author: JUSTICE HUNT JUSTICE TRIEWEILER JUSTICE WEBER,

text:
    STATE OF MONTANA, BOARD OF DENTISTRY, Plaintiff, Respondent and Cross-Appellant, v. R. BRENT KANDARIAN, Defendant and Appellant.
    No. 90-228.
    Submitted March 7, 1991.
    Decided June 4, 1991.
    Rehearing Denied Aug. 1, 1991.
    248 Mont. 444.
    813 P.2d 409.

      James C. Bartlett, Hash, O’Brien & Bartlett, Kalispell, for defendant and appellant.
    I. James Heckathorn, Murphy Robinson, Heckathom & Phillips, Kalispell, John H. Maynard, Dept, of Admin., Helena, for plaintiff, respondent and cross-appellant.
   JUSTICE HUNT

delivered the opinion of the Court.

The Eleventh Judicial District Court, Flathead County, granted the State of Montana, Board of Dentistry’s, motion for summary judgment on the issue of immunity, and denied its motion to vacate a previous order granting summary judgment against it on the issue of injunctive relief. Both parties appeal.

We reverse on the issue of immunity and affirm on the issue of injunctive relief.

We will address two issues on appeal:

1. Is the State of Montana, Board of Dentistry, immune from suit because it is a quasi-judicial body?
2. Did the District Court err in granting summary judgment to the defendant Kandarian on the issue of injunctive relief?

TMJ, or temporomandibular joint dysfunction, is a medical/dental problem. R. Brent Kandarian, a denturist and head of the State Board of Denturitry, advertised in a local paper that he would perform “TMJ evaluations.” On August 26, 1986, a dentist wrote to the Board of Dentistry (Board) requesting an investigation into the alleged illegal practice of dentistry by Kandarian. He stated in his letter that evaluating TMJ was the practice of dentistry, and that he had personal knowledge of an offer by Kandarian to treat a patient with TMJ disorder via construction of a partial denture.

The Board wrote to Kandarian on September 22, 1986, informing him of the complaint. On the same day, the Board of Denturitry was informed of the complaint against Kandarian. Kandarian responded that the Board had no power to regulate his denturitry practice.

The Board met on November 12, 1986, and without investigation, decided to ask Flathead County to file criminal charges against Kandarian. While Flathead County was deciding that issue, the Board’s counsel released the contents of the complaint against Kandarian to the press. Flathead County refused to prosecute, and on February 2, 1987, the Board filed for an injunction against Kandarian.

The Board identified James Stobie, D.D.S., as the expert witness who would testify as to whether TMJ evaluations were within the practice of denturitry. His deposition stated that as long as a denturist is practicing denturitry, it would be misfeasance or malfeasance not to do a TMJ evaluation while fitting for “partíais” or “fulls.”

Kandarian counterclaimed and moved for summary judgment. The Board asked for “follow up discovery” and represented that it had witnesses who would be contacted and who would produce, by way of affidavit, evidence that Kandarian had done nondenture work on them.

On January 8, 1988, the court dismissed the complaint against Kandarian because the Board had failed to produce affidavits showing that Kandarian had performed work on the natural teeth of two individuals previously named by the Board.

On February 25, 1988, the Board filed an amended response to Kandarian’s counterclaim, claiming immunity for damages on the basis of its quasi-judicial status. In a January 1989 order denying immunity for the Board, the court found that lack of substantial investigation into the allegations against Kandarian raised questions of material fact as to whether the Board was performing its official duties. On March 13,1989, Kandarian filed an amended answer and counterclaim, alleging breach of right of privacy, wrongful injunction, intentional interference with business and patients, slander and libel, wrongful civil litigation, abuse of process, outrage and intentional infliction of emotional distress, and negligence.

On February 8, 1990, the court issued a two-part order: first, the order denied the Board’s motion to vacate the previous order granting summary judgment to Kandarian. Second, it vacated the January 1989 order and found immunity for the Board on the grounds that in the absence of rules for investigations, the statute provided that the Board could seek injunction under § 37-4-328(3), MCA. The court denied Kandarian’s motion for attorney fees on March 15, 1990.

Judgment was filed on March 15, 1990, and Kandarian and the Board appealed.

Is the Board immune from suit because it is a quasi-judicial body?

The District Court’s finding that the Board is immune from suit on the basis of quasi-judicial immunity is erroneous. We extended quasi-judicial immunity to administrative boards in Koppen v. Board of Medical Examiners, 233 Mont. 214, 759 P.2d 173 (1988). In that case, we stated that the discretion vested in the Board of Medical Examiners to determine whether or not to adjudicate an alleged violation by a licensee rendered it a quasi-judicial body. We referred to the notice and hearing requirements of the Montana Administrative Procedures Act (MAPA), and the fact that the decision is subject to judicial review, to support our holding that the Board of Medical Examiners is quasi-judicial and absolutely immune in the exercise of that authority. Koppen, 233 Mont. at 219, 759 P.2d at 176. In Koppen we cite Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978):

‘We think that adjudication within a federal administrative agency shares enough of the characteristics of the judicial process that those who participate in such adjudication should also be immune from suits for damages.”

In this case, the Board was proceeding against a nonlicensee under § 37-4-328(3), MCA. That section does not require an administrative hearing before the Board under MAPA, but allows the attorney general, county attorney, or board to seek injunctive relief.

When the Board sought an injunction in the District Court, it put itself in the role of litigant or advocate, not adjudicator. Once it invoked the jurisdiction of the court under § 37-4-328, MCA, it acted as a litigant and was not immune from suit.

The Board also claims immunity similar to that enjoyed by prosecutors. While it is true that Koppen, citing Butz, states that “agency officials performing certain functions analogous to those of a prosecutor should be able to claim absolute immunity with respect to such acts,” it does not say that all board actions are immune. Koppen, 233 Mont. at 219, 759 P.2d at 176. In State ex rel. Dept. of Justice v. District Court, 172 Mont. 88, 92, 560 P.2d 1328, 1330, we affirmed prosecutorial immunity for the State of Montana and the Department of Justice, noting that:

“When a prosecutor acts within the scope of his duties by filing and maintaining criminal charges he is absolutely immune from civil liability, regardless of negligence, or lack of probable cause.”

In Dept. of Justice, we explain that concern over harassment by unfounded litigation could cause a prosecutor to shade decisions and affect the independence of judgment necessary to the administration of the criminal justice system.

The prosecutor’s independence is checked by procedural safeguards inherent in the system, such as probable cause investigation, swearing under oath, etc. However, here we are not presented with a similar situation. The Board proceeded against Kandarian without any investigation of the allegations against him. It did not interview Kandarian himself. It released sensitive material to the press about a possible criminal action without notice to Kandarian. The Board was not bound by and did not adhere to a process that provided any safeguards for Kandarian. It therefore does not enjoy the immunity afforded the prosecutor.

We reached the issue of state liability in Lima School District No. 12 v. Simonsen, 210 Mont. 100, 683 P.2d 471 (1984). In Lima, the school district claimed sovereign immunity on a counterclaim for damages arising from a suit it instigated. We denied immunity, stating:

“The School District itself initiated this lawsuit. It would be especially inequitable to allow the state to bring an action for payment by mistake and vest them with immunity from suit in related matters. The better rule is to recognize that whenever the state brings an equitable action it waives any applicable sovereignty and opens the door to a defense or counterclaim germane to the matter in controversy.”

Lima, 210 Mont. at 772, 683 P.2d at 477 (emphasis added). Here the action for injunction was an equitable action, and we adhere to the “better rule” that the state does not enjoy immunity for its actions when it seeks injunctive relief in district court.

Did the District Court err in granting summary judgment to the defendant Kandarian on the issue of injunctive relief?

The District Court granted summary judgment to Kandarian when the Board sought to enjoin his practice. The only fact before the District Court was the expert’s testimony that TMJ evaluations were indeed a part of the practice of denturitry. We thus find no abuse of discretion by the District Court in the grant of summary judgment in favor of Kandarian.

Reversed in part and affirmed in part.

JUSTICES HARRISON, McDONOUGH and GRAY concur.

JUSTICE TRIEWEILER

concurring in part and dissenting in part:

I concur in part, and dissent in part, from the opinion of the majority.

I concur with that part of the majority’s opinion which holds that the Board of Dentistry did not have immunity from suit under the circumstances in this case. I also concur with that part of the majority’s opinion which affirmed the District Court’s award of summary judgment on the issue of injunctive relief.

However, I dissent from the majority’s failure to award attorney fees to Kandarian pursuant to Rule 11, M.R.Civ.P. That rule was designed to discourage the filing of claims which have no merit and to compensate people like Kandarian who have to expend substantial sums to defend against nonmeritorious claims. The key to invocation of the rule is whether an adequate investigation has been done by the complaining party before putting his opponent to the expense of litigation. The rule provides:

“The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion, or other papers; that to the best of his knowledge, information, and belief formed after reasonable inquiry it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and that it is not interposed for any improper purpose, such as to harass or to cause unnecessary delay or needless increase in the cost of litigation.

“If a pleading, motion, or other paper is signed in violation of this rule, the court, upon motion or upon its own initiative, shall impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion, or other paper, including a reasonable attorney’s fee.” (Emphasis added.)

In this case, the Board of Dentistry made no reasonable inquiry prior to filing its claim for injunctive relief and naming Kandarian as a defendant. A member of the Association had sent it a copy of an ad, indicating that Brent Kandarian, a denturist, was available for “TMJ evaluations.”

However, none of Kandarian’s patients were interviewed; no investigation was done; and no experts were consulted prior to the filing of suit.

