author: MR. JUSTICE GULBRANDSON

text:
    WILLIAM COBLE, Petitioner and Appellant, v. DANIEL MAGONE, Missoula County Sheriff, Defendant and Respondent.
    No. 87-69.
    Submitted on Briefs Aug. 13, 1987.
    Decided Nov. 3, 1987.
    744 P.2d 1244.
    J. Dirk Beccari, Missoula, for petitioner and appellant.
    Mike Greely, Atty. Gen., Joe R. Roberts, Asst. Atty. Gen., Helena, Robert L. Deschamps, III, Missoula Co. Atty., Missoula, for defendant and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

This appeal arises from a denial of a writ of habeas corpus in the District Court of the Fourth Judicial District, Missoula County. Petitioner-Appellant, William Ray Coble (Coble), applied for the writ of habeas corpus based on the theory he should not be extradited, pursuant to the Uniform Criminal Extradition Act (Sections 46-30-101, et seq., MCA), to the State of Idaho on a Governor’s warrant. Coble appeals this ruling. We find the District Court reached the proper conclusion in this case.

Generally, a proper procedure for review would be to petition for a writ of certiorari. A denial of a writ of habeas corpus is not properly appealable to this Court. In re Hart (1978), 178 Mont. 235, 583 P.2d 411. However, due to the nature of this claim, and in light of judicial economy, we will review the case as a petition for writ of certiorari.

The issue we must answer is whether the District Court erred in denying the writ of habeas corpus because petitioner is a juvenile and therefore not subject to the Uniform Criminal Extradition Act.

During mid-June, 1986, Coble’s mother moved from Payette, Idaho to Missoula, Montana. Coble, age seventeen, stayed in Payette and allegedly stole a 1979 Mercury Monarch and destroyed some household furnishings. He later joined his mother in Missoula. On July 16, 1986, a Lawyer Magistrate of the District Court of the Third Judicial District of the State of Idaho issued a warrant for the arrest of Coble. The warrant charged Coble with the felony offenses of Grand Theft, Idaho Code Sections 18-2403(1) and 18-2407(1) and Malicious Injury to Property, Idaho Code Section 18-7001.

Coble was arrested in Missoula and on July 22, 1986 appeared in District Court. He informed the court at that time that he would fight extradition. A Governor’s warrant was issued by the Governor of Montana on September 3, 1986 after a Demand for Extradition was made by the Governor of Idaho on August 6, 1986. The Governor’s warrant from the state of Idaho was accompanied by an application for requisition and a warrant for Coble’s arrest.

Coble filed the petition for the writ on September 18, 1986. After various extensions of time were granted, on December 9, 1986 the District Court entered findings of fact, conclusions of law and an order denying the writ. The findings of fact stated: 1. the Governor of Montana had issued a warrant for Coble’s arrest; 2. Coble was indeed the William Jay Coble named on the warrant; 3. the extradition documents appeared “on their face to be in order”; 4. Coble was charged with the crimes of Grand Theft and Malicious Injury to Property (felonies in Idaho); 5. Coble was fugitive; and 6. Coble was seventeen years old.

The District Court further found as conclusions of law that Coble had been lawfully detained and all of the requirements of the Uniform Criminal Extradition Act were properly complied with. Finally, the court found that Coble was not exempt from the Uniform Criminal Extradition Act on the basis that he was a juvenile. Coble contends that the District Court erred in finding that the Uniform Extradition Act applied to him because he is a juvenile. We disagree.

We have previously held that a court, in its scope of inquiry of whether the Uniform Criminal Extradition Act is applicable, is limited to the following considerations:

“(a) whether the extradition documents on their face are in order;
“(b) whether the petitioner has been charged with a crime in the demanding state;
“(c) whether the petitioner is the person named in the request for extradition; and
“(d) whether the petitioner is a fugitive.”
“Michigan v. Doran (1978), 439 U.S. 282, 289, 99 S.Ct. 530, 535, 58 L.Ed.2d 521, 527; cited in Crabtree v. State (1980), 186 Mont. 340, 343, 607 P.2d 566, 567.”

Petition of Blackburn (Mont. 1985), [215 Mont. 440,] 701 P.2d 715, 717, 42 St.Rep. 525, 527.

From a review of the record, it is clear that the District Court took these standards into consideration. Coble admits the above-stated criteria are applicable in this case. He also admits that the extradition documents are in order and he is the person named in them. But Coble contends that the second requirement, that a crime be charged, is not met because, as a juvenile, he cannot be charged with the felonious offenses of grand theft and malicious injury to property. The offenses, he contends, can be charged only against an adult in both the asylum state (Montana) and the demanding state (Idaho). Therefore, Coble argues, the greatest offense he can be charged with is delinquency which is not an extraditable crime. We do not agree with these assertions.

