author: JUSTICE TRIEWEILER JUSTICE GRAY, CHIEF JUSTICE TURNAGE:

text:
    JACK MURER, JAY HARBRIGE, KEITH MORDJA, SUSAN VERNON, BRUCE NELSON, STEVE PRICKETT, and JAMES BROWN, Claimants & Appellants, v. STATE COMPENSATION MUTUAL INSURANCE FUND, Defendant, Respondent & Cross-Appellant, and BEVERLY HARDY, et.al., Intervenors & Respondents.
    No. 95-542.
    Submitted February 18, 1997.
    Decided June 23, 1997.
    54 St.Rep. 566.
    283 Mont. 210.
    942 P.2d 69.

      For Appellants: James H. Goetz (argued); Goetz, Madden & Dunn; Bozeman; and Allan M. McGarvey; McGarvey, Heberling, Sullivan & McGarvey; Kalispell.
    For Respondent: Bradley J. Luck (argued) and Lucy T. France; Garlington, Lohn & Robinson; Missoula.
    For Intervenors: Ira D. Eakin (argued); Lynaugh, Fitzgerald, Eiselein & Eakin; Billings.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

The claimants, Jack Murer, Jay Harbrige, Keith Mordja, Susan Vernon, Bruce Nelson, Steve Prickett, and James Brown, filed a petition for benefits in the Workers’ Compensation Court for the State of Montana. On November 20, 1995, the Workers’ Compensation Court entered its final judgment granting in part and denying in part the benefits and fees which were sought. Claimants appeal and the respondent, State Compensation Mutual Insurance Fund, cross-appeals. We affirm in part and reverse in part the judgment of the Workers’ Compensation Court, and remand to that court for further proceedings consistent with this opinion.

On appeal, claimants raise the following issues:

1. Did the Workers’ Compensation Court err when it concluded that the temporary cap on maximum benefits enacted in 1987 did not expire until June 30, 1991?

2. Did the Workers’ Compensation Court err when it concluded that the settlement agreements entered into between claimants and the State Fund foreclose claimants’ rights to further benefits?

3. Did the Workers’ Compensation Court err when it denied claimants’ motion for attorney fees pursuant to the common fund doctrine?

On cross-appeal, the State Fund raises the following issues:

1. Did the Workers’ Compensation Court err when it concluded that an impairment award, paid in the form of a lump sum before June 30,1991, at the request of claimant Keith Mordja, must be increased pursuant to Murer II ?

2. Did the Workers’ Compensation Court err when it determined that the State Fund’s failure to increase Mordja’s impairment award was unreasonable and, on that basis, assessed a penalty pursuant to § 39-71-2907, MCA?

FACTUAL BACKGROUND

In 1987, the Montana Legislature enacted the following cap on temporary total disability benefits for injured workers:

[B]eginning July 1, 1987, through June 30, 1989, weekly compensation benefits for temporary total disability may not exceed the state’s average weekly wage of $299 established July 1, 1986.

Section 39-71-701(5), MCA (1987). See also § 39-71-702(6), MCA (1987) (permanent total disability), and § 39-71-703(3), MCA (1987) (permanent partial disability). The 1989 Legislature enacted similar caps for injuries which occurred between July 17,1989, and June 30, 1991. Those caps extended “through June 30, 1991.” See §§ 39-71-701(5), -702(6), and -703(3), MCA (1989). The State Fund deemed the caps ($299 per week for total benefits; $149.50 per week for partial benefits) to be permanent and, on that basis, continued to apply them after June 30, 1991.

Claimants are seven workers who were injured between July 1, 1987, and June 30, 1991, and who are entitled to disability benefits at the maximum statutory rate. They filed a petition in the Workers’ Compensation Court in which they contended that the 1987 and 1989 legislative caps were temporary and, therefore, cannot be applied after 1991. Furthermore, they asserted that: (1) the temporary cap enacted in 1987 expired June 30, 1989, and did not apply thereafter to workers injured before that date; and (2) the temporary cap enacted in 1989 can only be applied to injuries which occurred between July 17, 1989, and June 30, 1991.

Claimants initiated this litigation as representatives of a class of injured claimants similarly situated. However, the Workers’ Compensation Court concluded that

a final judgment will have the same effect as a class action without the unnecessary complications. The Court is convinced that the regulatory agency (D.O.L.I.) and the supervision of the courts sufficiently protects all claimants ....

On that basis, the Workers’ Compensation Court denied class certification and, on appeal, we affirmed. Murer v. State Fund (1993), 257 Mont. 434, 849 P.2d 1036 (Murer I).

On remand, the Workers’ Compensation Court concluded that the 1987 and 1989 caps were permanent and that, therefore, the State Fund could continue to apply the caps after June 30,1991. On appeal from that decision, we reversed the Workers’ Compensation Court, held that the caps on disability benefits were only temporary, and remanded the case to the lower court for further proceedings. Murer v. State Fund (1994), 267 Mont. 516, 885 P.2d 428 (Murer II).

Pursuant to Murer II, the State Fund was obligated to increase benefit payments to a substantial number of claimants who were neither parties to, nor directly involved in the Murer litigation. For that reason, claimants again moved for class certification. The State Fund, however, agreed to contact and pay all absent claimants, without requiring further action on their behalf.

Under supervision of the Workers’ Compensation Court, the State Fund identified and notified absent claimants, and disbursed to them the required increase in benefits. Claimants and their attorneys asserted a lien for fees against those increased payments. In recognition of that lien, the State Fund withheld 20 percent from the amounts paid to absent claimants. Claimants also moved the Workers’ Compensation Court to award them attorney fees pursuant to the common fund doctrine.

On February 16, 1995, thirteen absent claimants, Beverly Hardy, et.al., filed a motion to intervene, which the Workers’ Compensation Court granted. On August 7,1995, the court denied claimants’motion and refused to award them attorney fees pursuant to the common fund doctrine.

Claimants continued to assert that workers’ compensation claimants injured between 1987 and 1989 should be subject only to the 1987 cap, and that the 1989 cap applies only to claimants injured between 1989 and 1991. The Workers’ Compensation Court, however, refused to differentiate between the two classes of injured workers and concluded that both the 1987 and the 1989 temporary caps expired June 30, 1991.

During the pendency of this litigation, four of the Claimants — Jay Harbrige, Susan Vernon, Steve Prickett, and James Brown — made settlement agreements with the State Fund. Each of the settlement agreements was executed on Form LF820, a standardized form which is published by the Department of Labor and Industry for purposes of lump sum conversions pursuant to § 39-71-741(2), MCA. Form LF820 contains the following caption:

PETITION FOR COMPROMISE AND RELEASE SETTLEMENT

(Permanent Partial Wage Supplement and/or Rehabilitation Benefits).

Notwithstanding the parenthetical language to the caption, the operative provisions of each agreement contain the following language:

The parties to this matter have agreed to fully and finally conclude all compensation and/or rehabilitation payments due the claimant under the Workers’ Compensation Act....
The claimant hereby petitions the Division of Workers’ Compensation ... for approval of this petition and that the claim be fully and finally closed on the basis set forth above.

The Department of Labor and Industry approved each settlement petition, and its orders provide that the State Fund is “fully released and discharged from all further obligations for compensation benefits for this injury under the Workers’ Compensation Act.” Those orders also indicate that any dissatisfied party can appeal the order to the Workers’ Compensation Court; however, no appeals were filed.

Claimants’ counsel selected and prepared these standardized settlement petitions (Form LF820), and then forwarded them to the State Fund for execution. Claimants’ counsel, however, did not use the additional spaces provided to insert any special provisions or to indicate the retention of any specific rights.

Claimants maintained that there are ambiguities in the settlement petitions, and that the contemporaneous correspondence between the parties reveal that they intended to settle only their wage supplement and rehabilitation entitlements. The Workers’ Compensation Court, however, concluded that the settlement petitions foreclose Claimants’ rights to all further workers’ compensation benefits, including their rights to increased temporary total and impairment rating benefits.

Claimant Keith Mordja was injured on January 17,1988. On June 14, 1990, it was determined that he had reached maximum healing and his physician evaluated his physical impairment at 30 percent. On June 27, 1990, the State Fund notified him that his impairment rating entitled him to 150 weeks of benefits, commencing June 14, 1990. Thus, 54.57 weeks of benefits would accrue before July 1,1991, and 95.43 weeks would accrue after July 1,1991. He elected to receive his impairment award in a lump sum and received the balance of his award on July 10, 1990. Pursuant to § 39-71-703(l)(a)(iii), MCA (1987), his lump sum award was reduced to present value.

Pursuant to Murer II, the Workers’ Compensation Court concluded that, with regard to those benefits paid for the 95.43 weeks after July 1,1991, Mordja was entitled to an increase in his impairment award:

The State Fund’s refusal to pay the additional benefits was unreasonable. More than 95 weeks of the benefits were attributable to the time period after the temporary cap had expired. In paying the benefits in a lump sum the State Fund discounted the future benefits to present value (See § 39-71-703(l)(a)(iii), MCA (1987)), thus acknowledging that the benefits were attributable to the later time. The matter was not reasonably debatable.

On that basis, the court assessed a 20 percent penalty in the amount of $191.32 pursuant to § 39-71-2907, MCA.

STANDARD OF REVIEW

When we review the Workers’ Compensation Court’s conclusions of law, our standard of review is plenary and we must determine whether its conclusions are correct as a matter of law. Lund v. State Fund (1994), 263 Mont. 346, 348, 868 P.2d 611, 612.

ISSUE 1

Did the Workers’ Compensation Court err when it concluded that the temporary cap on maximum benefits enacted in 1987 did not expire until June 30, 1991?

The Workers’ Compensation Court concluded that the 1987 temporary cap on maximum benefits did not expire until June 30, 1991. The court based its conclusion on the following language contained within Murer II:

We hold that the “cap” on benefits, of $299.00, set by the 1987 and 1989 legislatures in § 39-71-701(5), MCA, was a temporary cap on benefits which terminated on June 30,1991, and that on that date the appellants should have begun receiving benefits under § 39-71-701(3), MCA, at the statutory rate determined as of the date of injury....

Murer II, 267 Mont. at 522, 885 P.2d at 432. While this isolated quote, by itself, arguably supports the Workers’ Compensation Court’s conclusion, a more thorough analysis of the entire Murer II opinion, and its rationale, reveals that Murer II does not support the Workers’ Compensation Court’s conclusion.

