is read literally, then the actions of the PSC are exempt from the Consumer Protection Act only when those actions are taken pursuant to the authority of the Consumer Protection Act. However, the Act grants no such authority to the PSC. Therefore, the plain meaning of Section 30-14-105(1) is that the actions and transactions of the PSC, acting under its statutory authority of Title 69, “Public Utilities and Carriers,” are exempt from the Consumer Protection Act. This interpretation accords with the federal model act from which the Consumer Protection Act was drafted, where the word “state” is used in place of “part”.

Respondent Three Rivers contends that the new enactment of Section 69-12-323(2)(b), MCA, “Decision on application,” containing the phrase “may include a consideration of competition,” provides the PSC with the necessary tool to handle potentially harmful monopoly situations. The language is permissive, but not mandatory, thereby indicating that competition may be beneficial in some cases but not all cases. The legislature chose to partially regulate the garbage industry in Montana. It has thereby certified a policy of limited entry into the garbage transportation business and recognized that open competition, under some circumstances, may be harmful to the existing carrier and the consuming public. Three Rivers adds that Section 30-14-201 et seq., “Unfair Trade Practices Generally”, deals with and is applicable to any person, partnership, firm, corporation, joint stock company or other association engaged in business within this state, but it is not applicable to the State of Montana itself or any agency of state government.

In analyzing this issue, we note that Section 69-12-301(5), MCA, would classify Rozel as a Class D motor carrier: “Class D motor carriers embraces all motor carriers operating motor vehicles transporting (including pickup and disposal) ashes, trash, waste, refuse, rubbish, garbage, and organic and inorganic matter.” Through the authority bestowed upon it in Title 69, the PSC controls entry into the garbage-hauling business. However, the PSC does not regulate the rates charged by Class D carriers and does not regulate the quality of the service provided. We find that the express authority to regulate entry is not concomitant with the implied requirements to regulate rates. The only function that the PSC is authorized to perform is the granting or denial of the Class D certificate to do business.

Section 69-12-323(2), MCA, outlines the factors the PSC must use when considering an application for a Class D certificate:

“(a) In determining whether a certificate should be issued, the commission shall give reasonable consideration to the transportation service being furnished . . . and shall give due consideration to the likelihood of the proposed service being permanent and continuous throughout 12 months of the year . . .
“(b) For purposes of Class D certificates, a determination of public convenience and necessity may include a consideration of competition. [Emphasis added.]”

The PSC interpreted Section 69-12-323(2)(a) as requiring it to address three factors when considering Rozel’s garbage-hauling application. These three factors were : 1) public convenience and necessity, 2) applicant fitness, and 3) existing competition.

The PSC observed that garbage-hauling competition would be against the public interest, in its final order finding No. 49:

“. . . In each instance [competition] required that a consolidation occur in order to continue the provision of service; only to see a new competitor rise and the cycle repeat itself . . . The Commission is concerned that a grant of this application would only cause that cycle to repeat itself once more. [Emphasis added.]”

The evidence offered to the PSC in this case established the devastating impact which past garbage company competitors brought upon each other, and consequently the consumer. The consumer reaped the initial benefits of the competition price war by an immediate reduction in garbage rates. However, the consumer ultimately paid for this fleeting benefit with an unstable garbage carrier attempting to provide services to the community without proper maintenance and inventory. The PSC properly concluded that renewing this situation by granting Rozel’s application was not in the public interest.

Although the action of the PSC can be deemed anti-competitive in nature, its authority to take such action was conferred upon it by the legislature in Title 69. The state has the power to engage in economic regulation, even if such regulation is adverse to competition. New Motor Vehicle Board of California v. Orrin W. Fox Co. (1978), 439 U.S. 96, 111, 99 S.Ct. 403, 412, 58 L.Ed.2d 361.

Our scope of judicial review is limited by Section 2-4-704(2), MCA, to matters of law, not fact. This Court may not consider the weight of the evidence. We hold that the PSC acted within its discretionary and statutory authority. Because the PSC procedure was proper, we affirm the District Court.

Issue 2

As applied to the denial of Rozel’s application, does Section 30-14-105(1), MCA, which exempts the PSC from the purview of the Unfair Trade Practices and Consumer Protection Act, violate Article XIII, Section 1(2) of the Montana Constitution, which states: “The legislature shall provide protection and education for the people against unfair practices by either foreign or domestic corporations, individuals, or associations”?

This issue is not properly before this Court. This issue was first raised in Rozel’s motion for reconsideration, which was denied because forty-five days had elapsed. As we have often held, a party may not change its theory on appeal from the theory advanced in the trial court. Chamberlain v. Evans (1979), 180 Mont. 511, 517, 591 P.2d 237, 240. In addition, we have repeatedly stated that: “This court will not review a matter raised for the first time on appeal.” Peter v. Newkirk (Mont. 1981), 633 P.2d 1210, 1212, 38 St.Rep. 1526, 1528.

We affirm the order of the District Court.

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


author: MR. JUSTICE MORRISON MR. JUSTICE SHEEHY,

text:
    FRAZER SCHOOL DISTRICT NO. 2, Appellant and Respondent, v. LAYNE A. FORSNESS; Ed Argenbright, Superintendent of Public Instruction; Alfreda Drabbs, Valley County Superintendent of Schools; and Delores Hughes, Substitute Hearings Officer, Respondents and Appellant.
    No. 86-511.
    Submitted on Briefs Feb. 13, 1987.
    Decided March 31, 1987.
    734 P.2d 1218.

