author: JUSTICE LEAPHART JUSTICE TRIEWEILER

text:
    STATE OF MONTANA, Plaintiff and Appellant, -vs-STEVEN RICHARD STUBBS, Defendant and Respondent.
    No. 94-258.
    Submitted on Briefs January 26, 1995.
    Decided March 30, 1995.
    52 St.Rep. 232.
    270 Mont. 364.
    892 P.2d 547.

      For Appellant: Scott B. Spencer, County Attorney, Libby; Hon. Joseph P. Mazurek, Attorney General, Cregg Coughlin, Ass’t Attorney General, Helena.
    For Respondent: Kathleen Hufstetler, Lincoln County Public Defender, Libby.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

The State of Montana appeals from an order of the Nineteenth Judicial District Court, Lincoln County, suppressing evidence in a criminal case against Steven Richard Stubbs (Stubbs). We reverse.

BACKGROUND

The facts are essentially undisputed. Late on the night of July 3, 1993, Lincoln County Reserve Deputy Steven Boyer (Boyer) was patrolling east of Libby when he observed a car rapidly approaching him from behind. Boyer testified that he was traveling 45 miles per hour in an area with a 45 mile per hour speed limit when the car passed him. Boyer also observed the car weaving across the center line and fog line.

He attempted to pull the car over by activating his overhead lights, but the driver of the car would not pull over. Eventually, Boyer flashed his high beams, activated his siren, air horn, and spot light in attempts to get the car to pull over. Boyer testified that the car did not start to slow down until Boyer accelerated and pulled out alongside it. The car then turned off the highway onto a county road and stopped approximately 100 feet up the road. Boyer testified that the car travelled about three or four miles from the time he activated his overhead lights until the car finally stopped.

Boyer informed the dispatcher that he was pulling over a person possibly driving under the influence. After stopping, Boyer approached the car on foot. As he approached, Boyer noticed the driver fumbling around and looking towards the passenger seat. Boyer shined his flashlight into the vehicle where he could see that Stubbs, the driver, was the lone occupant. Boyer also saw handguns on the passenger side, several rounds of ammunition on the dash, and an empty pistol holster.

Boyer ordered Stubbs out of the car at gunpoint and handcuffed him. He then did a pat down search of Stubbs and retrieved several rounds of ammunition from his pants pocket and a small brass pipe from his coat pocket which Boyer seized as drug paraphernalia. Boyer testified that after handcuffing Stubbs and having him turn around, he smelled alcohol on Stubbs’ breath, Stubbs’ speech was slurred, his eyes were bloodshot, and he was having trouble standing erect. Boyer did not have Stubbs perform any field sobriety tests. Boyer arrested Stubbs for driving under the influence of alcohol or drugs and for possession of drug paraphernalia. After Stubbs was placed in custody, officers discovered a plastic bag containing marijuana which was not discovered at the roadside. Stubbs later submitted to a blood test to determine the amount of intoxicants in his system.

Stubbs was charged with the following misdemeanors: possession of dangerous drugs for the possession of .05 grams of marijuana, possession of drug paraphernalia, and driving under the influence. On January 28, 1994, Stubbs was convicted on all charges after a bench trial in the Justice Court of Lincoln County. Stubbs appealed his conviction to the District Court for a trial de novo. Prior to his trial in District Court, Stubbs moved to suppress all the physical evidence Boyer seized, and all evidence procured after Boyer arrested Stubbs.

On May 12,1994, the court conducted a hearing on Stubbs’ motion to suppress. On May 17, 1994, the court issued its order suppressing evidence. The court concluded that the seizure of the brass pipe was unauthorized and that the pipe had some influence on Boyer’s determination that Stubbs was driving under the influence. Accordingly, the court suppressed all evidence seized prior to, or as a result of Stubbs’ arrest. The State appeals from this order.

The sole issue raised on appeal is whether the District Court erred in suppressing evidence gathered against Stubbs.

STANDARD OF REVIEW

We review a district court’s ruling on a motion to suppress to determine whether there is substantial credible evidence to support the court’s findings of fact, and whether the court correctly applied the findings as a matter of law. State v. Rushton (1994), 264 Mont. 248, 254, 870 P.2d 1355, 1359. We have also stated that in reviewing a district court’s ruling on a motion to suppress, we determine whether the court’s interpretation and application of the law is correct. State v. Pastos (1994), [269 Mont. 43], 887 P.2d 199, 201; citing State v. McCarthy (1993), 258 Mont. 51, 55, 852 P.2d 111, 113.

DISCUSSION

Stop and Frisk

At the suppression hearing, both parties and the District Court analyzed this case as a “stop and frisk” case. On appeal, the parties continue to argue this case as a stop and frisk case. Therefore, we first discuss stop and frisk searches and seizures.

We note at the outset that warrantless searches are considered per se unreasonable under the Fourth Amendment to the United States Constitution. McCarthy, 852 P.2d at 113; citing Katz v. United States (1967), 389 U.S. 347, 88 S.Ct. 507, 19 L.Ed.2d 576. However, both federal and state law recognize certain exceptions to the warrant requirement. McCarthy, 852 P.2d at 113; citing California v. Acevedo (1991), 500 U.S. 565, 111 S.Ct. 1982, 114 L.Ed.2d 619; and State v. Evjen (1988), 234 Mont. 516, 756 P.2d 708.

One recognized exception to the warrant requirement is the stop and frisk. Terry v. Ohio (1968), 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889. AMontana statute authorizes the use of a stop and frisk, and this Court has recognized stop and frisk searches as an exception to the warrant requirement. Section 46-5-402, MCA; State v. Gopher (1981), 193 Mont. 189, 192, 631 P.2d 293, 295; State v. Kills On Top (1990), 243 Mont. 56, 83, 793 P.2d 1273, 1291.

An officer may conduct a stop and frisk without having probable cause to arrest the suspect. Generally, the stop and frisk is performed in the interests of crime detection and in the interests of protecting the investigating officer. Terry, 392 U.S. at 22-23,88 S.Ct. at 1880-81. The United States Supreme Court has stated that “in determining whether the [stop and frisk] seizure and search were ‘unreasonable’ our inquiry is a dual one — whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” Terry, 392 U.S. at 19-20, 88 S.Ct. at 1879.

The United States Supreme Court has had occasion to apply the Terry “stop and frisk” rationale to vehicle stops. In Michigan v. Long (1983), 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201, the Court addressed a situation not unlike that in the present case. The hour was late and area rural. Long was driving his automobile at excessive speed, and his car swerved into a ditch. The officers had to repeat their questions to Long, who appeared to be under the influence of some intoxicant. The officers did not frisk Long until they noticed that there was a large knife in the interior of the car into which Long was about to reenter. Their subsequent search of the car was restricted to those areas to which Long would generally have immediate control, and that could contain a weapon. Citing Pennsylvania v. Mimms (1977), 434 U.S. 106, 98 S.Ct. 330, 54 L.Ed.2d 331, the Court noted that “investigative detentions involving suspects in vehicles are especially fraught with danger to police officers.” Long, 463 U.S. at 1047, 103 S.Ct. at 3480. The Court went on to state:

Our past cases indicate then that protection of police and others can justify protective searches when police have a reasonable belief that the suspect poses a danger, that roadside encounters between police and suspects are especially hazardous, and that danger may arise from the possible presence of weapons in the area surrounding a suspect.

Long, 463 U.S. at 1049, 103 S.Ct. at 3480-81. The Court in Long held that, in order to protect themselves, the officers were entitled to conduct a Terry search of the area surrounding a suspect as well as the person of the suspect.

The concerns expressed by the United States Supreme Court in Long are particularly relevant in a situation such as this where the suspect was weaving and speeding down a rural highway late at night; where he refused to stop for a distance of some four miles and where he had numerous firearms within his immediate reach.

This Court has established that for a vehicle stop and frisk to be valid at its inception, the State must satisfy two criteria: 1) the officer had objective data from which an experienced officer can make certain inferences, and 2) the officer had a resulting suspicion that the occupant of a certain vehicle was or had been engaged in wrongdoing or was a witness to criminal activity. Gopher, 631 P.2d at 296.

Stubbs concedes that Boyer was justified in conducting a stop and frisk search but contends that Boyer went beyond the permissible scope of the search. In particular, Stubbs argues that Boyer’s search was prompted by the fact that he saw an empty holster on Stubbs’ passenger seat. Stubbs argues that although the pipe, which was about two and one-half inches long and three-quarters of an inch wide, could have been mistaken for a derringer or another dangerous weapon, it was much too small to have been mistaken for the large pistol missing from the empty holster. In its order granting Stubbs’ motion to suppress, the District Court agreed with Stubbs’ argument. After concluding that the empty holster gave rise to Boyer’s concerns, the District Court stated that “if [Boyer] had asked, ‘Where is the gun for that holster?’, [Stubbs] would have pointed it out to him on the passenger seat of the car and there would have been no need for a search.” However, we believe that the District Court’s analysis is much too narrow in light of the facts of this case.

Boyer stopped Stubbs after observing him speeding and weaving over the center line and the fog line. Stubbs only stopped after Boyer had activated numerous lights, siren, and air horn. Stubbs then pulled off on a rural county road. When Boyer approached Stubbs’ car, he noticed Stubbs fumbling around on the passenger side of the car. When Boyer looked inside Stubbs’ car, he observed several weapons, ammunition, and an empty holster on the passenger side of the car. In this situation, we think it unrealistic to limit the officer’s search to a weapon of a specified size or type.