In Murer II, we held that, pursuant to the plain, objective language of the relevant statutes, the 1987 and 1989 caps on maximum benefits were only temporary and, therefore, that the State Fund could not continue to apply those caps after the dates on which they expired. We reasoned as follows:

Appellants argue, and we agree, that subsection (5) of § 39-71-701, MCA, for the years 1987 and 1989, was a temporary, time-specific limitation and that when the limitation expired, the claimants should then have been paid maximum benefit rates not to exceed the state’s average weekly wage rate at the time ofthe injury under § 39-71-701(3), MCA.

Murer II, 267 Mont. at 522, 885 P.2d at 432. Accordingly, to the extent that any language in Murer II supports the Workers’ Compensation Court’s conclusion, we clarify that opinion today.

The 1987 law unequivocally provides that the temporary caps on maximum benefits expired June 30,1989. “[B]eginning July 1,1987, through June 30, 1989, weekly compensation benefits for temporary total disability may not exceed the state’s average weekly wage of $299 established July 1, 1986.” Section 39-71-701(5), MCA (1987) (emphasis added). See also § 39-71-702(6), MCA (1987) (permanent total disability), and § 39-71-703(3), MCA (1987) (permanent partial disability).

It is well established that the workers’ compensation law in effect at the time of an injury governs the claim. Chagnon v. Travelers Ins. Co. (1993), 259 Mont. 21, 25, 855 P.2d 1002, 1004; Watson v. Seekins (1988), 234 Mont. 309, 312, 763 P.2d 328, 331. Furthermore, it is undisputed that any attempt by the Legislature to retroactively change the law in effect at the time of an injury would be an unconstitutional impairment of contract. Buckman v. State Comp. Ins. Fund (1986), 224 Mont. 318, 328, 730 P.2d 380, 386.

Based on these well-established principles of law, we make the following conclusions: (1) the 1987 temporary cap applies to injuries which occurred between July 1,1987, and June 30,1989; (2) the 1987 temporary cap expired June 30, 1989; (3) the 1989 temporary cap applies to injuries which occurred between July 17, 1989, and June 30,1991; (4) the 1989 temporary cap expired June 30,1991; and (5) the 1989 temporary cap cannot be applied retroactively to injuries which occurred prior to July 17, 1989, the date on which it became effective.

Accordingly, we hold that the Workers’ Compensation Court erred when it concluded that the temporary cap on maximum benefits enacted in 1987 did not expire until June 30, 1991. That part of the Workers’ Compensation Court’s judgment to the contrary is reversed.

ISSUE 2

Did the Workers’ Compensation Court err when it concluded that the settlement agreements entered into between claimants and the State Fund foreclose claimants’ rights to additional benefits?

During the pendency of this litigation, four of the claimants — Jay Harbrige, Susan Vernon, Steve Prickett, and James Brown — reached settlement agreements with the State Fund. The Workers’ Compensation Court concluded that those agreements foreclose claimants’ rights to all further workers’ compensation benefits, including increased temporary total and impairment rating benefits.

On appeal, claimants contend that the settlement agreements foreclose only their entitlements to wage supplement and rehabilitation benefits and, therefore, that the Workers’ Compensation Court erred when it concluded that those agreements foreclose their rights to all further benefits. In support of this contention, they assert the following two arguments: (1) pursuant to Ingraham v. Champion International (1990), 243 Mont. 42, 793 P.2d 769, the settlement petitions used by the parties (DOLI Form LF820) cannot be applied to impairment awards; and (2) because the settlement petitions are ambiguous, the court can and should analyze extrinsic evidence in order to determine the parties’ intent.

Claimants’ first argument asserts that: (1) pursuant to Ingraham, impairment awards are not subject to the lump sum conversion requirements of § 39-71-741, MCA; (2) the settlement petitions used in this case (DOLI Form LF820) are specifically designed to implement the provisions of § 39-71-741(2), MCA; and (3) therefore, the settlement petitions cannot be applied to impairment awards.

Although § 39-71-741(2), MCA (1987-89), permits permanent total disability and permanent partial wage supplement benefits to be converted to a lump sum, it does not preclude claimants who are entitled to either type of those benefits from fully and finally settling their potential rights to other types of benefits. Furthermore, Ingraham merely provides that lump sum awards of impairment benefits are not subject to the requirements set forth in § 39-71-741(2), MCA (1987-89). Ingraham, 243 Mont. at 47, 793 P.2d at 772. We therefore conclude that claimants’ reliance upon Ingraham is misplaced.

Second, claimants contend that the settlement petitions are ambiguous and, therefore, that the court can and should analyze extrinsic evidence — the contemporaneous correspondence between the parties — in order to determine the parties’ intent. In their brief, they concede that there is language in the body of the petitions which “could be construed as closing all claims for all types of benefits.” The exact language of the settlement petitions to which they refer provides, in part, that the parties “agreed to fully and finally conclude all compensation and/or rehabilitation payments due the claimant” and that the claimant “petitions the Division of Workers’ Compensation ... for approval of this petition and that the claim be fully and finally closed.”

Despite that operative language in the petitions, claimants allege that, based on the following factors, the settlement petitions are ambiguous: (1) the petitions are standardized forms, produced by the DOLI; (2) the petitions are designed to implement, and correspond directly to § 39-71-741(2), MCA; and (3) the petition is captioned: “(Permanent Partial Wage Supplement and/or Rehabilitation Benefits).”

Although the settlement petitions are, in fact, standardized forms produced by the DOLI pursuant to § 39-71-741(2), MCA, claimants’ counsel selected and prepared the petitions, and then forwarded them to the State Fund for execution. Claimants’ counsel, however, did not attempt to modify the unambiguous language in the petitions; nor did they use the additional spaces provided to insert any special provisions or to indicate the retention of any specific rights. Had they intended to enter into only a partial settlement, they could easily have inserted an express provision which retained their rights to further benefits.

Therefore, even if we assume, without deciding, that the settlement petitions in this case are, in fact, ambiguous, we conclude that any such ambiguities must be strictly construed against the party who created them. Mueske v. Piper, Jaffray & Hopwood, Inc. (1993), 260 Mont. 207, 216, 859 P.2d 444, 449-50; Lauterjung v. Johnson (1977), 175 Mont. 74, 78, 572 P.2d 511, 513. Accordingly, we hold that the Workers’ Compensation Court did not err when it concluded that the settlement agreements entered into between claimants and the State Fund foreclose claimants’ rights to all further benefits, including increased temporary total and impairment rating benefits. That part of the judgment of the Workers’ Compensation Court is affirmed.

ISSUE 3

Did the Workers’ Compensation Court err when it denied claimants’ motion for attorney fees pursuant to the common fund doctrine?

As a result of our decision in Murer II, the State Fund became obligated to increase the rate of benefits payments to a substantial number of workers’ compensation claimants who were neither parties to, nor directly involved in the Murer litigation. Accordingly, the State Fund agreed to contact and pay those absent claimants. Under supervision of the Workers’ Compensation Court, the State Fund identified and notified the absent claimants, and disbursed to them the required increase in benefits.

Claimants and their attorneys asserted a lien against those increased payments. In recognition of that lien, the State Fund withheld 20 percent from the amounts paid to absent claimants. Claimants also moved the Workers’ Compensation Court to award them attorney fees pursuant to the common fund doctrine. The Workers’ Compensation Court, however, denied that motion.

On appeal, claimants contend that the Workers’ Compensation Court erred when it denied their motion. Claimants concede that they do not have attorney fee agreements with the absent claimants and that they are not statutorily entitled to the requested fees. However, they maintain that, as a result of their attorneys’ efforts throughout the Murer litigation, they have created a common fund which has directly benefitted a substantial number of the absent claimants and, therefore, that those absent claimants should be required to share in the costs, including reasonable attorney fees, of this unique litigation. On that basis, claimants assert that they are entitled, pursuant to the equitable common fund doctrine, to reimbursement of their reasonable attorney fees.

The common fund doctrine is deeply rooted in American jurisprudence and provides a well-recognized exception to the traditional American rule regarding attorney fees. The United States Supreme Court created the common fund doctrine in Trustees v. Greenough (1881), 105 U.S. 527, 15 Otto 527, 26 L. Ed. 1157, and has subsequently applied that doctrine in numerous other cases. See e.g. Boeing Co. v. VanGemert (1980), 444 U.S. 472, 100 S. Ct. 745, 62 L. Ed. 2d 676; Alyeska Pipeline Serv. Co. v. Wilderness Society (1975), 421 U.S. 240, 95 S. Ct. 1612, 44 L. Ed. 2d 141; Fleischmann Distilling Corp. v. Maier Brewing Co. (1967), 386 U.S. 714, 87 S. Ct. 1404, 18 L. Ed. 2d 475; Hobbs v. McLean (1886), 117 U.S. 567, 6 S. Ct. 870, 29 L. Ed. 940; Central Railroad & Banking Co. v. Pettus (1885), 113 U.S. 116, 5 S. Ct. 387, 28 L. Ed. 915. These common fund doctrine cases provide that when a party has an interest in a fund in common with others and incurs legal fees in order to establish, preserve, increase, or collect that fund, then that party is entitled to reimbursement of his or her reasonable attorney fees from the proceeds of the fund itself.

In Means v. Montana Power Co. (1981), 191 Mont. 395, 625 P.2d 32, we recognized that the common fund doctrine is “rooted in the equitable concepts of quasi-contract, restitution and recapture of unjust enrichment.” Means, 191 Mont. at 403, 625 P.2d at 37. Furthermore, we expressly adopted the common fund doctrine and concluded that:

The “common fund” concept provides that when a party through active litigation creates, reserves or increases a fund, others sharing in the fund must bear a portion of the litigation costs including reasonable attorney fees. The doctrine is employed to spread the cost of litigation among all beneficiaries so that the active beneficiary is not forced to bear the burden alone and the “stranger” (i.e., passive) beneficiaries do not receive their benefits at no cost to themselves.

Means, 191 Mont. at 403, 625 P.2d at 37.

Application of the common fund doctrine is especially appropriate in a case like this where the individual damage from an institutional wrong may not be sufficient from an economic viewpoint to justify the legal expense necessary to challenge that wrong. The alternative to the doctrine’s application is simply for the wrong to go uncorrected.