      John W. Larson, Office of Public Instruction, Helena, Gallagher, Archambeault & Knierim, G.T. Archambeault, Glasgow, for respondents and appellants.
    James D. Rector, Glasgow, for appellant and respondent.
   MR. JUSTICE MORRISON

delivered the Opinion of the Court.

This is an appeal from the September 29,1986, order of the Seventeenth Judicial District Court reversing a decision of the State Superintendent of Public Instruction which allowed a tuition transfer for appellant Layne Forsness. We affirm.

Appellant is the father of an elementary student, Brandon Forsness. The Forsness family resides within the Frazer school district, but Mr. Forsness desires to have Brandon attend school in Wolf Point. Brandon’s tuition application was granted by the Frazer School Board for 1983-84 permitting his attendance in Wolf Point. The following year, the School Board denied Brandon’s tuition transfer request.

Mr. Forsness appealed the Board’s decision to the Valley County Superintendent of Schools. Following hearing, the decision was affirmed by presiding hearings officer, Dolores Hughes, the Phillips County Superintendent of Schools. On appeal to the State Superintendent of Public Instruction, the decision was reversed. The Frazer School Board appealed the order of the State Superintendent to the District Court. The District Court reversed and reinstated the decision of the Frazer School Board denying a tuition transfer. Mr. Forsness appeals the District Court order and raises the following issues:

1. Whether the District Court complied with Sections 2-4-623 and 704, MCA?

2. Whether the decision of the County Superintendent violated the Montana Administrative Procedures Act and is contrary to law?

The case before us is a companion case to Frazer School District No. 2 v. Flynn (Mont. 1987) [_Mont__,] 732 P.2d 409, 44 St.Rep. 248. The issues are identical, and our holding in Flynn, supra, is dispositive of this appeal.

In Flynn, supra we found that pursuant to Rule 10.6.125, Administrative Rules of Montana, the State Superintendent may not substitute his judgment for that of the County Superintendent as to the weight of the evidence on questions of fact. In the present case, we find the State Superintendent violated this provision and the District Court was correct in reinstating the decision of the County Superintendent.

The Frazer School Board has broad discretionary authority under Section 20-5-302, MCA, to permit a tuition transfer. The Board denied Brandon Forsness’ application. The County Superintendent considered all the evidence and found the Board properly exercised its discretion under Section 20-5-302, MCA, in denying the Forsness application. The State Superintendent reversed, finding the Board’s reasons for denying the application to be a change in the composition of the Frazer School Board and a change in the bus route. As in Flynn, supra, we find the State Superintendent exceeded his authority by substituting his opinion for that of the Frazer School Board and the County Superintendent.

The District Court is affirmed.

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

MR. JUSTICE SHEEHY,

dissenting:

Again I dissent, as I did in the companion case, Frazer School District No. 2 v. Flynn (Mont. 1987), [225 Mont. 299,] 732 P.2d 409, 44 St.Rep. 248, and for the same reasons. Both of these decisions severely limit the statutory discretionary power lodged in the Superintendent of Public Instruction on matters of controversy appealed to the Superintendent under Section 20-3-107, MCA.

MR. JUSTICE HUNT concurs in the foregoing dissent.


author: MR. JUSTICE SHEEHY MR. JUSTICE GULBRANDSON,

text:
    KATHIE NORTH, as Personal Representative of the Estate of Terrance J. North, and as Guardian Ad Litem for Susan A. North, a minor, Plaintiff and Respondent, v. GARY BUNDAY, d/b/a Bunday Trucking; and the State of Montana, Defendants and Petitioners.
    No. 86-472.
    Submitted Jan. 6, 1987.
    Decided March 31, 1987.
    735 P.2d 270.

      Allen B. Chronister argued, Agency Legal Services Bureau, Helena, Gregory Morgan and Robert Planalp argued, Bozeman, for defendants and petitioners.
    Monte Beck argued, Bozeman, Terry Trieweiler argued, Whitefish, for plaintiff and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

In this special proceeding originating in this Court, we are called upon to decide whether the District court is correct in holding that, although plaintiff’s percentage of causal negligence in a tort action exceeded the percentage of causal negligence assigned individually to each of two concurrent tortfeasor defendants, the plaintiff may nevertheless recover a diminished proportion of his damages from the concurrent tortfeasors because their combined percentages of causal negligence exceeded that of the plaintiff.

We hold that the District Court was correct and we adopt the rule that under our comparative negligence statutes and cases the percentage of negligence of the plaintiff is to be compared to the combined percentages of causal negligence of concurrent tortfeasors where recovery is sought against multiple defendants.

Two issues have developed in this cause:

1. What is the legal effect under Section 27-1-702, MCA, of a civil jury verdict in a bifurcated trial on negligence only, apportioning 45% of the negligence to the plaintiff, 40% to the defendant Bunday Trucking and 15% to the defendant State?

2. In the event that this Court adopts the theory of combined negligence of concurrent tortfeasor defendants, should this cause be remanded to the District Court to reapportion fault under proper instructions?