Boyer testified that when he frisked Stubbs, he was looking for weapons. When asked whether he was looking for any particular kind of weapon, he responded, “Not anything in particular, no.” Boyer testified that when he felt the lump in Stubbs’ jacket pocket, he thought it could have been a knife or a derringer. As we have noted, one purpose of a stop and frisk is to protect the officer from deadly weapons. It would not make sense for an officer attempting to protect himself or herself to ignore a possible weapon simply because it does not feel large enough to fit an empty holster seen in the suspect’s car. Ignoring the potential weapon would have been especially absurd in the present case where Boyer had seen more than one weapon in Stubbs’ car along with numerous rounds of ammunition.

We next consider whether contraband may be seized when it is discovered during a stop and frisk in which an officer is searching for weapons. Stubbs argues that the seizure of the pipe went beyond the scope of a search for a particular weapon. In support of his argument, he cites to Minnesota v. Dickerson (1993),_U.S._, 113 S.Ct. 2130, 124 L.Ed.2d 334. Dickerson involved a pat down search in which the officer felt a small plastic bag through the suspect’s clothes. After squeezing and manipulating the object, the officer determined that it probably contained drugs. The officer seized the bag, which contained cocaine. The Dickerson Court stated:

The question presented today is whether police officers may seize nonthreatening contraband detected during a protective patdown search of the sort permitted by Terry. We think the answer is clearly that they may, so long as the officer’s search stays within the bounds marked by Terry.

Dickerson, 113 S.Ct. at 2136. The Supreme Court recognized that contraband which is discovered through “plain touch” is subject to seizure the same as that discovered through “plain view.” Thus, if a police officer is lawfully engaging in a Terry stop and frisk and pats down a suspect’s clothing and feels an object whose contour or mass makes its identity “immediately apparent,” there has been no invasion of the suspect’s privacy beyond that already authorized by the officer’s search for weapons. Dickerson, 113 S.Ct. at 2137.

The Dickerson Court held that the officer did not stay within the bounds of a Terry search because the officer made no claim that he suspected the object to be a weapon, and he was not immediately able to discern that the material in the plastic bag was drugs without manipulating the contents of the bag. Dickerson, 113 S.Ct. at 2138. The Court stated that:

Although the officer was lawfully in a position to feel the lump in respondent’s pocket, because Terry entitled him to place his hands upon respondent’s jacket, the court below determined that the incriminating character of the object was not immediately apparent to him. Rather, the officer determined that the item was contraband only after conducting a further search, one not authorized by Terry or by any other exception to the warrant requirement. Because this further search of respondent’s pocket was constitutionally invalid, the seizure of the cocaine that followed is likewise unconstitutional.

Dickerson, 113 S.Ct. at 2139.

The situation in the present case is clearly distinguishable. Boyer testified that he thought the lump in Stubbs’ pocket could have been a deadly weapon such as a knife or derringer. Therefore, he removed the item to make certain that it was not a deadly weapon, not because he suspected that it was contraband. We hold that this was within the bounds of a proper stop and frisk.

Once the brass pipe was removed, it was in Boyer’s plain view. We recently stated that a valid plain view seizure requires 1) that the officer have a prior justification for the intrusion, and 2) that the officer inadvertently discover a piece of evidence. State v. Williams (1994), [268 Mont. 428], 887 P.2d 1171, 1174; citing Coolidge v. New Hampshire (1971), 403 U.S. 443, 466, 91 S.Ct. 2022, 2038, 29 L.Ed.2d 564, 583. An additional element not listed in Williams is that the incriminating character of the item seized must be apparent. State v. Hembd (1989), 235 Mont. 361, 369, 767 P.2d 864, 869.

We have already determined that Boyer was justified in performing the pat down search and removing the pipe from Stubbs’jacket pocket. Boyer testified without contradiction that he was searching for weapons on Stubbs’ person, and there is no indication that the search was used as a pretext to discover illicit drugs or paraphernalia. This is supported by the fact that Boyer did not seize a plastic bag of marijuana which was later seized during a custodial search. Thus, we conclude that Boyer inadvertently discovered the pipe. Finally, the U.S. Supreme Court has examined how apparent the incriminating nature of the seized item must be. See Texas v. Brown (1983), 460 U.S. 730, 103 S.Ct. 1535, 75 L.Ed.2d 502. In upholding the seizure of an opaque balloon containing illegal drugs, the Brown Court rejected the argument that for the incriminating nature of a seized item to be apparent, the officer must have a near certainty that the item is illicit. Brown, 460 U.S. at 741, 103 S.Ct. at 1542-43. The Court held that it was sufficient that the officer had probable cause to believe that the balloon in plain view held illicit drugs. Brown, 460 U.S. at 743, 103 S.Ct. at 1543-44. We hold that Boyer, like the officer in Brown, had probable cause to conclude that the brass pipe was drug paraphernalia as defined in § 45-10-101(1)(k), MCA.

We hold that the District Court erred in concluding that Boyer exceeded the scope of a stop and frisk search when he removed the brass pipe, and that the plain view doctrine justified Boyer’s seizure of the pipe.

Search Incident to an Arrest

Stubbs advances an alternative argument under which he contends that we must affirm the District Court’s suppression of the evidence. Stubbs argues, as he did in the District Court, that Boyer actually placed him under arrest before the search. He argues that the “arrest” was made without probable cause, and therefore, all subsequent fruits of the searches conducted after the flawed arrest must be suppressed. The State argues that Stubbs did not file a cross-appeal, and therefore this Court cannot address the issue. The record discloses that the alternative basis for suppression was argued at the District Court but was not addressed by that court due to its erroneous reliance on the stop and frisk rationale. However, we have held that we will affirm a district court’s decision, if correct, regardless of the district court’s reasoning in reaching its decision. Hagan v. State (1994), 265 Mont. 31, 35, 873 P.2d 1385, 1387 (citations omitted). In Hagan, we upheld the district court’s decision in favor of the State on a different basis than that used by the district court, despite the fact that the State had not cross-appealed. Hagan, 873 P.2d at 1387. Here, if Stubbs were improperly arrested, then the evidence seized subsequent to the arrest is the fruit of an illegal arrest, and the District Court’s order suppressing the evidence would be correct. Thus, we will address Stubbs’ alternative argument concerning search incident to an arrest.

Stubbs argues that when Boyer pointed his weapon at Stubbs and placed handcuffs on him, that Stubbs was under arrest. Stubbs argues that, at that time, Boyer did not have probable cause to arrest him for driving under the influence, possession of drug paraphernalia, or possession of dangerous drugs.

We note that several courts have held that pointing a weapon at a suspect and placing him in handcuffs, while increasing the intrusiveness of a Terry-type search, does not necessarily amount to an arrest requiring probable cause. See U.S. v. Perdue (10th Cir. 1993), 8 F.3d 1455, 1463; U.S. v. Smith (7th Cir. 1993), 3 F.3d 1088, 1094; U.S. v. Crittendon (4th Cir. 1989), 883 F.2d 326, 329; U.S. v. Taylor (9th Cir. 1983), 716 F.2d 701, 709; State v. Lovato (N.M. App. 1991), 817 P.2d 251, 256; State v. Clevidence (Ariz. App. 1987), 736 P.2d 379, 383.

However, none of these cases interpreted an arrest statute similar to our own. Section 46-6-104(1), MCA, states: “An arrest is made by an actual restraint of the person to be arrested or by the person’s submission to the custody of the person making the arrest.” We agree with Stubbs’ position that by placing Stubbs in handcuffs at gunpoint, Boyer actually restrained Stubbs and arrested him. However, we disagree with Stubbs’ contention that the arrest was improper.

Section 46-6-311(1), MCA, provides:

[a] peace officer may arrest a person when a warrant has not been issued if the officer has probable cause to believe that the person is committing an offense or that the person has committed an offense and existing circumstances require immediate arrest.

Boyer had more than a reasonable suspicion of criminal activity when he pulled Stubbs’ car over and proceeded to search. Boyer had probable cause to arrest Stubbs for speeding, reckless or careless driving (§§ 61-8-301(l)(a) and 61-8-302, MCA), and for eluding a peace officer (§ 61-8-301(l)(b), MCA). Given the facts that Boyer observed Stubbs speeding, driving recklessly and eluding an officer, and had seen numerous weapons in Stubbs’ vehicle, Boyer had probable cause to arrest Stubbs and had a reasonable justification for searching him on the scene.

Finally, an officer conducting a search incident to a valid arrest may search the arrestee to protect the officer from attack. Section 46-5-102(1), MCA. A search to protect the officer from attack necessarily includes a search for weapons. Thus, our reasoning upholding a stop and frisk search and seizure is also applicable in upholding the search incident to arrest.

For the foregoing reasons, we reverse the order of the District Court suppressing the evidence and remand for trial.

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

JUSTICE TRIEWEILER

dissenting.

I dissent from the majority’s conclusion that the seizure of Steven Stubbs’brass pipe by Deputy Steven Boyer was permissible pursuant to the stop-and-frisk exception to the warrant requirement under either the Fourth Amendment to the United States Constitution, or Article II, Section 11, of the Montana Constitution.

The majority correctly notes that our standard of review is whether there was substantial credible evidence to support the District Court’s findings, but then ignores that standard of review by substituting itself for the District Court as the finder of fact. This is particularly objectionable since the District Court’s factual findings were the basis for its application of the restrictive language set forth in Terry v. Ohio (1968), 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889.