Based on these legal principles and authorities, we conclude that when a party, through active litigation, creates a common fund which directly benefits an ascertainable class of non-participating beneficiaries, those non-participating beneficiaries can be required to bear a portion of the litigation costs, including reasonable attorney fees. Accordingly, the party who creates the common fund is entitled, pursuant to the common fund doctrine, to reimbursement of his or her reasonable attorney fees from that fund.

Claimants have engaged in complex, lengthy, and expensive litigation. As a result, they were able to establish, in Murer II, a legal precedent which directly benefits a substantial number of workers’ compensation claimants who were neither parties to, nor directly involved in the Murer litigation. However, claimants have also accomplished significantly more than just the establishment of a favorable legal precedent. Additionally, claimants established a vested right on behalf of the absent claimants to directly receive immediate monetary payments of past due benefits underpayments; and based on the establishment of those vested rights, the State Fund became legally obligated to make the increased benefits payments.

In order to implement the mandate of Murer II, the State Fund, under supervision of the Workers’ Compensation Court: (1) identified a substantial number of absent claimants; (2) notified those claimants of their rights pursuant to Murer II; (3) calculated, with mathematical certainty, the increases to which each individual absent claimant is entitled; and (4) made actual payments to those claimants. The State Fund, therefore, has been able to determine, with certainty, the number of absent claimants involved and the amount of money to which each individual claimant is entitled. Accordingly, as a direct result of claimants’ litigation efforts, a substantial number of absent claimants have received direct monetary benefits payments, even though they were not required to intervene, file suit, risk expense, or hire an attorney.

Moreover, claimants filed a lien on the increased benefits payments made by the State Fund to absent claimants. In recognition of that lien, the State Fund withheld 20 percent from the payments which have actually been disbursed to the individual absent claimants. In essence, therefore, claimants request that they be awarded a reasonable percentage of the amounts which have actually been paid to an identifiable class of absent claimants.

Based on the facts in this case, we conclude that claimants, through active litigation, created a common fund which has directly benefitted an ascertainable class of absent workers’ compensation claimants and, therefore, that those absent claimants should be required to contribute, in proportion to the benefits they actually received, to the costs of the litigation, including reasonable attorney fees. Accordingly, we hold that the Workers’ Compensation Court erred when it denied claimants’ motion and refused to award them reasonable attorney fees pursuant to the common fund doctrine. The judgment of the Workers’ Compensation Court to the contrary is reversed.

CROSS-APPEAL ISSUE 1

Did the Workers’ Compensation Court err when it concluded that an impairment award, paid in the form of a lump sum before June 30,1991, at the request of Claimant Keith Mordja, must be increased pursuant to Murer III

Claimant Keith Mordja was injured on January 17,1988. On June 14, 1990, he was found to have achieved maximum healing and his physician evaluated his physical impairment at 30 percent. That rating entitled him, pursuant to § 39-71-703, MCA (1987), to an impairment award of 150 weeks at the maximum statutory rate. He elected to receive his impairment award in a lump sum and received the balance on July 10,1990. Pursuant to § 39-71-703(l)(a)(iii), MCA (1987), his lump sum award was reduced to present value. The calculation by which the State Fuad reduced his award to present value utilized a period of 150 weeks, commencing June 14, 1990. Thus, 54.57 of the weeks occurred before July 1, 1991, and 95.43 of the weeks occurred after July 1, 1991.

Pursuant to our holding in Murer II that the 1987 and 1989 caps on maximum disability benefits were only temporary, Mordja sought an adjustment of his lump sum impairment award to reflect the increased rate. The State Fund, however, determined that the 1987 temporary cap did not expire until 1991 and, on that basis, refused to pay the increase for those weeks prior to July 1, 1991. The State Fund also refused to pay the increase for those weeks after July 1,1991, based on the fact that Mordja received his lump sum award on July 10,1990, which was prior to the 1991 expiration of the temporary caps.

Based on its determination that the 1987 temporary cap on benefits did not expire until 1991, the Workers’ Compensation Court concluded that Mordja is not entitled to an increased impairment award for the 54.57 weeks prior to July 1,1991. The court, however, found that “[e]ven though all benefits were paid in a lump sum, 95.43 weeks of those benefits were attributable to July 1,1991 and thereafter.” On that basis, the court concluded that Mordja is entitled to an increased impairment award for the 95.43 weeks after July 1,1991.

On appeal, the State Fund contends that the Workers’ Compensation Court erred when it determined that Mordja is entitled to an increased award for the 95.43 weeks after July 1,1991. However, we conclude that the State Fund’s contention is now moot. In Issue 1 of this opinion, we concluded that the 1987 temporary cap on benefits expired, by its express terms, on June 30, 1989, and that the 1989 temporary cap applies only to injuries which occurred between July 17, 1989, and June 30, 1991.

Mordja’s injury occurred on January 17, 1988, and therefore, the 1987 temporary cap governs his claim. See Chagnon, 259 Mont. at 25, 855 P.2d at 1004. The actual payment of his lump sum award, however, did not occur until July 10, 1990, more than one year after the 1987 cap expired. Moreover, the 1989 cap cannot be applied retroactively to an injury which occurred before July 17, 1989, the date on which it became effective. See Buckman, 224 Mont. at 328, 730 P.2d at 386.

Therefore, we conclude that the temporary cap on Mordja’s disability benefits expired June 30,1989, and that, concomitantly, his entire 150-week benefit package, which was paid after the applicable 1987 temporary cap expired, must be calculated at the maximum statutory rate and is not subject to the temporary cap on benefits. On that basis, we hold that the Workers’ Compensation Court: (1) did not err when it concluded that Mordja is entitled to an increase in his impairment award for the 95.43 weeks after July 1, 1991; and (2) erred when it concluded that Mordja is not entitled to an increase for the 54.57 weeks prior to July 1, 1991. Accordingly, that part of the judgment of the Workers’ Compensation Court is affirmed in part and reversed in part.

CROSS-APPEAL ISSUE 2

Did the Workers’ Compensation Court err when it determined that the State Fund’s refusal to increase Mordja’s impairment award was unreasonable and, on that basis, assessed a penalty pursuant to § 39-71-2907, MCA?

Whether an action is “unreasonable” pursuant to § 39-71-2907, MCA, is a “question of fact which is subject on appeal to the limited review of the substantial evidence test. If there is substantial evidence to support a finding of‘unreasonableness’, this Court cannot overturn the finding.” Wight v. Hughes Livestock Co., Inc. (1981), 194 Mont. 109, 115, 634 P.2d 1189, 1192; see also Marcott v. Louisiana Pacific Corp. (1996), 275 Mont. 197, 203, 911 P.2d 1129, 1133 (“reasonableness”).

The Workers’ Compensation Court determined that:

The State Fund’s refusal to pay the additional benefits was unreasonable. More than 95 weeks of the benefits were attributable to the time period after the temporary cap had expired. In paying the benefits in a lump sum the State Fund discounted the future benefits to present value (See § 39-71-703(l)(a)(iii), MCA (1987)), thus acknowledging that the benefits were attributable to the later time. The matter was not reasonably debatable.

On that basis, the court assessed a 20 percent penalty in the amount of $191.32 pursuant to § 39-71-2907, MCA.

We conclude that the Workers’ Compensation Court’s findings are supported by substantial evidence. Accordingly, we hold that the court did not err when it concluded that the State Fund’s failure to increase Mordja’s impairment award was unreasonable and, on that basis, assessed a 20 percent penalty pursuant to § 39-71-2907, MCA. That part of the judgment of the Workers’ Compensation Court is affirmed.

For these reasons, and based on these conclusions, this case is remanded to the Workers’ Compensation Court for further proceedings consistent with this opinion.

JUSTICES HUNT, REGNIER, LEAPHART and NELSON concur.

JUSTICE GRAY,

concurring in part and dissenting in part.

I concur in the Court’s opinion on all issues except that involving the award of attorney fees pursuant to the common fund doctrine. I respectfully dissent from the opinion on that issue.

There is no question but that we have recognized and applied the common fund doctrine, which is based on equitable concepts. Means, 625 P.2d at 37.1 agree with the doctrine and support its application under appropriate circumstances. I cannot agree with its application in this case for two reasons: first, it is my view that neither the Workers’ Compensation Court or this Court is authorized to award such fees in the context of the purely statutory workers’ compensation system which exists in Montana; and, second, the common fund doctrine is not applicable here in any event.

The Workers’ Compensation Act (Act) is a purely statutory scheme, duly enacted by the Legislature, which governs all aspects of workers’ compensation claims and awards. The extent of compensation which may be awarded for various types of disabilities is controlled by statute. See, e.g., §§ 39-71-701 through 39-71-703, MCA. In a similar fashion, the Act expressly regulates attorney fees and goes so far as to require an attorney representing a workers’ compensation claimant to submit his or her employment contract, setting forth the terms of the fee arrangement, to the Department of Labor and Industry (Department). See, e.g., §§ 39-71-611 through 39-71-614, MCA. In light of these circumstances, the Workers’ Compensation Court correctly concluded that it was without authority to create a separate equitable remedy under the Act regarding attorney fees.

Indeed, one of the United States Supreme Court’s decisions on which this Court relies in concluding that the common fund doctrine is applicable here reaches a contrary result under circumstances much like those presently before us. Fleischmann involved a claim for trademark violation under the federal Lanham Act and the Supreme Court considered the issue of whether federal courts could award attorney fees as a separate element of recovery in light of the Act’s enumeration of available remedies. The Supreme Court discussed the common fund doctrine as an exception to the “American rule” which allows an award of attorney fees only where expressly permitted by statute or contract, but observed that the doctrine had not been developed in the context of statutory causes of action which prescribe statutory remedies. The Supreme Court stated that, “[w]hen a cause of action has been created by a statute which expressly provides the remedies for vindication of the cause, other remedies should not readily be implied.” Fleischmann, 386 U.S. at 720, 87 S.Ct. at 1408 (citations omitted). Consequently, the Supreme Court was compelled to conclude “that Congress intended § 35 of the Lanham Act to mark the boundaries of the power to award monetary relief in cases arising under the Act. A judicially created compensatory remedy in addition to the express statutory remedies is inappropriate in this context.”Fleischmann, 386 U.S. at 721, 87 S.Ct. at 1409.

