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    MARIE WHITING AND ROBERT WHITING, Plaintiffs and Respondents, v. STATE OF MONTANA, Defendant and Appellant, and HRIS A. PRADA, ANDREA M. PRADA, STACIE L. PRADA, individually and STEPHANIE PRADA, and ASHLEY PRADA, by and through their natural parents and best friends, GREGORY C. PRADA and CHRIS A. PRADA, and GREGORY C. PRADA, individually, Plaintiffs and Respondents, v. STATE OF MONTANA, Defendant and Appellant.
    No. 90-135.
    Submitted on briefs Mar. 14, 1991.
    Decided Apr. 30, 1991.
    Rehearing Denied May 30, 1991.
    248 Mont. 207.
    810 P.2d 1177.

      I. James Heckathorn, Murphy, Robinson, Heckathorn & Phillips, Kalispell, Patrick M. Driscoll, Chronister, Driscoll & Moreen, Helena, for defendant and appellant.
    Donald C. Robinson, Poore, Roth & Robinson, Butte (Whitings and Pradas), Richard M. Hodges, Van Horne, Vogt, Noall & Hodges, Denver (Pradas), for plaintiffs and respondents.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Defendant, State of Montana, appeals from a jury verdict of the Second Judicial District, Silver Bow County. The jury awarded plaintiffs, Whiting and Prada, damages for injuries sustained from a car accident caused, in part, because of an improperly marked exit ramp. The jury found that 42% of plaintiffs’ injuries were attributable to Whiting’s negligence and 58% were attributable to the State’s negligence. We affirm.

The issues are as follows:

1) Whether the verdict is supported by sufficient evidence in the record.
2) Whether the negligence of Marie Whiting was an intervening, superseding cause of the accident and if so, whether the District Court erred by not instructing the jury on superseding cause.
3) Whether the District Court erred in not granting a new trial because of the existence of an alleged quotient verdict.
4) Whether the District Court erred in not granting a new trial because of opposing counsel’s alleged misconduct.
5) Whether the District Court erred by refusing to allow evidence or to instruct on the Prada/Whiting settlement.
6) Whether the District Court erred in ruling that the State is liable for the torts of a joint tortfeasor.
7) Whether the District Court erred in the method of computing damages.

The undisputed facts are as follows:

Prior to August 18,1987 (date of accident) exit ramp 127B had been under recent reconstruction. The defendant State of Montana (State) has designed certain engineering specifications which require the State to place various warning signs (Do Not Enter, Wrong Way, Keep Right) at the end of all exit ramps. The State, through its employees of the Montana Department of Highways, failed to reinstall certain required warning signs at the end of exit ramp 127B after completion of the reconstruction project. Two ‘Wrong Way” signs were, however, in place along each side of the exit ramp and up about 368 feet from the ramp’s intersection point with Harrison Avenue.

The following sketch illustrates the scene:

On August 18,1987, at approximately 5:15 a.m. while it was still dark, a 1976 Chevrolet van driven by Marie Whiting collided, head on, with a 1985 Oldsmobile driven by Andrea Prada in the eastbound lane of Interstate 90 (1-90) near the Harrison Avenue interchange in Butte. Marie Whiting was the sole occupant of her vehicle. Chris Prada and her daughters Andrea, Stephanie, Stacie and Ashley were occupants of the Oldsmobile. As a direct result of the collision, the occupants of the vehicles suffered extensive damages, too numerous to detail.

The disputed facts largely focus on the path taken by Whiting on entering 1-90. At trial, the State contended that Whiting properly entered 1-90 from Harrison Avenue via the entrance ramp. The State further contended that after traveling east in the eastbound lane, Whiting made a U-turn and began traveling west in the eastbound lane thereby causing the head-on collision completely independent of the State’s negligent failure to mark the exit ramp. Conversely, the plaintiffs (Prada and Whiting parties) contend that Whiting entered 1-90 via the unmarked exit ramp which allowed her to travel, without warning, west in the eastbound lane for a short distance until colliding with the Prada vehicle.

Whiting and Prada brought separate actions against the State and both parties stipulated to consolidate in order to further judicial efficiency. However, the Pradas entered into a $300,000 settlement with the Whitings’ insurance carrier before they commenced their separate action against the State. On December 11,1989 the case was tried before a twelve person jury in Butte. On December 22,1989 the jury attributed 42% negligence to Whiting, 58% negligence to the State and returned a verdict in favor of plaintiffs. The court then entered a judgment for plaintiffs’ court costs and for money damages to all plaintiffs. The plaintiffs filed their cost bill on January 5,1990. The State subsequently filed a motion to Alter or Amend the Judgment and alternative motions for Judgment Notwithstanding the Verdict and for New Trial. The parties briefed and argued these motions and on February 28, 1990 the District Court entered an Opinion and Order which denied all of the State’s post-trial motions. The District Court also disallowed plaintiffs’ costs as untimely filed. From the judgment and order entered thereon, this appeal was taken.

I.

Evidence to Support the Jury Verdict

As we have ruled before, our review of a jury verdict is very narrow in scope. We shall not reverse the findings of a jury if they are supported by substantial credible evidence. Kitchen Krafters, Inc. v. Eastside Bank of Montana (1990), 242 Mont. 155, 789 P.2d 567. When determining whether substantial evidence exists to support the verdict, this Court must view the evidence in the light most favorable to the prevailing party. Kukuchka v. Ziemet (1985), 219 Mont. 155, 157, 710 P.2d 1361, 1363. Substantial evidence is defined as that evidence that a reasonable mind might accept as adequate to support a conclusion. Although the evidence may be inherently weak and conflicting, it may still be considered substantial. Local Union No. 400 v. Bosh (1986), 220 Mont. 304, 313, 715 P.2d 36, 42. Furthermore, when conflicting evidence exists, the, credibility and weight given to the conflicting evidence is within the jury’s province. Mountain West Farm Bureau Mutual Insurance Co. v. Girton (1985), 215 Mont. 408, 410, 697 P.2d 1362, 1363.

The State’s main contention is that the evidence does not support a finding that Whiting did, in fact, use exit ramp 127B to access 1-90 and that, therefore, plaintiffs have failed to prove that the State’s negligence caused plaintiffs’ injuries. The State argues, in its brief, that Whiting is the only witness who testified that she entered 1-90 via the exit ramp. The State complains that Whiting’s testimony conflicts and so it is both insubstantial, and incredible and that, therefore, the jury’s verdict which is based on this testimony is not sufficiently supported. We disagree. Certainly, any inconsistencies in witness testimony go directly to the issue of credibility. However, witness credibility is generally a matter for determination by the jury under proper instructions from the court. Cottrell v. Weinheimer (1960), 137 Mont. 347, 351 P.2d 543.

The jury had an opportunity to hear substantial testimony regarding the exit ramp and the path Whiting took to enter 1-90. Whiting testified that she was from out of town and unfamiliar with the Harrison Avenue Interchange and exit ramp 127B. Considerable evidence was introduced which demonstrated that this particular area of Harrison Avenue was confusing, particularly to motorists who were not familiar with the area. It is uncontested that the subject exit and entrance ramps are parallel and adjacent to each other. Furthermore, one large sign hangs overhead indicating two routes of travel, “North Interstate 15” and “East Interstate 90”, with a large arrow pointing in the direction of both ramps. Testimony was heard from Lieutenant Dan Butler of the Butte-Silver Bow Law Enforcement Agency, as well as from Bonnie Hancock and Don Kent who are both employees of a service station located across from the exit ramp. All three testified that each had observed motorists confused in the area and each had observed motorists turn into exit ramp 127B, and engage in a wrong way movement, in an attempt to use it as an entrance ramp to 1-90. The State does not dispute the finding that it had a duty to place various warning signs at the end of the exit ramp in order to warn motorists in the event of wrong way travel on the ramp. The State also does not dispute the fact that it failed to re-install these signs upon completion of a recent reconstruction project. Nor does the State dispute that there is evidence in the record which demonstrates that the State’s failure to re-install these signs created a hazardous situation. In fact, the State actually concedes that it was negligent for failing to re-install these warning signs. Rather, the State only disputes the finding that Whiting drove up exit ramp 127B and argues that it cannot be held responsible for plaintiffs’ admitted injuries because Marie Whiting’s testimony conflicts. The State devoted a good deal of text in its brief to point out potential conflicts in Whiting’s testimony. Regarding her access to 1-90, Mrs. Whiting testified that she used the second of two ramps, which, according to the exhibits, is exit ramp 127B.

“A. [Whiting] Well, I saw two streets running side-by-side and the first one had 15 — they both had — it had two signs above it, but I assumed the first one was for 15 and I turned right and began to go along a fairly straight stretch before it begins to curve onto the freeway.

“Q. Now, there are two roadways that you saw to your right?
“A. Yes.
“Q. Did you turn on the first or the second roadway?
“A. In the direction I was going, I guess you could say it was the second roadway; it was the second one I came to, but it was the first one if you are talking about the closest to the freeway.”

Mrs. Whiting also testified that she was on the freeway just a few seconds prior to impact. The State asserts that this testimony is inherently incredible because, if in fact she used exit ramp 127B, the distance she would have had to travel along the freeway, to reach the point of impact, would have necessarily taken her more than a few seconds. This is an argument that should be made to the jury, not this Court. As we have already pointed out, any inconsistency in a witness’ testimony goes to witness credibility and is a matter for the jury to consider. We do not find any inherent incredibilities sufficient to warrant a new trial.