For example, in Terry, the Supreme Court upheld the validity of a protective search for weapons in the absence of probable cause to arrest where there is an articulable suspicion that an individual is armed and dangerous, but restricted the circumstances permitting such a search and the scope of any search conducted under these circumstances. Here, Stubbs does not disagree that a stop-and-frisk search was justified in the first instance. He contends that the search of his pocket and withdrawal of a brass pipe exceeded the permissible scope of the search because it was plainly not the weapon with which the investigating officer was concerned when he commenced the search. In that regard, the Supreme Court stated in Terry that:

This Court has held in the past that a search which is reasonable at its inception may violate the Fourth Amendment by virtue of its intolerable intensity and scope. Kremen v. United States, 353 U.S. 346 [77 S.Ct. 828, 1 L.Ed.2d 876] (1957); Go-Bart Importing Co. v. United States, 282 U.S. 344, 356-358 [51 S.Ct. 153, 157-158, 75 L.Ed 374] (1931); see United States v. Di Re, 332 U.S. 581, 586-587 [68 S.Ct. 222, 224-225, 92 L.Ed. 210] (1948). The scope of the search must be “strictly tied to and justified by” the circumstances which rendered its initiation permissible. Warden v. Hayden, 387 U.S. 294, 310 [87 S.Ct. 1642, 1651-1652, 18 L.Ed.2d 782] (1967) (Mr. Justice Fortas, concurring); see, e.g., Preston v. United States, 376 U.S. 364, 367-368 [84 S.Ct. 881, 883-884, 11 L.Ed.2d 777] (1964); Agnello v. United States, 269 U.S. 20, 30-31 [46 S.Ct. 4, 5-6, 70 L.Ed. 145] (1925).
... And in determining whether the seizure and search were “unreasonable” our inquiry is a dual one — whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.

Terry, 392 U.S. at 17-20, 88 S.Ct. at 1878-1879 (emphasis added).

In Terry, the court went on to add that:

A search for weapons in the absence of probable cause to arrest, however, must, like any other search, be strictly circumscribed by the exigencies which justify its initiation. Warden v. Hayden, 387 U.S. 294, 310 [87 S.Ct. 1642, 1651-1652, 18 L.Ed.2d 782] (1967) (Mr. Justice Fortas, concurring). ...
... Thus, evidence may not be introduced if it was discovered by means of a seizure and search which were not reasonably related in scope to the justification for their initiation. Warden v. Hayden, 387 U.S. 294, 310 [87 S.Ct. 1642, 1651-1652, 18 L.Ed.2d 782] (1967) (Mr. Justice Fortas, concurring).
... The sole justification of the search in the present situation is the protection of the police officer and others nearby, and it must therefore be confined in scope to an intrusion reasonably designed to discover guns, knives, clubs, or other hidden instruments for the assault of the police officer.

Terry, 392 U.S. at 25-29, 88 S.Ct. at 1882-1884.

The significance of the above language is that in this case, it was a fact-finding function of the District Court to determine whether when Officer Boyer discovered and removed a brass pipe from Stubbs’ pocket he was acting within the scope of his original justification for frisking Stubbs. In performing that fact-finding function, after listening to the direct testimony and cross-examination of Officer Boyer, the District Court found that:

Office Boyer saw a holstered gun on the Defendant’s passenger seat and an empty holster on the same seat (of a size sufficient to hold a fair-sized sidearm). ...
Officer Boyer made it clear that his apprehension was created by the empty holster on the seat of the car, coupled with what appeared to be movement by the Defendant of the Defendant’s hands just before Officer Boyer ordered the Defendant to place his hands in view, and the absence of the sidearm that belonged in the empty holster. In the course of the patdown search, Officer Boyer found a small “marijuana” pipe in the Defendant’s jacket pocket, as well as some rounds of .38 ammunition in the defendant’s trouser pocket. The pipe was about 21/2 inches long with an outside diameter of about 3/4 of an inch ....
Officer Boyer’s “articulable suspicion” was that the empty holster gave rise to concern that the Defendant may still have that weapon.... Once Officer Boyer commenced his search, however, he did it in the manner that Officer Byrnes had taught him, i.e., a custodial search. The custodial search exceeded the scope of Terry, and the evidence acquired by that search should be suppressed. The District Court’s finding that removal of a two and one-half inch

long brass pipe with a three-quarter inch diameter from Stubbs’ pocket was beyond the scope of a pat-down search, justified by concern about the presence of a firearm with a four to six inch barrel, is fully supported by substantial evidence in the record.

While the majority chooses that portion of Boyer’s testimony which indicates he was looking for weapons at the time he frisked Stubbs, the District Court was justified in relying on that part of Boyer’s testimony which indicated that his sole justification for frisking Stubbs was the missing revolver from the empty holster on the front seat of Stubbs’ car. In response to the following question during cross-examination, Officer Boyer gave the following answer:

Q. Why did you think there might be a weapon?
A. Well, because of the large amount of ammunition that was on the dash, on the floor, on the seats. There were two guns on the front seat that I could see, one in a holster and an empty holster and I didn’t know where the gun was that belonged in the other holster, the empty holster.

Furthermore, the State’s own evidence established that a two and one-half inch long brass pipe could not reasonably be mistaken for a weapon.

In an effort to show that Boyer’s removal of the brass pipe was reasonable under the circumstances, the County Attorney produced LaBeth Spain as a witness at the suppression hearing. Ms. Spain is an investigator for the Lincoln County Public Defender’s Office who had prior training as a police officer. She was asked to demonstrate for the court a “pat-down search” and remove suspicious objects from the pockets of the person she searched. Significantly, the person she searched in open court had a pipe similar or identical to the one taken from Stubbs in his left rear pocket. Spain did not find it necessary to remove the pipe as part of a pat-down search for potential weapons.

The District Court’s finding that seizure of Stubbs’ brass pipe was not reasonably related to the original justification for frisking Stubbs is supported by the evidence presented at the District Court’s suppression hearing, and therefore, should be affirmed. Based on those findings, the pipe should have been suppressed pursuant to the U.S. Supreme Court’s decision in Terry v. Ohio and could not have formed any part of the basis for Stubbs’ arrest.

Michigan v. Long (1983), 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201, does not support the majority’s conclusion in this case. The issue in that case was whether a search pursuant to the stop-and-frisk principle is limited to the subject’s person, or may be extended to those areas of a vehicle which are within the subject’s immediate control. After holding that the principle extended to those areas of the vehicle within the subject’s immediate control, the Supreme Court allowed seizure of contraband which was in plain view. Stubbs’ brass pipe was not in Officer Boyer’s plain view until he removed it from Stubbs’ pocket.

Neither does Minnesota v. Dickerson (1993), 113 S.Ct. 2130, 124 L.Ed.2d 334, support the majority’s decision. In that case, the Supreme Court limited seizure of contraband pursuant to a stop-and-frisk search to only those items which are immediately identifiable based on touch. The court specifically held as follows:

Where, as here, “an officer who is executing a valid search for one item seizes a different item,” this Court rightly “has been sensitive to the danger ... that officers will enlarge a specific authorization, furnished by a warrant or an exigency, into the equivalent of a general warrant to rummage and seize at will.” Texas v. Brown, 460 U.S., at 748, 103 S.Ct., at 1546-1547[, 75 L.Ed.2d 502] (Stevens, J., concurring in judgment). Here, the officer’s continued exploration of respondent’s pocket after having concluded that it contained no weapon was unrelated to “[t]he sole justification of the search [under Terry:] ... the protection of the police officer and others nearby.” 392 U.S., at 29, 88 S.Ct., at 1884[, 20 L.Ed.2d 889]. It therefore amounted to the sort of evidentiary search that Terry expressly refused to authorize ....

Dickerson, 113 S.Ct. at 2138-39.

Here, although Boyer was capable of determining, based on his frisk of Stubbs, that the brass pipe in Stubbs’jacket pocket was not the weapon with which Stubbs was concerned, he had no reason, according to his testimony, to suspect that it was a pipe. Therefore, Dickerson did not allow its seizure.

The majority bases its conclusion on Boyer’s testimony that he thought the lump in Stubbs’ pocket could have been a deadly weapon, such as a knife or a derringer. That testimony was contradicted by other evidence, including the demonstration offered by the State in the District Court’s presence. By basing its decision on some evidence to the exclusion of other evidence, the majority has engaged in a balancing act reserved for the finder of fact — in this case, the District Court.

Furthermore, I would not, as the majority has done, consider the merits of a search pursuant to an arrest that by the officer’s own admission had not been made. For good measure, the majority concludes that in addition to authorization under stop-and-frisk principles, Officer Boyer was justified in searching Stubbs’pocket pursuant to a valid arrest. However, Boyer testified at the suppression hearing that he had made no arrest of Stubbs at the time that he withdrew the brass pipe from his pocket. More importantly, the County Attorney represented to the District Court that he was not justifying the search of Stubbs based upon a valid arrest. The County Attorney also conceded to the District Court that the only basis for the frisk of Stubbs was the missing gun from the holster on the front seat of Stubbs’ vehicle. The following discussion was had:

THE COURT: The fine distinction that I’m trying to make, the only thing that he was concerned about is the missing, the holster. Nothing else really is giving him a basis for the frisk.
MR. SPENCER: That is the basis.
THE COURT: Just a DUI stop but there is enough there for him to do what he did. I don’t have a problem with that. The problem that I have is he should only be looking for something large enough for that holster and that is different than being concerned about this person who may be dangerous to him, better look out for himself. That is a different situation.
The standard reads all the same. And Terry reads it from the standpoint — Terry is not a DUI stop.
MR. SPENCER: I agree that the gun, the missing gun triggers it. If you don’t have the missing gun, you don’t really have a reason to do what the officer did. That is the trigger.

In other words, the majority has not only substituted itself for the fact finder in this case, it has sua sponte raised issues that were never raised in the District Court, and therefore, should not be the basis for its decision.

For these reasons, I dissent from the majority opinion. I would affirm the order of the District Court suppressing the item seized from Stubbs’ pocket during the course of Boyer’s pat-down search, and based on Boyer’s testimony that the pipe was part of the basis for his arrest of Stubbs, I would also affirm the remainder of the District Court’s order.