After suit was filed, the Board finally retained James L. Stobie, D.D.S. He was identified in court documents as the Board’s expert for the purpose of establishing that it was a violation of the Dental Practice Act for a denturist to perform TMJ evaluations. When he was deposed, however, his testimony was to the contrary.

Dr. Stobie testified that he was the only prosthodontist in Montana. A prosthodontist has three years of specialized training after dental school. That training is related to the treatment of patients who have prosthetic devices. He testified that in the course of fitting a patient for dentures it is not only permissible, but mandatory for a denturist to perform a TMJ evaluation and that, in fact, Kandarian would have been negligent if he had failed to do so.

Subsequent to Dr. Stobie’s testimony, the defendant moved for summary judgment. At the time of that hearing, the Board’s attorney offered to provide the testimony of two witnesses who would say that Kandarian had worked on their teeth, even though it was not for the purpose of fitting dentures. The Board was given ten days to provide such information, but failed to do so. In fact, one of the witnesses was subsequently offered as a witness by Kandarian and testified contrary to the representations of the Board’s attorney.

After all of these court proceedings, and expense to the defendant, summary judgment was entered for the defendant dismissing the Board’s complaint for injunctive relief.

Under these circumstances no “reasonable inquiry” was conducted prior to the commencement of this lawsuit, and the defendant is entitled to an award of reasonable attorney fees and costs to compensate him for having to unnecessarily participate in and defend against this action.

JUSTICE WEBER,

dissenting:

The key facts upon which the majority concluded that the Board of Dentistry, does not enjoy quasi-judicial immunity as described in Koppen v. Board of Medical Examiners (1988), 233 Mont. 214, 759 P.2d 173, are stated as follows:

“The prosecutor’s independence is checked by procedural safeguards inherent in the system, such as probable cause investigation, swearing under oath, etc. However, here we are not presented with a similar situation. The Board proceeded against Kandarian without any investigation of the allegations against him. It did not interview Kandarian himself. It released sensitive material to the press about a possible criminal action without notice to Kandarian. The Board was not bound by and did not adhere to a process that provided any safeguards for Kandarian. It therefore does not enjoy the immunity afforded the prosecutor.”

The essence of the foregoing holding appears to be that because the Board did not adhere to a process which provided safeguards for Kandarian, it had forfeited any immunity afforded a prosecutor, which apparently would also include the quasi-judicial immunity described in Koppen,

We do not have a controversy here which required a Board hearing in order to determine the contentions of the parties. Here a Kalispell dentist forwarded his letter to the Board of Dentistry complaining that Mr. Kandarian was engaged in the illegal practice of dentistry as appeared from the enclosed copy of an ad which showed Mr. Kandarian was advertising for dentures, partíais, realigns, fast repairs, and “TMJ evaluations.” That Kalispell dentist stated he had personal knowledge of Mr. Kandarian’s offer to treat patients for TMJ disorders. By letter dated September 22,1986, the Board of Dentistry furnished Mr. Kandarian a copy of the complaint as filed. The Board requested a response and asked that if facts had been misstated Mr. Kandarian should so state and refer to documents or witnesses. By letter dated October 31,1986, the attorney for the Board of Dentistry again wrote to Mr. Kandarian with regard to the same complaint. In that letter the attorney pointed out that the complaint alleged unlicensed practice of dentistry and referred to the civil and criminal sanctions. It again asked Mr. Kandarian to advise if the fact allegations were incorrect. If he felt there was legal justification he should provide such information. It also invited Mr. Kandarian to stop the advertising and the attorney would then recommend the closing of the files. By letter dated November 6, 1986, addressed to the Board of Dentistry attorney, Mr. Kandarian clearly indicated his position and stated:

“In regards to your letter of October 31,1986,1 must confess to you that I didn’t think it necessary to answer a complaint of the dental board, when in fact it has nothing to do with me — nor me with it. If I have committed a crime, I will answer to the board of denturitry.

“I am not now, nor have I ever practiced dentistry! I am licensed as a denturist and practice as such. T.M.J. evaluations certainly fall within my scope of practice, regardless of what the board of dentistry thinks, and I will continue to practice accordingly.

“If the board of dentistry would tend to its own complaints instead of going on witch-hunts, it would probably accomplish a whole lot more for the protection of the people of the state of Montana. (Emphasis supplied).”

At its November 12, 1986, meeting the Board of Dentistry, which consists of licensed dentists practicing in Montana, considered the complaint against Mr. Kandarian. The Board of Dentistry concluded that it would request the filing of a complaint against Mr. Kandarian and if the county attorney did not so act, an injunction should be sought for the unlicensed practice of dentistry.

Such a request was made to the county attorney of Flathead County. By his letter dated December 30, 1986, the county attorney demonstrated that he understood the issues and chose not to act, stating:

“I now have had the opportunity to review these materials together with what I perceive to be applicable Montana law. It appears to me that the relevant issue is not whether Mr. Kandarian is engaging in a particular activity (TMJ evaluations), but rather whether that activity (which he does not deny) is prohibited to a denturist by Section 37-29-402(3) and, if so, what the proper remedy would be.

“Although I may question whether such conduct is in fact a violation of that statute, I have little doubt that, regardless, a criminal prosecution is not the proper forum in which to seek a resolution. I therefore respectfully decline to prosecute the complaint. If either the Board of Dentistry or the Board of Denturity feels that Mr. Kandarian’s conduct is actionable, it seems to me that the proper remedy would be an injunctive action brought by the Board pursuant to either Section 37-4-328 or Section [37-29-411], MCA, respectively.” The county attorney therefore recommended that if the Board of Dentistry felt that Mr. Kandarian’s conduct was actionable, the proper remedy would be an injunctive action, which was the procedure followed by the Board.

The holding of the majority indicates that because of the failure to make an investigation and a failure to follow a process which provided safeguards for Mr. Kandarian, there had been a forfeiture of immunity. I do not understand that conclusion.

The issues as between the parties are quite clear — the Board of Dentistry believes that the actions taken by Mr. Kandarian constitute the unlawful practice of dentistry — and Mr. Kandarian, incidentally the Chairman of the Board of Denturity, believes that it is not the unlawful practice of dentistry, but the lawful practice of denturity. A hearing would not have more clearly established the opposing positions of the two parties. Under those circumstances, was it improper for the Board of Dentistry to seek an injunction without a due process hearing?

The specific statutes covering the Board of Dentistry indicate that their procedure was provided under § 37-4-328, MCA, which in pertinent part states as follows:

“(3) If a person, firm, or corporation engages in the practice of dentistry without possessing a valid license or violates this chapter, the attorney general, a county attorney, or the board may maintain an action in the name of this state to enjoin the person, firm or corporation from engaging in the practice of dentistry”

Clearly the Board is given both the responsibility to enforce the statutes with regard to the profession of dentistry and where it deems advisable, to secure an injunction. This is directly comparable to the statutory authority of the Board of Medical Examiners which was involved in the Koppen case. Section 37-3-326, MCA, states in part as follows:

“Notwithstanding any other provision in this chapter, the board [Board of Medical Examiners) may maintain an action to enjoin a person from engaging in the practice of medicine until a license to practice medicine is procured.”

The statutory provisions are directly comparable. There is a statutory procedure for the Board of Dentistry to conduct hearings after various notice and due process rights are considered. Again, these are directly comparable to the provisions for the Board of Medical Examiners. I conclude that for our purposes, the statutory provisions and purposes of the Board of Dentistry and the Board of Medical Examiners are directly comparable. That leads me to review Koppen. In Koppen we stated the following:

“The action or inaction by the Board under attack in this case is its decision not to strip Dr. Kauffman of his license when faced with complaints concerning his professional conduct. The Board’s decision whether to initiate administrative proceedings against a doctor is analogous to a prosecutor’s decision whether to initiate court proceedings against an alleged criminal. We concur with the reasoning in Butz that the Board’s discretion might be distorted if it is not immune from suit for damages arising from such a decision. We hold, therefore, that in the exercise of its quasi-judicial authority, the Board is entitled to the absolute immunity afforded executive officials under the rule in the Butz decision...”

Koppen, 233 Mont. at 219-20, 759 P.2d at 176.

In Koppen this Comb concluded that the inaction of the Board of Medical Examiners in any claimed failure to investigate the activities of a medical doctor were subject to the protection of quasi-judicial immunity. In the present case, the majority has concluded that the action of the Board of Dentistry in commencing an injunction proceeding, one of the options expressly given to that Board by the statutes controlling the Board, somehow causes the Board to lose its immunity. I fail to -understand the rationale. I believe the holding in Koppen is directly on point. In fact we have a much stronger case for quasi-judicial immunity here because the Board in fact was attempting to exercise its obligation to protect the practice of dentistry, whereas the Board in Koppen had failed to do anything with regard to protecting the public from the alleged unprofessional actions of a medical doctor.

The majority further concludes that under Lima School Dist. No. 12 v. Simonsen (1984), 210 Mont. 100, 683 P.2d 471, when the Board sought an injunction, the state does not enjoy immunity. A more complete analysis is required of the Lima case. The Lima School District had filed suit against the defendants to recover money paid under a transportation contract for the transportation of school children. The defendants counterclaimed, alleging damages and were awarded $5,000 on their counterclaim. With regard to the issue of sovereign immunity, the Court stated as follows:

“The School District argues before this Court that the counterclaim is barred by the doctrine of sovereign immunity. This issue was not raised in the pleadings or otherwise at trial. It need not be considered by the Supreme Court. The School District itself initiated this lawsuit. It would be especially inequitable to allow the state to bring an action for payment by mistake and vest them with immunity from suit in related matters. The better rule is to recognize that whenever the state brings an equitable action it waives any applicable sovereignty and opens the door to a defense or counterclaim germane to the matter in controversy. (Citations omitted.)”