Mrs. Whiting also testified about overhead highway signs she observed and about a pick-up truck which distracted her as she drove the wrong way up the exit ramp. During cross-examination, the State asked if she could recall, with specificity, out of which window or mirror she saw the pick-up truck. The State also interrogated her regarding exactly which signs she did, and which signs she did not see.

The jury, after hearing all the testimony and considering all the evidence, determined that plaintiffs’ injuries were a result of the State’s negligence. The credibility and weight given to the testimony of each witness is within the province of the jury, not this Court. The State cites Graham v. Rolandson (1967), 150 Mont. 270, 283, 435 P.2d 263, 270 for the proposition that whenever witness testimony is inherently impossible, or whenever the surrounding circumstances make the story highly improbable or incredible, then such evidence is not substantial and the jury verdict should be reversed. In Graham, defendant car driver struck plaintiff bicycle rider. Plaintiff sued and defendant defended with a claim of contributory negligence. To this end, defendant testified as to the path plaintiff traveled prior to impact. Defendant also stated in her deposition that she did not actually see the boy until he was under the car, following impact. Under these circumstances, we could not reconcile these conflicting statements and so we held that her testimony was so inherently incredible that it did not rise to the level of substantial credible evidence on which to predicate contributory negligence.

Turning to this case, we find nothing inherently impossible in Marie Whiting’s testimony concerning the path she traveled in accessing 1-90. Her testimony was that she came upon two parallel ramps and took the second ramp. From the exhibits, this would have been exit ramp 127B. Furthermore, her testimony regarding which signs she did, or did not see, as well as when and from which window, or mirror, she saw the “distracting” pick-up did not reveal any inherent impossibilities. The State’s trial tactics pinpointed possible inconsistencies in Mrs. Whiting’s testimony and showed, at most, that Mrs. Whiting’s recollection, regarding signs and trucks, was not perfect. However, the facts are undisputed that Mrs. Whiting was traveling, in the dark, in a confusing area with which she was unfamiliar. The fact that she cannot recall, in perfect detail, everything which preceded the accident does not mandate a reversal of the jury verdict.

We hold that substantial evidence exists in the record to support the jury’s verdict. Accordingly, we will not disturb the jury’s determination in this case because it is supported by substantial credible evidence.

II.

Superseding Cause

The court instructed the jury that if the jury found that Whiting failed to heed the warning of two ‘Wrong Way” signs, then such a failure necessarily amounted to negligence as a matter of law. The State argues that Whiting’s negligence was unforeseeable and amounted to an intervening, superseding cause which, necessarily, served to cut off all liability due to the State’s negligent failure to re-install certain warning signs at the end of the exit ramp.

A superseding, intervening event is an unforeseeable event that occurs after the defendant’s original act of negligence. Its presence will generally serve to cut off defendant’s liability. Kitchen Krafters, 789 P.2d at 576. The record shows that engineering specifications mandated that the State install multiple, or redundant, warning signs at the end of the subject exit ramp. The State created a risk by failing to re-install these signs at the subject exit ramp. The State, in fact, acknowledges that it was negligent in not doing so. The risk created by the State’s negligence includes the intervention of the foreseeable negligence of others. See Sizemore v. Montana Power Company (Mont. 1990), [246 Mont. 37,] 803 P.2d 629, 47 St. Rep. 2252. Thus, the question we must now answer is: Given the facts presented, was Mrs. Whiting’s negligence reasonably foreseeable?

Exit ramp 127B and its companion entrance ramp run parallel and are adjacent to each other. Both ramps are easily and equally accessible from Harrison Avenue. At the Harrison interchange, there are no signs which serve to distinguish one from the other. Rather, there hangs over both ramps only one large sign, on which is printed two highway routes and one large arrow pointing in the direction of, and up, both adjacent ramps. A single set of‘Wrong Way” signs are on the exit ramp and up 368 feet from Harrison Ave.

On the morning of the accident, it was still dark and Mrs. Whiting, who was unfamiliar with the area, drove up the exit ramp, past the single set of “Wrong Way” signs and crashed into co-plaintiff’s vehicle. Given this set of facts, which most nearly describes a trap situation, we find it most difficult to imagine how the State can claim that Whiting’s negligence was not foreseeable. Further, the jury was properly instructed on foreseeability and still found that the State was negligent. Instruction No. 24 states: “A person who cannot reasonably foresee danger of injury from his conduct is not negligent. Foreseeability is measured on a scale of reasonableness. It is not measured abstractly.” Considerable evidence was offered which demonstrated that redundant signs are specified on the assumption that a highly dangerous area will be encountered by both motorists who are -unfamiliar with the given area and who become momentarily distracted, for whatever reason, and miss the first warning they encounter. The assumption that a motorist may become distracted long enough to miss a single set of warning signs, is reasonable. Certainly, the very purpose of the State’s specifications, which called for redundant signs, was to prevent the exact kind of accident which occurred here. The District Court, as well as the jury, considered all the evidence and determined Whiting’s negligence was reasonably foreseeable and so not a superseding cause of plaintiffs’ injuries. As such, the District Court refused to offer instructions on superseding cause since all instructions must be applicable to the evidence. We find no error since the evidence does not show the existence of a superseding cause.

Ill

Quotient Verdict

The State moved the District Court to grant a new trial, pursuant to § 25-11-102(2), MCA, on the basis that the jury improperly resorted to the determination of chance, and thereby arrived at a quotient verdict, in reaching its final verdict against the State. Following a post-trial hearing, the District Court found that, although an averaging process was used, none of the jurors agreed to be bound by the process and denied the State’s motion for a new trial. The State now appeals this ruling.

The decision to grant a new trial is within the sound discretion of the trial judge and will not be overturned absent a manifest abuse of discretion. Zeke’s Distributing Co. v. Brown-Forman Corp. (1989), 239 Mont. 272, 779 P.2d 908. The question of whether or not the jury agreed to be bound by a quotient verdict process is a question of fact. Stanhope v. Lawrence (1990), 241 Mont. 468, 471, 787 P.2d 1226, 1228. We will not set aside the trial judge’s findings if supported by substantial credible evidence. Stanhope at 471, 787 P.2d at 1228.

A quotient verdict, pursuant to § 25-11-102, MCA, constitutes grounds for a new trial. Stanhope at 472, 787 P.2d at 1229. Based on this Court’s discussion in Stanhope, Thomas v. Whiteside (1966), 148 Mont. 394, 399-400, 421 P.2d 449, 452, and Great Northern Ry. Co. v. Benjamin (1915), 51 Mont. 167, 172, 149 P. 968, 969, there are two elements necessary to create an invalid quotient verdict: (1) The jurors must agree in advance that the result of the quotient shall be their verdict; and (2) they must carry the agreement into effect. The cocut found that, although an averaging process was used, none of the jurors agreed to be bound by the process. The question we are now faced with is: Was the evidence sufficiently substantial to support the trial judge’s findings?

Since the evidence is in the form of affidavits, let us first consider, in part, the affidavit of juror James Hendrickson:

“Most of the other jurors had actively participated in deliberations and many different figures were suggested. Finally, it was decided that in order to get the discussion organized we should see if we could arrive at some proposed numbers so that we could have something to start with. Consequently, juror Kathleen Lawson asked everyone, including juror Salazar, to write down their proposed verdict figures, which they did. Juror Lawson then determined what the average of those figures were [sic].
“4. After the proposed figures were determined in this manner we went back over all of the figures and discussed them again, some of them at length. We also went back and looked at the damages summaries that were exhibits. As a result, we changed the verdict award from the figure that had been proposed by the averaging process, in several instances.
“6. At no time did the jury agree or commit in advance that the averaging process would constitute our verdict. Rather, the averaging process was just a way to get proposed figures before the entire jury as a starting point for discussion. As described, considerable deliberations and changes did occur after the average figures were calculated.”

Juror Kathleen Lawson signed a similar affidavit. Jurors Chris Cotton, Eugene Chouinard, Ken Schneider, Carol Kruger, and Beverly Shipley each signed an affidavit which is in accord with the affidavits of jurors Lawson and Hendrickson. These affidavits further stated:

“3. The averaging process was used by the jury only to obtain a starting point for discussion. At no time did we agree in advance that the averaging process would constitute our final verdict. The way the averaging process was used is correctly described in the affidavits of Mr. Hendrickson and Ms. Lawson.”

Juror James Leary signed two affidavits. The first, dated February 14, 1990, was a form affidavit supplied by the State which stated:

“I,_, being of lawful age and first being duly sworn, depose and state:
“1. That I served on the jury that heard the Marie Whiting and Prada Family, plaintiffs, v. State of Montana, defendant, case in the Second Judicial District Court, Silver Bow County, in December of 1989.
“2. That the jury reached its verdict in that case in the following manner. We decided to go by the average of the numbers for liability and the amount of damages that would be submitted by each juror. Each juror then wrote down the numbers for liability and damages that she or he felt were appropriate. One of the jurors then averaged the numbers for the liability and damages. The results were submitted to the court on the verdict form.”