Coble argues the case of People v. Smith (1981), 109 Misc.2d 705, 440 N.Y.S.2d 837, stands for the proposition that the offenses should be limited to delinquency and therefore non-extraditable. Smith, however, deals specifically with whether the juvenile can be considered a “fugitive” for extradition purposes. Further, the juveniles in Smith were charged with a juvenile status offense, not a felony as in this case.

The District Court looked to the charging document, the warrant of arrest, and found that there was a charge of grand theft and malicious destruction of property under Idaho law. These charges are sufficient. The rule is clear:

“The only safe rule is to abandon entirely the standard to which the indictment must conform, judged as a criminal pleading, and consider only whether it shows satisfactorily that the fugitive has been in fact, however [inartfully] charged with crime in the state from which he has fled.” (Citations omitted.)

Blackburn, 701 P.2d at 718, 42 St.Rep. at 528.

Here, the District Court properly determined that a crime had been charged. The warrant is specific and in compliance with the requirements of Section 46-30-211, MCA.

Coble cites case law which deals with the question of whether a juvenile can be extradited under the Uniform Criminal Extradition Act and further makes the statement that the majority does not favor juvenile extradition unless a “serious” crime has been committed. We find this to be inaccurate.

All the case law cited concludes that juveniles are not to be treated any differently than an adult by the asylum state:

“[Jurisdictions with extradition statutes comparable to those adopted in Utah and Wyoming have held that a juvenile fugitive may be extradited. In Ex Parte Jetter, Tex.Cr.App., 495 S.W.2d 925 (1973), the court remanded a juvenile fugitive charged with murder to custody of the demanding state explaining that the Uniform Criminal Extradition Act (which has been adopted by Utah [and Montana]) did not exclude minors from its operation. The court in Snyder v. State, 95 Idaho 643, 516 P.2d 700, 73 A.L.R.3d 695 (1973) held that a juvenile court hearing to determine whether to waive jurisdiction and allow the juvenile to be tried as an adult was unnecessary, being beyond extradition procedural requirements. Cf. People v. Pardo, 47 Ill.2d 420, 265 N.E.2d 656 (1970).”

Burnham v. Hayward (Utah 1983), 663 P.3d 65, 67.

Therefore, we find that for juveniles and adults alike, only the standards enunciated in Doran should be considered once the governor’s warrant is issued.

“[0]nce the Governor of the State of Montana issued his warrant ‘all questions involving the prior arrest and detention are rendered immaterial.’ 39 C.J.S. Section 115, Habeas Corpus, p. 889. Case law also holds that even if the previous detention was irregular, which is not the case here, then the governor’s warrant renders all such claims moot. (Citations omitted.) Also, in Dilworth v. Leach (1973), 183 Colo. 206, 515 P.2d 1130, the Colorado Supreme Court agreed with the above cited principle and stated:

“ ‘[N]either reason nor justice requires a change in the well-settled principle that the process involved in the initial arrest in the asylum state becomes moot upon the issuance of the governor’s warrant.’ 515 P.2d at 1131.”

Blackburn, 701 P.2d at 719, 42 St.Rep. at 529.

Here, once the governor’s warrant was issued, the District Court had the ability to consider only the Doran standards. It did not, as Coble alleges, have the power to look to the charging state’s law and determine Coble’s status as a juvenile. As was said in Batton v. Griffin (1978), 241 Ga. 548, 246 S.E.2d 667, 668, legal challenges “[s]hould be raised in the demanding state rather than in the sanctuary state.” See Snyder v. State (1973), 95 Idaho 643, 516 P.2d 700. In this case, we feel that Coble should raise the issue of his juvenile standing in Idaho.

Coble argues that the Uniform Criminal Extradition Act contains no language that indicates it was intended to apply to juveniles. Citing Section 1-2-101, MCA, Coble asserts that the court should not insert what has been omitted. A review of the Uniform Criminal Extradition Act shows that juveniles are not expressly included in the act, but it also shows that juveniles are not expressly excluded. The legislative history shows that juveniles were not intentionally omitted.

Other states have applied the Act to juveniles. Ex Parte Jetter (Tex. 1973), 495 S.W.2d 925; Burnham, supra. Respondent appropriately points out that Article IV, Section 2 of the United States Constitution, on which the Uniform Criminal Extradition Act is based, provides that “[a] person charged” shall be subject to extradition. There is no limitation for juveniles. It is clear that there is to be no additional procedural protection for juveniles under the Act.

We hold that the failure of the Legislature to include, or specifically exclude, juveniles is of no aid to Coble in this case. The District Court was correct in limiting its consideration to the standards of Doran.