The underlying case was tried in the Eighteenth Judicial District, Gallatin County. The plaintiff, Kathie North, in her representative capacities, sued Gary Bunday and the State of Montana for damages arising out of the death of Terrance J. North. On the night of August 2, 1983, Terry North was driving a pickup and a motorcycle trailer down U.S. Highway 10, east of Bozeman. Highway 10 is a frontage road with a dead end. There was no “dead end” sign or other warning placed prior to the roadway’s end. Defendant Bunday Trucking had parked two unloaded semi-trailers at the end of the roadway and on the State’s right-of-way. The trailers were parked directly in front of and partially blocking the only sign indicating the road’s closure. North apparently saw the trailers, applied his brakes and slid his pickup under one of the trailers. He was killed in the collision. Later, readings of blood samples taken from Terry’s body indicated a high blood-alcohol content.

Plaintiff is decedent’s ex-wife, suing on behalf of the estate and his daughter. The plaintiff argued that Bunday was negligent in the placement of the trailers on the roadway and that the State of Montana was negligent in failing to adequately warn of the dead-end road. The defendants argued that decedent’s extreme intoxication was the sole cause of the accident.

The parties agreed that the issues in the District Court would be bifurcated, the first jury to determine the percentages of negligence, if any, of the parties in causing the accident, and a later trial to determine damages, if a damages trial was necessary.

The jury returned a special verdict in which, in separate interrogatories, it answered that each of the defendants and the decedent Terry North were negligent, and that the negligence of each was a legal cause of the accident. It fixed the percentages of such negligence at 40% for defendant Gary Bunday, 15% for defendant State of Montana, and 45% for the plaintiffs decedent Terry North. The total, of course, is 100%.

Following the verdict on special interrogatories, the District Court entered an order requiring that counsel for each party prepare memoranda regarding their contentions as to the effect of the verdict, and their authorities in support. After considering the memoranda and contentions, the District Court judge entered an order on September 9, 1986 to the effect that “the court adopts the1 combined negligence rule of the defendants exceeding that of the plaintiff and the plaintiff is therefore entitled to damages reduced by 45% attributable to plaintiff’s negligence.”

Thereupon, the State of Montana made application to this Court for a writ of supervisory control directing the District Court to modify its order of September 9, 1986. The State requested that the plaintiff be barred from recovering against the State because the negligence of the decedent exceeded the negligence of the State and of each individual defendant. The State contended that no further trial was necessary as to damages. The defendant Gary Bunday joined in the State’s application with permission from this Court.

I.

The statute which bears most directly on the problem is Section 27-1-702, MCA, which we set forth here:

“Contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages for negligence resulting in death or injury to person or property if such negligence was not greater than the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of negligence attributable to the person recovering. (Emphasis added.)”

The proponents of the individual comparison rule contend that Section 27-1-702 is not ambiguous, requiring comparison of the plaintiff’s negligence “with the person” against whom recovery is sought. They further contend that we predicted the individual comparison rule in dictum in Cordier v. Stetson-Ross (1979), 184 Mont. 502, 604 P.2d 86. They further argue that because our comparative negligence statute was adopted from Wisconsin that the interpretation of the statute by the highest judicial authority in Wisconsin was also adopted by us.

The plaintiff, as proponent for the combined comparison rule, contends that the words “the person” in Section 27-1-702 must be interpreted in accordance with Section 1-2-105, MCA; that the policy of the state, and fairness, require interpretation of Section 27-1-702 under the combined comparison rule; and that the majority of states considering the issue have adopted the combined comparison rule.

The District Court saw the issue as one involving nothing but fairness. In weighing the pros and cons of the interpretation of the statute, the District Court determined that the most fair result would be to adopt the combined negligence rule. It did so, although it also foresaw that sometimes inequities would result. The District Court said:

“In reaching its conclusion, the court feels bound by nothing beyond the question of fairness. But even with fairness as the only criterion, one can always conjure up some obscure set of facts which will appear to treat a mythical plaintiff or defendant less fairly than others. Unfortunately, the nature of the beast is such that this will inevitably happen.
“The defendants further argued that past legislative inaction demands the status quo. The Court cannot agree. It is true that the legislature has refrained form clarifying the existing language, but it may also be true that the legislators believed an amendment was unnecessary. Who knows what is in the minds of one hundred fifty (150) legislators when the result is no action?”

The 1975 adoption by the legislature of the comparative negligence statute, Section 27-1-702, MCA, was a legislative modification of the harsh common law rule in effect in Montana before that time that contributory negligence in the slightest degree barred a plaintiff from recovering for his injuries from any tortfeasor, joint or several. Sztaba v. Great Northern Railway Company (1966), 147 Mont. 185, 411 P.2d 379. The comparative negligence statute appears to be identical to that of Wisconsin on the same subject. Wis. Stat. Ann. Section 895.045.