JUSTICE HUNT joins in the foregoing dissenting opinion.


source: Caselaw Access Project

author: JUSTICE GRAY

license: Public Domain

text:
    IN RE THE MATTER OF DANIEL L. MAGONE, SHERIFF, MISSOULA COUNTY, STATE OF MONTANA, Petitioner and Respondent, -vs-DANIEL RICHARD FROEHLICH, Respondent, and LaDONNA FROEHLICH, Respondent.
    No. 94-225.
    Submitted on Briefs January 12, 1995.
    Decided March 30, 1995.
    52 St.Rep. 240.
    270 Mont. 381.
    892 P.2d 540.

      For Appellant: Anne Hamilton, ASUM Legal Services, Missoula; Margaret Borg, Public Defender’s Office, Missoula.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Elizabeth L. Griffing, Ass’t Attorney General, Helena; Robert L. Deschamps, III, Missoula County Attorney, Karen S. Townsend, Deputy County Attorney, Missoula.
   JUSTICE GRAY

delivered the Opinion of the Court.

LaDonna Froehlich (LaDonna) appeals from the findings of fact, conclusions of law and order of the Fourth Judicial District Court, Missoula County, denying her motion to vacate an order forfeiting three rifles and one shotgun. We reverse, concluding that LaDonna did not receive the service of summons and petition for forfeiture to which she was entitled under § 44-12-201(1), MCA, and that neither actual notice of the forfeiture hearing nor subsequent intervention cured the lack of required service.

We restate the issues on appeal as follows:

1. Was LaDonna entitled to service of summons and petition for forfeiture as provided in § 44-12-201, MCA, as a known owner or claimant of the property for which forfeiture was sought?
2. Did any actual notice by LaDonna of the September 10, 1993, forfeiture hearing relieve the necessity of compliance with § 44-12-201(1), MCA?
3. Was the State’s failure to provide the statutorily required notice remediable by the District Court allowing LaDonna to intervene after the original order of forfeiture was entered?

The underpinnings of this appeal began with a 1990 law enforcement investigation of Daniel Froehlich (Daniel), LaDonna’s estranged husband. The investigation culminated in December 1990, with an undercover purchase of LSD in Daniel’s home. After arresting Daniel, the Missoula City Police, Missoula County Sheriff and Montana Criminal Investigation Bureau searched his residence and seized property. LaDonna claims to have been present at the time of the search and seizure. The four guns at issue in this case were among the property seized.

The Missoula County Sheriff, represented by Deputy County Attorney Karen Townsend (Townsend), filed a petition seeking forfeiture of the guns and other seized property on December 31, 1990. Daniel was served with summons and a copy of the petition as required by § 44-12-201, MCA. In his answer, Daniel claimed that he and LaDonna had purchased the guns for hunting and paid for them with his employment wages. The forfeiture hearing regarding the guns ultimately was scheduled for September 10,1993.

Prior to the September 10, 1993 hearing, Daniel telephoned LaDonna and told her that he was being transferred to the Missoula County Courthouse for a hearing he believed was related to forfeiture of the guns. LaDonna then left a handwritten note with Townsend— who had represented the State of Montana (State) in other proceedings against Daniel — at the County Attorney’s office. In LaDonna’s note, she asserted ownership of the guns and expressed interest in the forfeiture proceeding she thought might be occurring that day. She also included information about where she could be reached throughout the day.

Townsend represented the State at the September 10,1993, forfeiture hearing regarding the guns. She had read LaDonna’s note and showed it to Daniel’s counsel before the hearing began; neither counsel notified the court of the note or its contents. Three law enforcement officers testified in support of the petition’s claim that the guns were used to protect or facilitate Daniel’s drug distribution operation. Daniel testified that he and LaDonna had purchased the guns “for our children ... to hunt and shoot them [sic], ...” Following the hearing, the District Court ordered the guns forfeited.

LaDonna obtained counsel after learning that the guns had been ordered forfeited. She moved to intervene in the forfeiture proceedings, for a temporary restraining order to prevent final disposition of the property and to have the forfeiture order vacated. Among other things, LaDonna asserted that:

All owners or claimants of seized property are to be notified of any forfeiture hearings. Montana Code Annotated § 44-12-201. Missoula County had notice that LaDonna Froehlich claimed an interest in said property. LaDonna Froehlich received no notice regarding the hearing of forfeiture.

On December 1, 1993, the District Court held a hearing on LaDonna’s motions. The court took the motion to intervene under advisement and received testimony from LaDonna. LaDonna stated that she first informed law enforcement authorities that she owned the guns during their search of Daniel’s home in December 1990. She stated that the authorities again became aware of her claimed ownership interest in the guns through various other events, culminating in her September 10, 1993, note to Townsend. No testimony or evidence was offered in response. Townsend and Daniel’s public defender verified that they had read, but failed to advise the court of, LaDonna’s note prior to the September 10, 1993, forfeiture hearing.

Following the hearing on LaDonna’s motions, the District Court entered its findings of fact, conclusions of law and order granting LaDonna’s motion to intervene and denying her motion to vacate. The court again ordered the guns forfeited. LaDonna appeals.

1. Was LaDonna entitled to service of summons and petition for forfeiture as provided in § 44-12-201(1), MCA, as a known owner or claimant of the property for which forfeiture was sought?

The District Court concluded that LaDonna did not present a claim to the guns as required by statute until after completion of the forfeiture proceeding. In Montana, the forfeiture of property related to drug offenses is authorized and governed by Title 44, Chapter 12, MCA. Within 45 days following the seizure of such property, a petition to institute forfeiture proceedings must be filed; summons and a copy of the petition must be served on all owners or claimants of the property. Section 44-12-201, MCA. Personal service is required when the name and address of the owner or claimant is known. Section 44-12-201(1), MCA.

At the outset, we observe that the District Court’s conclusion that LaDonna did not present a claim to the guns as required by statute is susceptible of two interpretations. The conclusion could be read as a determination that the forfeiture statutes require an owner or claimant to affirmatively present a claimed interest in the property via bills of sale or title documents prior to the point at which obligations regarding service of summons are imposed on the State. Alternatively, the conclusion could be interpreted as a determination that LaDonna was not a known owner or claimant at any time prior to the forfeiture hearing.

Because nothing in the forfeiture statutes corresponds to the first interpretation, that an owner or claimant has an affirmative duty to “present a claim,” we read the District Court’s conclusion as determining that LaDonna was not a known owner or claimant at any time prior to the September forfeiture hearing and, therefore, that she was not entitled to service as required by § 44-12-201, MCA. We review a district court’s conclusions of law regarding the application of a statute to determine whether the court’s interpretation of the law is correct. State v. Henning (1993), 258 Mont. 488, 490-91, 853 P.2d 1223, 1225; citing Steer, Inc. v. Dep’t of Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 603.

LaDonna argues that the District Court erred in concluding that she was not a known claimant. She contends that the State knew, or should have known, of her claimed interest in the guns as early as the search of Daniel’s property in December of 1990 and at various times thereafter, including the day of the forfeiture hearing when she left her note for Townsend. On that basis, LaDonna contends she was entitled to service of summons and the petition pursuant to § 40-12-201, MCA.

The State acknowledges that we have mandated strict compliance with the procedural requirements of Montana’s forfeiture statutes. See State v. 1978 LTD II (1985), 216 Mont. 401, 404-05, 701 P.2d 1365, 1367-68. Rigid adherence to the statutory safeguards is necessary because of the extraordinary nature of the forfeiture statutes in permitting seizure of private property prior to a factfinding hearing. LTD II, 701 P.2d at 1367. It is the summons which informs an owner or claimant of the necessity of answering the petition within 20 days as required by § 44-12-202, MCA; an owner’s or claimant’s failure to answer timely ordinarily bars him or her from presenting evidence at the forfeiture hearing. See § 44-12-202, MCA.

The State also admits that it did not serve LaDonna with notice of the forfeiture proceedings pursuant to § 40-12-201, MCA. The State argues, however, that neither the statutory service requirements nor LTD II is applicable here because, as the District Court determined, LaDonna was not a known claimant prior to the September 10,1993, forfeiture hearing.

LaDonna claims to have notified the State of her ownership interest in the guns when they were seized during the search of Daniel’s home in December, 1990. She also claims the State was made aware of her interest through Daniel’s answer to the forfeiture petition, through testimony at a 1991 forfeiture hearing regarding other seized property and as a result of the note she left for Townsend on September 10, 1993. The State vigorously disputes having any knowledge of LaDonna’s claimed interest in the guns prior to her September note to Townsend.

The term “known owner or claimant” is not defined in § 44-12-201, MCA. In construing the meaning of a statute, we presume the terms and words used were intended to be understood in their ordinary sense. Gaustad v. City of Columbus (1994), 265 Mont. 379, 381, 877 P.2d 470, 471 (citation omitted). A common definition for the term “owner” is “one who has dominion over a thing, real or personal ..., which he has a right to enjoy and do with as he pleases.” Black’s Law Dictionary, page 1105, (6th Ed. 1990). A “claimant” is one who asserts a right, demand or claim. Black’s Law Dictionary, page 247, (6th Ed. 1990).

Adding these everyday meanings to the statutory service requirements, we conclude that the District Court erred in determining that LaDonna was not a known claimant at any time prior to the forfeiture hearing on September 10,1993. In so concluding, we need not address each point in time at which LaDonna contends her claim was known to the State; nor is it necessary to ascertain a precise point in time during the early stages of this forfeiture proceeding at which the State had the requisite knowledge of LaDonna’s claim regarding the guns. Our discussion is limited to the events of December 18, 1990, and September 10, 1993.