Lima, 210 Mont. at 112, 683 P.2d at 477.

The case concludes that the issue of sovereign immunity need not be addressed because it was not raised in the lower court. It is true the issue went on to discuss the aspect of inequitability. I would only point out that this was a proceeding brought for the recovery of monies paid on a contract theory, to which the defendants had counterclaimed. Under that fact situation, it seems entirely appropriate to hold that when the state commenced the action, it could not defend by stating it was immune. I don’t believe that affords any proper authority for the present decision. While this presently is an action for an injunction, it is certainly not comparable to the Lima action.

As a result, I disagree with the conclusion of the majority that when the Board sought an injunction, it put itself in the role of the litigant or advocate rather than adjudicator. The Board only acted in the role assigned to it by the statutes, that being the attempted prohibition of a non-dentist practicing dentistry. I fail to see how such conduct could be classed as a giving up of any quasi-judicial immunity.

I further emphasize that the conclusion in the present case contradicts our holding in Koppen. There we concluded that the Board’s decision whether to initiate administrative proceedings is analogous to a prosecutor’s decision. I find no distinction between that and the Board’s decision in the present case to initiate proceedings requesting an injunction.

In addition, there is the inference that coming to court for injunctive purposes may have denied due process in some manner. I fail to understand such a theory. The purpose of coming to court is to allow the Board of Dentistry and Mr. Kandarian to set forth their opposing views in court with due process protections under court rules.

Based on Koppen, I conclude that the Board of Dentistry should have been granted immunity in this proceeding.

CHIEF JUSTICE TURNAGE concurs in the dissent of JUSTICE WEBER.


source: Caselaw Access Project

author: CHIEF JUSTICE TURNAGE

license: Public Domain

text:
    ARVID GRIER, Plaintiff, v. NATIONWIDE MUTUAL INSURANCE COMPANY, Defendant.
    No. 90-272.
    Submitted May 9, 1991.
    Decided June 4, 1991.
    248 Mont. 457.
    812 P.2d 347.
    Richard Reep argued, Graham, Reep & Spoon, Missoula, for plaintiff.
    Paul C. Meismer argued, Garlington, Lohn & Robinson, Missoula, for defendant.
    Molly Shepherd, Worden, Thane & Haines, Missoula, for amicus curiae.
   CHIEF JUSTICE TURNAGE

delivered the opinion of the Court.

This is a certified question submitted by the United States District Court for Montana. This Court accepted certification of the question by order dated June 5, 1990.

The certified question as presented by the federal court was:

“Is an offset provision in an ‘underinsured motorist’ policy, entitling the insured to an offset for an amount equal to the liability coverage available from a responsible tortfeasor, void as contrary to the public policy of the State of Montana?”

We rephrase the question as follows:

“Does the contested provision contained in this insurance policy provide uninsured motorist coverage or underinsured motorist coverage? If it provides uninsured motorist coverage, is the offset provision void as contrary to the public policy of the State of Montana?”

Nationwide Mutual Insurance Company (Nationwide) issued a policy of automobile liability insurance to Arvid Grier, a resident of Missoula, Montana. The policy provided coverage for Grier’s 1988 Dodge Caravan from December 8, 1988, through December 8, 1989.

On December 19, 1988, while driving his Dodge Caravan, Grier was rear-ended by a driver insured by Farmers Union Insurance Company for the statutory minimum $25,000 for bodily injury. Grier suffered severe and permanent injuries for which Farmers Union Insurance Company has paid its entire $25,000 policy limit. Grier now seeks to recover under his own insurance policy.

The pertinent provision of the Nationwide insurance policy is found at page 3 of the 1999B endorsement, under the UNINSURED MOTORISTS coverage:

‘We will pay compensatory bodily injury (meaning bodily injury, sickness, disease, or death) damages that are due you by law from the owner or driver of an uninsured motor vehicle...
“An uninsured motor vehicle is:
“2. one which is underinsured. This is one for which there are bodily injury liability coverage or bonds in effect. Their total amount, however, is less than the limits of this coverage. These limits are shown in your policy’s Declarations.”
The policy also provides, on the same page, under LIMITS OF PAYMENT, that “[t]he limits of this coverage will be reduced by any amount paid by or for any liable parties.” Grier’s policy of insurance included UNINSURED MOTORISTS coverage in the amounts of $25,000 for each person and $50,000 for each occurrence.

This Court has been consistent in invalidating insurance contract clauses wherein the insurer attempts to limit its Lability for uninsured motorist coverage. See, e.g., Sullivan v. Doe (1972), 159 Mont. 50, 495 P.2d 193; Guiberson v. Hartford Cas. Ins. Co. (1985), 217 Mont. 279, 704 P.2d 68. The purpose of Montana’s uninsured motorist statute, § 33-23-201, MCA, is the protection of persons insured from acts of the uninsured. Guiberson, 704 P.2d at 74.

Montana has no statutory insurance requirement concerning underinsured motorists. The question presented by the federal court was whether the public policy prohibiting offsets against coverage for uninsured motor vehicles also extends to cases involving underinsured motorists. The parties have briefed this issue at length.

However, the insurance policy in this case is set up in a unique fashion. As set forth above, the “underinsured” motorist provision is part of the section on uninsured motorist coverage. There is no separate policy section providing for underinsured motor vehicle coverage. According to the declarations page of the policy, no separate premium was charged for underinsured motorist coverage. In fact, the declarations page makes no mention whatsoever of underinsured motor vehicle coverage. We conclude that, -under these circumstances, the “underinsured” coverage is part of the uninsured motor vehicle coverage. As such, the public policy of Montana prohibits any offset for the amount of coverage carried by the third-party tortfeasor.

As the parties noted in oral argument, this Court is not presented with the issues of whether the insurance policy is ambiguous or whether the vehicle driven by the tortfeasor was “underinsured” ■under Grier’s insurance policy. Those are issues to be resolved in the federal court.

The answer to the certified question as we have restated it is that the “underinsured” provision in question is part of the uninsured motor vehicle coverage and that no offset is permissible.

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


author: JUSTICE McDONOUGH JUSTICE TRIEWEILER,

text:
    DEBRA STEFFANI IRVING, Plaintiff and Appellant, v. SCHOOL DISTRICT NO. 1-1A, VALLEY COUNTY, MONTANA; and the BOARD OF TRUSTEES, said Board consisting of Everett Breigenzer, Sharon Archambeault, Lois Johnson, Shirley Kirkland, Terry Hueth, James Olk, and Fred Compton, Individually and as a Body Politic, Defendants and Respondents.
    No. 90-381.
    Submitted on briefs March 22, 1991.
    Decided June 4, 1991.
    Rehearing Denied June 27, 1991.
    248 Mont. 460.
    813 P.2d 417.

      David L. Irving, Glasgow, for plaintiff and appellant.
    Chadwick H. Smith, Smith Law Firm, Helena, Donald R. Herndon; Herndon, Hartman, Sweeney & Halverson, Billings, for defendants and respondents.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

Debra Steffani Irving appeals from a decision of the Seventeenth Judicial District, dismissing her lawsuit filed against School District 1-1A in Valley County and the Board of Trustees. The District Court dismissed the case pursuant to Rule 12(b), M.R.Civ.R We reverse in part and affirm in part.

The only issue we find necessary for review is:

Whether the District Court properly granted the defendants’ motion to dismiss under Rule 12(b), M.R.CivP.

Debra Steffani Irving (Steffani) was first employed by School District 1-1A, Valley County (School District) in October 1985. She was rehired on a full time basis in 1986, and again in 1987. During the 1986-1987 and 1987-1988 academic years, Steffani taught part time in a social studies position and part time in a Spanish position in Glasgow High School. Throughout this period of time, she was evaluated as adequate and above average in her teaching ability. She did not obtain tenure, however, because her contract was not renewed for the requisite fourth year.

According to Steffani, she was a victim of continual harassment which was perpetrated by officials at the School District. According to her statement of facts, the principal of Glasgow High School attempted to terminate her in 1987 by recommending that her teaching contract not be renewed for the 1987-1988 school year. He justified his actions by maintaining that the elimination of Steffani’s job was part of a necessary reduction in force. The School Board apparently disagreed with the principal and renewed Steffani’s contract for the 1987-1988 academic year.

According to Steffani’s complaint, the high school principal was undeterred by the School Board’s action. She maintains that after her renewal in 1987, the principal vowed that he would “get her next year.” The following year the School District did not renew her contract.

Under the authority of § 20-4-206, MCA, Steffani asked the School Board for a list of reasons for her non-renewal. In compliance with her request, the School Board told her she was not renewed due to financial considerations, declining enrollment and that she was not rehired due to a reduction in force. Following her non-renewal, the responsibility of teaching Spanish was given to Karen Ortmann, a tenured teacher who taught part time since 1984.

Steffani filed a notice of appeal with the Valley County Superintendent of Schools. This appeal was dismissed after the Superintendent ruled that she did not have jurisdiction to hear the claim. This ruling was affirmed by the State Superintendent of Public Instruction on May 1, 1989.

Steffani also filed a complaint in District Court alleging breach of contract, bad faith, fraud, violations of provisions of the state and federal constitutions and an action under 42 U.S.C. § 1983. After the State Superintendent denied jurisdiction of her administrative claims, Steffani amended her complaint to add an appeal of that decision. Eventually, Steffani’s lawsuit was dismissed under Rule 12(b) for failure to state a claim for which relief can be granted. Steffani appeals this dismissal. The substance of her complaint will be discussed in greater detail below.