In my opinion, we must reach the same result here. The Workers’ Compensation Act is a statutory system providing for a statutory cause of action and statutorily-prescribed remedies, including attorney fees. No portion of the Act authorizes the attorney fees sought here pursuant to the common fund doctrine and we are not free to judicially engraft equitable remedies such as this onto the Act. We have stated on prior occasions, in rejecting “equity and fairness” arguments by both claimants and insurers in the context of the Act, that it is the province of the courts to construe and apply the law as we find it and to maintain its integrity as it was written by a coordinate branch of state government. See Wildin v. CNA Ins. Co. (1993), 256 Mont. 354, 358, 846 P.2d 1022, 1025; Raffety v. Kanta Products, Inc. (1991), 250 Mont. 268, 272, 819 P.2d 1272, 1275. Doing so here requires us to affirm the Workers’ Compensation Court’s conclusion that the common fund doctrine for awarding attorney fees is not available in the context of the Act.

It is also my view that, even if the equitable remedy were not precluded by the Act, it is unavailable here. As set forth by the Court, the common fund doctrine recognized by the United States Supreme Court provides that “when a party has an interest in a fund in common with others and incurs legal fees in order to establish... that fund, then that party is entitled to reimbursement of his or her reasonable attorney fees from the proceeds of the fund itself.” Similarly, as recognized by this Court in Means, the doctrine is employed to spread the cost of litigation among all beneficiaries so that “the active beneficiary is not forced the bear the burden alone. ...” Means, 625 P.2d at 37.1 submit that these requirements are not met in this case.

In the first place, it is my view that there is no common fund here. While Murer II undoubtedly created an entitlement in numerous individual nonparty claimants to additional benefits, no “fund” was set aside for the payment of such benefits, either in the course of this litigation or otherwise. The common fund cases, while not defining precisely what is required to constitute a “common fund,” each involve a settlement fund, a judgment fund, or a trust fund of some sort. This case does not.

Moreover, the common fund cases commonly involve other beneficiaries who also are parties in the litigation at issue or, at the least, in related litigation. Here, efforts to certify this litigation as a class action were unsuccessful and the individuals who are receiving additional benefits as a result of Murer II have never been parties to this case. Yet the Court cites to no case under which nonparty beneficiaries have been required to pay a portion of attorney fees under the common fund doctrine.

Finally, while the common fund doctrine is properly applied in certain circumstances to avoid forcing the active party to bear the burden of the attorney fees incurred, those circumstances are not present in this case. The party claimants here are not required by their fee arrangements with counsel to bear the burden of fees in excess of those relating to their own claims; the fee contracts generally provide that the client claimants are responsible only for the standard 20%/25%. Thus, the fees for which “reimbursement” is being sought here are not fees incurred by these claimants such as would support application of the common fund doctrine under the federal cases cited by the Court. They are additional and extraordinary fees sought by the attorneys who represented the named claimants in this case. Similarly, the party claimants are not being forced to bear the burden of attorney fees for the nonparty beneficiaries. That burden ultimately will fall on counsel and, in my view, that is as it should be.

Counsel here submitted their fee agreements with the party claimants to the Department as required by § 39-71-613, MCA. These are the fees they sought in their pleadings, pursuant to applicable statutes, through the first two appeals to this Court in this litigation. In the framework of the Act, those are the only fees to which counsel are entitled.

Subsequent to Murer II, and on remand to the Workers’ Compensation Court, counsel first asserted a claim to fees under the common fund doctrine. At that point, it became clear that counsel had had an early understanding with their claimant clients to seek fees in addition to those obtainable pursuant to the submitted fee agreements. They had planned to be able to do so through the class action mechanism; as noted above, however, efforts to obtain class certification were not successful. An affidavit of record from one counsel repeatedly states that “but for” the “expectation” that the fees would be compensated under the common fund doctrine, counsel would not have been able to afford to pursue the litigation to its successful conclusion, since the amounts to which the party claimants ultimately would be entitled would be small.

While I sympathize with counsel’s substantial investment of time in this litigation, and applaud their success on behalf of their clients and the benefits their work is providing to numerous nonparties, I am unpersuaded that we should “bend” the common fund doctrine to award them fees under a doctrine intended to protect the parties to a suit where, as here, the parties require no protection. Many legal actions involve risk to counsel of fee awards which are not commensurate with the amount of work performed. Indeed, it is fair to say that many counsel “give it their all” to the same extent these counsel have done and are altogether unsuccessful, both as to their clients’ recovery and their own. We do not have a system, however, under which counsel are then remunerated based on their “expectations.” We should not create one here.

I would affirm the Workers’ Compensation Court’s denial of attorney fees under the common fund doctrine.

CHIEF JUSTICE TURNAGE:

I concur in the dissent of Justice Gray.


source: Caselaw Access Project

author: JUSTICE LEAPHART

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JAMES NELSON, Defendant and Appellant.
    No. 96-181.
    Submitted May 1, 1997.
    Decided June 24, 1997.
    54 St.Rep. 576.
    283 Mont. 231.
    941 P.2d 441.

      For Appellant: Marvin L. Howe (argued); Simonton, Howe & Schneider, Glendive.
    For Respondent: Hon. Joe Mazurek, Attorney General; John Paulson, Assistant Attorney General (argued), Helena; Scott W. Herring, Deputy County Attorney, Glendive.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

James Nelson (Nelson) appeals from the Seventh Judicial District Court’s order denying his motion to quash or to suppress the results of his blood alcohol test obtained by means of an investigative subpoena. We affirm.

The following facts are not in dispute. On December 7, 1994, near Glendive, Montana, Nelson was involved in a motor vehicle accident on Interstate 94 when he drifted off the highway and struck a guardrail. After Nelson received a ride from the accident scene to a friend’s residence, Nelson’s friend, Mr. Stroh, drove him to the Glendive Medical Center for treatment of facial injuries he sustained in the accident. Emergency room physician Dr. Arthur Fink treated Nelson for a broken jaw and, concerned over Nelson’s apparent lack of pain for the injury, ordered a blood test in order to determine his blood alcohol concentration level (BAC).

The following morning, Nelson reported the accident to the Montana Highway Patrol. Highway Patrol Sergeant Jerry Mahlum (Sgt. Mahlum), a Certified Accident Reconstructionist, conducted the investigation of the accident. Sgt. Mahlum viewed the scene of the accident, determined the extent of damage to the guardrail, spoke with the patrolman on duty the night of the accident and independently met with Nelson and Dr. Fink. During Sgt. Mahlum’s interview with Nelson, he learned that Nelson had broken his jaw in the accident and that it had to be wired shut as a result. Nelson told Sgt. Mahlum that prior to the accident he had consumed a couple of drinks at a local bar and that he had no recollection of the accident itself. In addition, Sgt. Mahlum determined that Nelson’s vehicle had sustained extensive left front-end damage, the type of damage consistent with striking the guardrail. Sgt. Mahlum’s findings led him to believe that the driver involved in the accident would have either fallen asleep at the wheel or would have been under the influence of drugs or alcohol.

On December 12, 1994, Sgt. Mahlum met with Dr. Fink. During the interview, and without divulging Nelson’s BAC level, Dr. Fink told Sgt. Mahlum that Nelson’s BAC level the night of the accident would partly explain Nelson’s lack of pain normally associated with his type of injuries.

After Sgt. Mahlum compiled the findings of his investigation, Deputy County Attorney Scott Herrin, reviewed Sgt. Mahlum’s report and determined that sufficient facts existed to suggest an “unlawful activity had occurred” and, on December 14, 1994, filed a Motion for Investigative Subpoena Duces Tecum with the District Court. Setting forth the facts recited above, the motion requested that the District Court issue an investigative subpoena to the records keeper at the Glendive Medical Center to require disclosure of all medical records pertaining to Nelson’s BAC taken December 7, 1994. On December 16, 1994, the District Court found that sufficient facts were present and granted the motion to issue the Investigative Subpoena Duces Tecum. On January 3, 1995, the medical reports on Nelson’s blood test from December 7, 1994, were provided to the deputy county attorney showing that, shortly after his accident, Nelson’s BAC level was .233.

Nelson was charged by Complaint with the offense of driving under the influence of alcohol, a misdemeanor, in violation of § 61-8-401, MCA. Nelson entered a plea of not guilty in Justice Court. Nelson then filed a motion to suppress evidence which was denied by the Justice Court. Nelson then entered a plea of guilty reserving his right to appeal the denial of the motion to suppress to the District Court.

Nelson then appealed to District Court where he filed a Motion to Quash the Investigative Subpoena or, in the alternative, Motion to Suppress Evidence. After entertaining oral argument on the motion, the District Court denied the motion with no findings of fact or conclusions of law. Thereafter, Nelson entered a plea of not guilty and judgment was entered sentencing him to ten days in the Dawson County jail and a fine of $500. The sentence was stayed pending appeal to the Montana Supreme Court. Nelson appealed to this Court and we remanded to the District Court for further proceedings on the question of whether the State had established a compelling state interest justifying the discovery of the BAC test, as required under Article II, Section 10 of the Montana Constitution. Pursuant to this remand order, the District Court conducted a hearing and filed Findings of Fact and Conclusions of Law and Judgment.

The District Court concluded that: (1) a health care provider may disclose health information about a patient without the patient’s authorization if the disclosure is made pursuant to § 50-16-530, MCA, which allows for disclosure “to a law enforcement officer about the general physical condition of a patient being treated in a health care facility if the patient was injured on a public roadway or was injured by the possible criminal act of another....” Section 50-16-530(4), MCA. Further, the court recognized that health care information may be disclosed by a health care provider pursuant to § 50-16-535(l)(j), MCA, when “the health care information is requested pursuant to an investigative subpoena issued under 46-4-301.”

Section 46-4-301, MCA, provides the authority for the issuance of investigative subpoenas, as follows:

Whenever a prosecutor has a duty to investigate alleged unlawful activity, any justice of the supreme court or district court judge of this state may cause subpoenas to be issued commanding the persons to whom they are directed to appear before the prosecutor and give testimony and produce books, records, papers, documents, and other objects as may be necessary and proper to the investigation. A subpoena may be issued only when it appears upon the affidavit of the prosecutor that the administration of justice requires it to be issued.