LaDoima testified that the State was first aware of her claim to the guns via a conversation between herself and Detective Harbison during the search of Daniel’s residence and seizure of the guns and other property on December 18,1990. According to LaDonna, she told Detective Harbison at that time that she had purchased the guns, that they were legally hers, and that she had bills of sale for them.

No testimony or other evidence was presented to controvert LaDonna’s statements. The State contends that the District Court, having found other portions of LaDonna’s testimony incredible, also was free to reject this testimony that the conversation occurred.

Indeed, it appears that the District Court necessarily, although impliedly, rejected LaDonna’s testimony in this regard; only by doing so could the court have concluded that she was not a known claimant. The court certainly is free to weigh credibility and evidence and we will not substitute our judgment for that of the trial court. Hagen v. Dow Chemical Co. (1993), 261 Mont. 487, 494, 863 P.2d 413, 418. For that reason, we do not conclude that LaDonna was a known claimant by virtue of the alleged December 18, 1990, conversation.

The State’s other contention regarding LaDonna’s testimony in this regard is, however, troubling. The State argues that, even if the conversation took place, it does not support LaDonna’s position that she was entitled to notice of the forfeiture proceedings. This is so, argues the State, because the conversation “was clearly held in passing” and related more to the question of whether the guns were stolen than to the identity of the actual owner. We cannot approve of the State’s cavalier attitude about what constitutes notice of a claimed interest in property for which forfeiture is sought. If the conversation occurred, it would constitute a claim of interest in the guns by LaDonna because LaDonna asserted a right to the guns. Accepting the State’s position that it was merely a conversation “in passing” which would not support a claimed interest would impermissibly shift the initial burden under the forfeiture statutes to those claiming interest, rather than strictly requiring the State to serve known claimants. We will not countenance such a result where ex parte seizures of private property are at issue. See LTD II, 701 P.2d at 1367-68.

Unlike the events of December 18, 1990, the events of September 10, 1993, regarding LaDonna’s note to Townsend are not vigorously disputed. Townsend represented to the court that LaDonna left the following note for her before the forfeiture hearing on the guns:

LaDonna Froehlich
1302 Phillips
9/10/93
Karen Townsend,
This note is in reference to Daniel R. Froehlich. He was transported from MSP for a hearing today. I do not know what its [sic] about. I would like you to have this information in case the hearing was for a forfeiture of firearms seized Dec. 18, 1990 at Daniel’s home.
At the time Daniel was in possession of the firearms to hunt with. The guns are in reality of my ownership [sic]. I have receipts for the guns and I also know that these guns were not illegal, as in stolen.
The guns were purchased originally for my children, when they were old enough to go hunting. I only allowed Daniel to use them as he did not own any guns.
I don’t want to talk to Dan or see him as I’m trying to get a divorce from him. If you have any questions of me I’ll be at school, U of M, until 5pm [sic] and then I’ll be at Tower Pizza, 543-6112, where I’ll be working.
If the case today was not in reference to this, then I’ll need no information.
Thanks for your time,
LaDonna Froehlich

The State concedes that Townsend received and read the note prior to the September 10 forfeiture hearing. In addition, LaDonna’s testimony that she turned the bills of sale over to someone at the County Attorney’s office who returned them to her was undisputed.

Considered in relation to the common definition of “owner” and “claimant,” the words “the guns are in reality of my ownership” clearly convey a claim to the guns. The State’s only argument relating to the note is that, taking the note and LaDonna’s later testimony about the note together, LaDonna’s story is “contradictory, confusing and incredible.” The flaw in the argument, however, is that it is the note itself that gave the State notice that LaDonna was a known claimant; nothing in the note is contradictory, confusing or incredible. The State may not “undo” clear notice provided at a specific point in time by relying on testimony given three months later. We conclude that at least as of the day of the forfeiture hearing, but before the hearing began, LaDonna was a known owner or claimant of the property.

Having concluded that LaDonna was a known claimant, we come full circle to our LTD II holding mandating strict compliance with the procedural requirements of the forfeiture statutes. Section 44-12-201, MCA, required the State to serve LaDonna with summons and a copy of the petition before proceeding with the forfeiture of the guns. If the owner or claimant’s name and address are known, personal service is required. Section 44-12-201(1), MCA. LaDonna’s note articulated her full name, address, work location and telephone number; thus, her name and address were known. We conclude, therefore, that § 44-12-201(1), MCA, required the State to serve LaDonna personally prior to the forfeiture hearing.

2. Did any actual notice by LaDonna of the September 10, 1993, forfeiture hearing relieve the necessity of compliance with § 44-12-201(1), MCA?

The District Court found that, while LaDonna was not served or given formal notice of the forfeiture proceeding, she had actual knowledge of the September 10, 1993 forfeiture hearing. LaDonna argues that this finding is erroneous both factually and legally. For purposes of analysis, we accept the court’s finding that LaDonna had actual notice of the hearing and address the legal question of whether actual notice cured the failure to serve her personally as required by § 44-12-201(1), MCA.

As discussed above, the legislature has expressly provided for notice via personal service of process on known claimants to property for which forfeiture is sought. Section 44-12-201(1), MCA. The language of the statute — that owners and claimants of the property “shall” be served — is mandatory. See Gaustad, 877 P.2d at 471; LTD II, 701 P.2d at 1367. Nothing in the forfeiture statutes provides for alternative or substitute notice. We may not insert into statutory enactments provisions omitted therefrom. Section 1-2-101, MCA.

Moreover, our LTD II mandate of strict compliance and rigid adherence to the procedural safeguards contained in forfeiture statutes is even more compelling in the case presently before us than it was in LTD II. There, the statutorily required notice was given, but was defective in that it did not advise the person served that an answer was required within 20 days. We refused to allow the State to cure the defect by amending the notice of intention to institute forfeiture and, in effect, recommencing the forfeiture proceeding. LTD II, 701 P.2d at 1368.

Here, LaDonna received no notice at all pursuant to § 44-12-201, MCA. As a result, she — like the respondent in LTD II — was never advised of the necessity of filing a timely answer under § 44-12-202, MCA, in order to protect her claimed interest in the guns. Even with actual notice of the hearing, § 44-12-202, MCA, likely would have precluded her from presenting evidence or asserting her interest at the September 10, 1993, forfeiture hearing because she had not timely filed an answer to the petition for forfeiture. As we stated in LTD II, “[t]he interests of the possibly innocent owner should likewise be protected by strict compliance with the procedural mandate of the statute.” LTD 11, 701 P.2d at 1368 (citation omitted).

We will not stand idly by and allow known, and possibly innocent, owners or claimants to have their property forfeited for failure to serve a summons and copy of the petition as expressly required by § 44-12-201, MCA. We conclude, therefore, that actual notice of a forfeiture hearing by a known claimant or owner does not relieve the necessity of compliance with § 44-12-201, MCA.

3. Was the State’s failure to provide the statutorily required notice remediable by the District Court allowing LaDonna to intervene after the original order of forfeiture was entered?

As a final matter, we consider whether the District Court’s granting of LaDonna’s motion to intervene remedies the State’s failure to strictly comply with the requirements of § 44-12-201(1), MCA. LaDonna contends that the State’s failure to serve her was a “fatal flaw” requiring dismissal of the forfeiture proceeding. The State argues that the opportunity to testify at the intervention hearing provided her with an adequate mechanism to challenge the forfeiture and assert her rights. By way of background, we note that the guns were seized on December 18,1990, the forfeiture hearing was not held until September 10, 1993, and the original order of forfeiture was entered November 2, 1993. LaDonna’s intervention motion was granted on January 25,1994. By that time, the guns had been in the State’s possession for more than three years. The State argues that the intervention provided sufficient protection of LaDonna’s interests. We disagree.

Forfeiture statutes are extraordinary measures. “The very exercise of the seizure and forfeiture statutes by the State is a serious infringement on the rights of the party whose property is seized without a hearing.” LTD II, 701 P.2d at 1368. The only justification for allowing such a procedure at all is because “it is considered a significant weapon in the battle against drug trafficking.” LTD II, 701 P.2d at 1368.

Where the mere initiation of forfeiture proceedings is a serious infringement on the property owner’s rights, the extent of the infringement on LaDonna’s rights which occurred here simply by virtue of the length of time the State had control over the seized property in which she claimed an interest can hardly be quantified. In LTD II, where the time periods were relatively short, we refused to allow the State to cure its defective notice; such a cure would have increased the delay in proceeding against the property at the price of prejudicing the owner’s rights. LTD 77, 701 P.2d at 1368. Instead, we affirmed the district court’s dismissal of the forfeiture proceeding where a possibly innocent owner’s rights were prejudiced by the State’s failure to comply with mandatory statutory requirements. The same result is even more compelling here, given the total absence of notice and the inordinate length of time during which the State had control of the guns.

In addition, it is clear that the forfeiture procedure imposes stringent limitations on the party whose property is seized, including a rebuttable presumption of forfeiture and the limited proof allowed to rebut the presumption. Sections 44-12-203 and 44-12-204, MCA. Adopting the State’s position would maintain those stringent limitations on property owners or claimants while, at the same time, excusing the necessity of its own strict compliance with the service requirements contained in § 44-12-201, MCA. We rejected such a one-sided interpretation of the forfeiture statutes in LTD II, indicating that the requirements placed on property owners or claimants “must be enforced so as to avoid, to the greatest extent possible, prejudicing the rights of the party against whom they are directed.” LTD 77, 701 P.2d at 1368. Enforcing the requirements of the forfeiture statutes when they may adversely impact owners or claimants while simultaneously not enforcing those statutes when they may adversely impact the State — as the State would have us do — would not in any way meet our obligation to enforce the statutory requirements so as to avoid prejudicing the rights of property owners or claimants.