Rule 12(b), M.R.Civ.P., provides that a defendant may, through a motion, raise the defense that the plaintiff has not stated a claim upon which relief can be granted. When considering such a motion, the District Court must consider only the sufficiency of matters raised in the complaint. It must not go beyond the four corners of the complaint, nor may it engage in any fact finding. Nordlund v. School District No. 14 (1987), 227 Mont. 402, 738 P.2d 1299, [6 Ed.Law 179], A complaint should not be dismissed unless it appears beyond doubt that the plaintiff can prove no set of facts in support of her claim which will entitle her to relief. Proto v. Missoula County (1988), 230 Mont. 351, 749 P.2d 1094. With this standard in mind, we will review Steffani’s complaint to determine whether it was properly dismissed.

In Count I of her second amended complaint, Steffani seeks judicial relief from an administrative order of the State Superintendent of Education. That order denied jurisdiction of her appeal of the School Board’s decision to not renew her contract. Steffani also seeks damages which she alleges resulted from a closed meeting held by the School Board.

The District Court upheld the State Superintendent’s order on the grounds that Steffani did not timely file her appeal. A review of the record, however, reveals that Steffani did file her appeal within the sixty day period provided by § 20-3-107(2), MCA. However, the Superintendent denied jurisdiction of Steffani’s appeal because she found that as a non-tenured teacher, Steffani was not entitled to a hearing. We agree with this reasoning.

Because Steffani was non-tenured she was not entitled to a hearing after her contract was not renewed. Rather, she was only entitled to a list of reasons for her non-renewal. See § 20-4-206, MCA. She requested and received written reasons for the School Board’s decision.

Nowhere in either the statutes or the collective bargaining agreement is Steffani given a right to appeal her non-renewal. Moreover, as a non-tenured teacher she has no legally recognized property right in a new contract. See Board of Regents v. Roth (1972), 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548. Therefore, she was not entitled to constitutional due process and did not have a legally cognizable claim under Montana law. Steffani did not present a claim upon which relief could be granted and the appeal of her administrative claim was properly dismissed.

As stated above, Steffani also seeks damages which she alleges were incurred when the School Board held a closed meeting in violation of Article II, Section 9 of the Montana Constitution. This provision requires all meetings of public bodies to be open to public scrutiny. The only exception to this rule is when the demands of individual privacy exceed the merits of public disclosure.

The Legislature has provided one remedy that can be utilized when Article II, Section 9 is violated. Section 2-3-213, MCA, provides that any decision made during an illegally closed meeting can be declared void by a District Court. A suit to void any such decision must be commenced within 30 days of the decision.

Steffani has not, however, sought to void the decision of the School Board. Instead, she has sought monetary damages. The damages she seeks to collect do not arise directly from the act of closing the meeting. Instead they arise from alleged acts of discrimination that may have occurred at that meeting. These damages have been sought in other portions of her complaint. In particular, they are recoverable under her § 1983 claims and therefore all damages sought here are merely duplicative. This cause of action was therefore properly dismissed.

In Count II of her complaint, Steffani alleges that the defendants committed fraud by supplying her with a false reason for her discharge and by leading her to believe that she would be interviewed for the Spanish position she held during the 1987-1988 school year. The first allegation fails on the basis of her pleadings.

In order to establish fraud, Steffani must prove nine elements:
1) the defendants made a representation;
2) the representation was false;
3) the representation was material;
4) the defendants knew the representation was false or were ignorant of its truth;
5) the defendants intended that the representation should be acted upon in the manner contemplated;
6) Steffani was ignorant of the representation’s falsity;
7) Steffani relied upon its truth;
8) Steffani had a right to rely upon the representation; and

9) as a proximate cause of this reliance suffered damages. Kinjerski v. Lamey (1979), 185 Mont. 111, 604 P.2d 782.

As stated above, Steffani maintains that the defendants fraudulently misled her to believe that her contract was not renewed due to an overall reduction in force. However, even if the defendants did attempt to mislead Steffani, she cannot establish an action for fraud. The sixth and seventh elements of this cause of action require that Steffani did not know the defendants’ representations were false and that she relied upon the assertions.

According to her pleadings, the school principal told her that he would “get her next year.” Steffani believed that this statement constituted a threat that her contract would not be renewed the following year. The threat was made after the principal unsuccessfully attempted to terminate her. If we assume that this threat in fact occurred, it is impossible to believe that Steffani thought she was non-renewed as part of a reduction in force. By her own pleadings she cannot establish a cause of action and this allegation was properly dismissed.

In her second allegation of fraud, Steffani maintains that the defendants misled her to believe that she would be interviewed for a teaching position in the Spanish department. She states that under the circumstances this assurance, which the defendants knew or should have known was false, prevented her from obtaining other work.

Rule 9(b), M.R.Civ.P, requires that the circumstances constituting fraud must be stated with particularity. In Fraunhoffer v. Price (1979), 182 Mont. 7, 594 P.2d 324, we stated:

“ ‘Of primary importance in understanding the particularity requirement of Rule 9(b) is the recognition that it does not render the general principles set forth in Rule 8 entirely inapplicable to pleadings alleging fraud; rather, the two rules must be read in conjunction with each other. It should be kept in mind that Rule 8(a) requests “a short and plain statement of the claim for relief ...” Thus, it is inappropriate to focus exclusively on the fact that Rule 9(b) requires particularity in pleading fraud. This is too narrow an approach and fails to take account of the general simplicity and flexibility contemplated by the rules ...

“ ‘The sufficiency of a particular pleading under Rule 9(b) depends upon a number of variables. For example, the degree of detail required often turns on the context in which the fraud is alleged to have occurred ... Perhaps the most basic consideration in making a judgment as to the sufficiency of a pleading is the determination of how much detail is necessary to give adequate notice to an adverse party and enable him to prepare a responsive pleading.’ Wright & Miller, Federal Practice and Procedure: Civil § 1298, p.406-07, 410, 415; Fraunhoffer, 182 Mont. 715, 594 P.2d 324, 328-329.”

She has identified the person who made the statement, the time the statement was made, that the defendants knew the statement was false, that she was misled and that she suffered damages. This information meets the rule set down in Fraunhoffer. Under this rule and under the guidelines established by Rule 12(b), she has stated a claim.

In Count III, Steffani alleges that the defendants breached several provisions of the Collective Bargaining Agreement, which was appended to and made part of her complaint. She maintains that the defendants breached Articles 5.3 and 5.4 which state:

“5.3 Fair and Equitable Treatment

“No teacher shall be disciplined, dismissed, reduced in rank or compensations, or deprived of any professional advantage without due process.

“5.4 Reduction in Force:
“a. In the event it becomes necessary to lay off certified tenure staff for any reason, staff shall be laid off in the reverse order of their seniority.
“b. For the purposes of a reduction in teaching staff, seniority and certification will be the criteria for lay-off within the system.
“c. Seniority will be defined as the length of total service in the district. Time off for approved leaves of absence will count for seniority purposes, and such leaves will not be considered as an interruption of service.
“d. When a teacher receives notification of termination under Article 5.4, Reduction in Force, he/she upon request, will be granted 1 day of his/her personal leave, with pay, for the purpose of a job interview.”

According to Steffani’s argument, she was entitled to the Spanish position because she had the most seniority. As stated earlier, Steffani worked for the School District for three years. When she was non-renewed, the Spanish position was given to a tenured teacher, who worked for the School District for four years under part time contracts. Steffani maintains that her full time experience exceeded the total experience of the part time teacher and that she therefore had more seniority. Her non-renewal, she argues, violated the seniority provisions contained in Article 5.4.

This argument, in light of the clear language of Article 5.4, is untenable. Section (a) of this provision clearly states that lay offs of certified tenure staff will occur in reverse order of seniority. Steffani was not tenured, and therefore this provision has no application to her.

Next Steffani alleges that the School District violated Article 5.3 because they did not afford her any due process before they decided to not renew her contract. Article 5.3 provides that “no teacher shall be disciplined, dismissed, reduced in rank or compensations, or deprived of any professional advantage without due process.” As a nontenure teacher who had no legitimate expectation of contract renewal, Steffani was not dismissed or deprived of any professional advantage. She received all benefits, privileges and rights she was entitled to. When her contract expired in the spring of 1988, her employment with the School District was terminated. She had no right to a new contract and consequently she was not entitled to any due process. This allegation does not state a cause of action.

Finally, Steffani alleges that the School District discriminated against her in violation of the Collective Bargaining Agreement because they did not pay the full amount of her health insurance. We need not explain this allegation in any detail. The face of the complaint reveals that this issue was resolved in the teacher’s favor in Glasgow Education Association v. Board of Trustees, Valley County, School District 1-1A (1990), 242 Mont. 478, 791 P.2d 1367. This allegation was, therefore, properly dismissed.

In Count IV, Steffani alleges that the defendants violated the Wrongful Discharge from Employment Act, §§ 39-2-901, et. seq., MCA. Section 39-2-912(2), MCA, states:

“This part does not apply to a discharge of an employee covered by a written collective bargaining agreement or a written contract of employment for a specified term.”

As this makes clear, this Act does not apply to Steffani and Count IV is dismissed.

In Count V Steffani alleges that the defendants breached the implied covenant of good faith and fair dealing and the code of governmental fair practices found at §§ 49-3-201, et seq., MCA. In Brinkman v. State of Montana (1987), 224 Mont. 238, 729 P.2d 1301, we held that a cause of action for breach of the covenant of good faith and fair dealing is barred when the litigant is subject to a collective bargaining agreement. Therefore, Steffani cannot receive damages for this allegation. See also Riley v. State of Montana (1988), 229 Mont. 518, 748 P.2d 455.