In the instant case, the Dawson County Attorney, relying on Sgt. Mahlum’s investigation, filed a motion for an investigative subpoena to the Glendive Medical Center for release of reports of Nelson’s blood alcohol level relative to the time of the accident. The District Court found that the “administration of justice” required the subpoena be issued. Pursuant to the subpoena, the County Attorney received Nelson’s blood alcohol results from the Glendive Medical Center.

Questions Presented

We phrase the issues on appeal as follows:

1. Did the taking of a blood sample from Nelson violate his constitutional rights to be free from unreasonable searches?

2. Did the information provided to Sgt. Mahlum by Dr. Fink exceed the provisions of § 50-16-530(4), MCA?

3. Did release of the blood alcohol information pursuant to an investigative subpoena violate Nelson’s right of privacy under Article II, Section 10 of the Montana Constitution?

Discussion

We review a district court’s denial of a motion to suppress to ascertain whether the court’s factual findings are clearly erroneous and whether the findings were correctly applied as a matter of law. State v. Arthun (1995), 274 Mont. 82, 906 P.2d 216.

1. Did the taking of a blood sample from Nelson violate his constitutional rights to be free from unreasonable searches?

Nelson contends that, since his blood was drawn at the hospital at a time when law enforcement was not involved, the implied consent law, § 61-8-402(1), MCA, does not apply. He contends, nonetheless, that since the blood was taken by a doctor without first seeking Nelson’s consent, that the taking constitutes an illegal search and the results must be suppressed. He cites State v. Kirkaldie (1978), 179 Mont. 283, 587 P.2d 1298, in support of his contention.

In Kirkaldie, the investigating officer and the deputy coroner asked the defendant to submit to a blood alcohol test and the defendant refused. The coroner then requested the assistance of the attending physician who testified that he advised Kirkaldie that he did not have to give blood but that it was in his best interest that he do so. Kirkaldie, 587 P.2d at 1302. Kirkaldie eventually agreed to the drawing of his blood. He then argued on appeal that his consent was the involuntary product of psychological coercion by the State. Kirkaldie, 587 P.2d at 1302. We reviewed the voluntariness issue under the “totality of circumstances” test and found substantial evidence to support the trial court’s conclusion that the defendant was not coerced into consenting to the test. Kirkaldie, 587 P.2d at 1303.

The instant case is clearly distinguishable from Kirkaldie. Here, in contrast to Kirkaldie, there was no State involvement in the taking of the blood sample. The blood was drawn by a doctor at the Glendive Medical Center. The exclusionary rule, which Nelson seeks to invoke, does not apply to evidence resulting from the actions of private individuals unless they are acting as agents of the State. State v. Christensen (1990), 244 Mont. 312, 797 P.2d 893; see also State v. Baker (1995), 272 Mont. 273, 283, 901 P.2d 54, 60. Here, there is no suggestion or argument that Dr. Fink, in drawing blood from Nelson, was acting at the direction or request of the State. In the absence of any State action or involvement, Nelson’s contention that he did not voluntarily consent and that the drawing of his blood constituted an illegal search under the Fourth Amendment to the United States Constitution or Article II, Section 11 of the Montana Constitution, must fail.

2. Did the information provided to Sgt. Mahlum by Dr. Fink exceed the provisions of § 50-16-530(4), MCA?

Nelson contends that Dr. Fink’s comments to Sgt. Mahlum about Nelson’s BAC were in excess of the parameters of § 50-16-530(4), MCA, which allows a health care provider to disclose the “general physical condition” of a patient to a law enforcement officer if the patient were injured on a public roadway. Although there is no definition of “general physical condition,” “general health condition” is defined as the patient’s health status described in terms of critical, poor, fair, good, excellent or terms denoting similar conditions. Section 50-16-504(3), MCA. Given this narrow scope of authority, Nelson contends that “the only information that Officer Mahlum should have obtained from Dr. Fink was Nelson’s health status.” He argues that any information which exceeded the parameters of the general descriptors of critical, poor, fair, good, excellent, etc. must be suppressed.

Nelson’s argument ignores the fact that the restrictions imposed by § 50-16-530(4), MCA, are directed not at law enforcement but at health care providers. If, as Nelson’s posits, Dr. Fink’s gratuitous comments to Sgt. Mahlum about Nelson’s lack of pain exceeded the scope of § 50-16-530(4), MCA, then Nelson’s remedy lies with the health care provider, not through a motion to suppress. Amotion to suppress must be premised upon illegal conduct by state officials. Section 50-16-530(4), MCA, does not provide a basis for suppressing evidence and, thus, the District Court did not error in denying Nelson’s motion in that regard.

3. Did release of the blood alcohol information pursuant to an investigative subpoena violate Nelson’s right of privacy under Article II, Section 10 of the Montana Constitution?

Nelson’s next prong of attack is aimed at the fact that the State obtained the results of his BAC test through the use of an investigative subpoena. Since an investigative subpoena involves state action, this presents a different issue than Dr. Fink’s gratuitous statement to Sgt. Mahlum about Nelson’s lack of pain.

In the context of this case, the investigative subpoena finds its roots in a series of statutes starting with § 50-16-530(6), MCA, which provides that the health care provider may disclose information pursuant to compulsory process in accordance with § 50-16-535, MCA. Section 50-16-535, MCA provides, in relevant part, as follows:

Health care information may not be disclosed by a health care provider pursuant to compulsory legal process or discovery in any judicial, legislative, or administrative proceeding unless:
(c) the patient is a party to the proceeding and has placed his physical or mental condition in issue;
(i) a court has determined that particular health care information is subject to compulsory legal process or discovery because the party seeking the information has demonstrated that there is a compelling state interest that outweighs the patient’s privacy interest; or
(j) the health care information is requested pursuant to an investigative subpoena issued under 46-4-301.

In the present case, the County Attorney filed a motion for investigative subpoena thereby invoking subsection (j) of § 50-16-535(1), MCA, which provides for release of health care information pursuant to such a subpoena. The motion recited that the “administration of justice” required the issuance of the subpoena. Further, in issuing the order for the subpoena, the court specifically stated that the “administration of justice” requires that the subpoena be issued. Thus, it is clear that the court employed the “administration of justice” standard of § 46-4-301, MCA, under subsection (j) and that the compelling state interest test of subsection (i) was not at issue.

Nelson contends that the investigative subpoena for release of his health care information violated his right of privacy under Article II, Section 10 of the Montana Constitution. He points out that § 50-16-535(2), MCA, provides that “[n]othing in this part authorizes the disclosure of health care information by compulsory legal process or discovery in any judicial, legislative, or administrative proceeding where disclosure is otherwise prohibited by law.” The question presented is whether Nelson’s health care information is protected under the constitutional right of privacy and, if so, what effect does this protected status have on the issuance of investigative subpoenas?

We begin our discussion by reviewing our holdings in State v. Burns (1992), 253 Mont. 37, 830 P.2d 1318 and in State v. Henning (1993), 258 Mont. 488, 853 P.2d 1223.

In Burns, the defendant was charged with deviate sexual conduct. He had provided a list of some fifteen character witnesses. The State, in order to rebut and cross-examine these character witnesses, sought an investigative subpoena to obtain Bums’ personnel files from the Catholic Diocese. After conducting an in camera review of the records, the district court barred discovery of the records. Burns, 830 P.2d at 1319. On appeal, we reiterated the two-part test from State ex rel. Great Falls Tribune Co. v. Eighth Judicial District Court (1989), 238 Mont. 310, 318, 777 P.2d 345, 350, for determining whether privacy interests are protected under Article II, Section 10 of the Montana Constitution. Burns, 830 P.2d at 1321. The two prongs of that test are as follows:

1) Whether the person involved had a subjective or actual expectation of privacy; and,
2) Whether society is willing to recognize that expectation as reasonable.

We held in Burns that it was apparent that the above test had been satisfied.

When discovery of documents such as personnel records are at issue, privacy rights are undoubtedly at stake. Montana adheres to one of the most stringent protection of its citizens’ right to privacy in the country. Mont. Const. Art. II, Sec. 10. Montana’s treatment of privacy rights is more strict than that offered by the Federal Constitution. Montana Human Rights Division v. City of Billings (1982), 199 Mont. 434, 439, 649 P.2d 1283, 1286. It is against this constitutional backdrop that we view the case at bar.

Burns, 830 P.2d at 1320 (citations omitted).

We affirmed the district court’s holding that, under the circumstances of the case, the State could not show a compelling interest to gain access to Bums’personnel files. Burns, 830 P.2d at 1322. But see Montana Human Rights Div., 649 P.2d 1283 (granting Commission access to employment records to investigate possible violations of discrimination) and Great Falls Tribune v. Sheriff (1989), 238 Mont. 103, 775 P.2d 1267 (holding that the privacy interests of the employee police officers did not exceed the public’s right to know).

In Henning, the defendant was arrested for DUI and refused a breathalyser test. Instead of submitting to the breathalyser test, he asked the officer to take him to the hospital so that a blood test could be administered at his expense. Accordingly, a blood sample was taken by a registered nurse. The results of the test were obtained by the State pursuant to an investigative subpoena. Henning, 853 P.2d at 1226 (Trieweiler, J., concurring). Henning was convicted injustice court and appealed to district court where he filed a motion in limine asking the court to suppress the results of the blood test as being inadmissible. The district court determined that, pursuant to § 50-16-535(l)(i), MCA, the State had demonstrated a compelling interest which outweighed Henning’s privacy interests and therefore the test results were admissible under § 50-16-535(l)(i), MCA. Henning, 853 P.2d at 1224. Henning, relying on § 50-16-535, MCA, and not on Article II, Section 10 of the Montana Constitution (Right of Privacy), argued that his medical records were privileged and that the State had not satisfied the statutory “compelling state interest” burden under § 50-16-535(l)(i), MCA. On appeal, we held that § 50-16-535, MCA, pertains to the discovery of health care information but does not control the admissibility of that information as evidence at trial. Henning, 853 P.2d at 1225. Since Henning had not challenged the discovery of the test results, we focused on the question of admissibility. We determined that since the blood was drawn with Henning’s consent, the result of the blood sample was admissible in evidence. 587 P.2d at 1302. “Once the evidence was discovered, it was no longer privileged information and the State was entitled to move for its admission at trial.” Henning, 853 P.2d at 1225.