Allowing an intervention subsequent to a court-ordered forfeiture of property to replace strict compliance by the State with the requirements of § 44-12-201, MCA, would essentially gut the statute, encourage the State to “not know” of a clearly asserted claim to the property and, as a result, significantly prejudice the claimant’s rights by shifting the entirety of the burden to the claimant. The extent of the prejudice would far exceed the prejudice to the rights of a possibly innocent owner that we refused to countenance in LTD II. Nor are we persuaded by the State’s arguments that we should depart from the LTD II remedy here. The State argues that the District Court’s approach in allowing LaDonna to intervene was reasonable and procedurally sound. We do not disagree that the court did what it could to protect LaDonna’s interests given the position in which it was placed by the State’s failure to properly serve LaDonna as required by § 44-12-201, MCA. We conclude, however, that the State’s failure to provide the statutorily-mandated notice was not remediable by the District Court allowing LaDonna to intervene after it had ordered the forfeiture of the guns.

Reversed and remanded with instructions to vacate the order of forfeiture and dismiss the forfeiture proceedings involving the guns.

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


author: JUSTICE WEBER

text:
    BRIAN ROBERT CONTRERAS, Plaintiff and Appellant, -vVANNOY HEATING & AIR CONDITIONING, INC. Defendant and Respondent.
    No. 94-490.
    Submitted on Briefs January 26, 1995.
    Decided March 30, 1995.
    52 St.Rep. 246.
    270 Mont. 393.
    892 P.2d 557.

      For Appellant: James D. Walen, Stacey & Walen, Billings.
    For Respondent: Don M. Hayes, Herndon, Hartman, Sweeney & Halverson, Billings.
   JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal from a jury verdict in the Thirteenth Judicial District Court, Yellowstone County, finding for defendants. We affirm.

We consider the following issues on appeal:

I. Did the District Court err when it denied plaintiff’s motions for partial summary judgment and for directed verdict on the issue of liability?

II. Did the District Court improperly instruct the jury?

Brian Contreras (Contreras) worked for the City of Billings on June 30, 1987, when the explosion that is in controversy here occurred. Contreras was a fifteen year old and worked through the District Seven Human Resources Development Council, an agency that provides employment and training for underprivileged minors. Contreras worked as a maintenance trainee at the Parmly Library Building.

On June 30, 1987, Contreras’s supervisor, James Southworth (Southworth), instructed Contreras to clean the boiler room situated on the fourth floor of the building. While cleaning the room with a backpack vacuum cleaner, Contreras hit a valve on a gas line, approximately six inches from the boiler. The valve fell off the gas line and natural gas began to leak out of the line.

Contreras ran after Southworth who immediately came to the boiler room and unsuccessfully attempted to stop the leak. A pilot light on the boiler ignited the gas and an explosion resulted, causing Contreras severe burns.

Contreras filed a complaint on June 20, 1990, against the City of Billings, Southworth, and a number of John Does. Southworth and the City of Billings were dismissed following their motion for summary judgment. Contreras then amended his complaint to add Vannoy Heating & Air Conditioning, Inc. (Vannoy) as a defendant. Vannoy had a contract with the library for the heating, ventilating and air conditioning system (HVAC) maintenance. Contreras alleged he would not have been injured had Vannoy inspected the valve as it was required to do.

Both parties filed cross motions for summary judgment which were denied on March 15,1994. Trial was held on April 18,19 and 20,1994, followed by both parties’ move for a directed verdict. Both were denied. On April 25, 1994, the jury found that Vannoy was not negligent. Contreras’ May 9, 1994, motion for a new trial was denied on May 25, 1994. Contreras appeals from the judgment entered for defendant Vannoy.

I.

Did the District Court err when it denied plaintiff’s motions for partial summary judgment and for directed verdict on the issue of liability?

Contreras argues that under its contract, Vannoy was responsible for all hand valves in the HVAC system and that the gas shut off valve was such a hand valve. Contreras also contends that no one from Vannoy ever inspected the valve; and because the contract specifically calls for inspection of the system of which the valve was a part, the court should have directed a verdict or granted partial summary judgment to Contreras.

Vannoy argues that the gas shut off valve was a nonmaintainable part of the system for which it had no responsibility under the contract. Vannoy further asserts that the contract is ambiguous concerning the valve in question and the jury had the responsibility to decide whether Vannoy had a duty or not.

If there is any evidence that warrants submission to the jury, a directed verdict is inappropriate. Kearney v. KXLF Communications, Inc. (1994), 263 Mont. 407, 869 P.2d 772. A party is entitled to summary judgment only if no genuine issues of material fact exist and it is entitled to judgment as a matter of law. McDonald v. Anderson (1993), 261 Mont. 268, 862 P.2d 402. In order to prove any claim of negligence, a party has to show duty, breach of that duty, and resulting damage caused by the defendant. Lindey’s v. Goodover (1994), 264 Mont. 449, 872 P.2d 764.

The court denied summary judgment because it determined that genuine issues of material fact existed. Following the trial, the court denied both plaintiff’s and defendant’s motion for directed verdict.

In order for Contreras to be granted summary judgment or a directed verdict on the issue ofVannoy’s liability, he had to show that all evidence submitted proves that Vannoy had a duty to Contreras and that it breached that duty. Contreras argues that the existence of a legal duty is a question of law for the court. If there are issues of fact as to the presence or absence of a duty owed to the plaintiff, then the court must instruct the jury to make the initial fact determination, and then apply the correct standard as furnished by the court. Olson v. Kayser (1973), 161 Mont. 241, 505 P.2d 394.

The two parties presented facts demonstrating a controversy as to the existence of a duty owed to Contreras. To make a determination as to the presence of a duty, the jury had to decide whether the valve was a “hand valve” or a “nonmaintainable” part of HVAC or not a part of HVAC at all. Contreras argues that the valve was a hand valve and under the contract repair and maintenance of all hand valves was required. Contreras also referred to another part of the contract which required Vannoy to inspect the entire system and he contends the valve was a part of the system.

Vannoy introduced evidence which demonstrated that the valve was not a part of the HVAC system. Vannoy pointed out that if the valve was part of the piping and duct work on the boiler, then Vannoy was not responsible for inspection or maintenance. Witnesses Aron Schenk and Rod Putnam testified that the valve in question was not part of their responsibility under the contract between Vannoy and the City of Billings. Southworth testified that his maintenance staff worked on valves such as this and only called Vannoy when there was a problem. There is substantial evidence from which the jury could have concluded that under its contract, Vannoy was not responsible for the valve.

In addition to employees of Vannoy, Vannoy presented evidence that the company responsible for the HVAC system before Vannoy took over the contract did not consider the valve as part of its responsibility to inspect or repair. Also, an engineer testified that it was possible to consider the valve as part of the piping and duct work for which Vannoy had no responsibility.

We conclude there were significant issues of material fact which precluded summary judgment. In a similar manner, there remained significant issues of fact as to the presence or absence of a duty owed to Contreras which precluded a directed verdict.

Depending on which set of facts the jury believed, a different duty would ensue. The fact finder had to determine whether the contract was applicable to the valve in question and then, if it was applicable, which section of the contract described the valve in question: the section relating to hand valves as being within Vannoy’s scope of responsibility or the section that describes non-maintainable parts of the system for which Vannoy did not have responsibility. There is no way the duty and breach elements of negligence could have been determined without a determination of which facts were applicable.

Both sides also presented testimony about the element of causation. Vannoy contended that Contreras was responsible for his own injury. Vannoy’s manager testified that if the valve had been damaged prior to Contreras’ hitting it with the vacuum cleaner, gas would have been leaking from the valve. Contreras’ own supervisor, Southworth, who had been in the boiler room a short while before the explosion, testified that there was no gas odor before Contreras hit the valve. The State Boiler Investigators who inspected the boiler in 1986, passed the boiler after an inspection found everything in working condition. Thus, evidence was presented that the valve did not leak. Further, Southworth testified that when he smelled the strong gas odor on the fourth floor after being summoned by Contreras, he yelled for everyone to get out because the boiler was going to blow. Contreras did not move from the doorway of the boiler room. We finally conclude that substantial evidence was presented from which the jury could have determined that the actions of Vannoy did not cause Contreras’ injury.

The record shows that both sides produced evidence and testimony to support their arguments concerning all three elements of negligence in contention: duty, breach of duty, and causation. Because of the conflict in the evidence as to the duty on the part of Vannoy, the court instructed the jury as follows:

Instruction #10

Plaintiff contends Defendant had a duty under the maintenance contract between Defendant and the City of Billings to maintain and service the valve which caused the explosion. Plaintiff further contends that Defendant had the duty to exercise reasonable care and skill in inspecting, servicing and maintaining the HVAC system. Defendant contends it did not have a duty under the maintenance contract between it and the City of Billings to maintain and service the valve which caused the explosion.
In resolving the question of Defendant’s duty, the jury may consider the contract, exhibit 9, the intent of the parties when they made the contract and the actions of the parties in fulfillment of the contract.

The court went on to instruct the jury about all facets of negligence including the burden of proof and elements of negligence, proximate causation, and intervening cause. While we do not know from the jury verdict which element of negligence was not proven to the jury’s satisfaction, the record indicates that they were instructed properly concerning the negligence theory.

We conclude that summary judgment would have been inappropriate because genuine issues of material fact existed as to Vannoy’s liability. A directed verdict on the issue of liability would have been inappropriate because the determinative question in this case was one of fact and both sides presented facts to support their positions. The District Court did not err in denying the motion for partial summary judgment and the motion for directed verdict on the issue of liability.

II.

Did the District Court improperly instruct the jury?