The petitioners contend that the language “the negligence of the person against whom recovery is sought,” found in the statute, is unambiguous, and commands individual comparison. A similar argument was made in Colorado and rejected by its Supreme Court in Mountain Mobil Mix, Inc. v. Gifford (Colo. 1983), 660 P.2d 883. There the Colorado Supreme Court said:

“The controversy in this appeal arises from the language in the statute which purports to limit recovery if plaintiffs ‘negligence was not as great as the negligence of the person against whom recovery is sought.’ (Emphasis added.) The respondents argue that the plain language of the statute dictates that plaintiffs negligence should be compared against each defendant’s negligence. In our view, the issue cannot be resolved by a mechanical and narrow reading of the statute. (Citing authority.)
“In addition to the previously mentioned canons of statutory construction which the General Assembly has codified, it has directed us that the use of a singular in a statute also includes the plural. (Citing authority.) The respondents would have us ignore rules for statutory interpretation when there is no indication that the comparative negligence statute was intended to embody an individual comparison rule. If the General Assembly truly intended the phrase “the person” to exclude the plural, then it could have unambiguously provided for that result by using the phrase ‘each individual person.’ (Citing authority.) Even though the General Assembly’s wording is imprecise, we do not believe that a strict parsing of the statutory language compels an individual comparison rule. (Citing authority.) We must therefore construe the statute in light of its intended purpose.”

660 P.2d 885, 886.

Montana has a like provision on the matter of statutory interpretation. Section 1-2-105, MCA, provides: “The following rules apply in this code: ... (3) The singular includes the plural and the plural the singular.”

In like manner, the State of Utah, in Jensen v. Intermountain Health Care, Inc. (Utah 1984), 679 P.2d 903, 908, utilized a statute similar to our Section 1-2-105, MCA, to determine that “person” in the comparative negligence statute should include “persons:”

“Furthermore, it should be noted that the language of Section 1, as such, is not necessarily inconsistent with the unit rule. That section only refers to a plaintiff’s negligence not being ‘as great as the negligence or gross negligence of the person against whom recovery is sought . . .’ (Emphasis added.) The statutory language is not the ‘negligence of any person against whom recovery is sought’: rather the language used was intended to mean ‘the person or persons’ so as to include both single-defendant and multi-defendant cases. That construction is suggested by the text and is in full harmony with UCA 1953, Section 68-3-12, which provide rules for the construction of Utah statutes. Subparagraph (6) states, ‘The singular number includes the plural and the plural the singular . . ”

679 P.2d at 908.

Wyoming and Idaho on the other hand have refused to interpret the word “person” as including the plural. See Board of Commissioners v. Ridenour (Wyo.1981), 623 P.2d 1174; Odenwalt v. Zaring (Idaho 1980), 624 P.2d 383.

The petitioners, however, contend that where the language of the statute is plain, unambiguous, direct and certain, the statute speaks for itself and there is nothing left for the court to construe. Keller v. Smith (1976), 170 Mont. 399, 553 P.2d 1002. They further cite State ex rel. Swart v. Casne (1977), 172 Mont. 302, 564 P.2d 983, to the effect that the rules of statutory construction which apply to cases involving conflicting or ambiguous provisions of a statute have no application where the language of the statute is clear and unambiguous. Yet the respected authority of the Supreme Courts of Colorado and Utah construing an identical provision is persuasive authority. To these may be added the Supreme Court of Hawaii, holding similarly on an identical provision in Wong v. Hawaiian Scenic Tours, Ltd. (Hawaii 1982), 642 P.2d 930; and of Arkansas, Walton v. Tull (1962), 234 Ark. 882, 356 S.W.2d 20.

The Supreme Court of Wisconsin, the state from which it is contended that our Section 27-1-702, MCA, was adopted (respondent disputes this point), determined by judicial enactment that the language of the statute required the application of the unit or individual comparison rule. Schwenn v. Loraine Hotel Company (1961), 14 Wis.2d 601, 111 N.W. 2d 495; Walker v. Kroger Grocery and Baking Company (1934), 214 Wis. 519, 252 N.W. 721. Yet in 1978, in May v. Skelly Oil Company (1978), 83 Wis.2d 30, 264 N.W. 2d 574, the Wisconsin Court seemed dissatisfied with its own interpretation:

“This case is one of many cases which have come before this court involving multiple party tortfeasors. May urges the court to re-examine its interpretation of the comparative negligence statute. The majority of the court has become convinced that comparing the negligence of the individual plaintiff to that of each individual tortfeasor — rather than comparing the negligence of the individual plaintiff to that of the combined negligence of the several tortfeasors who have collectively contributed to plaintiff’s injuries — leads to harsh and unfair results; the majority has further concluded that this rule of comparative negligence, a court-made doctrine, can be changed by court decision. However, in view of our holding that Indian Head is not negligent, the majority does not believe that the case at bar is the appropriate one in which to structure a change in the rule of comparative negligence in cases involving multiple defendants.”

264 N.W.2d at 578.

Later, as the Hawaiian court noted in Wong, 642 P.2d at 933 (fn. 9), several members of the Wisconsin majority recanted, and the rule that “leads to harsh and unfair results” remains in effect. See Reiter v. Dyken (1980), 95 Wis.2d 461, 290 N.W.2d 510; Wisconsin Natural Gas Company v. Ford, Bacon and Davis Construction Corporation (1980), 96 Wis.2d 314, 291 N.W.2d 825. The Wisconsin Supreme Court decided that the change to “combined comparison” should be left to the legislature which over the years had tacitly assented to judicial interpretation of the comparative negligence statute.