As stated above, Steffani alleges the defendants breached certain provisions of Governmental Code of Fair Practices. Sections 49-3-201, et. seq., MCA. This statute directs governmental agencies to “recruit, appoint, assign, train, evaluate and promote personnel on the basis of merit.” § 49-3-201(1), MCA. It forbids discrimination when the government seeks to carry out any of these duties. Steffani was not recruited, appointed, assigned, trained, evaluated or promoted. Rather, she was not rehired after her contract expired. Her allegation, therefore, does not fall under the purview of this statute and this cause of action similarly fails.

In Count VI, Steffani set forth several claims based upon alleged violations of her constitutional rights and 42 U.S.C. § 1983. In particular, she argues that the defendants, while acting under the color of state law, violated her rights to equal protection, free speech, association and due process. The District Court, in a very brief opinion, dismissed this count on the basis of immunity and because Steffani’s allegations were “insufficient to state a claim under Section 1983.”

On the basis of the District Court’s memorandum, it is impossible to discern the exact reasons for the dismissal of Steffam’s § 1983 claims. Her complaint, however, appears to adequately set forth a claim for relief. We therefore reverse the District Court’s order of dismissal and order further consideration of these allegations to determine which, if any, can proceed to ultimate resolution in trial.

Conclusion

The order of the District Court dismissing claims under the second allegation of Count II and Count VI is reversed and the claims reinstated. All other allegations, claims and counts of her complaint were properly dismissed and the District Court, on these issues, is affirmed. Pursuant to above, the case is remanded for further proceeding.

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

JUSTICE TRIEWEILER,

dissenting:

I dissent from the opinion of the majority.

This Court has as recently as April 30, 1991, refused to affirm summary dispositions of claims where the record is incomplete. Johnston v. American Reliable Ins. Co., et al., [248 Mont. 227,] 48 St.Rep. 405, 810 P.2d 1189 (Mont. 1991).

Pursuant to Rule 52(a), M.R.Civ.P.:

“[A]ny order of the court granting a motion under Rules 12 or 56 which is appealable to an appellate court shall specify the grounds therefor with sufficient particularity as to apprise the parties in the appellate court of the rationale underlying the ruling and this may be done in the body of the order or in an attached opinion.”

Plaintiff’s complaint was dismissed by the District Court pursuant to Rule 12(b)(6) for failing to state a claim upon which relief can be granted. Therefore, pursuant to Rule 52, plaintiff and this Court were entitled to an explanation from the District Court of the grounds for the dismissal of each of plaintiff’s claims.

In this case, plaintiff’s complaint alleges at least ten bases for relief. The District Court’s order dismissed all of them, but gave reasons only for the dismissal of plaintiff’s petition to set aside an administrative order and plaintiff’s claim for relief under 42 U.S.C. § 1983. The majority has now found both of those grounds to be either incorrect or inadequate, although they have, sua sponte, found another basis for denying review of the State Superintendent’s order.

The record in this case is almost nonexistent. The factual bases for the plaintiff’s claims and the legal bases for the denial of those claims have not been developed in the District Court.

It is particularly troubling that on the basis of this inadequate record this Court would enter such an expansive decision concluding that plaintiff has no right to any appeal under the Administrative Procedure Act; she has absolutely no rights under the collective bargaining agreement; and yet, she is precluded from recovery under either the Wrongful Discharge Act or pursuant to her employer’s duty of good faith and fair dealing, because at all times relevant she was covered by a collective bargaining agreement. This decision would seem to leave untenured teachers uniquely unprotected under Montana law from retaliatory action by their employers. On the basis of this record, I am unwilling to arrive at such a sweeping conclusion.

For these reasons, I would remand this case to the District Court for proper compliance with Rule 52(a), M.R.Civ.P, before further consideration by this Court.

JUSTICE HUNT concurs with the foregoing dissent of JUSTICE TRIEWEILER.


author: JUSTICE McDONOUGH

text:
    In the Matter of the ESTATE OFROBERT D. GRIFFIN, Deceased.
    No. 90-417.
    Submitted on briefs April 25, 1991.
    Decided June 4, 1991.
    248 Mont. 472.
    812 P.2d 1256.

      J. Richard Orizotti, Poore, Roth & Robinson, Butte, for appellant.
    David A. Grauman, Jardine & Grauman, Whitehall, W. William Leaphart, Leaphart Law Firm, Helena, for respondent.
    John K. Hencz, Clancy, pro se.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

This case involves the resolution of an entitlement to part of an estate (auto parts business) on a motion for summary judgment. The decedent’s son, Barry Griffin, appeals the order of the Montana Fifth Judicial District Court, Jefferson County, granting summary judgment to the decedent’s surviving spouse, Jeri Griffin. The District Court held that the surviving spouse’s renunciation of her interest in the estate and an agreement between the surviving spouse and son, purporting to transfer her daughter’s interest to the son, were null and void. We affirm.

The issues on appeal are:

(1) Did the District Court err in determining the “Disclaimer” signed by the surviving spouse and renouncing any and all right and interest in the decedent’s auto parts business was void as a matter of law?
(2) Did the District Court err in determining that an agreement between the surviving spouse and the son, whereby the surviving spouse purportedly sold her minor daughter’s interest in the decedent’s auto parts business, was void as a matter of law?

The undisputed facts in this case are as follows. In April of 1985, the decedent and Jeri Griffin (the surviving spouse) were married. At the time of the marriage the decedent had two adult children, Lori Hencz and appellant Barry Griffin (the son). The surviving spouse had a minor child, Angela, whom the decedent adopted. In the spring of 1986, the surviving spouse and minor daughter left the decedent and moved to Oregon. On November 28, 1987, the decedent died intestate.

On January 11, 1989, the surviving spouse entered into a purported agreement with the son on behalf of her minor daughter. Under this agreement, the son would acquire the minor daughter’s interest in decedent’s auto parts business in exchange for payments totaling $16,000.00 to be made by the son to a trust set up for the minor daughter. On the same date, the surviving spouse signed an instrument entitled “Disclaimer” purporting to “... relinquish, renounce and disclaim any and all rights ... in and to Magicland Sales and Service...” “Magicland” is the auto parts business. In the “Disclaimer”, the surviving spouse requested that her share in the business be distributed to decedent’s son, who currently operated the business. She retained possession of the “Disclaimer.”

On May 11, 1988, the surviving spouse signed an instrument entitled “Renunciation of Disclaimer” purporting to “... irrevocably cancel, revoke, rescind and withdraw the Disclaimer executed by her on January 11,1988...” On December 28,1988, the surviving spouse simultaneously filed both the purported “Disclaimer” and the “Renunciation of Disclaimer” in the estate proceeding.

The surviving spouse alleges that over the several months after being appointed as personal representative of the estate she learned that the decedent’s business was worth significantly more than the amount she had considered when she signed the purported agreement regarding her daughter’s interest in the estate and the purported disclaimer. The son argues that she had knowledge of Magicland’s worth due to her involvement in the business and that it was her agent, a real estate broker, who valued the business at the time the instruments were executed, pursuant to her direction. He further alleges on appeal that genuine issues of material fact exist regarding her knowledge of the business’s worth at the time the instruments were executed and whether she ratified the agreement regarding her daughter’s interest.

I. Renunciation of Succession

The effect of the “Disclaimer” executed by Jeri Griffin is governed by § 72-2-101, MCA, entitled “Renunciation of succession.” The statute allows an individual to renounce his or her right to succession by filing a written renunciation (a) describing the property or interest renounced; (b) signed by the person renouncing; and (c) declaring the renunciation and the extent thereof. Section 72-2-101(1), MCA. Unless the transferor (decedent here) of the interest has otherwise provided, the property or interest renounced devolves as though the person renouncing had predeceased the decedent. Section 72-2-101(4), MCA. The parties do not argue, nor will we determine, the effect of subsection (4) of the statute on the purported “Disclaimer” in favor of the son in this case. Rather, our decision here is based on the filing requirements of the statute.

In particular, the statute provides that “[i]f the circumstances that establish the right of a person to renounce an interest arise as a result of the death of an individual, the instrument must also be filed in the court of the county where proceedings concerning the decedent’s estate are pending or where they would be pending if commenced.” Section 72-2-101(3), MCA. The plain language of the statute requires that the disclaimer be filed, thus filing of the disclaimer is a condition precedent to an effective renunciation. See e.g. Matter of Estate of Griffin (Okla. 1979), 599 P.2d 402, 406; Matter of Estate of Brewington (1981), 110 MichApp. 672, 313 N.W.2d 182, 186. Furthermore, there can be no waiver of a right to succession where there is no intent to waive. Faught v. Estate of Faught (Tenn. 1987), 730 S.W.2d 323, 326. Here the “Disclaimer” of the surviving spouse’s interest was filed simultaneously with the second instrument “cancelling], revok[ing], rescinding], and withdrawing]” the renunciation. Thus, at the time the alleged “Disclaimer” was to be given legal effect the surviving spouse did not intend to renounce her interest. We hold that the District Court correctly concluded that the “Disclaimer” was void as a matter of law. Thus, any factual issue concerning the surviving spouse’s knowledge of the value of the decedent’s business is rendered immaterial for purposes of summary judgment. See Rule 56(c), M.R.Civ.P.; Frigon v. Morrison-Maierle, Inc. (1988), 233 Mont. 113, 117, 760 P.2d 57, 60; Cerek v. Albertson’s, Inc. (1981), 195 Mont. 409, 411, 637 P.2d 509, 511.