Contreras argues that the court improperly instructed the jury by not giving instructions on his theory of the case. Vannoy argues that the instructions were appropriate and presented an accurate view of the law. It is within the District Court’s discretion to decide how to instruct the jury, taking into account theories of contending parties, and we will not overturn the court except for abuse of discretion. Hall v. Big Sky Lumber & Supply, Inc. (1993), 261 Mont. 328, 863 P.2d 389.

Plaintiffs Proposed Instructions #20, 20A, 20B and 20C

Contreras argues that he was denied a fair trial because the court did not give these four instructions and, therefore, the jury was denied consideration of his side of the case. The above instructions acted to direct a verdict on the element of duty: ‘You are instructed that the gas hand valve in question was covered by the HVAC Maintenance Agreement...” Proposed instruction #20. This assumes facts in question. All four instructions were worded to direct the jury that Vannoy had a duty under the contract. The court did not err in failing to give these four instructions.

Plaintiff’s Proposed Instructions #17, 24, and 25

Contreras argues that these instructions were needed to properly present his theory of the case. A review of these instructions reveals that they are duplicitous and not correct statements of the law.

Proposed Instruction #17 states:

More than one person may be liable for causing an injury. A defendant may not avoid liability by claiming that some other person (whether or not named as a defendant in this action) helped cause the injury.

The idea of multiple liable parties was handled adequately by the court’s instructions #10 through 18. The proposed wording is not totally accurate because it does not present the entire picture to the jury. The court’s instructions #13 and #14 talk about the specifics of both plaintiff’s and defendant’s burden of proof for their theories of liability.

Proposed Instruction #24 states:

Where one has negligently caused a condition of danger, he is not relieved of responsibility for damage caused to another merely because the injury also involved the later misconduct of someone else, if that conduct was foreseeable.

The court gave instead Instruction #18:

An intervening cause does not relieve an actor from liability for his negligent acts where the intervening cause is one which the defendant might reasonably anticipate under the circumstances.

The Proposed Instruction #24 could possibly confuse the jury into assuming that defendant had acted in a negligent manner. We have already stated that the assumption that negligence occurred is not accurate and any instruction proposed which assumed this would be in error.

Proposed Instruction #25 states:

Where the negligent conduct of an actor creates or increases the risk of a particular harm and is a substantial factor in causing that harm, the fact that the harm is brought about through intervention of another force does not relieve the actor of liability, except where harm is intentionally caused by a third person and is not within the scope of risk created by the actor’s conduct.

The submitted instruction contains a reference to harm intentionally caused by a third party and such a theory was not a part of this case. The court adequately covered the theory of intervening cause in its instruction #18.

Plaintiff’s Proposed Instructions #19 and 21

Contreras offered Instruction #19:

The services of experts are sought because of their special skill. They have a duty to exercise the ordinary skill and competence of members of their profession and a failure to discharge that duty will subject them to liability for negligence. Those who hire such persons are not justified in expecting infallibility, but can expect only reasonable care and competence.

This instruction requires the jury to find negligence when service people are not skilled enough nor competent. No evidence was introduced at trial that any of the service people involved lacked the appropriate skills needed to satisfy their contract with the City or that they were somehow incompetent. This instruction is misleading because it assumes that the service people involved had a duty which, we have already stated, cannot be assumed under the facts of this case.

Proposed Instruction #21 stated:

Defendant and its employees owed a duty to perform its work with reasonable care and skill so as not to cause injury to the person of another.

The court gave instruction #11 which stated that “Every person” is responsible for injury to the person or property of another, caused by his or her negligence. Contreras’ version is confusing as it could be construed by the jury as a directed verdict on the element of duty. As mentioned before, whether the element of duty was satisfied depended upon the set of facts that the jury found to be true.

Plaintiff’s Proposed Instruction #23

Contreras offered Proposed Instruction #23 which stated:

Alegal doctrine called “res ipsa loquitur” is involved in this case. The meaning of the term is, “it speaks for itself.” Under this doctrine, even though negligence has not been proven by other evidence, you may infer negligence from the circumstances surrounding an event if you find from a preponderance of the evidence that: (1) the event is of a kind which ordinarily does not occur in the absence of negligence; (2) other causes, including the conduct of the plaintiff and other persons, have been sufficiently eliminated by the evidence.

Contreras argues that this is a “classic res ipsa loquitur” case. That is not accurate.

Res ipsa loquitur does not permit the presumption of negligence; a plaintiff must make a prima facie case that defendant breached a duty of care before the question goes to the jury.

Clark v. Norris (1987), 226 Mont. 43, 48, 734 P.2d 182, 185. The elements of duty and breach of duty were very much in question under the facts of this case.

Further, the doctrine of res ipsa loquitur encompasses an element of “exclusive control” of the instrumentality involved. Dalton v. Kalispell Hospital (1993), 256 Mont. 243, 846 P.2d 960. The “instrumentality” involved, the valve, would have to have been under the exclusive control of Vannoy. Control is a significant issue in the case. Further, the key to the boiler room hung on a hook in an adjoining room where anyone could have taken it. Contreras cannot use this theory to bypass presentation of evidence on the elements of negligence.

We conclude that the court properly instructed the jury on all theories of the case and on the appropriate law. We hold that the District Court did not abuse its discretion in instructing the jury.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HUNT, NELSON and LEAPHART concur.


text:
    R. KIM WUNDERLICH, Petitioner and Appellant, vs. LUMBERMENS MUTUAL CASUALTY COMPANY, Respondent/Insurer for BUTTREY FOOD AND DRUG, Employer, and SKAGGS ALPHA BETA, Respondent/Insurer for SKAGGS ALPHA BETA, Employer.
    No. 94-486.
    Submitted on Briefs January 19, 1995.
    Decided March 31, 1995.
    52 St.Rep. 251.
    270 Mont. 404.
    892 P.2d 563.

      For Appellant: Richard J. Martin; Alexander, Baucus & Linnell, Great Falls.
    For Respondent: Thomas A. Marra; Marra, Wenz, Johnson & Hopkins, Great Falls.
   JUSTICE GRAY

delivered the Opinion of the Court.

R. Kim Wunderlich (Wunderlich) appeals from the findings, conclusions, and judgment of the Workers’ Compensation Court. The court denied Wunderlich’s claim for permanent partial disability benefits under § 39-71-703, MCA (1985), and his claims for a penalty and attorney fees based on Lumbermens Mutual Casualty Company’s (Lumbermens) unreasonably delayed acceptance of his occupational disease claim. We affirm.

The Workers’ Compensation Court consolidated Wunderlich’s Workers’ Compensation Act and Occupational Disease Act claims for trial. For purposes of clarity, we address Wunderlich’s claim under § 39-71-703, MCA (1985), first and thereafter address his occupational disease claims.

1. The 1987 Upper Back Injury Workers’ Compensation Claim

Buttrey Food and Drug, formerly known as Skaggs Alpha Beta (hereafter Buttreys), operated a central warehouse distribution center in Great Falls, Montana. On June 11, 1987, while employed by Buttreys, Wunderlich was loading a truck at the distribution center. A case of tissue weighing approximately eighty pounds began to fall and, when Wunderlich attempted to catch it, he felt pain between his shoulders. Wunderlich finished his shift and then sought chiropractic treatment for his injury, which he described as “a knot in the middle of my back.” The chiropractor diagnosed Wunderlich’s injury as a strain/sprain of the spine with attendant pain in the muscles and nerves.

Wunderlich’s chiropractor authorized Wunderlich’s return to work without restriction on June 30,1987. Chiropractic treatments continued for another month. Buttreys, which was self-insured under Plan 1 of the Workers’ Compensation Act, accepted liability for Wunderlich’s workers’ compensation claim for temporary total disability resulting from his upper back injury.

Wunderlich injured his lower back on three subsequent occasions in the course of his employment with Buttreys over the next five years. While receiving chiropractic treatment for those lower back injuries, which ultimately led to his occupational disease claim, Wunderlich would make complaints of mid and upper back soreness to the treating chiropractor.

On October 4,1993, Wunderlich petitioned the Workers’ Compensation Court for permanent partial disability benefits as a result of the June 11, 1987, injury to his upper back. Buttreys agreed that Wunderlich suffered an injury on June 11, 1987, while employed at its distribution center, but denied that his disability arose from that injury. The court denied Wunderlich’s claim, determining that he failed to establish that he suffered a disability or impairment arising from the 1987 injury and, in any event, failed to establish a loss of present earning capacity due to that injury. Wunderlich appeals.

It is well-settled that “[workers’ compensation benefits are determined by the statutes in effect as of the date of injury.” Buckman v. Mont. Deaconess Hospital (1986), 224 Mont. 318, 321, 730 P.2d 380, 382. Accordingly, Wunderlich’s claim is governed by the 1985 version of the Workers’ Compensation Act.

“Permanent partial disability” is statutorily defined as an injury “that results in the actual loss of earnings or earning capability less than total that exists after the injured worker is as far restored as the permanent character of the injuries will permit.” Section 39-71-116(12), MCA (1985). Pursuant to § 39-71-709, MCA (1985), a claimant can pursue a disability award under § 39-71-703, MCA (1985), or an indemnity award under §§ 39-71-705 through -708, MCA (1985). See also Stuker v. Stuker Ranch (1991), 251 Mont. 96, 98, 822 P.2d 105, 107. The amount of workers’ compensation benefits to which a claimant is entitled is determined under § 39-71-703(1), MCA (1985), regardless of which award a claimant elects to pursue. Sections 39-71-703(1), 39-71-705 and 39-71-706, MCA (1985).

Section 39-71-703(1), MCA (1985), provides in pertinent part: Weekly compensation benefits for injury producing partial disability shall be 66 2/3% of the actual diminution in the worker’s earning capacity measured in dollars ....