Nelson’s appeal differs from Henning’s in that Nelson does contend that the medical information was not constitutionally discoverable under Article II, Section 10 of the Montana Constitution which provides: “The right of individual privacy is essential to the well-being of a free society and shall not be infringed without the showing of a compelling state interest.”

Nelson’s claim of privacy in medical records satisfies the two-part test set forth above in our discussion of Burns. That is, Nelson had a subjective or actual expectation of privacy in his medical records and, society is willing to recognize that expectation as reasonable.

As the California Supreme Court stated in interpreting that state’s constitutional guarantee of privacy, Article I, Section 1 of the California Constitution:

Legally recognized privacy interests are generally of two classes: (1) interests in precluding the dissemination or misuse of sensitive and confidential information (“informational privacy”); and (2) interests in making intimate personal decisions or conducting personal activities without observation, intrusion, or interference (“autonomy privacy”).

Hill v. National Collegiate Athletic Ass’n (1994), 7 Cal.4th 1, 26 Cal.Rptr.2d 834, 856, 865 P.2d 633, 654.

We agree with the California court that informational privacy is a core value furthered by state constitutional guarantees of privacy and that the zone of privacy created by those provisions extends to the details of a patient’s medical and psychiatric history. Cutter v. Brownbridge (1986), 183 Cal.App.3d 836, 228 Cal.Rptr. 545, 549. In Cutter, the California court explained:

[T]he right to control circulation of personal information is fundamental. This right reaches beyond the interests protected by the common law right of privacy, and may be protected from infringement by either the state or by any individual. The “zones of privacy” created by article 1, section 1, extend to the details of one’s medical history. And, an “individual’s right to privacy encompasses not only the state of his mind, but also his viscera, detailed complaints of physical ills, and their emotional overtones.”

Cutter, 228 Cal.Rptr. at 549 (citations omitted). See also Dr. K v. State Bd. of Physician Quality Assur. (Md. Ct. Spec. App. 1993), 98 Md.App. 103, 632 A.2d 453, 457 (holding that every citizen has a constitutional right of privacy in his or her medical records).

Although medical records have not been historically protected by the Fourth Amendment’s prohibition against unreasonable searches and seizures, see Whalen v. Roe (1977), 429 U.S. 589, 604 n.32, 97 S.Ct. 869, 878 n.32, 51 L.Ed.2d 64, 76 n.32, Montana’s separate constitutional guarantee of privacy expands the breadth of privacy beyond traditional search and seizure principles derived from the Fourth Amendment and Article II, Section 11 of the Montana Constitution. See State v. Siegal (1997), [281 Mont. 250], 934 P.2d 176, 191, and State v. Bullock (1995), 272 Mont. 361, 384, 901 P.2d 61, 72 (both decisions holding that Montana’s constitutional right of privacy is broader than the right of privacy under the Federal Constitution). We now hold that Article II, Section 10’s guarantee of privacy encompasses not only “autonomy privacy” but confidential “informational privacy” as well.

We hold further that, if the right of informational privacy is to have any meaning it must, at a minimum, encompass the sanctity of one’s medical records. In contrast to telephone company billing records, for which there is no reasonable expectation of privacy, Hastetter v. Behan (1982), 196 Mont. 280, 283, 639 P.2d 510, 511, medical records fall within the zone of privacy protected by Article II, Section 10 of the Montana Constitution. As the Montana Legislature has recognized, “health care information is personal and sensitive information that if improperly used or released may do significant harm to a patient’s interests in privacy and health care or other interests.” Section 50-16-502(1), MCA. Medical records are quintessentially “private” and deserve the utmost constitutional protection.

Nelson’s medical records were discovered via an investigative subpoena under § 46-4-301, MCA. This statute allows an investigative subpoena to be issued if the administration of justice so requires. Although the administration of justice threshold had not been defined, it is safe to conclude that it is considerably less exacting than the “compelling state interest” test demanded by Article II, Section 10’s guarantee of privacy. State v. Baldwin (1990), 242 Mont. 176, 182, 789 P.2d 1215, 1220 (the prerequisites for obtaining a search warrant are more stringent than those for acquiring an investigative subpoena). We hold that, as applied to the discovery of constitutionally protected materials such as medical records, the “administration of justice” standard is unconstitutional. Medical records may be discovered through an investigative subpoena only upon a showing of a compelling state interest under Article II, Section 10 of the Montana Constitution. Since this is an issue of first impression in Montana, we must define a test for determining whether a compelling state interest exists.

We note that under similar circumstances, a Pennsylvania court employed a probable cause standard. In Commonwealth of Pennsyl vania v. Moore (1993), 430 Pa.Super. 575, 635 A.2d 625, the police sought a subpoena for defendant’s medical records. Based upon observations and information given by witnesses to the fatal accident, police were aware that the defendant had been involved in a serious accident in which his vehicle had crossed into the lane for oncoming traffic and that alcohol had been detected on his breath. “This constituted probable cause to believe that a criminal offense had been committed.” Moore, 635 A.2d at 627. The court concluded:

Under these circumstances, we conclude, as did the trial court, that the police use of a subpoena to compel the production of appellant’s medical records for the preliminary hearing did not violate any constitutionally protected right of privacy which appellant possessed in his medical records.

Moore, 635 A.2d at 627 (citation omitted).

As we set forth above, Article II, Section 10 of the Montana Constitution expands the breadth of privacy beyond that recognized under Article II, Section 11 of the Montana Constitution. In requiring a “compelling state interest” it does not, however, establish a new or heightened level of protection for any particular privacy interest. The home, for example, has always been afforded protection under Article II, Section 11 of the Montana Constitution and the Fourth Amendment to the United States Constitution. Although the home likewise comes under the privacy protection of Article II, Section 10, it does not, by virtue of Article II, Section 10 have any “more” protection than it had under Article II, Section 11. Rather, Article II, Section 10 is broader in the sense that it encompasses information and activities in addition to places and persons. Nonetheless, privacy rights, whether under Article II, Section 11 of the Montana Constitution or under Article II, Section 10 of the Montana Constitution are not absolute. State v. Pastos (1994), 269 Mont. 43, 47, 887 P.2d 199, 202. They must yield to the State’s interest in conducting reasonable searches upon a showing of probable cause.

When an investigative subpoena seeks discovery of protected medical records or information, the subpoena can be likened to a search warrant which must satisfy the strictures of the Fourth Amendment and Article II, Section 11 of the Montana Constitution. A search warrant can only issue upon a showing of “probable cause.” In the context of search and seizure law, probable cause exists when facts and circumstances presented to a magistrate would warrant an honest belief in the mind of a reasonable and prudent person that an offense has been, or is being, committed and that property (or information) sought exists at the place designated. Section 46-5-221, MCA; Siegal, 934 P.2d at 193. We hold that in order to establish that there is a compelling state interest for the issuance of an investigative subpoena for the discovery of medical records, the State must show probable cause to believe that an offense has been committed and medical information relative to the commission of that offense is in the possession of the person or institution to whom the subpoena is directed.

We turn then to the question of whether, under the facts in this case, there was probable cause to believe that an offense had been committed and that Nelson’s medical records contained evidence of the offense. The motion for investigative subpoena was based upon Sgt. Mahlum’s report that Nelson was involved in an unreported automobile accident in which Nelson’s vehicle was traveling west, drifted left and struck a guardrail and Nelson received injuries; that a Mr. Stroh transported Nelson to the Glendive Medical Center where Nelson received emergency room treatment; and that when interviewed by Sgt. Mahlum, Nelson indicated that he had consumed a couple of drinks prior to the accident. Even if we disregard Dr. Fink’s thinly veiled comment to Sgt. Mahlum as to the reason for Nelson’s lack of pain, the balance of the information known to law enforcement was sufficient to establish probable cause. That is, that Nelson had consumed a couple of drinks before the accident; that the road was bare and dry; that he ran into a guardrail; that he suffered a broken jaw; and that he had received medical treatment at the Glendive Medical Center.

We reiterate our holding as follows: Medical records and medical information are protected under Article II, Section 10’s guarantee of privacy. When an investigative subpoena seeks discovery of medical records, the subpoena can issue only upon a showing of a compelling state interest. In order to establish the existence of a compelling state interest to justify the issuance of an investigative subpoena, the State must demonstrate “probable cause” just as it would if it were seeking issuance of a search warrant under Article II, Section 11 of the Montana Constitution and the Fourth Amendment to the United States Constitution.

The order denying the motion to quash the investigative subpoena, or in the alternative to suppress the evidence is affirmed.

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


author: JUSTICE TRIEWEILER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. LYNDA M. DOLAN, Defendant and Appellant.
    No. 96-248.
    Submitted on Briefs April 10, 1997.
    Decided June 24, 1997.
    54 St.Rep. 583.
    283 Mont. 245.
    940 P.2d 436.

      For Appellant: J. G. Shockley, Attorney at Law, Victor.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General; Jennifer Anders, Assistant Attorney General; Helena; Robert L. “Dusty” Deschamps III, Missoula County Attorney, Missoula.
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

Lynda M. Dolan was convicted in Ravalli County Justice Court of the offense of driving under the influence of alcohol, in violation of § 61-8-401, MCA. She appealed to the District Court for the Twenty-First Judicial District in Ravalli County and moved to suppress evidence obtained from two blood tests. The District Court denied Dolan’s motion to suppress and denied her motion for reconsideration. Following a jury trial, Dolan was convicted of the offense of driving under the influence of alcohol. Dolan appeals the District Court’s order which denied her motion to suppress. In addition, Dolan appeals her conviction and sentence for the offense of driving under the influence of alcohol. We reverse the order and judgment of the District Court and remand to that court for proceedings consistent with this opinion.

We address two issues on appeal:

1. Did the District Court err when it denied Dolan’s motion to suppress evidence of the results of a nonconsensual warrantless blood alcohol test requested by the Montana Highway Patrol and supplied by the Community Medical Center?

2. Did the District Court err when it denied Dolan’s motion to suppress evidence of the results of a routine blood sample taken by the Community Medical Center and obtained by the State pursuant to an investigative subpoena?