II. Agreement Conveying Minor’s Interest

The second issue is whether the District Court erred in determining that an agreement between the surviving spouse and the son, whereby the surviving spouse purportedly sold her daughter’s interest in the decedent’s business, was void as a matter of law. The appellant concedes on appeal that at the time the agreement was entered into on January 11, 1988, the surviving spouse had not yet been appointed as conservator for the minor child and thus was without legal authority to act for her minor daughter. The appellant argues that after the surviving spouse was appointed conservator on January 28, 1988, she took no action to notify the appellant of her change in position that she would not perform the agreement and that genuine issues of material fact exist as to whether her passive conduct amounts to a ratification of the earlier agreement.

We disagree. The parties never entered a valid contract in this case. The agreement was not a voidable contract enforceable at the will of the innocent party. See e.g. Greater Iowa Corp. v. McLendon (8th Cir. 1967), 378 F.2d 783, 792. Rather, because the surviving spouse had no authority to enter the contract on behalf of her minor child, the agreement was void at its inception. See e.g. Belgrade State Bank v. Swainson (1977), 172 Mont. 350, 359, 564 P.2d 174, 179. Furthermore, “ [a] void contract is no contract at all; it binds no one and is a mere nullity. * * * It requires no disaffirmance to avoid it... ” Homes v. City of Poison (1950), 123 Mont. 469, 484, 215 P.2d 950, 958; overruled on other grounds in Prezeau v. City of Whitefish (1982), 198 Mont. 416, 420, 646 P.2d 1186, 1189. “A void contract is one which never had any legal existence or effect, and it cannot in any manner have life breathed into it.” National Union Indemnity Co. v. Bruce Bros., Inc. (1934), 44 Ariz. 454, 38 P.2d 648, 652. See also, generally Restatement (Second) of Contracts § 7, comment a; § 163, comment c; § 174, comment b. The contract here is void, hence there can be no material fact issue concerning its ratification.

We hold that the District Court correctly concluded that both the “Disclaimer” and the agreement purporting to convey the minor’s interest are void. These determinations being purely questions of law, summary judgment was appropriate. See Rule 56(c), M.R.Civ.P; Frigon, 760 P.2d at 60; Cerek, 637 P.2d at 511. The order of the District Court is

AFFIRMED.

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


author: JUSTICE WEBER

text:
    RUSSELL DEWEY ALLMARAS, Plaintiff and Appellant, v. YELLOWSTONE BASIN PROPERTIES, a Montana corp., and PATTEN CORPORATION, a foreign corp., Defendants and Respondents, RICHARD RIOS, Plaintiff and Appellant, v. YELLOWSTONE BASIN PROPERTIES, a Montana corp., and PATTEN CORPORATION, a foreign corp., Defendants and Respondents.
    No. 90-552.
    Submitted on briefs Apr. 11, 1991.
    Decided June 4, 1991.
    248 Mont. 477.
    812 P.2d 770.

      Walter H. Madden, Karl Knuchel, Livingston, for plaintiffs and appellants.
    Todd R. Hillier, Josephson & Fredricks, Big Timber, John F. Sullivan, Hughes, Kellner, Sullivan & Alke, Helena, Gene I. Brown, Landoe, Brown Law Firm, Bozeman, for defendants and respondents.
   JUSTICE WEBER

delivered the Opinion of the Court.

Plaintiffs, Russell Dewey Allmaras and Richard Rios, initiated this suit in the District Court for the Eighteenth Judicial District, Gallatin County, alleging statutory wrongful discharge (Count I), common law discharge (Count II), and violation of the implied covenant of good faith and fair dealing (Count III). The District Court granted the defendants’ motion for partial summary judgment on Counts II and III. The consolidated cases were then tried to a jury on Count I only. The jury found that plaintiffs had not been wrongfully discharged. Plaintiffs appeal, presenting five constitutional challenges to the Wrongful Discharge Act found in Title 39, Chapter 2, Part 9, MCA. We find no merit in any of the constitutional claims, and affirm the District Court’s grant of partial summary judgment on Count’s II and III.

The issues are:

1. Does the Wrongful Discharge Act violate the right of trial by jury under the Montana Constitution?
2. Does the Wrongful Discharge Act violate the privileges and immunities clause and the equal protection clause of the Montana Constitution?
3. Does the Wrongful Discharge Act impair the obligation of contracts in violation of the Montana Constitution?
4. Does the Wrongful Discharge Act violate substantive due process in violation of the Montana Constitution?

Yellowstone Basin Properties, Inc. (Yellowstone Basin) is a Montana corporation and wholly owned subsidiary of Patten Corporation. Yellowstone Basin hired plaintiffs as real estate sales representatives for the company. Yellow Basin terminated both plaintiffs’ employment with the company and this suit followed.

I

Does the Wrongful Discharge Act violate the right of trial by jury under the Montana Constitution?

Plaintiffs argue that because the Wrongful Discharge Act places a cap on the amount of damages recoverable for wrongful discharge, the right to have a jury determine damages has been infringed in violation of Article II, § 26, of the Declaration of Rights of the Montana Constitution. It is a well-established principle that a party does not have standing to challenge the constitutionality of a statute unless he has been adversely affected by the challenged statute. Jones & Herriott v. Judge (1978), 176 Mont. 251, 253, 577 P.2d 846, 847-48; Chovanak v. Matthews (1948), 120 Mont. 520, 526, 188 P.2d 582, 585. This Court declines consideration of constitutional issues which are rendered moot by jury verdicts or court judgments. See Stelling v. Rivercrest Ranches, Inc. (1986), 224 Mont. 313, 316, 730 P.2d 388, 390-91.

The jury determined that Allmaras and Rios were not wrongfully discharged. Based on this jury verdict, Allmaras and Rios are not entitled to damages under the Wrongful Discharge Act, and therefore cannot claim to be injured by the cap on damages contained in the Act. Stelling, 224 Mont. at 317, 730 P.2d at 391. We hold that Allmaras and Rios do not have standing to challenge the constitutionality of the cap on damages under the theory that the Wrongful Discharge Act violates the right of trial by jury under the Montana Constitution.

II

Does the Wrongful Discharge Act violate the privileges and immunities clause and the equal protection clause of the Montana Constitution?

Allmaras and Rios argue that the Wrongful Discharge Act creates classifications that discriminate in violation of the privileges and immunities clause and the equal protection clause of the Montana Constitution. Article II, § 31, reads:

“No ex post facto law nor any law impairing the obligation of contracts, or making any irrevocable grant of special privileges, franchises, or immunities, shall be passed by the legislature.”

Article II, § 4, reads in part:

“... No person shall be denied the equal protection of the laws ... Allmaras and Rios contend that the Wrongful Discharge Act creates a discriminatory classification by excluding from the scope of the Act wrongful discharge claims brought by employees covered by collective bargaining agreements or other written employment contracts and claims covered by other specific statutory remedies such as the Montana Human Rights Act. In sum, Allmaras and Rios argue that because they are in the class that is covered by the Act, they are denied the right to bring the common law tort actions found in Counts II and III of their complaint. Count II claimed common law wrongful discharge and Count III claimed breach of the implied covenant of good faith and fair dealing.

The Wrongful Discharge Act does not change the common law in recognizing that a general statutory remedy for wrongful discharge should not apply to those classes of cases in which the employees enjoy other specific contractual or statutory remedies. Under common law, tort claims for wrongful discharge and breach of the implied covenant of good faith and fair dealing were available only to at-will employees. These tort remedies were developed specifically to provide redress for employees who had no legal protection against wrongful discharge. See Dare v. Montana Petroleum Marketing Co. (1984), 212 Mont. 274, 687 P.2d 1015; Brinkman v. State (1986), 224 Mont. 238, 729 P.2d 1301. Persons employed under term contracts or collective bargaining agreements were not allowed to sue in tort, but rather were required to seek remedies under their contracts or collective bargaining agreements. Brinkman, 224 Mont. 238, 729 P.2d 1301; Fellows v. Sears, Roebuck and Co. (1990), [244 Mont. 7,] 795 P.2d 484; Nordlund v. School Dist. No. 14 (1987), 227 Mont. 402, 738 P.2d 1299 [6 Ed.Law 179]. Likewise, claims arising under discrimination statutes such as the Human Rights Act and the Governmental Code of Fair Practices may not form the basis of a tort claim. Sections 49-2-509(7) and 49-3-312(7), MCA; Harrison v. Chance, (1990) 797 P.2d 200.

Plaintiffs’ argument that the codification of the common law tort of wrongful discharge denies them the right to claim the common law tort of wrongful discharge is without merit for the same reasons that plaintiffs did not have standing to challenge the constitutionality of the limitations on damages. As already stated under Issue I, a party does not have standing to challenge the constitutionality of a statute unless he has been adversely affected by the challenged statute. Jones & Herriott, 176 Mont. at 253, 577 P.2d at 847-48. Since the classifications established in the Act are the same as those under common law, plaintiffs cannot claim that they have been adversely affected by the loss of the common law tort claim. We hold that Allmaras and Rios have no standing to challenge the constitutionality of the Wrongful Discharge Act’s elimination of the common law tort of wrongful discharge under the theory that the Act creates discriminatory classifications in violation of the privileges and immunities clause and the equal protection clause of the Montana Constitution.

The Wrongful Discharge Act does however prevent plaintiffs’ claims of breach of the implied covenant of good faith and fair dealing. § 39-2-912, MCA. In 1982, this Court set forth the employer’s duty of good faith and fair dealing. Gates v. Life of Montana Ins. Co. (1982), 196 Mont. 178, 638 P.2d 1063. Plaintiffs apparently are asserting that it is a violation of their constitutional rights for the legislature to eliminate this common law cause of action. “No one has a vested interest in any rule of common law” and as a general rule, “the legislature, under its plenary power to act for the general welfare, may alter common law causes of action.” Meech v. Hillhaven West, Inc. (1989), 238 Mont. 21, 31, 776 P.2d 488, 494. For policy reasons, the Legislature has debated and passed statutes in a number of legal areas that take away causes of action or constrict liability. Meech, 238 Mont. at 33,776 P.2d at 495. The general rule that no one has a vested interest in a rule of common law refutes the plaintiffs’ argument that the Act unconstitutionally deprives them of the fundamental right to a claim of breach of the implied covenant of good faith and fair dealing. Meech, 238 Mont. at 34-35, 776 P.2d at 496.