“In order to prevail under [§ J39-71-703, MCA(1985), a claimant must show an actual diminution in present earning capacity and such a loss must be measured on the open labor market.” Kuenning v. Big Sky of Montana (1988), 231 Mont. 1, 4, 750 P.2d 1091, 1093 (citation omitted). The general rale is that a claimant bears the burden of establishing the right to receive compensation. Kuenning, 750 P.2d at 1093.

Wunderlich challenges findings of the Workers’ Compensation Court relating to both the existence of a partial disability or impairment arising from the 1987 injury and his diminution in earning capacity as a result of that injury. As set forth above, he must prove both elements in order to establish entitlement to workers’ compensation benefits. See §§ 39-71-703, 39-71-705 and 39-71-706, MCA(1985); Stuker, 822 P.2d at 107-108. Because we reject Wunderlich’s assertion of error relating to diminution in earning capacity, we need not address his argument regarding the court’s finding that he did not sufficiently establish a partial disability or impairment resulting from the 1987 injury.

Wunderlich argues that the Workers’ Compensation Court erred in finding that he failed to meet his burden of establishing a loss in earning capacity because the court failed to give appropriate consideration to Terry Blackwell’s (Blackwell) testimony regarding Wunderlich’s reduced vocational abilities. In essence, Wunderlich does not challenge the sufficiency of the evidence to support the Workers’ Compensation Court’s finding. He argues, instead, that sufficient evidence exists to support a contrary finding that he experienced a loss in earning capacity due to the 1987 injury, but that the court did not properly consider it. His argument ignores this Court’s standard of review regarding decisions of the Workers’ Compensation Court.

We will uphold the Workers’ Compensation Court’s findings of fact if they are supported by substantial credible evidence. Smith v. United Parcel Service (1992), 254 Mont. 71, 75, 835 P.2d 717, 720. Substantial evidence “consists of more than a mere scintilla of evidence but may be somewhat less than a preponderance.” Miller v. Frasure (1991), 248 Mont. 132, 137, 809 P.2d 1257, 1261. We will not substitute our judgment for that of the trial court when the issue relates to the credibility of the witnesses or the weight given to certain evidence. Burns v. Plum Creek Timber Co. (1994), [268 Mont. 82], 885 P.2d 508, 509.

Wunderlich’s evidence of diminution in present earning capacity as a result of his 1987 upper back injury was presented through Blackwell, a rehabilitation counselor. Blackwell calculated that Wunderlich’s expected earnings in the Great Falls area amounted to $6.42 an hour, approximately one-half the amount Wunderlich earned as an employee of Buttreys. Blackwell stated that he based his calculations on correspondence and medical records from various physicians and chiropractors treating Wunderlich, a basic “screening test,” a personal interview, and wage information obtained from the Montana Department of Labor and Industry (Department).

The court determined that, while Blackwell’s testimony established a diminution in earning capacity, it was insufficient to establish that the loss of earning capacity resulted from Wunderlich’s 1987 injury. Specifically, the court found that Blackwell’s testimony was based on Wunderlich’s overall physical condition, including his occupational disease; the court also found that Blackwell was unable to ascertain the extent, if any, to which the diminution in earning capacity resulted from Wunderlich’s 1987 upper back injury.

Blackwell’s testimony provides substantial support for the court’s findings. Blackwell testified that he was retained by Wunderlich to determine the impact Wunderlich’s 1987 upper back injury had on Wunderlich’s employment options in the Great Falls labor market. He also testified, however, that he was unable to determine the impact of the 1987 injury as distinct from the impact of the three subsequent lower back injuries. Blackwell stated that of the three subsequent lower back injuries, which relate to Wunderlich’s occupational disease claim, Wunderlich’s medical records did not distinguish between those individual injuries and the 1987 injury. Thus, he could not determine which of Wunderlich’s limitations stemmed directly from the 1987 injury.

Wunderlich argues Blackwell’s testimony is clear that some part of his overall loss of earning capacity was attributable to the upper back injury; on that basis, he asserts that the court should have weighed Blackwell’s testimony with other probative evidence and computed a fair amount of permanent partial disability benefits. As we noted above, however, the weight given to certain evidence is a matter for the Workers’ Compensation Court. Burns, 885 P.2d at 509. We will not substitute our judgment regarding the appropriate weight to be given Blackwell’s testimony for that of the court.

On the basis of the record before us, we conclude that substantial credible evidence supports the Workers’ Compensation Court’s finding that Wunderlich did not establish his claim of lost earning capacity resulting from the 1987 injury. We hold, therefore, that the Workers’ Compensation Court did not err in denying Wunderlich’s claim for permanent partial disability benefits.

2. The Occupational Disease Claim

As a result of his back injuries, Wunderlich developed a degenerative disk problem. On July 31, 1992, Wunderlich filed a claim for occupational disease benefits with Lumbermens, Buttreys’ insurer for Occupational Disease Act claims, presenting three opinions from medical doctors stating that he suffered from an occupational disease. Lumbermens denied his claim three times during the following year. In August 1993, following a determination by the Department of Labor and Industry that Wunderlich was entitled to occupational disease benefits, Lumbermens accepted liability. Wunderlich then demanded a twenty percent penalty based on Lumbermens’ allegedly unreasonable delay in accepting his claim; Lumbermens refused to pay the penalty.

Wunderlich petitioned the Workers’ Compensation Court seeking both a twenty percent penalty and attorney’s fees. He asserted that the Workers’ Compensation Court’s broad jurisdiction over workers’ compensation and occupational disease issues authorized it to award a penalty pursuant to § 39-71-2907(l)(b), MCA, for an insurer’s unreasonable delay in making occupational disease benefit payments due a claimant. The Workers’ Compensation Court found that Lumbermens’ denial of Wunderlich’s underlying occupational disease claim was unreasonable, but concluded as a matter of law that it lacked jurisdiction to award the requested penalty. We review the Workers’ Compensation Court’s legal conclusions to determine whether they are correct. Bohmer v. Uninsured Employers’ Fund (1994), 266 Mont. 289, 291, 880 P.2d 816, 817.

Our resolution of this issue depends on whether the Workers’ Compensation Court correctly interpreted several statutes. The function of courts in interpreting statutes is to “ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted.” Section 1-2-101, MCA. If the intention of the legislature can be determined from the plain meaning of the words used, we may not go further and apply other means of construction. Murer v. State Compensation Mut. Ins. (1994), [267 Mont. 516], 885 P.2d 428, 430.

Montana’s Workers’ Compensation Act specifically authorizes the Workers’ Compensation Court to increase by twenty percent the full amount of benefits due a claimant if an insurer unreasonably delays or refuses to pay benefits. Section 39-71-2907, MCA. Montana’s Occupational Disease Act, found at Title 39, chapter 72, MCA, contains no penalty provision. The legislature’s inclusion of the straightforward penalty provision in the Workers’ Compensation Act clearly reflects its intent to permit the Workers’ Compensation Court to assess a penalty against an insurer in disputes under Title 39, chapter 71, MCA; the legislature’s failure to include a corresponding provision in Title 39, chapter 72, MCA, just as clearly reflects the legislature’s intent not to authorize assessment of such a penalty under the Occupational Disease Act. For that reason, we decline to insert a penalty provision into the Occupational Disease Act where one does not exist.

Wunderlich asserts that the Workers’ Compensation Court possesses broad jurisdiction over the determination of issues under both the Workers’ Compensation Act and the Occupational Disease Act. On that basis, he argues that the plain language of § 39-71-2907, MCA, does not limit the award of a penalty to workers’ compensation disputes, but encompasses and authorizes the award of a penalty in disputes arising under chapter 72. His argument is without merit.

It is true that § 39-71-2905, MCA, gives the Workers’ Compensation Court broad jurisdiction regarding the adjudication of benefits and other disputes under the Workers’ Compensation Act contained in Title 39, chapter 71, MCA. See also, State, Etc. v. Hunt (1981), 191 Mont. 514, 519, 625 P.2d 539, 542. The court also is specifically authorized to award assessments and penalties expressly provided in chapter 71 for disputes arising under that chapter. Section 39-71-2905, MCA. Section 39-71-2907, MCA, contains such a penalty.

In contrast, the Workers’ Compensation Court’s jurisdiction under the Occupational Disease Act is much more limited. There, the court reviews on appeal final determinations by the Department regarding occupational disease claims. Section 39-72-612, MCA. The review is statutorily circumscribed and, unlike the jurisdiction statute in the Workers’ Compensation Act, does not provide express authorization to award assessments and penalties. Section 39-72-612(2), MCA.

Pursuant to legislative enactment, the Workers’ Compensation Court’s jurisdiction under the Workers’ Compensation Act differs substantially from its jurisdiction under the Occupational Disease Act. Broad jurisdiction pursuant to the Workers’ Compensation Act simply cannot be superimposed upon, and override, limited jurisdiction under the Occupational Disease Act. We conclude, therefore, that the court does not have jurisdiction to assess a § 39-71-2907, MCA, penalty in a dispute arising under the Occupational Disease Act. Thus, we hold that the Workers’ Compensation Court did not err in denying Wunderlich’s petition for a penalty based on Lumbermens’ unreasonable delay in accepting liability for the occupational disease claim.

Wunderlich’s final argument relates to the Workers’ Compensation Court’s denial of his motion for attorney’s fees pursuant to § 39-71-612, MCA. He argues that he is entitled to attorney’s fees pursuant to § 39-71-612(1), MCA, if this Court concludes that he is entitled to a penalty pursuant to § 39-71-2907, MCA. Because we have concluded that Wunderlich is not entitled to a penalty under § 39-71-2907, MCA, we need not address his attorney’s fees argument. We also need not address the issue, encompassed in that argument, relating to the interpretation of attorney’s fees as “compensation” under the Workers’ Compensation Act.

Affirmed.

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