The very next day, on February 15,1990, juror Leary signed a second affidavit which stated:

“2. On February 14,1990,1 signed an affidavit that was presented to me by ..., a paralegal/investigator for the State of Montana ... The affidavit had already been prepared and typed. I had never given a statement to anyone representing the State of Montana prior to the time the affidavit was presented for my signature. The investigator did not ask me about whether further discussions occurred following the averaging process or whether the jury had agreed in advanced [sic] that the averaging process would constitute our final verdict.
“4. The averaging process was used by the jury only to obtain a starting point for discussion. At no time did we agree in advance that the averaging process would constitute our final verdict. The way the averaging process was used is correctly described in the affidavits of Mr. Hendrickson and Ms. Lawson.”

The State also introduced two other affidavits, three in all, which were identical to the first one signed by juror Leary on February 14, 1990. These two affidavits were signed by jurors Michael Downes and Ruth Elliot.

The evidence, which is in the form of affidavits, conflicts. It is within the discretion of the trial court, as the trier of fact, to weigh and choose between the conflicting testimony contained in the affidavits. Section 26-1-302, MCA and Stanhope at 479, 787 P.2d at 1233. We have read all the affidavits and have considered all the evidence, as did the trial court. We hold that the trial court’s finding, that the jury did not bind its verdict with a quotient, was supported by substantial credible evidence. We further hold that the trial court did not abuse its discretion by refusing to grant a new trial.

IV.

Counsel Misconduct

The State contends that plaintiffs’ counsel engaged in misconduct warranting a new trial. The State alleges that, during closing argument, opposing counsel addressed the jury by name and improperly appealed to the passion and prejudice of the jury which constitutes grounds for a new trial. Allegedly improper argument requires reversal of a verdict “only when prejudice has resulted that prevents a fair trial.” Krueger v. General Motors Corp. (1989) 240 Mont. 266, 280, 783 P.2d 1340, 1349. Unless a level of prejudice can be shown that manifestly precludes a fair trial, then there is no reversible error. Nelson v. Hartman (1982), 199 Mont. 295, 301, 648 P.2d 1176, 1179.

Upon reviewing the record, we find that the State failed to object to the alleged improper closing comments of plaintiffs’ counsel. Failure to object to alleged error at trial precludes an appellant from raising that issue on appeal. Matter of B.L.O. (1984), 213 Mont. 4, 169, 689 P.2d 1246, 1249. Therefore, with no more, we hold that the State’s appeal on this issue lacks merit and its request for a new trial was properly denied by the District Court.

V.

Prada/Whiting Settlement

As already stated, before the Pradas commenced their separate action against the State, they entered into a $300,000 settlement with the Whitings’ insurance carrier. The plaintiffs jointly moved for an order in limine, to allow the court to deduct the amount of the settlement from any final award received by the Pradas, but to exclude the fact of the settlement, and the settlement amount, from the jury, on the grounds that such information would lead to substantial confusion and prejudice. After a hearing, the court granted the motion and re-affirmed the order in its post-trial Opinion and Order. The State now contends that the jury should have been informed of this settlement. The State’s contention is without merit.

We have already commented on the preferable method to handle questions of settling parties. In Azure v. City of Billings (1979), 182 Mont. 234, 244-45, 596 P.2d 460, 466 we held:

“The preferable method is to let the jury find total damages without disclosing the amount of the settlement to the jury, and thereafter the court, upon request of counsel, must deduct the amount of the settlement from the amount of the jury verdict.”

This was the exact method used by the District Court. If the jury is instructed and informed as to the facts of a previous settlement with a settling party, which is the method the State now urges upon this Court, confusion among the jury is likely and substantial prejudice may result to both plaintiff and defendant. We find no error. The District Court, in this regard, is affirmed.

VI.

Tort Immunity

The State wishes to avoid the effects of joint and several liability by claiming that the State cannot be jointly liable for the 42% negligence of Whiting because she is not an officer or employee of the State. Article II, Section 18 of the Montana Constitution and § 2-9-102, MCA, plainly provides for the general rule that the State shall have no immunity for its torts, unless provided otherwise by the legislature. The State has failed to present any statutory or other theory under which it is entitled to immunity in this case. The District Court properly denied the State’s motion to alter or amend the judgment on these grounds.

VII.

Dollar Offset

The jury awarded the Prada family combined damages of $1,680,000 and attributed negligence: 0% to Prada, 42% to Whiting, 58% to the State. The District Court, pursuant to § 27-1-703, MCA, ruled that the State was jointly and severally liable for these damages, less a $300,000 offset (to account for the Whiting settlement), and entered judgment for Pradas in the amount of $1,380,000. The State contends that it should only be liable for 58% of the combined Prada award, or just $974,400, arguing that the 1987 amendment to § 27-1-703, MCA, dealing with joint and several liability among joint tortfeasors, wiped out the dollar offset rule as set out in the case of State ex rel. Deere v. District Court (1986), 224 Mont. 384, 730 P.2d 396. Stated differently, the State contends that the District Court erred when it deducted only $300,000 (dollar offset), rather than deducting the award by 42%, or $705,600 (percent credit equal to Whiting’s negligence). Therefore, the question presented is what effect should the settlement by the settling tortfeasor have upon the liability to the plaintiff of the non-settling tortfeasor.

In Deere, ruling under § 27-1-703, MCA (1985), this Court decided this very same issue saying:

“[T]he claim of the plaintiff against the remaining tortfeasors is to be reduced by a dollar credit in the amount of consideration paid by the settling tortfeasor, and not by a percentage amount proportional to the degree of fault of the settling tortfeasor.”

Deere 224 Mont. at 386, 730 P.2d at 398, citing Black v. Martin (1930), 88 Mont. 256, 265, 292 P. 577,580; and Azure v. City of Billings (1979), 182 Mont. 234, 596 P.2d 460. In Deere, plaintiff was injured when a bulldozer, manufactured by Deere & Co. and driven by an employee of Wade’s Backhoe, backed into him. Before judgment was entered by the district court, plaintiff settled his claim against Deere for $25,000. Wade, the non-settling concurrent tortfeasor sought to bring Deere, the settling concurrent tortfeasor, back into the litigation by means of a third party complaint for contribution or indemnity. This Court held that, pursuant to § 27-1-703, MCA(1985), a joint tortfeasor, who has settled before judgment is entered in the district court, is not subject to claims of a non-settling joint tortfeasor for contribution and that, therefore, Deere’s settlement with plaintiff prevented contribution claims against Deere. Deere, 224 Mont. at 386, 730 P.2d at 398. This is because contribution, according to § 27-1-703, MCA (1985), “shall be proportional to the liability of the parties against whom recovery is allowed.” We reasoned that this language (unchanged by the 1987 amendments) meant that no right of contribution exists from a settling tortfeasor because a settling tortfeasor is completely exonerated from any further liability for plaintiff’s damages which precludes any further recovery from a settling tortfeasor.

Having reached that conclusion, we next determined the effect the settlement by Deere had upon Wade’s liability to the plaintiff. Counsel for Wade argued that even though Deere is no longer liable to plaintiff by reason of a settlement, it may still be hable for contribution to Wade, if Deere’s proportional fault of plaintiff’s judgment exceeds $25,000. In short, Wade proposed a percent credit rule to calculate damages, while Deere proposed a dollar offset rule. We held that plaintiff’s recovery is diminished by a dollar offset, not percent, in the amount paid or to be paid by the settling concurrent tortfeasor.

We rejected the percent credit rule in favor of the long-standing dollar offset rule by stating:

“In reality, our decision on this issue is hinged upon our earlier interpretation of the statute herein that no right of contribution exists from a settling tortfeasor.” Deere at 396, 730 P.2d at 404.
“[W]e determine the better practice is to follow what has long been the standard in Montana, that the plaintiff’s recovery is diminished pro tanto, that is, given dollar credit based on the consideration paid or to be paid by the settling concurrent tortfeasor. Such a holding encourages compromise, lends finality to such compromises, and keeps in force a practice which the legislature has not been shown to have intended to change.”

Deere at 397, 730 P.2d at 405. Such was the state of the law after Deere. We now consider our holding in Deere in light of the 1987 amendments to § 27-1-703, MCA.

Section 27-1-703, MCA (1987) provides:

“Multiple defendants — determination of liability. (1) Except as provided in subsection (2) and (3), whenever the negligence of any party in any action is an issue, each party against whom recovery may be allowed is j ointly and severally liable for the amount that may be awarded to the claimant but has the right of contribution from any other person whose negligence may have contributed as a proximate cause to the injury complained of.
“(2) Any party whose negligence is determined to be 50% or less of the combined negligence of all persons described in subsection (4) is severally liable only and is responsible only for the amount of negligence attributable to him, except as provided in subsection (3). The remaining parties are jointly and severally liable for the total less the amount attributable to the claimant.
"(3) A party may be jointly liable for all damages caused by the negligence of another if both acted in concert in contributing to the claimant’s damages or if one party acted as an agent of the other.
“(4) On motion of any party against whom a claim is asserted for negligence resulting in death or injury to person or property, any other person whose negligence may have contributed as a proximate cause to the injury complained of may be joined as an additional party to the action. For purposes of determining the percentage of liability attributable to each party whose action contributed to the injury complained of the trier of fact shall consider the negligence of the claimant, injured person, defendants, third party defendants, persons released from liability by the claimant, persons immune from liability to the claimant, and any other persons who have a defense against the claimant. The trier of fact shall apportion the percentage negligence of all such persons. However, on attributing negligence among persons, the trier of fact may not consider or determine any amount of negligence on the part of any injured person’s employer or coemployee to the extent that such employer or coemployee has tort immunity under the Workers’Compensation Act or the Occupational Disease Act of this state, of any other state, or of the federal government. Contribution shall be proportional to the liability of the parties against whom recovery is allowed. Nothing contained in this section shall make any party indispensable pursuant to Rule 19, Montana Rules of Civil Procedure.
“(5) If for any reason all or part of the contribution from a party liable for contribution cannot be obtained, each of the other parties shall contribute a proportional part of the unpaid portion of the noncontributing party’s share and may obtain judgment in a pending or subsequent action for contribution from the noncontributing party. A party found to be 50% or less negligent for the injury complained of is liable for contribution under this section only up to the percentage of negligence attributable to him.” (The emphasis supplied indicates the language added to § 27-1-703, MCA by the 1987 amendment.)