The Attorney General of the State of Montana has also recognized that juveniles are not to be exempted from application of the Uniform Criminal Extradition Act, 41 A.G.Op. 24 (1985). In evaluation of whether juveniles could be properly extradited, the Attorney General appropriately concluded that the majority of “[j]urisdictions allow extradition of juveniles if they are charged with a crime in the demanding state.”

In conclusion, Blackburn expresses the standard of review required for reversal of the District Court’s determination in this case.

“[T]he Governor’s warrant is prima facie evidence of all the information recited in it including identity, fugivity and that the petitioner is properly charged with a crime. In re the Matter of Hart (1978), 176 Mont. 225, 583 P.2d 411. This Court recognized this general rule with respect to whether the accused was a fugitive in State ex rel. Hart v. District Court (1971), 157 Mont. 287, 293, 485 P.2d 698, 702, stating:

“ ‘The issuance of a warrant of rendition by the Governor of the asylum state raises a presumption that the accused is the fugitive wanted and it is sufficient to justify his arrest, detention and delivery to the demanding state. * * * In order to rebut the presumption the accused must prove beyond a reasonable doubt either that he was not present in the demanding state at the time of the alleged offense or that he was not the person named in the warrant . . .”’ Blackburn, 701 P.2d at 717, 42 St.Rep. at 527-528.

In this case, the Governor’s warrant is “regular on its face and makes out a prima facie case authorizing extradition.” Jetter, 495 S.W.2d at 925. Coble did not prove beyond a reasonable doubt that he was not present in Idaho at the time the alleged crimes were committed nor does he dispute that he is the party named in the warrant.

The District Court reached the proper conclusion and the petition for writ of certiorari is denied.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES WEBER, HUNT and McDONOUGH concur.


source: Caselaw Access Project

license: Public Domain

text:
    ROBERT S. and BETTY J. TURNER, Plaintiffs and Appellants, v. ARTHUR P. TRANAKOS, and other John Doe, Defendants and Respondents.
    No. 87-74.
    Submitted on Briefs Aug. 19, 1987.
    Decided Nov. 3, 1987.
    744 P.2d 898.
    Flaherty, Lord & Winner, Patrick Flaherty, Great Falls, for plaintiffs and appellants.
    Arthur P. Tranakos, Atlanta, Ga., pro se.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

Robert and Betty Turner appeal a judgment of dismissal made by the District Court of the Twelfth Judicial District. The District Court found that it lacked in personam jurisdiction over the defendant, Arthur Tranakos. We reverse the decision of the District Court and remand for further proceedings.

On December 8, 1986, Robert and Betty Turner instituted this action against Arthur Tranakos in Liberty County alleging legal malpractice, bad faith, breach of fiduciary duty and fraud. The Turners made the following allegations in their complaint:

“1.0 Robert and Betty Turner are farmers who live near Chester, Montana in Liberty County, State of Montana and are second and third generation farmers from Montana.
“1.1 Arthur P. Tranakos is an attorney at law admitted to practice in the Courts of Georgia, and who has actively solicited business in the State of Montana. Tranakos has traveled into the State of Montana to solicit business and he has also appeared as an attorney at law before various Montana Courts although he is not an admitted attorney in Montana.
“2.0 Arthur Tranakos came to Montana on his own and also under the sponsorship of various life insurance companies in order to solicit business for tax sheltered investments and through estate planning.
“2.1 It was in this capacity that he met the Plaintiffs and represented that he was well qualified to assist the farmers in planning their estate and managing their financial affairs. The Defendant Arthur P. Tranakos specifically represented that the highest confidence in trust could be reposed in him and that he would take care of the Plaintiff’s every financial need.
“2.2 Acting in direct reliance upon the representations and advice of Arthur P. Tranakos, the Plaintiffs did put all of their trust and faith in him as an attorney, as an investment counselor, and acting on his advice they transferred their entire interest in their family farm (which was worth in excess of $500,000) to a corporation known as SOLACO, INC., a Nevada corporation, which was owned entirely by Arthur P. Tranakos as the sole shareholder of record.
“2.3 Thereafter, the crisis hit the farm economy through low prices and drought and the major creditor of the Turners commenced a foreclosure action in Liberty County District Court, Cause No. 3010 in which the Federal Land Bank of Spokane sought to foreclose its security interest in the family farm which was operated by the Turners.
“2.4 Arthur P. Tranakos, although not admitted to practice in Montana, entered an appearance as attorney of record for the Turners in that matter and proceeded to [mis]represent the Turners. Arthur P. Tranakos had a duty to obtain local counsel to assist in the representation of the Plaintiffs which duty is breached. Arthur P. Tranakos had an additional duty to render a competent and vigorous defense including pleading of affirmative defenses, filing compulsory counterclaims and to appear at all court hearings.
“2.5 Tranakos violated all of the foregoing duties by not associating local counsel, by not being sponsored in by local counsel, by failing to raise the proper affirmative defenses, file compulsory counterclaims and finally by not appearing at a summary judgment hearing in which the Federal Land Bank won its motion to foreclose by the default of Arthur P. Tranakos and the Turners are in immediate danger of losing the family farm.
“. . . [Addition theirs.]