FACTUAL BACKGROUND

Lynda Dolan was involved in a motor vehicle accident at 5:27 p.m. on December 19, 1994, when the vehicle she was operating collided with the rear-end of a stopped vehicle on Highway 93 near Florence. Both vehicles were extensively damaged and the drivers of both vehicles sustained serious injuries. Missoula Emergency Services, Inc., dispatched an ambulance, which transported Dolan to the Community Medical Center in Missoula.

Montana Highway Patrol Supervisor Warren Schiffer and Montana Highway Patrol Officer Mike Reddick arrived at the accident scene after Dolan had been removed by the Missoula Emergency Services ambulance. Because Dolan was no longer present at the scene, neither officer communicated with or interviewed her personally to determine her condition at the time of the accident. In addition, neither officer inspected Dolan’s vehicle at the accident scene. Officer Reddick, who was the primary investigator at the scene, testified later that he spoke with someone at the scene who informed him that Dolan’s breath had smelled of alcohol. Although Officer Reddick believed that the informant was a paramedic, he did not obtain the informant’s name or verify his position as a medical technician. On the basis of the informant’s statement, however, and because the injuries were serious enough to warrant investigation as a possible negligent homicide, Officer Reddick contacted Officer Tom Monzon in Missoula and requested that he obtain a blood sample from Dolan for blood alcohol content analysis.

At 6:41 p.m., the Medical Center drew a routine blood sample for medical treatment purposes. That test showed Dolan’s blood alcohol level to be .109 grams of alcohol per 100 liters of blood.

Officer Monzon arrived at the Community Medical Center at approximately 7:00 p.m. and requested that the hospital withdraw another blood sample from Dolan. Ahospital nurse, Dianne Peterson, took a sample of Dolan’s blood at approximately 7:12 p.m. The results of that test later revealed that Dolan’s blood alcohol content was .08 grams per 100 liters of blood. Officer Monzon did not arrest Dolan prior to ordering the blood test, nor did he obtain Dolan’s consent to the blood test, pursuant to § 61-8-402, MCA.

On January 31, 1995, Dolan was charged by complaint in the Justice Court for Ravalli County with the offense of driving under the influence of alcohol, pursuant to § 61-8-401, MCA. On May 11, 1995, the State requested and received an investigative subpoena duces tecum compelling the production of Dolan’s medical records from the Community Medical Center relating to Dolan’s blood alcohol level from the time of her admission until midnight of December 19,1994. After the State received those medical records, Dolan filed a motion in which she sought the suppression of (1) the results of the routine blood sample taken by the Community Medical Center at 6:41 p.m. on December 19, 1994, as well as all medical records, memoranda, and related documents and reports relating to that blood sample; and (2) the results of the blood alcohol sample ordered by the State and supplied by the Community Medical Center at 7:12 p.m. on December 19, 1994. The Justice Court denied Dolan’s motion to suppress and convicted Dolan of the offense of driving under the influence of alcohol.

Dolan appealed to the District Court for the Twenty-First Judicial District in Ravalli County and filed a similar motion to suppress the results of the two blood tests. In her motion, Dolan maintained that the nonconsensual blood test ordered by the State should be suppressed because it violated both Montana’s implied consent statute found at § 61-8-402, MCA, and the Fourth Amendment to the United States Constitution. In addition, Dolan maintained that the Community Medical Center’s routine blood sample should be suppressed because those results were improperly acquired by the State pursuant to an investigative subpoena which was issued on the basis of the State’s illegal blood test.

On November 1,1995, the District Court issued an order in which it denied Dolan’s motion to suppress the results of the two blood tests. In its order, the court concluded that the State-ordered blood test should not be suppressed because (1) the State had not violated the implied consent statute since that statute was not triggered until Dolan was arrested for the offense of driving under the influence of alcohol; and (2) the State had not violated the search and seizure clause of the Fourth Amendment of the United States Constitution because the State had possessed the requisite probable cause to order a warrantless seizure of Dolan’s blood. In addition, the court concluded that the routine hospital blood test results should not be suppressed because the State-ordered blood test, upon which the subpoena for the hospital records was based, was not illegally obtained.

On December 11, 1995, a jury found Dolan guilty of the offense of driving under the influence of alcohol, in violation of § 61-8-401, MCA. The District Court stayed imposition of Dolan’s sentence pending her appeal to this Court.

STANDARD OF REVIEW

In this case, the District Court denied Dolan’s motion for suppression of two blood tests taken after her accident on December 19, 1994. We review a district court’s denial of a motion to suppress to determine whether the court’s findings of fact are clearly erroneous and whether those findings were correctly applied as a matter of law. State v. New (1996), 276 Mont. 529, 533, 917 P.2d 919, 921. “Afinding of fact is clearly erroneous if it is not supported by substantial evidence, if the district court misapprehended the effect of the evidence, or if this Court has a definite and firm conviction that the district court has made a mistake.” State v. Cassell (1996), 280 Mont. 397, 932 P.2d 478, 479.

ISSUE 1

Did the District Court err when it denied Dolan’s motion to suppress evidence of the results of a nonconsensual warrantless blood alcohol test requested by the Montana Highway Patrol and supplied by the Community Medical Center?

Dolan asserts that the District Court erred when it considered evidence from the Justice Court files, in the form of Dolan’s medical records, to support its denial of the motion to suppress the State-ordered test. In addition, Dolan maintains that the District Court erred when it concluded that the nonconsensual blood test met the requirements of the “exigent circumstances” exception to the warrant requirements of the Fourth Amendment to the United States Constitution, and Article II, Section 11, of the Montana Constitution. Specifically, Dolan contends that Officer Monzon did not have the requisite probable cause, at the time he ordered the test, to believe that she had been driving under the influence of alcohol. Therefore, Dolan maintains that the State-ordered test was an unconstitutional search and seizure of her person prohibited by both the United States and Montana Constitutions.

It is well established that the administration of a blood test for the purpose of obtaining evidence of guilt constitutes a “search” and a “seizure” which triggers the constitutional protections of the Fourth Amendment to the United States Constitution, and Article II, Section 11, of the Montana Constitution. Schmerber v. California (1966), 384 U.S. 757, 767, 86 S. Ct. 1826, 1834,16 L. Ed. 2d 908, 918; State v. Kirkaldie (1978), 179 Mont. 283, 289, 587 P.2d 1298, 1302. A warrantless seizure of blood may, however, be permissible under both constitutional provisions if it falls within one of the exceptions to the warrant requirement. State v. Hyem (1981), 193 Mont. 51, 56, 630 P.2d 202, 205. One such exception, adopted by the United States Supreme Court in Schmerber, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, provides that a nonconsensual warrantless blood sample may be taken without violating the defendant’s constitutional rights if exigent circumstances exist. See also Winston v. Lee (1985), 470 U.S. 753, 105 S. Ct. 1611, 84 L. Ed. 2d 662. Specifically, the “exigent circumstances” exception allows for a warrantless search and seizure of a person’s blood so long as three conditions are met:

First, an officer ordering that a blood sample be taken must reasonably believe he is “confronted with an emergency, in which the delay necessary to obtain a warrant, -under the circumstances, threaten[s] ‘the destruction of evidence.’ ” Second, the officer must have probable cause to believe the suspect has been driving under the influence of alcohol. Third, the procedures used to extract the blood must be reasonable; that is, the sample must be taken by trained medical personnel in accordance with accepted practices.

United States v. Chapel (9th Cir. 1995), 55 F.3d 1416, 1418 (citing Schmerber, 384 U.S. at 770, 86 S.Ct. at 1834-35).

In this case, the District Court held that the results of the blood alcohol sample ordered by Officer Monzon and supplied by the Community Medical Center were admissible based on the exigent circumstances exception to the search warrant requirement. Specifically, the court concluded that emergency circumstances existed which required immediate withdrawal of Dolan’s blood because her blood alcohol level was plunging rapidly under aggressive IV therapy necessary to save her life. In addition, the court concluded that the medical information available to Officer Monzon upon his arrival at the hospital, combined with the statements made to Officer Reddick at the accident scene to the effect that Dolan had smelled of alcohol, was “collectively sufficient to warrant a conclusion that probable cause existed to believe a crime had been committed and to further conclude that preservation of the evidence under the circumstances warranted a warrantless seizure of [Dolan’s] blood sample under the exigent circumstances exception to the search warrant requirement.”

It is well established that “[b] efore a law enforcement officer may lawfully take a blood sample without consent or a warrant, he or she must have probable cause to believe that the suspect has committed an offense of which the current state of one’s blood will constitute evidence.” Chapel, 55 F.3d at 1419 (citing Schmerber, 384 U.S. at 770, 86 S.Ct. at 1835-36). The requirement of probable cause is satisfied “if the facts and circumstances within the officer’s personal knowledge, or upon information imparted to him by a reliable source, are sufficient to warrant a reasonable person to believe that the suspect has committed an offense.” State v. Lee (1988), 232 Mont. 105, 109, 754 P.2d 512, 515. Such probable cause cannot be based upon an officer’s suspicion alone, without some substantiated evidence that a crime is or has been committed, regardless of what a subsequent search may disclose. State v. Rader (1978), 177 Mont. 252, 257, 581 P.2d 437, 440.

In this case, the District Court concluded that collective evidence existed to establish probable cause under the “exigent circumstances” exception, based on its finding that “two law enforcement officers at separate locations had received ‘reasonably trustworthy information’ from emergency medical personnel upon which to rely in determining probable cause.” Specifically, the court found that: (1) Officer Reddick had been told by an emergency care provider at the accident scene that Dolan smelled of alcohol; and (2) Officer Monzon had access to medical information about Dolan’s consumption of alcohol upon his arrival at the Community Medical Center. Based on those findings, the court held that the information available to both officers was sufficient to collectively establish probable cause.

Our review of the evidence available to both Officer Reddick and Officer Monzon, however, suggests that neither officer had personal knowledge of Dolan’s consumption of alcohol, nor had either officer received information of that consumption from a reliable source prior to ordering a test of Dolan’s blood alcohol content. First, neither officer communicated with Dolan or interviewed her personally to determine whether there were signs that she had consumed alcohol prior to her accident. In addition, although Officer Reddick spoke with someone at the accident scene who informed him that Dolan had smelled of alcohol after the accident, he did not obtain the informant’s name or verify whether the informant had actually personally observed or treated Dolan at the accident scene. Finally, although Officer Monzon was present at the hospital at the time he ordered Dolan’s blood test, there is no evidence that he spoke with any medical personnel or received any medical information about Dolan’s alcohol consumption prior to ordering that test. The fact that such information may have been available to him upon his arrival at the hospital is not sufficient to establish that Monzon was in possession of that information when he ordered the test.