According to paragraphs (1), (2) and (3), read together, the State is jointly and severally hable for the total amount that was awarded to Prada, although the State has a right of contribution from other parties under certain circumstances. Paragraph (4) contains key language regarding the State’s right of contribution, which was also contained in the 1985 version of the section: “Contribution shall be proportional to the liability of the parties against whom recovery is allowed.” (Emphasis added.) In Deere, we concluded that this very same language required the necessary result that “no right of contribution” exists from a settling tortfeasor. Deere, 224 Mont. at 393, 730 P.2d at 402. The 1987 amendments left this crucial language intact. As a result, there is no basis for changing our holding in Deere on this issue.

We therefore conclude that our holding in Deere controls in the present case. As such, we hold that Whiting, the joint tortfeasor in this case, who settled with the Pradas before judgment on the claim was entered in the District Court, is not subject to any claim for contribution from the State, the non-settling tortfeasor.

Our next task is to determine how much credit is due on the judgment against the State because of the Whiting settlement, which was in the amount of $300,000. The plaintiffs contend that the credit due should be limited to the $300,000 paid, whereas the State contends that 42% of the total judgment, or $705,600, should be deducted.

According to subsection (2) of § 27-1-703, MCA, those who are 50% or less negligent (as determined by subsection (4)) are severally liable for their own proportional fault and those who are 51% or more negligent are jointly and severally liable for the total less the amount attributable to the claimant. We now must determine the meaning of the phrase: “jointly and severally liable for the total less the amount attributable to the claimant”, since the State claims that this language means that a tortfeasor, whose negligence is 51% or more, is jointly liable for only its proportional fault of the damage award. Subsection (2) of the statute clearly states that such liability shall extend to the total (of the award) “less the amount attributable to the claimant.” The statute, as amended, clearly assesses joint and several liability to the State, the non-settling concurrent tortfeasor whose negligence is 58%, for all of the Prada award rather than just 58% of the award. Therefore, a plain reading of the statute lends no support to the State’s contentions. Policy considerations, as noted in Deere, warrant our adoption of the dollar offset rule. Under the percent credit rule, a plaintiff will never recover the full amount of any judgment against the non-settling tortfeasor if he settled for an amount less than the amount of the judgment attributable to the fault of the settling tortfeasor. This, in our estimation, is not adequate protection for the plaintiff. The dollar credit rule, on the other hand, is more effective in encouraging compromise and settlement, does not lead to inequities, and is a method which the legislature has not shown an intention to change. In the case of a jointly liable nonsettling tortfeasor, the dollar offset rule assures plaintiff of recovering the entire amount of any judgment rendered — such is the protection of joint and several liability. We are aware of the burden which the dollar credit rule places on a jointly liable non-settling tortfeasor — namely, to insure plaintiff against his own poor judgment when settling for less than he is entitled.

We conclude this is an appropriate result in encouraging fair and just settlements. The compelling reasons which we described in Deere in favor of the dollar offset rule are still applicable. Furthermore, the linchpin of this holding was our reasoning that a right of contribution does not exist as to a settling tortfeasor. This linchpin still exists. We therefore hold that the judgment of the non-contributorily negligent Pradas against the State is to be reduced by a dollar credit in the amount of $300,000 which was paid by Whiting, the settling tortfeasor, and not by $705,600 which equals the 42% of the Prada judgment.

The District Court correctly applied the precepts set out in Deere and the provisions of § 27-1-703, MCA as amended in 1987, in ruling that the State was jointly and severally liable for Pradas’ damages, less a $300,000 offset for the Whiting settlement. The judgment of the District Court is hereby affirmed.

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


source: Caselaw Access Project

author: JUSTICE HARRISON CHIEF JUSTICE TURNAGE,

license: Public Domain

text:
    MARIE JOHNSTON, Plaintiff and Appellant, v. AMERICAN RELIABLE INSURANCE COMPANY, ROBERT FRANCHUK, DONNA FRANCHUK, and JANEVA J. GALAYDA, Defendants and Respondents.
    No. 90-532.
    Submitted on briefs Mar. 14, 1991.
    Decided Apr. 30, 1991.
    248 Mont. 227.
    810 P.2d 1189.
    Terry G. Sehestedt, Missoula, for plaintiff and appellant.
    Kim L. Ritter, Milodragovich, Dale & Dye, Missoula, for American Reliable Ins.

      Darla J. Keck, Datsopoulos, MacDonald & Lind, Missoula, for Galayda.
   JUSTICE HARRISON

delivered the Opinion of the Court.

Plaintiff brought this action in the District Court of Missoula County alleging conversion and breach of contract. The District Court granted summary judgment in favor of defendants and plaintiff appeals. We remand this cause to the District Court with instructions to enter the grounds for granting summary judgment in favor of both defendants.

Appellant has presented the following issues for review on appeal:

1) Whether the District Court erred in failing to make findings in connection with its orders granting summary judgment to defendants.
2) Whether the District Court erred in denying plaintiff’s motion for partial summary judgment.

On May 3,1988, appellant Marie Johnston entered into a written contract for the purchase of a mobile home from defendants Robert and Donna Franchuk. The home was located on a rental lot owned by Janeva J. Galayda. On June 22,1988, Johnston purchased a “Deluxe Mobile Homeowners” insurance policy from respondent American Reliable Insurance Company (Reliable). The insurance policy, by its terms, covered Johnston’s mobile home and its contents.

On May 6, 1988, shortly after Johnston signed the Franchuks’ purchase contract, Johnston paid Galayda the $110 monthly lot rent and moved into the home. There was testimony that Johnston owned and kept dogs at her home in violation of Galayda’s “no dog” policy. Galayda testified that Johnston refused to remove the dogs from the property and that, on May 24,1988, Galayda sent Johnston a Notice of Default and to Quit based on Johnston’s dogs. The Notice of Default gave Johnston fourteen days to leave. Johnston refused to leave and, on June 16,1988, Galayda filed suit with the Missoula County Justice Court requesting damages and immediate possession of the premises. The Process was served, but Johnston failed to respond and, on July 11, 1988, the Justice Court entered a Default Judgment in favor of Galayda which provided Galayda with possession of the lot.

The District Court also issued a Writ of Assistance on July 11,1988, ordering that the Missoula County Sheriff physically remove Johnston from the premises. The Missoula County Sheriff served the Writ on Johnston who then vacated the premises, but left the mobile home on the lot. Galayda alleges, in her affidavit, that Johnston abandoned the mobile home. Based on this alleged abandonment, Galayda served Johnston with a Notice of Abandonment dated August 17, 1988, informing her that if the abandoned mobile home was not removed from the premises in fifteen days, it would be stored at Johnston’s expense. Galayda sent a copy of this Notice to the Franchuks since they had a legal interest in the property.

On September 2, 1988, Franchuks removed the mobile home. Johnston subsequently filed a claim for theft with Reliable, but Reliable refused to cover her claim. Thereafter, on April 18, 1989, Johnston filed a complaint for damages with the District Court against Rehable for breach of the insurance contract, and against Galayda and the Franchuks for wrongful conversion. Subsequently, defendants Franchuks filed for and were granted a discharge in bankruptcy and have since not participated in the case due to a bankruptcy stay. The District Court granted Rehable summary judgment on June 19, 1990 and granted Galayda summary judgment on June 21, 1990. Thereafter, Johnston filed a motion requesting the court make certain findings and amend its summary judgment. This motion was deemed denied by the lapse of forty-five days without action by the District Court. Plaintiff appeals from the orders granting summary judgment and from the denial of her post-judgment motion.

The first issue is whether the District Court erred in failing to specify the grounds for summary judgment. The District Court summarily adjudicated this cause in favor of Galayda and Reliable but failed to specify the grounds or rationale for the rulings. In pertinent part Rule 52(a), M.R.Civ.P, requires:

“However, any order of the court granting a motion under Rules 12 or 56 [summary judgment rule] which is appealable to an appellate court shall specify the grounds there for with sufficient particularity as to apprise the parties and 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.”

In a similar manner, this Court has stated that district courts should state the reasons for granting summary judgment. Stepanek v. Kober Construction (1981), 191 Mont. 430, 431, 625 P.2d 51,52. The District Court did not specify the grounds for either of the summary judgment rulings with sufficient particularity to apprise the parties and the appellate court of the rationale underlying the rulings. We therefore remand this cause to the District Court with instructions to specify the grounds for the rulings with sufficient particularity so as to apprise the parties and this Court of the rationale underlying its rulings.

This cause is hereby remanded to the District Court with the foregoing instructions to enter reasons in support of summary adjudication.

JUSTICES TRIEWEILER, GRAY and WEBER concur.