We hold that there is no merit in plaintiffs’ claim that the Wrongful Discharge Act’s elimination of breach of the common law tort claim of the implied covenant of good faith and fair dealing violates the privileges and immunities clause and the equal protection clause of the Montana Constitution.

III.

Does the Wrongful Discharge Act impair the obligation of contracts in violation of the Montana Constitution?

The Wrongful Discharge Act became effective on July 1, 1987. Plaintiff, Allmaras, claims that he went to work on or about July 1,1987, and that the parties of necessity would have had to come to an agreement on his contract prior to that date. Therefore imposing the limitations found in the Act impairs the obligation of his contract in violation of Article II, § 31, which reads:

“No ex post facto law nor any law impairing the obligation of contracts, or making any irrevocable grant of special privileges, franchises, or immunities, shall be passed by the legislature.” Allmaras presented no evidence that the parties entered into an agreement prior to July 1, 1987. The only evidence before the trial court on this point was the affidavit of the person who hired Allmaras as a sales representative for Yellowstone Basin. The company’s records show that Allmaras began his employment on or about July 20, 1987. We hold that Allmaras failed to present any evidence to support his contention that the Wrongful Discharge Act impaired the obligations under his contract in violation of the Montana Constitution.

IV.

Does the Wrongful Discharge Act violate substantive due process in violation of the Montana Constitution?

Plaintiffs cite no legal authority, nor do plaintiffs explain how the Wrongful Discharge Act violates substantive due process beyond a reiteration that it is discriminatory, which has already been addressed under Issue II. Rule 23(a)(4), M.R.App.P. requires the appellant to file a brief containing “the contentions of the appellant with respect to the issues presented, and the reasons therefor, with citations to the authorities ... relied on.” Plaintiffs’ due process argument fails to comply with this requirement and this Court will not address this issue.

Affirmed.

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


author: JUSTICE HARRISON

text:
    SAM R. HALL, Claimant and Appellant, v. ATLANTIC RICHFIELD CO., (ARCO ALUMINUM), Employer,and CIGNA INSURANCE COMPANY, Defendant, Insurer and Respondent.
    No. 90-562.
    Submitted on briefs May 10, 1991.
    Decided June 4, 1991.
    248 Mont. 484.
    812 P.2d 1262.

      John C. Doubek, Small, Hatch, Doubek & Pyfer, Helena, for claimant and appellant.
    Michael C. Prezeau, Garlington, Lohn & Robinson, Missoula, for defendant, insurer and respondent.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Sam R. Hall appeals from the judgment of the Montana Workers’ Compensation Court entered September 7,1990, denying him medical benefits, attorney’s fees, costs, and penalties. We affirm.

Hall presents the following issues:

1. Does substantial evidence support the conclusion of the Workers’ Compensation Court that Atlantic Richfield Co. (ARCO) is not responsible for Hall’s medical bills?
2. Did the Workers’ Compensation Court err by not finding claimant temporarily totally disabled or “presently” permanently totally disabled?

Summary of Facts

Sam R. Hall, age 38, has a long history of injuries incurred while employed for several different companies and while engaged in other pursuits.

In 1973 Hall injured his back while operating a jack hammer for a construction company in the Seattle area and approximately a month afterward again injured his back and left shoulder in an automobile accident. Hall later worked for Boeing Company and was terminated from that job because of neck injuries sustained in a skiing accident which made lifting of heavy materials difficult. In 1978 Hall was examined by a physician who diagnosed lower back pain secondary to arthritis and chronic cervical spinal injuries. The doctor recommended an exercise program and stated that “no restriction on his job is made.”

Hall began working for ARCO and its predecessor, Anaconda Aluminmn, on September 11, 1979. Hall alleges that he injured his lower back on three or more occasions while working for ARCO. On November 11,1980, Hall injured his back whenhe struck a wire while running and was catapulted into the air, landing on his back. Hall filed no claim and received no benefits. Less than a month later, Hall went to a doctor about back pain, but did not attribute the pain to a particular event. On September 8, 1981, Hall injured his left arm when he accidentally struck an “I” beam at the aluminum plant.

Hall returned to work for Plum Creek Timber in 1982. On March 15, 1983, he sustained an on-the-job injury to his right knee which required surgery. Hall later received a $21,000 settlement for the knee injury. While employed by Plum Creek, Hall saw a doctor for a lower back injury incurred while he was lifting heavy logs.

Hall went to work for ARCO in 1984 after having passed a Cybex test and a physical examination. On May 5,1984, he injured his neck, shoulder, and middle back when he slipped backwards while raking a pot at the aluminum plant. A doctor who examined Hall said that he had pulled a trapezius muscle, an injury which does not usually cause permanent disability. About a year later, on July 14,1985, Hall was thrown out of the seat of a sweeper, injuring his neck, shoulders, and back, and requiring stitches for a cut on his head. According to the Statement of Uncontested Facts included in the findings of the Workers’ Compensation Court, ARCO accepted liability for the May 5,1984 and July 14,1985 injuries and paid compensation and medical benefits relating to those claims. During his court testimony, Hall also claimed an injury to the left ankle in 1984 or 1985.

On September 15, 1985, Columbia Falls Aluminum Company (CFAC) purchased the ARCO aluminum plant. While employed by CFAC, Hall injured his neck and shoulders on October 17, 1985; his left elbow on October 8, 1986; and his right knee and back on December 11, 1986. Hall received a $50,000 settlement for the 1986 injuries. A claim is still pending for the injuries suffered in 1985.

The 1986 elbow injury resulted in acute avulsion fracture of the elbow with tendonitis. Another doctor diagnosed olecranon bursitis with no evidence of ulnar neuropathy. On December 9, 1986, the doctor recorded that the bursitis in Hall’s elbow was resolving itself and released Hall to light-duty work.

In a letter dated December 18, 1986, Hall resigned from CFAC because of “problems I continue to experience with my elbow” and because “my knee also is aggravated by even normal use.”

Since terminating his job at CFAC, Hall has not looked for employment. Hall acknowledged that he could be employed if he were willing to work for minimum wage.

According to his treating physician, John V. Stephens, M.D., with the exception of his left elbow injury, Hall had reached maximum healing.

Hall filed claims with ARCO’s insurer for payment of accumulated medical bills, maintaining that he continued to suffer pain in his left elbow from the September 1981 accident at ARCO and pain in his cervical and lower back from several other injuries he incurred while working for ARCO. When ARCO’s insurer refused to accept liability, Hall petitioned the Workers’ Compensation Court to receive medical benefits from ARCO.

The Workers’ Compensation Court concluded that Hall is not temporarily totally disabled and that medical evidence did not establish that Hall is disabled from injuries he sustained while working for ARCO. From this judgment, Hall appeals.

I

Does substantial evidence support the conclusion of the Workers’ Compensation Court that ARCO is not responsible for Hall’s medical bills?

Hall first alleges that testimony of Dr. Stephens, his treating physician since May 14, 1987, establishes that his right knee, left ankle, and back pain are attributable to injuries sustained while working for ARCO.

The well-established standard for review of a decision of the Workers’ Compensation Court is whether substantial evidence supports the court’s findings and conclusions. The Montana Supreme Court cannot substitute its judgment for that of the Workers’ Compensation Court about the weight of the evidence and questions of fact, and this Court’s function is not to determine whether sufficient evidence supports contrary findings. O’Brien v. Central Feeds (1990), 241 Mont. 267, 271-72, 786 P.2d 1169, 1172. Where substantial evidence supports the conclusions of the Workers’ Compensation Court, this Court cannot overturn the decision. Wood v. Consolidated Freightways, Inc. (Mont. 1991), [248 Mont. 26,] 808 P.2d 502, 504, 48 St.Rep. 306, 306-307.

Hall had to prove by a preponderance of the evidence that his current disabilities were caused by injuries sustained during his employment with ARCO. Dumont v. Wickens Bros. Construction Co. (1979), 183 Mont. 190, 201, 598 P.2d 1099, 1106. Hall failed to meet his burden of showing that his current medical condition is attributable to injuries suffered while Hall was employed by ARCO.

The first record of a back injury was in 1973, several years before Hall began working for ARCO in 1979. Although Hall asserts that he hurt his back several times while working for ARCO, the record does not reveal serious back injuries to Hall because of accidents reported to ARCO. No dates or records exist of some of the claimed incidents resulting in back injuries. Hall did not miss prolonged periods of work at ARCO due to injuries. Subsequent to termination of his employment with ARCO in 1982, Hall suffered another injury to his lower back while lifting logs at his job with Plum Creek Timber. After he returned to employment with ARCO, Hall pulled a trapezius muscle which, according to medical evidence, would not have resulted in permanent damage. Finally, when resigning from CFAC, the company which bought the aluminum plant from ARCO, Hall did not even mention back pain among his medical complaints in his letter of resignation.

Similarly, although Hall contends that his problems with his right knee stem from a 1984 accident at ARCO, the evidence shows that he injured his right knee initially in 1983 while working for Plum Creek Timber and received a $21,000 settlement. In 1986 Hall again injured his right knee while employed with CFAC and later collected a settlement for that injury.