This Court has expressed the rule that when our legislature borrows a statute from another state it borrows the construction placed upon it by the courts of that other state. Dunham v. Southside National Bank (1976), 169 Mont. 466, 548 P.2d 1383. However, while this Court will consider the home court construction placed on the borrowed statute, such construction is not binding on this Court. State ex rel. Mankin v. Wilson (1977), 174 Mont. 195, 569 P.2d 922.

In Wong, the Hawaii Supreme Court noted that the interpretation of a borrowed statute by the court of the statute’s home state may be rejected when there is a conflict with the obvious meaning of the statute, or where foreign decisions are unsatisfactory in reasoning, or where the foreign interpretation is not in harmony with the spirit or policy of the laws of the adopting state. The Supreme Court of Utah, in Mountain Mobil Mix, Inc. v. Gifford, supra, also refused to follow the Wisconsin interpretation, citing fairness and the policy of the Utah legislature in adopting comparative negligence. 660 P.2d at 888, 889.

We have already stated that one of the purposes of our legislature in adopting the comparative negligence statute was to abate the harshness of the common law rule on contributory negligence as preventing any recovery for a plaintiff, and apportioning responsibility in accordance with fault.

Out of the Montana statutes, one may distill a statutory scheme and policy regarding the civil liability of negligent persons. First, everyone is responsible for injury occasioned to another by his want of ordinary care in the management of his property or person. Section 27-1-701, MCA. This statutory language surely includes the 15% negligent State for “everyone” brooks no exception absent state immunity. Being “responsible” means being liable for damages (if the statutes allow) when one’s negligence injures another.

The responsibility of “everyone” negligent for injuries to another has an exception in Section 27-1-701, “. .. so far as the [injured person] has willfully or by want of ordinary care brought the injury upon himself.” Here, the 45% negligent plaintiffs decedent must share the blame, but only “so far” as he was himself at fault. The plaintiffs proportion in this case cannot exceed 45% of the damages. Any interpretation of the comparative negligence statute which increases plaintiffs proportion beyond 45% offends Section 27-1-701.

Second, the State in this case is, under the present status of the proceedings, responsible for 15% of any damages judgment the jury in this case might later find. Since the State’s negligence constitutes 15% as a proximate or legal cause of plaintiffs injuries, it cannot complain on the ground of unfairness if it is required to pay damages to the proportionate extent of its fault.

In the recent case of State ex rel. Deere & Company and Robert L. Campbell v. District Court (Mont. 1986), [224 Mont. 384,] 730 P.2d 396, 43 St.Rep. 2270, we interpreted the clause “the person against whom recovery is sought,” contained in Section 27-1-702, as meaning those defendants who remain in the lawsuit, and not other possible tortfeasors who may have settled with the plaintiff before judgment was entered in the lawsuit. There are any number of other possible defendants who might be named in a lawsuit, but because of operation of law are immune from judgment, and thus not persons against whom recovery may be sought. Such possible defendants easily include government officials given immunity for their acts, and employers who are insulated by the exclusivity of the Workers’ Compensation law. Section 39-71-411, MCA.

Petitioners have brought to our attention the dictum of this Court in Cordier v. Stetson-Ross (1979), 184 Mont. 502, 520, 604 P.2d 86, 96, where we said:

“. . . in Montana, under Section 58-607.1, R.C.M. 1947, now 27-1-702, MCA (we have not specifically held this yet) it appears that the ten percent negligent defendant would not be liable for any amount to the plaintiff.”

Counsel, however, recognize that the statement was expressly dictum. We inserted the clause “we have not specifically held this yet” as a flag that this subject was open to further discussion.

The question here has been long in coming to this Court considering that the comparative negligence statute in Montana was adopted in 1975. A great number of other states have passed upon the question. The latest is Elder v. Orluck (1986), 511 Pa. 402, 515 A.2d 517. The court there engaged in an extensive discussion of the handling of this question by courts in the several states and itself reached the conclusion that it would support the combined negligence rule. Pennsylvania, however, has a statute somewhat different from ours, as do several others of the states that have reached the same conclusion. For that reason we have not extensively discussed those case in this decision, although it may be said that because of statutes or judicial interpretation, the majority of states do adhere to the combined comparison of negligence rule.

Considering all the factors, the rules on interpretation of statutes, the holdings of the many other courts, the policy of the state as we perceive it in comparative negligence cases, and the fairness concept which underlined the decision of the District Court, we conclude that Montana should join the majority of states that support the combined tortfeasors rule. We interpret Section 27-1-702, MCA, as requiring, in cases of multiple defendants, against whom recovery is sought, that the negligence of the plaintiff is to be compared with the combined negligence of the concurrent tortfeasor defendants to determine if plaintiff may recover. For that reason, we decline to issue a writ of supervisory control as requested by petitioners which would modify or reverse the decision of the District Court on this question.

Both sides in this case have raised questions relating to the effect of either individual comparison or combined comparison on the joint and several liability of concurrent tortfeasors. In either case such considerations are beside the point in this discussion. As the Pennsylvania Supreme Court said in Elder v. Orluck, 515 A.2d at 525, “any unfairness that results when a tortfeasor cannot be made to pay his proportionate share of the damages is a product of the joint and several liability doctrine. It does not result from applying the ‘combined comparison’ rule.”

II.

Since we determine to adhere to the combined comparison of negligence rule, this case must go back for further proceedings in the District Court on the issue of damages. Petitioners, however, object to this, contending that instructions given by the District Court in the first trial of this bifurcated case misled the jury.