CHIEF JUSTICE TURNAGE,

specially concurring:

I concur in the majority opinion which requires the District Court to enter in the record its reasons for granting summary judgment. The case is properly remanded for such purpose. In reviewing this case upon remand, it is my suggestion that the District Court look at the record with relation to the Justice Court proceeding instituted by Janeva J. Galayda against the appellant and the July 11, 1988, affidavit submitted by Galayda in obtaining a default judgment, apparently for rent.

In part, I make this suggestion for the reason that in the record before us, there is a complaint in Justice Court dated June 16, 1988, wherein Galayda sued Johnson for the reason “that defendant owed back rent from July 1,1988, in the amount of $110 plus late fee in the amount of $10 ...” This complaint was dated June 16, 1988. It is somewhat difficult to understand how back rent could be owed from July 1,1988, when the complaint was filed June 16,1988. In addition, in the deposition of Galayda at page 36, it is indicated that Galayda received a money order postmarked July 4,1988, covering June and July rent in the amount of $220. Galayda stated that the money order did not include the “$10 late fee” which was part of her rental agreements. When Galayda was asked if Johnston had ever signed a rental agreement, Galayda responded, “No, she did not.”

This case undoubtedly is frustrating to the parties and to the court. However, in reviewing the grant of summary judgment and in the interest of justice, I recommend a thorough review of the record.


author: JUSTICE HUNT JUSTICE JOHN C. SHEEHY

text:
    MARY W. McELWAIN, Plaintiff and Appellant, v. THE COUNTY OF FLATHEAD, a political subdivision of the State of Montana, Defendant and Respondent.
    No. 90-377.
    Submitted on briefs Nov. 15, 1990.
    Decided May 2, 1991.
    Rehearing Denied July 2, 1991.
    248 Mont. 231.
    811 P.2d 1267.

      Marshall Murray, Murray & Kaufman, P.C., Kalispell, for plaintiff and appellant.
    Thomas J. Murphy, Conklin, Nybo & Leveque, P.C., Great Falls, for defendant and respondent.
   JUSTICE HUNT

delivered the Opinion of the Court.

Plaintiff and appellant, Mary McElwain, appeals the judgment of the District Court, Eleventh Judicial District, Flathead County, denying her claim for damages for the reduction in value of her property caused by the enactment of septic regulations by Flathead County. The District Court, sitting without a jury, held that the regulations served a legitimate State interest in protecting the health and safety of the public, and that appellant was not entitled to any compensation. We affirm.

The issue on appeal is whether the District Court erred in finding that the regulations imposed on appellant’s property did not constitute a taking of property.

Appellant purchased approximately fourteen acres of real property along the Flathead River in 1979 for the purpose of building a home in which to retire. At the time of the purchase, the property was subject to the 1975 county regulations for subsurface sewage treatment systems. These regulations made it unlawful to construct or alter an individual sewage system within Flathead County without first obtaining a valid permit for the specific construction proposed. The regulations further set forth a setback requirement of 100 feet from the Flathead River, as well as other requirements dealing with septic tank capacity, minimum absorption area standards, and quality of material used for construction of the system. Nowhere in the 1975 regulations is there a setback requirement from the 100-year flood plain. The appellant would have been able to build her home substantially as originally contemplated, with a 200-foot setback from the edge of the Flathead River, without violating any of the 1975 regulations.

On August 6,1984, Flathead County adopted a resolution, known as the Flathead County Flood Plain Regulations, and official flood plain maps which showed appellant’s property to lie within the 100-year flood plain. These 1984 regulations required a 100-foot setback between the septic system drain field and the flood plain. On August 23, 1984, appellant applied for a permit to install a below-ground septic system on the property in order to begin construction of the retirement home. Her application was denied on the grounds that all of her property was in or within 100 feet of the 100-year flood plain as designated by the flood plain maps. On July 21, 1986, after appellant had hired a civil engineer to prove that a portion of her property was outside the flood plain, the Flathead County Flood Plain Manager agreed that a portion of the appellant’s property did in fact lie outside the flood plain.

Appellant reapplied for a below-ground septic system permit on November 6, 1986. The application was denied on the basis that a 100-foot setback between the septic system drain field and the 100-year flood plain could not be attained on the appellant’s property. Appellant’s drain field as proposed would have been 80 feet from the flood plain. Her request for a twenty foot variance was denied by the county on May 13,1988. Flathead County advised appellant that the only proposal that may be permitted would be a mounded septic system.

Testimony at trial revealed that the home initially contemplated by appellant was a three-bedroom home and that a properly designed drain field for a three-bedroom home could have been configured to fit within appellant’s property without violating the 100-foot setback from the flood plain requirement and without the need for a mounded septic system. The plans denied by Flathead County contemplated a drain field for a four-bedroom home.

Appellant appealed the denial of her variance request through the entire administrative process before pursuing this action in District Corut. No issue as to the appropriateness of the denial of the variance has been raised.

The sole issue on appeal is whether the District Court erred in finding that the reduction in value of appellant’s property is not a taking for which compensation is due.

Before we can directly address this issue, however, a brief discussion of the proper standard to be used in police power actions where “takings” challenges are raised is necessary.

The United States Supreme Court has wrestled with the question of what the proper standard should be in police power actions for quite some time. In Penn Central Transportation Co. v. New York City (1978), 438 U.S. 104, 124, 98 S.Ct. 2646, 2659, 57 L.Ed.2d 631, 648, the Court said,

“[T]his Court, quite simply, has been unable to develop any ‘set formula’ for determining when ‘justice and fairness’ require that economic injuries caused by public action be compensated by the government.”

The Court settled on a standard that states if the regulation is “substantially related to the promotion of the general welfare” it does not constitute a taking. Penn Central, 438 U.S. at 138, 98 S.Ct. at 2666, 57 L.Ed.2d at 657. The Court added a second half to this standard, requiring that the owner not be denied “economically viable use” of his or her land. Agins v. Tiburon (1980), 447 U.S. 255, 260, 100 S.Ct. 2138, 2141, 65 L.Ed.2d 106, 112. This is the standard currently used by the United States Supreme Court in examining taking challenges. Nollan v. California Coastal Commission (1987), 483 U.S. 825, 107 S.Ct. 3141, 97 L.Ed.2d 677. See also Keystone Bituminous Coal Ass’n v. DeBenedictis (1987), 480 U.S. 470, 107 S.Ct. 1232, 94 L.Ed.2d 472.

Previous opinions by this Court have applied a standard of reasonableness to the question of whether a taking has occurred when a land-use regulation is imposed through an exercise of police power. Yellowstone Valley Electric v. Ostermiller (1980), 187 Mont. 8, 15, 608 P.2d 491, 496; Western Energy Co. v. Genie Land Co. (1987), 227 Mont. 74, 78, 737 P.2d 478, 481. We have stated that a regulation adopted through an exercise of police power must be “reasonably adapted to its purpose and must injure or impair property rights only to the extent reasonably necessary to preserve the public welfare.” Yellowstone Valley Electric, 187 Mont. at 15, 608 P.2d at 496.

Although “reasonable” is the language this Court has applied to our analysis of taking issues, it is nonetheless a standard of equivalent merit and significance to the federal standard of “substantial.” As the United States Supreme Court points out in Nollan, 483 U.S. at 835, 107 S.Ct. at 3147, 97 L.Ed.2d at 688, the standards to be applied to taking challenges are not the same standards as those applied to due process or equal protection claims. “Reasonableness” as used in the former situation does not necessarily carry the same distinction from “substantial” as it does when used in the latter situations.

We applied our standard of reasonableness to a taking issue in Western Energy Co. and held that the statute in question did not meet the standard. There we said “the means chosen to advance the interest must be reasonable,” and yet several paragraphs later stated, “[t]he statute does not bear the requisite ‘substantial relation to the public health, safety, morals, or general welfare.’ ” (Emphasis added; citations omitted.) Western Energy Co., 227 Mont, at 78, 737 P.2d at 481. (See also Anderson Insurance v. City of Belgrade (Mont. 1990), [246 Mont. 112,] 803 P.2d 648, 47 St. Rep. 2287, where this Court used “reasonable” and “substantial” in like context.) Therefore, to clarify this standard and farther conform with the federal standard we expressly state that the question to determine whether a land-use regulation is properly invoked is whether the regulation is substantially related to the legitimate State interest of protecting the health, safety, morals, or general welfare of the public, and utilizes the least restrictive means necessary to achieve this end without denying the owner economically viable use of his or her land.

Appellant contends that the regulation fails to meet either part of this standard. Appellant argues that the regulation fails to satisfy the first part because it does not substantially advance the legitimate State interest in public health in the Flathead River Basin. In support of this argument appellant contends that the county has failed to demonstrate that the 100-foot setback requirement from the flood plain would be any more effective than a lesser distance. Appellant maintains that the county has not presented any evidence or scientific data that would allow the court to determine that a 100-foot setback from a flood plain is necessary to substantially advance the State’s interest in keeping sewage out of the river.

There are several shortcomings in this reasoning. The first is appellant’s assertion that the District Court applied the incorrect standard. Appellant contends that the issue is not whether the regulation is reasonable, as the District Court found, but whether the regulation substantially advances public health. As we stated above, the terms “reasonable” and “substantial” have been used by this Court and the United States Supreme Court interchangeably in the context of police power actions and taking challenges for many years. The District Court relied on the previous opinions by this Court that contain the language “reasonable,” and the standard as read from these opinions is the correct standard.

A second flaw in appellant’s position is her belief that the county maintains the burden of proving that the regulation meets the necessary standard.