Hall alleges that the Workers’ Compensation Court ignored the testimony of Dr. Stephens who found it “medically probable that the right knee condition was aggravated upon return to work [with ARCO] in 1984 ... because of the significant amounts of bending, lifting and being on concrete surfaces.” Hall failed to present independent supporting evidence of injury to his right knee while he was employed with ARCO.

As for the injury to the right ankle, Hall was unable to recall the day or year of the injury. He testified that he did not miss work because of this injury and did not remember filing a claim for the ankle injury.

As stated by the Workers’ Compensation Court, “[t]he problem with this case is that while claimant alleges that he sustained a number of injuries while employed by ARCO, he rarely missed more than a few days of work and he rarely reported the alleged injuries to his employer or his physician.” Hall failed to present sufficient evidence to demonstrate that his current medical condition can be ascribed to injuries which occurred during his employment with ARCO.

Hall next asserts that medical benefits payable to an injured worker are additional, separate, and apart from workers’ compensation benefits and that ARCO accepted liability for Hall’s medical bills when it accepted liability for his injuries of May 5,1984 and July 14, 1985. According to the court’s Statement of Uncontested Facts, the compensation and medical benefits for the May 5,1984 and July 14, 1985 injuries have been paid.

Hall further argues that ARCO has not paid medical bills for other injuries sustained while employed at ARCO. As we have already determined, ARCO is not liable for Hall’s current medical condition, and Hall is not entitled to medical benefits.

We hold that sufficient evidence supported the conclusion of the Workers’ Compensation Court that Hall failed to demonstrate by a preponderance of the evidence that his current medical condition is attributable to employment with ARCO.

II.

Did the Workers’ Compensation Court err by not finding claimant temporarily totally disabled or “presently” permanently totally disabled?

We need not discuss this issue since we have upheld the judgment of the Workers’ Compensation Court that Hall’s medical condition did not result from an injury sustained while working for ARCO.

Affirmed.

JUSTICES HUNT, TRIEWEILER, WEBER and McDONOUGH concur.


author: JUSTICE HUNT

text:
    LESTER NORMAN, Claimant/Appellant, v. CITY OF WHITEFISH, Employer, and CITY OF WHITEFISH, Defendant/Respondent.
    No. 90-564.
    Submitted on briefs Feb. 28, 1991.
    Decided June 4, 1991.
    Rehearing Denied July 25, 1991.
    248 Mont. 490.
    812 P.2d 1259.

      John H. Bothe, Bothe & Lauridsen, Columbia Falls, for claimant/appellant.
    Oliver H. Goe, Browning, Kaleczyc, Berry & Hoven, Helena, for defendant/respondent.
   JUSTICE HUNT

delivered the opinion of the Court.

Claimant Lester Norman appeals from an order of the Workers’ Compensation Court denying him temporary total disability benefits.

We affirm.

Two issues are raised on appeal:

1. Whether substantial credible evidence supports the Workers’ Compensation Court’s finding that claimant’s current condition is not causally related to his injury of February 12, 1987; and
2. Whether the court’s order on rehearing is inconsistent with its prior findings and conclusions regarding the causal relationship between claimant’s current condition and the February 12, 1987, injury.

Claimant Lester Norman was employed as a police officer for the City of Whitefish from 1969 until 1975, and again from 1979 until 1988, when he voluntarily left the force. Norman suffered compensable auto accident injuries on November 16, 1980, and February 12, 1987. He timely reported both injuries and filed appropriate claim forms. He suffered no immediate wage loss from either accident. Following the February 1987 accident, Norman continued to work until March 1988, when he quit due to what he characterized as a “nervous breakdown.” He subsequently pursued disability retirement benefits, claiming his disability was from stress. No mention was made of any disability related to the February 12, 1987, auto accident.

On or about December 5,1989, Norman filed a petition for hearing with the Workers’ Compensation Court, alleging that the City of Whitefish was liable for his accident of February 12,1987. When the matter was heard in March 1990, the issues presented were: (1) whether Norman’s current cervical condition is related to the February 12, 1987, accident; (2) if it is related, whether Norman is entitled to temporary total disability benefits and medical benefits; and (3) whether he is entitled to a 20 percent delay increase. The court found, in August 1990, that Norman had failed to prove that his current inability to work was proximately caused by his February 12, 1987, auto accident, and that therefore, he was not entitled to temporary total disability benefits, or fees, c2osts, or penalty.

Norman then filed a motion for clarification, requesting the court to order the City of Whitefish to accept liability for his current cervical condition and pay medical benefits accordingly. The court classified Norman’s motion for clarification as a motion for rehearing and denied it on the basis of its former finding that Norman lacked the requisite credibility to support a finding that the February 12, 1987, injury was medically related to his current cervical complaints. Norman appeals from that denial.

Does substantial credible evidence support the Workers’ Compensation Court’s finding that the claimant’s current condition is not causally related to his injury of February 12, 1987?

The general rule is that the findings of the Workers’ Compensation Court will not be overturned on appeal if substantial evidence supports them. Nelson v. ASARCO, Inc., 227 Mont. 272, 277, 739 P.2d 943, 946 (1987). Norman claims that he presented substantial evidence to show that the February 1987 accident, which occurred while he was working for the City of Whitefish, aggravated a pre-existing shoulder and back condition. He states that it is that condition which now prevents him from working, and that therefore, the City of Whitefish should be held liable. He argues that because his evidence was substantial and credible, the Workers’ Compensation Court’s decision not to grant benefits must have been erroneous.

Liability in workers’ compensation cases is defined in § 39-71-407, MCA (1985):

“Every insurer is hable for the payment of compensation, in the manner and to the extent hereinafter provided, to an employee of an employer it insures who receives an injury arising out of and in the course of his employment or, in the case of his death from such injury, to his beneficiaries, if any.”

An “injury” is defined as:

“[A] tangible happening of a traumatic nature from an unexpected cause or unusual strain resulting in either external or internal physical harm and such physical condition as a result therefrom ...” Section 39-71-119(1), MCA (1985). Norman reads these statutes together and reasons that because he had an injury and now claims a resultant physical condition the City is liable under § 39-71-407, MCA (1985).

A review of the evidence does not yield the result Norman now urges the Court to reach. The following excerpts of findings and conclusions by the Workers’ Compensation Court support its conclusion that the claimant is not entitled to benefits because he has failed to show a nexus between his 1987 injury and his present complaint:

1. The claimant was referred to a psychiatrist in February 1987 and was diagnosed with “generalized anxiety disorder and psychological factors influencing physical condition.”
2. Claimant expressed symptoms of worsening stress and anxiety in 1988, which eventually led him to quit the police force.
3. By October 1988, Norman’s psychiatrist indicated that Norman could return to work. By November 1988, the psychiatrist revised his opinion based on a report by another doctor that Norman had suffered another anxiety episode leading to an emergency room visit.
4. In the summer of 1989, a neurosurgeon diagnosed a herniated disc in Norman’s neck, which he stated was related to the auto accidents he had suffered in 1980 and 1987. On cross-examination in his deposition, the neurosurgeon stated that his opinion relating Norman’s cervical problems to his auto accidents was entirely dependent on the history related by Norman some two years after the fact. He further stated that the condition he diagnosed could be caused by trauma or by aging.
5. Norman was treated extensively by another doctor for his cervical complaints. His visits increased following the February 1987 accident, but at no time did the doctor advise Norman to quit work due to his physical problems.
6. During calendar year 1988, Norman’s claim for disability retirement benefits named stress as his disability.
7. The evidence is overwhelming that claimant’s anxiety disorder is his predominant disabling condition.

The City of Whitefish does not dispute that it must pay all medical and wage loss benefits to which Norman is entitled as a result of his February 1987 injury. However, the record shows that his present disability is stress or anxiety related. Because Norman has failed to show that the 1987 injury caused the condition which now results in his total loss of wages, and because the findings and conclusions of the Workers’ Compensation Court are supported by substantial credible evidence, the City of Whitefish is not liable for Norman’s present disability.

Is the court’s order on rehearing inconsistent with its prior findings and conclusions regarding the causal relationship between Norman’s current condition and the February 12, 1987, injury?

The court’s original order of August 23, 1990, stated as part of Conclusion of Law No. 3:

“Dr. Mahnke did diagnose two disk level problems which would require surgery. The Court does feel that given Dr. Mahnke’s report, plus Dr. Wensel’s office notes reflecting an increase in the number of visits claimant made for chiropractic manipulation following the February 12, 1987 auto accident, that claimant may well have a disability related to that event.”

Norman maintains that the court’s decision on the motion for rehearing on October 4, 1990, was inconsistent with the above conclusion, and therefore, this Court should direct the lower court to conform its judgment to the findings and conclusions, or vacate the judgment and remand to the lower court for more specific findings and consistent conclusions.

When read in their entirety, the August 1990 and October 1990 decisions of the Workers’ Compensation Court are specific and consistent. The above conclusion in the August order additionally states that:

“However, in order to be entitled to total disability benefits, the accident must cause the condition which results in claimant’s total loss of wages. Claimant has not met that burden.”

The October order states that:

“The prior ruling, in the Conclusions of Law, notes that claimant may well have some entitlement under the ACT for that February 12, 1987 event but that his lack of credibility fails to support a determination medically that claimant’s current cervical complaints can be related to the February 12,1987 accident. In short, he failed to meet the requisite burden of proof in that regard.”

The orders are consistent in their rationale that although Norman may have suffered a compensable injury in 1987, and that injury may be related to his current cervical problems, he has not shown in any respect that his total inability to work now is a result of the 1987 injury. His failure to prove the causal connection between injury and inability to work relieves the City of Whitefish of liability for his present total disability.

Affirmed.

JUSTICES HARRISON, TRIEWEILER, McDONOUGH and WEBER concur.