Based on our review of the record, we hold that the District Court’s finding that Officers Reddick and Monzon “had received ‘reasonably trustworthy information’ from emergency medical personnel upon which to rely in determining probable cause” is not supported by substantial credible evidence. In fact, in a document submitted to the District Court, the State admitted:

[Officer Reddick] testified that he did not obtain the name of the person who he talked to, or even precisely what the person’s capacity was other than that he believed the person was a paramedic. Finally, [Dolan] had been removed from the scene by ambulance before [Officer Reddick] arrived, so the officer had no personal basis to know whether the paramedic had treated or even actually observed [Dolan].

It is a clear rule of law that “[c]orroboration of an informant’s information through other sources is necessary when the information is hearsay or the informant is anonymous.” State v. Rinehart (1993), 262 Mont. 204, 212, 864 P.2d 1219, 1224. In this case, Officer Reddick made no attempt to learn the identity of his anonymous informant or to corroborate the information he received from that informant.

Furthermore, although the District Court cited hospital records which confirmed that medical personnel at the hospital were aware that Dolan smelled of alcohol when she arrived in the emergency room, the State submitted no evidence that Officer Monzon possessed such information prior to ordering Dolan’s blood test. Suspicion of either officer alone, without substantiated evidence that a crime had been committed, was not enough to establish probable cause, regardless of what the officers’ later search may have disclosed. Rader, 177 Mont. at 257, 581 P.2d at 440.

Therefore, in the absence of either officer’s personal knowledge of Dolan’s consumption of alcohol, and in the absence of clear proof that either officer had received information of Dolan’s alcohol consumption from a reliable source prior to ordering the blood alcohol test, we hold that the District Court erred when it concluded that probable cause existed to believe that Dolan had operated her vehicle under the influence of alcohol, in violation of § 61-8-401, MCA. Because we conclude that probable cause did not exist to order a sample of Dolan’s blood, we further hold that the District Court erred when it concluded that the State’s nonconsensual warrantless blood test met the requirements of the “exigent circumstances” exception to the warrant requirements of the Fourth Amendment to the United States Constitution, and Article II, Section 11, of the Montana Constitution. We therefore hold that the State-ordered blood test constituted an unlawful “search” and “seizure” of Dolan’s person prohibited by both the United States and Montana Constitutions. We reverse the District Court’s order which denied Dolan’s motion to suppress the evidence of the State-ordered blood test results.

ISSUE 2

Did the District Court err when it denied Dolan’s motion to suppress evidence of the results of a routine blood sample taken by the Community Medical Center and obtained by the State pursuant to an investigative subpoena?

Dolan maintains that the District Court erred when it denied her motion to suppress the results of a routine blood sample taken by the Community Medical Center and obtained by the State pursuant to an investigative subpoena duces tecum. Specifically, Dolan asserts that the sole basis for the State’s subpoena was the results of the State-ordered blood test, and that, because that blood test was an unconstitutional search of her person pursuant to both the United States and Montana Constitutions, the evidence obtained pursuant to the subpoena should be suppressed as “fruits of the poisonous tree.” The issuance of an investigative subpoena is governed by § 46-4-301, MCA, which provides:

Whenever a prosecutor has a duty to investigate alleged unlawful activity, any justice of the supreme court or district court judge of this state may cause subpoenas to be issued commanding the persons to whom they are directed to appear before the prosecutor and give testimony and produce books, records, papers, documents, and other objects as may be necessary and proper to the investigation. A subpoena may be issued only when it appears upon the affidavit of the prosecutor that the administration of justice requires it to be issued.

(Emphasis added.)

In this case, the prosecutor submitted an affidavit in support of an investigative subpoena to the District Court for the Fourth Judicial District in Missoula County. In support of his claim that “the administration of justice requires the issuance of an Investigative Subpoena Duces Tecum,” the prosecutor listed the following facts:

Lynda M. Dolan was involved in an automobile accident on Highway 93 at approximately 5:23 p.m. on December 19,1994. She rear-ended another motorist and suffered serious injuries and was taken to Community Hospital. Approximately one and one-half hours after the accident Ms. Dolan’s blood alcohol level was .08. The Montana Highway Patrol was advised that blood had been taken prior to this time and the results were over the legal limit.

In State v. Nelson (1997), [283 Mont. 231], 941 P.2d 441, this Court held that before an investigative subpoena may be issued to compel information that is protected by the constitutional right of privacy, the prosecutor must show probable cause that an unlawful activity has occurred. We held that:

[I]f the right of informational privacy is to have any meaning it must, at a minimum, encompass the sanctify of one’s medical records. In contrast to telephone company billing records, for which there is no reasonable expectation of privacy, Hastetter v. Behan (1982), 196 Mont. 280, 283, 639 P.2d 510, 511, medical records fall within the zone of privacy protected by Article II, Section 10, of the Montana Constitution. As the Montana Legislature has recognized, “health care information is personal and sensitive information that if improperly used or released may do significant harm to a patient’s interest in privacy and health care or other interests.” Section 50-16-502(1), MCA. Medical records are quintessentially “private” and deserve the utmost constitutional protection.
When an investigative subpoena seeks discovery of protected medical records or information, the subpoena can be likened to a search warrant which must satisfy the strictures of the 4th Amendment and Article II, Section 11, of the Montana Constitution. A search warrant can only issue upon a showing of “probable cause.” In the context of search and seizure law, probable cause exists when facts and circumstances presented to a magistrate would warrant an honest belief in the mind of a reasonable and prudent person that an offense has been, or is being, committed and that property (or information) sought exists at the place designated. Section 46-5-221, MCA; [State v.] Siegal [(1997)], [281 Mont. 250], 934 P.2d [176,] at 193. We hold that in order to establish thatthere is a compelling state interest for the issuance of an investigative subpoena for the discovery of medical records, the State must show probable cause to believe that an offense has been committed and medical information relative to the commission of that offense is in the possession of the person or institution to whom the subpoena is directed.

Nelson, [283 Mont. 231], 941 P.2d 441.

In this case, Dolan’s medical records requested by the prosecutor are protected by a constitutional right of privacy, as provided by Article II, Section 10, of the Montana Constitution. Therefore, pursuant to our reasoning in Nelson, the prosecutor in this case was required to show probable cause that Dolan had committed a crime before the investigative subpoena could issue pursuant to § 46-4-301, MCA. Nelson, [283 Mont. 231], 941 P.2d 441.

In his affidavit, the prosecutor lists only two facts to establish probable cause. First, the prosecutor relates the results of the State-ordered blood test, which indicated that Dolan’s blood alcohol level was .08 grams per 100 liters of blood approximately one and one-half hours after the accident. Second, the prosecutor states that: “The Montana Highway Patrol was advised that blood had been taken prior [to the State-ordered test] and the results were over the legal limit.”

We hold that neither the results of the State-ordered blood test, nor the fact that an unnamed source may have informed the highway patrol about Dolan’s earlier blood test, is sufficient to establish probable cause that Dolan had committed a crime. First, because the State-ordered blood test was an unlawful search and seizure of Dolan’s person pursuant to the United States and Montana Constitutions, that search may not be used as the basis for the issuance of a subpoena to obtain additional information. It is well established that information derived from an illegal search should be suppressed pursuant to the “fruits of the poisonous tree” doctrine. See, e.g., Silverthorne Lumber Co. v. United States (1920), 251 U.S. 385, 40 S.Ct. 182, 64 L.Ed. 319; State v. New (1996), 276 Mont. 529, 917 P.2d 919; State v. Pearson (1985), 217 Mont. 363, 704 P.2d 1056. As we stated in New, 276 Mont. at 535, 917 P.2d at 923, “[t]he [“fruits of the poisonous tree”] doctrine forbids the use of evidence which comes to light as a result of the exploitation of an initial illegal act of the police.” Therefore, because we have determined that the original State-ordered blood test was an unlawful search by the Montana Highway Patrol, we now hold that that test may not be used to establish probable cause to obtain further information by means of an investigative subpoena duces tecum.

Our holding that the State-ordered blood test may not be used to establish probable cause does not end the inquiry, however. Although the prosecutor’s affidavit in support of an investigative subpoena relied primarily on the results of that test to establish probable cause, it also stated the additional fact that “ [t]he Montana Highway Patrol was advised that blood had been taken prior [to the State-ordered test] and the results were over the legal limit.” We conclude that that fact, standing alone, is insufficient to establish probable cause that Dolan had committed the crime of driving under the influence of alcohol, in violation of § 61-8-401, MCA.

First, the affidavit does not list the source of the information. As we stated above, the test for probable cause is whether “the facts and circumstances within the officer’s personal knowledge, or upon information imparted to him by a reliable source, are sufficient to warrant a reasonable person to believe that the suspect has committed an offense.” State v. Lee (1988), 232 Mont. 105, 109, 754 P.2d 512, 515. In this case, there is no indication that the unnamed source is “reliable.” Furthermore, the inference in the affidavit is that the source was a health care provider who had knowledge of Dolan’s condition at the Community Medical Center; however, a health care provider could not lawfully have imparted information about Dolan’s condition, beyond a description of Dolan’s general physical condition, without Dolan’s authorization, pursuant to § 50-16-530, MCA. Unless we are shown otherwise, we have to presume that the health care providers at the Community Medical Center would comply with the law regarding their patients’rights to privacy. Therefore, we hold that the prosecutor’s statement that the highway patrol had received information about the results of the hospital’s routine blood sample is insufficient to establish probable cause for the issuance of an investigative subpoena, pursuant to § 46-4-301, MCA.

Because we hold that the prosecutor in this case did not establish probable cause necessary for the issuance of an investigative subpoena, we reverse the order of the District Court which denied Dolan’s motion to suppress evidence of the routine hospital blood test and we reverse Dolan’s conviction and sentence for the offense of driving under the influence of alcohol, in violation of § 61-8-401, MCA, which was necessarily based in part on that evidence. We remand to the District Court for proceedings consistent with this opinion.

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