The District Court’s charge to the jury on the subject of comparative negligence included these instructions:

“No. 11. Every person is responsible for injury to the person or property of another, caused by want of ordinary care or skill. When used in these instructions, negligence means want of such ordinary care or skill. Such want of ordinary care or skill exists when there is a failure to do that which a reasonable and prudent person would ordinarily have done under the existing circumstances of the situation, or doing what such person under the existing circumstances would not have done.
“No. 15. Negligence on the part of the Plaintiff does not bar his recovery unless his negligence was greater than the negligence of the Defendant from whom he seeks recovery. However, the total amount of damages the Plaintiff would otherwise be entitled to recover will be reduced by the Court in proportion to the amount of negligence attributable to the Plaintiff.
“No. 16. The laws of the State of Montana provide that contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages for negligence resulting in death or injury to the person or property, if such negligence was not greater than the negligence of the person against whom recovery is sought, but any damage allowed shall be diminished in proportion to the amount of negligence attributable to the person recovering. .
“No. 17. You are instructed that the doctrine of ‘comparative negligence’ is applicable to this case. You must first decide for each of the parties whether each was negligent and whether each of the parties’ negligence, if any, was a legal cause of the accident. If you determine that a party was not negligent, or that his negligence was not a legal cause of the accident, you should enter zero percentage in the appropriate line next to that party’s name on the verdict form.
“If any party was negligent and his negligence was a legal cause of the accident, you must determine the degree of his negligence and assess to him a percentage of negligence contributing as a legal cause to the accident and enter the percentage on the appropriate line next to the party’s name on the verdict form.”

The petitioners contend that because the instructions refer to “the defendant” in the singular and not in the plural, that the jury was misinstructed if combined comparison of negligence is now applied. Therefore, they claim, the question of the defendants’ negligence must be retried.

The plaintiff responds that the use of the singular “defendant” in the instructions was the result of objections made at the time of settling instructions by the petitioners, and that the court instructed the jury in the manner it did reserving to the parties the right to argue post-verdict as to the legal effect of the comparative negligence statute.

In examining this issue in the light of the proceedings before the District Court, it occurs to us that the instructions to the jury on the effect of comparative negligence were immaterial. This was a bifurcated case, and the only issue submitted to the jury was the duty of deciding the proportionate negligence, if any, of the parties.

In State Bank of Townsend v. Maryann’s, Inc. (Mont. 1983), [204 Mont. 21,] 664 P.2d 295, 301, 40 St.Rep. 637, Justice Weber emphasized the duty of a district court to instruct the jury as to how to use a special verdict.

Court’s instruction No. 17, which we have set out in full above, carefully and properly instructs the jury as to its use of the special verdict form. It was the duty of the jury to determine factual issues as instructed by the court, and not questions of law. The verdict form itself was adequate to enable the jury to determine the factual issues that were essential in this case. The question of damages was reserved for a later trial and was no business of this jury.

It was suggested to us in oral argument in this case, that if the jury knew the effect of their findings in this bifurcated case, that is, that the combined comparison of negligence rule was going to be applied, that perhaps it might have altered the percentages so as to achieve a no-verdict result for the plaintiff. We cannot impugn the integrity of the jury that it indulged in that kind of manipulation. The single duty of the jury in this case was to determine the applicable percentages of negligence, if such negligence existed. We cannot order a new trial in this case upon the mere speculation that if the jury could foresee the precise effect of their factual determination, even though not called on to determine damages, their factual determination would be different from what they decided.

III.

For the reasons foregoing, we decline to issue a writ of supervisory control directed to the District Court to modify its determination as to the legal effect of Section 27-1-702, MCA, or to order a new trial on negligence in this bifurcated case. We therefore deny the writ and remand this cause to the District Court for further proceedings in accordance with this Opinion.

MR. JUSTICES HARRISON, WEBER and HUNT concur.

MR. JUSTICE GULBRANDSON,

specially concurring and dissenting:

I concur with the adoption of the theory of combined negligence of concurrent tortfeasor defendants, but I do not agree with its application in this case where the jury was not instructed on its application. In my opinion, a new trial should be ordered so that a properly instructed jury can determine percentages of negligence, if any, of the parties and fix, if necessary, an appropriate damage award.

MR. CHIEF JUSTICE TURNAGE concurs in the dissent of MR. JUSTICE GULBRANDSON.


author: MR. JUSTICE WEBER

text:
    FRED G. CARL and Joan A. Carl, Plaintiffs and Appellants, v. WILLIAM CHILCOTE, Security Abstract Company; Richland National Bank; and City of Missoula, Montana, Defendants and Respondents. RICHLAND NATIONAL BANK, Third-Party Plaintiff, v. PIONEER NATIONAL TITLE INSURANCE COMPANY; Milodragovich, Dale, & Dye, P.C., Michael J. Milodragovich; Baldassin, Connell & Beers: and William R. Baldassin, Third Party Defendants.
    No. 86-475.
    Submitted on Briefs Jan. 8, 1987.
    Decided March 31, 1987.
    Rehearing Denied April 28, 1987.
    735 P.2d 266.