The District Court found that appellant had failed to overcome the presumption that the regulations as adopted were reasonable. Appellant asserts that the District Court erred in relying on Whistler v. Burlington Northern Railroad Co. (1987), 228 Mont. 150, 741 P.2d 422, to reach, this conclusion. Appellant insists that such a presumption is inapplicable to this case, and it is the county that must demonstrate the regulation is substantially related to a legitimate State interest. It is her contention that Whistler does not apply here because the plaintiffs in Whistler were requesting that an administrative order be declared unlawful, and in this case appellant is not challenging the legality of the regulation, but rather is seeking compensation under the Fifth Amendment.

The presumption of validity spoken of in Whistler refers to the general rule that all legislative enactments are presumed valid and the burden of proving their invalidity is on the plaintiff. Reeves v. Ille Electric Company (1976), 170 Mont. 104, 109, 551 P.2d 647, 650. This principle is equally applicable in cases where the legislation in issue is an exercise of the police power, as in this case. Goldblatt v. Hempstead (1962), 369 U.S. 590, 596, 82 S.Ct. 987, 991, 8 L.Ed. 2d 130, 135. Therefore, this presumption is indeed applicable to the land-use regulation before us.

Appellant’s argument that appellant is not seeking a declaration that the regulation is invalid, as was the situation in Whistler; appears to be an attempt to distinguish Whistler based solely on the fact that appellant is seeking a different remedy.

If a regulation is not properly invoked under the police power and is found to constitute a taking, the remedies available to the government include abandoning its position and discontinuing the regulation or compensating the landowner for the taking. First Lutheran Church v. Los Angeles County (1987), 482 U.S. 304, 317, 107 S.Ct. 2378, 2387, 96 L.Ed.2d 250, 265. It is when the government insists on retaining a regulation notwithstanding the fact it constitutes a taking that compensation will be required. Appellant is requesting this latter remedy and appears to have no interest in seeking to have the regulation declared invalid. Appellant is nevertheless challenging the regulation on the grounds of an unconstitutional taking, and requesting compensation as a remedy, rather than declaring the regulation invalid, cannot serve to distinguish Whistler. The burden of proof lies with appellant and appellant cannot expect to shift this burden of proof over to the county by merely requesting a different remedy.

A review of the record shows the evidence supports a finding that the regulation is substantially related to the legitimate State interest of protecting public health and safety. Requiring a reasonable distance between sewage drain fields and the 100-year flood plain in order to allow adequate soil cleansing of the sewage prevents the public from the endangerment of sewage contaminants. The testimony supported a conclusion that 100 feet was a reasonable distance. In the event of a 100-year flood this regulation helps make certain the river will still be adequately protected from septic systems that comply with these regulations. It is appellant who has failed to show that some distance less than 100 feet would be just as effective in cleansing the sewage. The facts here as applied to the standard to be met indicate a clear substantial relation to the interest of preventing water contamination.

Appellant’s contention that current regulations do not protect the public from sewage contamination in any event, and therefore, the enforcement of the regulation cannot possibly serve to advance the State interest in public health, is unpersuasive. Two wrongs have never made a right and do not do so now. The fact that contaminants may currently be entering the river does not prevent the county from initiating measures to help retard and attempt to eventually stop these problems.

Appellant argues that the regulation in question has failed to satisfy the second part of the standard as well. Specifically, appellant contends that the diminution in value of the property from $75,000 to $25,000, clearly meets the constitutional standard of loss of economically viable use.

Appellant cites Knight v. City of Billings (1982), 197 Mont. 165, 642 P.2d 141, in support of her argument that diminution in value of two-thirds is of sufficient constitutional magnitude to constitute a taking. However, past decisions that have found land-use regulations substantially related to the State interest of public health, safety, and general welfare have rejected the argument that diminution in property value by itself establishes a taking. Penn Central, 438 U.S. at 131, 98 S.Ct. at 2663, 57 L.Ed.2d at 653. Diminutions in value of amounts much greater than the two-thirds found here have been held not to constitute ataking. See Euclid v. Ambler Realty Co. (1926), 272 U.S. 365, 47 S.Ct. 114, 71 L.Ed. 303; Hadacheck v. Sebastian (1915), 239 U.S. 394, 36 S.Ct. 143, 60 L.Ed. 348. The issue of economic viability must be resolved by focusing on the remaining use available to the landowner and the nature of the interference with the overall rights in the property, in addition to any reduction in value. Keystone Coal, 480 U.S. at 497,107 S.Ct. at 1248,94 L.Ed.2d at 496. In a careful reading of Knight, it is evident that the conclusion reached in that case was based on consideration of these other factors, not solely on the 20 to 30 percent reduction in property value that had occurred.

In view of these additional factors appellant fails to show she has been deprived of the economically viable use of her property. The evidence indicates appellant is still able to utilize the property for the purposes originally intended, that of building a home in which to retire, although not as near the river as appellant would have liked. The evidence also reveals the fact that other options are available to appellant. A mounded septic system could be constructed which would allow the appellant more discretion in a building site. The 100-foot setback rule apparently does not apply if a four-foot vertical separation can be achieved between the bottom of the drain field and the 100-year flood elevation. This vertical separation can be created through a mounded system.

We hold that the public interest involved here outweighs the encroachment upon appellant’s property. As was stated in Pennsylvania Coal Co. v. Mahon (1922), 260 U.S. 393, 413, 43 S.Ct. 158, 159, 67 L.Ed. 322, 325:

“Government hardly could go on if to some extent values incident to property could not be diminished without paying for every such change in the general law. As long recognized, some values are enjoyed under an implied limitation and must yield to the police power.”

The land use regulation in question has been properly invoked under the police power of the State.

Affirmed.

JUSTICES BARZ, McDONOUGH and HARRISON concur.

JUSTICE JOHN C. SHEEHY

(retired, but called to participate) dissenting:

This is a “taking” case; that is, the issue on appeal is whether the plaintiff’s property has been inversely condemned for a public use, which requires the payment to plaintiff of just compensation under federal and state constitutions.

As the state and local regulations are applied in this case, I find a “taking” of private property by the public has occurred, and so I dissent.

There is no dispute as to the damages done to the plaintiff’s property. The findings of the District Court (No. 18) show that “plaintiff has suffered damages to her property of a permanent and irreparable nature by means of the diminution of value of the property, based upon fair market value, in the sum of $50,000.00.” These damages, the District Court found, resulted from the adoption and imposition on plaintiff’s property of the limitations and servitude of the regulations. The damages represent approximately two-thirds of the fair market value of plaintiff’s property without the servitude and limitations.

Such damages must be compensated by the public authority unless, as the majority say, (1) the land-use regulation is substantially related to the governmental interest of protecting the public health, and (2) the regulation utilizes the least restrictive method to achieve that end without denying the owner economically viable use of the land. The regulation, and its application here, do not meet either prong of the standard.

The District Court founded its decision on a finding of fact that the activity prohibited, i.e., a septic system within 100 feet of the 100-foot flood plain, would be injurious to the health and safety of the community. The evidence in this record is completely lacking that the regulation (1) is substantially related to the state’s interest in protecting public health, and (2) is the least restrictive method to attain that end.

The original regulation (the 1975 rules) required the septic system to be set back 100 feet from the stream. This provision agreed with the later-adopted 1980 Environmental Protection Agency Design Manual. That manual sets out a 100-foot distance from water supply sources such as wells, surface water, springs, and so on, but makes no reference at all to 100-year flood plain boundaries. In other words, the EPA did not recognize a need for a set-back from flood plain boundaries. To justify such a rule, the record should show some degree of scientific study on which to base the need or a health basis for the flood plain set-back. None appears here. All other 100-foot space rules are related to some source of potable water. Adoption of a rule relating to a theoretical boundary, without reference to any studies showing danger to waters, is arbitrary and capricious. No issue of public health is presented.

To escape the import of the lack of scientific basis for the 100-foot flood plain rule, the majority rely on the “presumption” that all legislative enactments are valid. As one judge has said, presumptions are the bats of the law; they disappear in the sunlight of evidence to the contrary, or the showing of no foundation for their existence.

Nor is “judicial deference” to the legislating body any excuse for upholding a baseless regulation. Courts should jealously insist on the right to examine judicially the actions of public bodies without any deferment or subordination of judicial function to other branches of government.

This dissenter was the author of the opinions in Knight v. City of Billings (1982), 197 Mont. 165, 642 P.2d 141, and Western Energy Co. v. Genie Land Co. (1987), 227 Mont. 74, 737 P.2d 478. The majority attempt to distinguish Knight, where the plaintiffs suffered a 30 percent loss in the value of their properties, on the basis that here the plaintiff still has a possibility of use for her property. Knight cannot be so distinguished, for even there the plaintiffs still had use of their properties as residences. Here, the plaintiff is severely limited in the use of her property under the 100-foot flood plain rule. Her only possibility is to build 1200 to 1400 feet back from the river, or to undertake very expensive devices for sewage disposal. Western Energy is not in accord with this decision. Western Energy was not a “taking” case. It related to the due process implication of the regulation involved.