      Moses Law Firm, Charles F. Moses, Billings, for plaintiffs and appellants.
    William P. Driscoll, Helena, Wayne Cumming, Sidney, James J. Benn, Missoula, for defendants and respondents.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

The plaintiffs filed this action for losses suffered as the result of breach of a real estate construction contract. The District Court for the Fourth Judicial District, Missoula County, granted the summary judgment motion of defendant Security Abstract Company. Plaintiffs appeal. We affirm.

The issue is whether the District Court erred in granting summary judgment for Security Abstract Company.

This case arises out of the same facts and disputes involved in a case previously before this Court, Walters v. Campeau (Mont.1983), 205 Mont. 448, 668 P.2d 1054, 40 St.Rep. 1419. Plaintiffs Carl obtained a $120,000 judgment in Missoula District Court against one Paul Campeau. They recorded it in Richland County, where Mr. Campeau and William Chilcote were engaged in a joint venture constructing and selling homes. Filing of the judgment effectively prevented any sales of the homes because it made title insurance unavailable. To enable the homes to be sold, Mr. Chilcote personally placed $120,000 in trust at Richland National Bank under a written agreement with the Bank and Security Abstract Company (Security Abstract). The $120,000 was intended to protect Security Abstract against title suits on the properties based on the Carls’ judgment. Security Abstract then agreed to provide title insurance on the homes without an exception for the Carls’ judgment. The agreement provided that “until such time as the Bank receives written instructions from Chilcote, the Bank shall treat Chilcote as the sole owner and shall deal solely with him with regard to the funds.”

Meanwhile, the Carls had moved the Missoula County District Court to force Mr. Campeau to make repairs to apartment buildings involved in the $120,000 judgment. In an order dated November 4, 1981, the court ordered the Carls to release their lien on the proceeds of the Richland County home sales to the extent necessary to allow Mr. Campeau to place $60,000 in trust for payment of materialmen and laborers who would complete work which had been ordered done on the Missoula apartments. That account was to be held in trust in the name of William Baldassin, Mr. Campeau’s attorney. The portions of the order addressed to this transaction were:

“5. As security for payment of materialmen and any subcontractors, the counsel for Defendant Campeau, William Baldassin, shall as an officer of this court, receive and hold in an interest-bearing account established under the name “William Baldassin, Trustee” the amount of SIXTY THOUSAND DOLLARS ($60,000.00). Such funds shall be utilized to pay materialmen and any subcontractors performing any work or supplying any materials for work on the rental units subject to this litigation and to pay rents allowed per paragraph 3 above.
“7. Defendant Carl shall release residential property in Sidney, Montana, from the lien of the judgment of April 27, 1981, so that the Defendant Campeau’s funds can be released from the sale of the residences and be transmitted to Mr. Baldassin as Trustee.”

Mr. Baldassin then wrote to Security Abstract:

November 10, 1981
Ron Bricks
Security Abstract
105 E. Main Street Sidney, MT 59270
RE: Campeau-Chilcote Judgment
Dear Ron:
Enclosed please find Partial Release of Judgment forms relating to Lots 17, 19, 21, 23, 24, 27, 30, 32, 33, 34, and 35 of Sidney Circle Subdivision. These may all be filed with the Richland County Clerk and Recorder thereby satisfying the judgment against Paul Campeau as it relates to these properties.
If you would then please notify the bank that the judgments have been released and that they can release all monies held in the Chilcote account to me for deposit in my trust account.
I believe that either Mr. Chilcote or Attorney Hansen or Attorney Gary Chumrau on behalf of Mr. Chilcote have or will notify the bank approving this disbursement.
If you have any questions or comments or need anything further from me please do not hesitate to contact me.
Sincerely,
BALDASSIN, CONNELL & BEERS
s/ William R. Baldassin
William R. Baldassin
WRB/ps
Enc.

Ron Bricks of Security Abstract spoke with one or more of the Missoula attorneys about this matter. He was told that certain monies would be transferred to Missoula when the releases were filed. Security Abstract was not a party to the November 4, 1981, order. Nor is there anything in the record to indicate that Security Abstract had any knowledge of the order.

Security Abstract filed the release of judgment forms, and then, attaching a copy of the Baldassin-Security Abstract letter, wrote to the Bank which held the $120,000 authorizing the release of the money:

November 18, 1981
The Richland National Bank of Sidney, Montana
Re: Agreement dated September 22, 1981 Chilcote - Title Company
Gentlemen:
You are hereby authorized to terminate the above account and return the funds as directed in said agreement.
“We have been requested in writting [sic] by William R. Baldassin, attorney for R. Paul Campeau, to notify you to release all monies held in said account to: ‘Baldassin, Connell & Beers, Trust Account’, (see copy of letter attached).
Security Abstract Company of Sidney, Montana
By: s/James E. Williams
Its President.

The vice-president of Richland County Bank telephoned Mr. Chilcote and Mr. Chilcote’s attorney, both of whom advised that the money should not be forwarded to Mr. Baldassin, because other arrangements had been made. The Bank’s own attorney advised that the money should go to no one but Mr. Chilcote without Chilcote’s written authorization. The Bank transferred the $120,000 to Mr. Chilcote’s account, as he requested. Mr. Chilcote then paid Mr. Campeau $60,000 as his share of the profits from the joint venture. Instead of placing the $60,000 in the Baldassin trust account, Mr. Campeau paid $2,650 to the Carls and $17,000 to the Baldassin trust account, and then disappeared. At time of trial, he was apparently in Australia.