I find no evidence in the record which translates to a basis that the 100-foot flood plain set-back rule is substantially related to the public health. Under the record here, that rule could have been set at 30 feet or a mile. Either is as justifiable here as the 100-foot rule. No studies support the regulation. I therefore dissent and would reverse and remand for judgment in favor of the plaintiff.


author: JUSTICE HARRISON JUSTICE TRIEWEILER,

text:
    PORTABLE EMBRYONICS, INC., Plaintiff and Respondent, v. J. P. GENETICS, INC., ALTON L. JAMES and GARY A. PORTER, Defendants and Appellants.
    No. 90-437.
    Submitted Mar. 7, 1991.
    Decided May 3, 1991.
    Rehearing Denied May 23, 1991.
    248 Mont. 242.
    810 P.2d 1197.

      John C. Hoyt, Hoyt & Blewett, Great Falls, for defendants and appellants.
    James H. Goetz, Goetz, Madden & Dunn, Bozeman, for plaintiff and respondent.
   JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from the District Court of the Eighteenth Judicial District. Plaintiff brought this action alleging breach of employment contracts and related tortious conduct by defendants. Following a bench trial the District Court entered judgment and awarded damages in favor of the plaintiff. From this judgment and order, defendants appeal. We reverse.

The following issues are presented by appellants for review:

1. Did the District Court err in denying defendants judgment as a matter of law based on illegality of the employment contracts?
2. Did the District Court err in denying defendants judgment as a matter of law based on provisions within the employment contracts that unlawfully restrain trade?
3. Did the District Court err in concluding that a factual basis existed for finding against defendants?
4. Did the District Corut err by awarding damages contrary to the facts of this case?

At the time of the alleged breach of contract, plaintiff Portable Embryonics, Inc. (Portable) was in the business of performing nonsurgical bovine embryo transfers in Montana and other states. Dr. Albert C. Mills, III, (Mills) and his wife are the sole shareholders of Portable. Defendants Gary Porter (Porter) and Alton James (James) were employed by Portable from 1977 until 1988. Porter and James terminated their employment with Portable in February of 1988 and, within a few days, formed defendant J. P. Genetics, Inc., a Montana corporation. J. P. Genetics, Inc. also performs nonsurgical bovine embryo transfers.

The first step of the nonsurgical embryo transfer begins with a superior cow, the donor, which is selected by the rancher. The cow is given a fertility drug which induces the ovulation of multiple eggs. These eggs are then fertilized either by artificial or natural insemination. Approximately one week later the fertilized eggs are removed from the donor cow by a process called “flushing.” Next, the technicians identify, with the aid of a microscope, the fertilized eggs as embryos, and then either implant the embryos into recipient cows, which serve as surrogate mothers, or freeze them for later use. The removal, identification, and implantation or freezing of the embryos are performed by embryo transfer technicians such as Mills, Porter and James.

In the spring of 1980, Portable prepared an employment contract which contained provisions for the protection of trade secrets and restrictions concerning employees who would depart the company. James signed the contract on April 17, 1980 and Porter signed on May 6, 1980.

Due to alleged problems with the business, Porter terminated his employment with Portable on February 20,1988. The next day, James informed Dr. Mills that he was also quitting. Shortly thereafter, Mills discovered that Porter and James had already formed their new embryo transfer business — J. P. Genetics, Inc. As a result, Mills traveled to Montana to discuss business with the Montana ranchers who had been regular clients of Portable. During his travels, he learned that Porter and James sent out a letter on February 18,1988, soliciting business from Portable Embryonics clients: “It is with enthusiasm that I announce my partnership with Sonny James in a new company: J. P. Genetics, Inc.” He also found that all the Montana clients intended to stay with Porter.

Portable filed suit in March, 1989, alleging breach of contract, breach of loyalty, fraud and bad faith. On October 19, 1989, defendants filed a motion for summary judgment, arguing that the underlying contract was for an illegal purpose and constituted an unlawful restraint on trade. The District Court denied that motion by order dated February 28,1990. Following a bench trial in March, 1990, the District Court concluded that actual and constructive fraud, breach of the duty of loyalty and the covenant of good faith and fair dealing existed in Porter’s and James’ actions to steal Portable’s business from the Montana clients.

The District Court was particularly interested in evidence which tended to show that the plans of Porter and James to compete with Mills were formed and furthered while Porter and James were still employed by Portable. The District Court, in its findings of fact, listed various sales slips and invoices, which demonstrated that Porter and James, while still employed by Portable, planned for and implemented purchases for their new business. The District Court found that Porter and James set up their business in Montana in advance of informing portable that they were leaving and that Porter and James harmed Portable by concealing these plans. Based on findings of fact and conclusions of law generally favorable to Portable, the District Court entered judgment against defendants in the amount of $75,000.

I.

The first issue presented for review is whether the District Court erred in denying defendants judgment as a matter of law based on illegality of the employment contract.

Defendants contend that the purported employment agreements were contracts for an illegal purpose in Montana and are therefore ■unenforceable — the illegal purpose being the practice of veterinary medicine without a license. Based on our reasoning set out below, we hold that the contract is void for an illegal purpose.

Section 28-2-601, MCA defines the object of a contract as “the thing which it is agreed on the part of the party receiving the consideration to do or not to do.” Based on this statute and the evidence in the record, we find that the underlying and primary object of the subject employment contract was to perform embryo transfers on livestock in Montana. According to § 28-2-701, MCA, the object of the subject employment contract is not lawful if it is “contrary to an express provision of law.” Prior to 1989, during the period of time that Portable employed Porter and James as its embryo transfer technicians, § 37-18-102(l)(f), MCA, characterized “ova or embryo transfer” on animals as the practice of veterinary medicine. Section 37-18-501, MCA, assigns a misdemeanor violation to any person who practices veterinary medicine without a license. We find that none of the parties were trained or licensed veterinarians during the time that Portable contracted with Porter and James to perform embryo transfers in Montana. Therefore, we conclude that the object of the contract was unlawful at the time the contract was entered into and performed. This conclusion becomes the minor premise of the episyllogism whose major premise is found in § 28-2-603, MCA, which provides: “When contract wholly void. Where a contract has but a single object and such object is unlawful, whether in whole or in part, ... the entire contract is void.” We therefore conclude, as a necessary result based on deductive reasoning, that the entire employment contract is resultingly void.

It is clear that a party to an illegal contract cannot use the courts of this state to enforce the agreement.

“No principle of law is better settled than that a party to an illegal contract cannot come into a court of law and ask to have his illegal objects carried out, nor can he set up a case in which he must necessarily disclose an illegal purpose as the groundwork of his claim ... The law, in short, will not aid either party to an illegal agreement. It leaves the parties where it finds them. Therefore, neither a court of law nor a court of equity will aid the one in enforcing it, or give damages for a breach of it, or set it aside at the suit of the other, or, when the agreement has been executed in whole or in part by the payment of money or the transfer of other property, lend its aid to recover it back.”

Glass v. Basin & Bay State Mining Co. (1904), 31 Mont. 21, 33, 77 P. 302, 305 (quoting 9 D. Lawson, Cyclopedia of Law and Procedure 546). Accord McManus v. Fulton (1929), 85 Mont. 170, 182-83, 278 P. 126, 131; McPartlin v. Fransen (1982), 199 Mont. 143, 146-47, 648 P.2d 729, 730-31; MPH Company v. Imagineering, Inc. (1990), 243 Mont. 342, 349, 792 P.2d 1081, 1086.

In the alternative, Portable asserts that even if the employment contracts are unenforceable based on illegality, the District Court’s findings and conclusions were proper since they were based on tort and, therefore, do not depend at all on the enforceability vel non of the employment contract. Portable argues that its claim is based upon the implied covenant of good faith and fair dealing and upon breach of fiduciary duties and is independent of the illegality issue of the written employment contracts. To the contrary, whether characterized as arising from the written contract or from the employment relationship, each and every allegation Portable has asserted in its claim against defendants is based upon an agreement, the object of which was illegal under Montana law. No matter how Portable wishes to portray its case, it is inarguable that Portable’s entire suit is grounded in defendants’ alleged breach of an employment contract; a contract which was void based on its illegal purpose.

We hold that the object of the contract in question, according to the laws of this state as they existed during pertinent times, was for an illegal purpose and that the contract is therefore void. Neither party may now come into our courts and seek damages for breach of that agreement. We need not consider the other issues presented since our holding on this issue is dispositive of this appeal.

The judgment of the District Court is reversed.

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

JUSTICE TRIEWEILER,

specially concurring:

I concur with the opinion of the majority that the employment agreements which the plaintiff sought to enforce were for an illegal purpose and therefore, unenforceable. I also concur in the majority’s result which denied recovery to the plaintiff, pursuant to its theories grounded in tort. However, I would deny recovery in tort because there is an absence of proof of damages flowing from the facts which plaintiff alleges were tortious.

Plaintiff alleged that it was damaged when it lost clients due to the departure of the defendants. However, in its Finding No. 63, the District Court stated:

“Plaintiff relied solely on Mills’ testimony regarding damages. Plaintiff presented no testimony from any former client regarding whether they would have continued to use plaintiff’s services if Porter and James terminated their employment with plaintiff but did not continue to do embryo transfer work in Montana. Defendants called two former Portable Embryonics customers to testify at trial. Both testified that they did not like the treatment by Mills of their cows, and would not have continued to use Mills or plaintiff for their embryo transfer work after Porter and James terminated employment with plaintiff...”

In its Finding No. 64, the District Court also pointed out that of the ten ranches to whom plaintiff provided embryo transfer work prior to the departure of the defendants, all have either discontinued that kind of work, gone out of business, hired in-house technicians, or substantially reduced their requirements.

Plaintiff also sought recovery for miscellaneous items of damage, including the training of new people to replace the defendants. However, in Finding No. 65, the District Court found that the plaintiff failed to prove the dollar amount associated with these miscellaneous expenses.

On appeal, plaintiff contended that he was damaged by the defendants’ departure without notice because it left him unprepared to service clients in the southern part of the country later on in the spring of 1988. However, defendants testified that they would have continued to assist the plaintiff, had he not insisted that they terminate employment immediately, and the District court found, in Finding No. 41, that plaintiff did not ask for assistance from the defendants after they left his employment.

After all of these findings, the District Court concluded, as a matter of law, that plaintiff was entitled to damages in the amount of $75,000 without indicating any objective basis for those damages.

I would agree that in commercial transactions of this type the finder of fact should be given wide latitude in arriving at an award of damages. However, there has to be some objective basis for the damage award, and in this case it was totally unsupported by any evidence.

For these reasons, I would reverse the judgment of the District Court and deny recovery, pursuant to the plaintiff’s claims grounded in tort, regardless of the relationship of those claims to an illegal contract.

JUSTICE HUNT concurs in the special concurring opinion of Justice Trieweiler.


author: JUSTICE WEBER JUSTICE TRIEWEILER,

text:
    DOUGLAS C. BROOKINGS, Appellant and Plaintiff, v. DICK THOMPSON, Respondent and Defendant. DONALD J. TIGART, Respondent and Plaintiff, v. RICHARD J. THOMPSON, Respondent and Defendant. RICHARD J. THOMPSON, Respondent and Third-Party Plaintiff, v. DONALD J. TIGART, Respondent and Third-Party Defendant.
    No. 90-370.
    Submitted on briefs Mar. 14, 1991.
    Decided May 7, 1991.
    Rehearing Denied May 24, 1991.
    248 Mont. 249.
    811 P.2d 64.

      Philip J. O’Connell, Helena, for appellant and plaintiff.
    Patricia O’Brien Cotter, Lon T. Holden, Great Falls, for respondent and defendant.
   JUSTICE WEBER

delivered the Opinion of the Court.

This is the third appeal of a personal injury case arising out of a motor vehicle accident in Conrad, Montana, on January 4,1985. The first trial resulted in a jury verdict on March 21,1988, finding neither Thompson nor Tigart to be negligent. The District Court granted a new trial for irregularities in the proceedings. This Court upheld the District Court’s order granting Brookings and Tigart a new trial, 237 Mont. 468, 774 P.2d 401. The case was then appealed a second time on the issue of attorney’s fees. This Court upheld the District Court’s award of attorney’s fees.

On May 11, 1990, the jury returned its verdict on retrial, again finding neither Thompson nor Tigart to be negligent. Brookings moved for a new trial. The District Court denied Brookings’ motion. Brookings appeals. We affirm.

The determinative issue is:

Did the District Corut err in denying Brookings’ motion for a new trial on the basis that the defendants, Tigart and Thompson, are negligent as a matter of law?

Plaintiff, Brookings, was a passenger in a pickup driven by Tigart. Tigart was rounding a corner in Conrad that was covered with black ice. Thompson, also driving a pickup, pulled out onto the highway in front of Tigart. Tigart’s pickup went out of control and ended up in the ditch on its top.

There was substantial conflict in the evidence as to the cause of the accident. Tigart asserts that Thompson pulled out onto the highway without stopping or looking. Tigart was forced to hit his brakes to avoid a collision. He began to slide towards a large sign. He over-corrected and the pickup ended up in the ditch on its top. Both Tigart’s and Brookings’ testimony contained inconsistencies as to where and at what distance Thompson’s vehicle entered the highway. There was conflicting testimony as to whether Thompson stopped before entering the highway. Tigart testified that the Thompson vehicle had difficulty obtaining traction when it pulled out onto the highway. Officer Harris testified that there was no evidence of slipping or spinning tires at the intersection where Thompson pulled out.

Witnesses Randy Olson and Tim Miller testified at trial that at least 100 yards or the length of a city block separated the Thompson and Tigart vehicles when the Tigart vehicle began skidding out of control on the highway. Miller did not see how Thompson could have caused the Tigart vehicle to lose control because of the distance between the two vehicles. The estimates of Miller and Olson as to the distance between the Thompson and Tigart vehicles were confirmed by the measurements taken later by a paralegal.

Tigart asserts that Thompson’s failure to stop and look before pulling onto the highway, forced Tigart to take evasive action, causing the accident. Brookings makes the same claim as to Thompson. Brookings also claims that Tigart was negligent for driving at a speed greater than was reasonable and proper under the icy conditions. The jury found neither Tigart nor Thompson to be negligent.

Brookings claims that he is entitled to a new trial under the provisions of Rule 59(a), M.R.Civ.B, and under § 25-11-102(6), MCA. Rule 59 (a) states in pertinent part:

“Grounds. A new trial may be granted to all or any of the parties and on all or part of the issues for any of the reasons provided by the statutes of the state of Montana. ...”

Section 25-11-102(6), MCA, states:

“Grounds for new trial. The former verdict or other decision may be vacated and a new trial granted on the application of the party aggrieved for any of the following causes materially affecting the substantial rights of such party:
“(6) insufficiency of the evidence to justify the verdict or other decision or that it is against law;”

The decision to grant a new trial is within the sound discretion of the trial judge and will not be overturned absent a showing of manifest abuse of discretion. Stanhope v. Lawrence (1990), 241 Mont. 468, 471, 787 P.2d 1226, 1228. This Court’s function is to determine if there is substantial credible evidence in the record to support the jury’s verdict. Walls v. Rue (1988), 233 Mont. 236, 238, 759 P.2d 169, 171. We must view the evidence in a light most favorable to the prevailing party below, and where the record presents conflicting evidence, resolved by the jury, this Courtis precluded from disturbing the verdict. Id. This rule is particularly applicable when the District Court has passed on the sufficiency of the evidence on motion for new trial and has upheld its sufficiency. Id. When testimony at trial includes different accounts of an event, it would be an abuse of discretion for the trial court to grant a new trial solely because it chooses to believe testimony different than that believed by the jury. To do so would create a bench supremacy and sap the vitality of jury verdicts. Nelson v. Hartman (1982), 199 Mont. 295, 300, 648 P.2d 1176, 1178-1179.

The basis of Brookings’ argument appears to be that this kind of accident cannot happen absent negligence. Brookings was hurt and somebody had to be at fault. Brookings produces no evidence to support this contention. Brookings cites Aemisegger v. Herman (1985), 215 Mont. 347, 697 P.2d 925, for the proposition that a defendant is negligent as a matter of law when he violates basic traffic rules, such as yielding the right-of-way or failing to take the conditions of the highway into consideration. Aemisegger does not stand for the proposition, as Brookings suggests, that because there is an accident, someone must be found negligent. The evidence in Aemisegger was clear that the defendant was at fault. In this case the evidence is conflicting and not at all clear that anyone was at fault.

We hold that the District Court did not err when it denied Brookings’ motion for a new trial on the basis that the defendants were negligent as a matter of law. Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES GRAY and HUNT concur.

JUSTICE TRIEWEILER,

concurring:

I dissent from the opinion of the majority.

I agree that as a general rule the mere occurrence of an accident does not require a finding that negligence caused the accident. However, that general rule is not logically applicable to the facts in this case.

The plaintiff, Douglas Brookings, was an innocent passenger in a motor vehicle which went out of control, left the highway, and rolled over.

Donald Tigart, the driver of that motor vehicle, blamed his loss of control on Richard Thompson’s unexpected entrance onto the highway from a side street or driveway, and Thompson’s failure to yield the right-of-way to Tigart.

Thompson’s defense was that Tigart was simply operating his vehicle too fast for the existing conditions, and therefore, was unable to control his vehicle when Thompson entered the highway, even though he should have been able to do so, based on their respective locations at the time.

No one alleges that the plaintiff contributed in any way to the cause of the accident. Neither did any witness or any party blame any person other than Tigart or Thompson for what occurred.

This accident could only have occurred because of one of the two previous explanations. Either Thompson failed to yield the right-of-way to Tigart, or Tigart was going too fast for the existing icy conditions.

If Thompson failed to yield the right-of-way to Tigart, then he violated § 61-8-341, MCA, which provides in relevant part that:

“The driver of a vehicle shall stop ... at the entrance to a through highway and shall yield the right-of-way to other vehicles ... which are approaching so closely on said through highway as to constitute an immediate hazard ...”

If the accident occurred because Tigart was operating his vehicle on an icy road at a speed which left him unable to control the vehicle when necessary, then he violated § 61-8-303(1), MCA, which provides in relevant part that:

“Aperson operating or driving a vehicle of any character on a public highway of this state shall drive it in a careful and prudent manner, and at a reasonable rate of speed no greater than is reasonable and proper under the conditions existing at the point of operation, taking into account the ... condition of surface, and freedom of obstruction to view ahead ...”

The accident in which the plaintiff was injured could not logically have occurred unless one of the above statutes was violated. Violation of either statute was negligence per se. Aemisegger v. Herman (1985), 215 Mont. 347, 697 P.2d 925,

The evidence may have been conflicting. However, that did not absolve the jury of its obligation to resolve the evidence by deciding that one or both of the defendants was negligent.

I would remand this case to the District Court for retrial, based on instructions to the jury that its sole responsibility is to decide which of the defendants was at fault for the accident in which the plaintiff was injured.