The Carls then brought this action. Their complaint alleges that Security Abstract negligently caused the breach of the court-ordered agreement as to the Carls’ liens. It also alleges that Security Abstract negligently interfered with the same agreement. Security Abstract moved for summary judgment. The District Court ruled that Security Abstract had established that there was no genuine issue of material fact, and granted summary judgment.

Did the District Court err in granting summary judgment for Security Abstract Company?

Rule 56(c), M.R.Civ.P., provides that summary judgment is proper if the pleadings, depositions, and other discovery, together with any affidavits filed, show that there is no genuine issue as to any, material fact and that the moving party is entitled to judgment as a matter of law. The Carls argue that there is a genuine issue as to Security Abstract’s understanding of its duties under its agreement with Mr. Baldassin and whether it exercised reasonable care in fulfilling those duties. The Carls say there is a similar question of fact on whether Security Abstract exercised reasonable care in its undertaking and filing of the lien releases.

The party moving for summary judgment has the burden of establishing the absence of any genuine issue of fact, and the party opposing the motion must provide evidence supporting the existence of a genuine fact issue. Pretty on Top v. City of Hardin (1979), 182 Mont. 311, 315, 597 P.2d 58, 60. In support of its motion for summary judgment, Security Abstract filed the affidavit of its employee Ron Bricks. He attested that he received the releases from Mr. Baldassin, and filed them as instructed in the letter. He stated that he then sent a copy of the Baldassin-Security Abstract letter to the Bank. He also attested that he was not aware of the November 4, 1981, order until he was deposed in this matter in February 1982; that Security Abstract had no control whatever over the funds received from purchasers of the Richland County homes; and that nothing was said to him to indicate that Security Abstract would be at all responsible for seeing that any monies were returned to Missoula. The Chilcote-Security Abstract agreement, the Baldassin-Security Abstract letter, and the letter from Mr. Bricks to the Bank are a part of the record as attachments to depositions.

The Carls did not submit affidavits in opposition to the summary judgment motion. Instead, they attached a transcript of testimony given by Mr. Baldassin at a hearing in which he was answering charges of contempt of court. At that hearing, Mr. Baldassin testified he was certain that it was clear to Mr. Bricks from their phone conversations that the lien releases were not to be used unless Mr. Baldassin got the $60,000. He testified that Mr. Bricks “exhibited no confusion ... no disagreement” as to this understanding. Mr. Baldassin did not testify that Security Abstract was in any way responsible to see that the money was transferred to him. These telephone conversations took place prior to the November 10, 1981, Baldassin-Security Abstract letter.

Considered in a manner most favorable to the Carls, Mr. Baldassin’s testimony established that the lien releases were not to be used unless Mr. Baldassin received the $60,000. The Baldassin-Security Abstract letter advises Security Abstract that the release forms may be filed with the clerk and recorder, thereby satisfying the judgment, and that Security Abstract then is to notify the Bank that the judgments have been released and that the Bank can release the monies to Mr. Baldassin. The Carls argue that Security Abstract was required in some manner to see that Mr. Baldassin got the $60,000 because the lien releases had been filed. This aspect is addressed in the next paragraph of Mr. Baldassin’s letter where he states that he believes Mr. Chilcote or his attorney “have or will notify the bank approving this disbursement.” At this point Security Abstract had done all which it could do in order to allow the $120,000 to be disbursed to Mr. Baldassin by the Bank. Even if we accept Mr. Baldassin’s testimony without question, there is no indication in that testimony or in the Baldassin-Security Abstract letter to indicate that Security abstract was in any way responsible for the transfer of the money itself. Under the Chilcote-Security Abstract agreement, Security Abstract was entitled to access to the funds only in the event of problems arising from the judgment in question.

The release of the judgment lien terminated any possibility of claim on the part of Security Abstract because of the judgment. Security Abstract specifically advised the Bank in its letter that the Bank was authorized to terminate the account and return the funds as directed in the agreement. At that point Security Abstract had discharged any responsibility or duty which it had with regard to the funds in the Bank. It then became an obligation on the part of Mr. Baldassin to arrange with Mr. Chilcote, his attorneys, and the Bank for the disbursement to him. Security Abstract is not shown to have any obligation in connection with that disbursement. We concluded that there is nothing to suggest that Security Abstract could be held responsible for the failure of Mr. Chilcote to transfer $60,000 to Mr. Baldassin.

The Carls argue that summary judgment is inappropriate because an issue of negligence is involved. The record does not support that contention. Where the non-moving party fails to come forward with substantial evidence raising a genuine issue of material fact, summary judgment is proper in a negligence action. Morales v. Tuomi (Mont. 1985), 693 P.2d 532, 535, 42 St.Rep. 60, 63-64. Security Abstract followed all of the instructions which it received orally as described in the Baldassin testimony and as contained in the Baidassin-Security Abstract letter. The Carls failed to provide evidence of any duty on the part of Security Abstract to see that the $60,000 was delivered to Mr. Baldassin. In the absence of such a duty, Security Abstract could not be found to be negligent.

We conclude that the District Court was correct in determining that the plaintiffs failed to establish a genuine issue of material fact and we affirm the summary judgment for Security Abstract.

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