A summons was issued on December 9, 1986, and Tranakos was personally served in Atlanta, Georgia, on December 16, 1986. On January 8, 1987, the Turners moved for entry of default judgment based on Tranakos’ failure to file a response to the complaint within twenty days. The Liberty County Clerk of Court entered default judgment against Tranakos on January 12, 1987.

At the Turners’ request, the District Court scheduled a hearing for January 26, 1987, to determine damages due under the default judgment. On January 20, 1987, Tranakos filed an answer to the Turners’ complaint wherein he alleged, among other things, that the District Court lacked personal jurisdiction over him. Tranakos’ answer goes on to admit that he “did appear on behalf of [the Turners] in their case adverse the Federal Land Bank of Spokane, Case No. 3010, in this Court.”

The District Court refused to entertain any discussion of damages at the January 26, 1987, hearing. Instead, the District Court dismissed the case on the grounds that it lacked personal jurisdiction over Tranakos. The District Court also took judicial notice of Liberty County District Court Cause No. 3010, entitled “The Federal Land Bank of Spokane v. Robert S. and Betty J. Turner et al.” The Turners appeal the District Court’s dismissal of this action and raise the following issues:

(1) Did the District Court err in dismissing Turners’ action for lack of personal jurisdiction when Turners’ complaint alleged that Tranakos acted and failed to act within Montana in a manner constituting professional malpractice?

(2) Did the District Court err in dismissing Turners’ action for lack of personal jurisdiction after that court took judicial notice of Tranakos’ appearance in the Federal Land Bank’s action to foreclose its mortgage on the Turners’ Montana property?

(3) Did the District Court err in dismissing Turners’ action for lack of personal jurisdiction when Turners’ verified complaint alleged that Tranakos conducted business within the state?

Respondent Tranakos raises the following additional issue:

(4) Is the record before this Court complete and adequate for this Court’s review of the District Court’s decision?

This Court must first address Tranakos’ procedural issue before addressing the merits of this appeal. Tranakos asserts that under Rule 9, M.R.App.P., the Turners have not properly perfected this appeal and, therefore, the appeal must be dismissed. Tranakos’ argument in this regard is that the record on appeal must include the records of the Federal Land Bank foreclosure action, Liberty County District Court Cause No. 3010. However, the District Court took judicial notice of the above-referenced action and this Court may do the same.

Tranakos’ appellate procedure argument is without merit. Rule 202(c), M.R.Evid., provides the following:

“A court may take judicial notice of the law listed in parts 2-10 of Rule 202(b) or other law, whether requested or not. The court may inform itself of any law in such a manner as it may deem proper and the court may call upon counsel to aid it in obtaining such information.”

Rule 202(b)(6), M.R.Evid., allows judicial notice to be taken of the “[r]ecords of any court of this state or of any court of record in the United States or any court of record of any state in the United States . . .” Accordingly, this Court takes judicial notice of Liberty County District Court Cause No. 3010, and all matters of record therein. This Court has reviewed the record of Cause No. 3010, and finds that Tranakos did appear as the Turners’ attorney of record on at least two occasions by filing an answer to the complaint and by filing answers to interrogatories and requests for admissions.

In an appeal of a motion to dismiss such as this, we must take all well-pleaded allegations in the complaint as being admitted and construe the complaint in a light most favorable to the Turners. Willson v. Taylor (Mont. 1981), [_Mont._,] 634 P.2d 1180, 1182, 38 St.Rep. 1606, 1608. Tranakos does not refute the facts alleged in the Turners’ complaint and, in his answer, he admits making appearances on the Turners’ behalf. Tranakos’ defenses are that the District Court lacks jurisdiction and the complaint fails to state a viable claim for relief.

The Turners contend that Rule 4B(l)(a), (b) and (e), M.R.Civ.P., apply to Tranakos’ actions to subject him to the jurisdiction of Montana courts. Rule 4B, in pertinent part, provides as follows:

“(1) Subject to jurisdiction. All persons found within the state of Montana are subject to the jurisdiction of the courts of this state. In addition, any person is subject to the jurisdiction of the courts of this state as to any claim for relief arising from the doing personally, through an employee, or through an agent, of any of the following acts:
“(a) the transaction of business within this state;
“(b) the commission of any act which results in accrual within this state of a tort action;
“(e) entering into a contract for services to be rendered or for materials to be furnished in this state by such person ...”

Tranakos is not “within the state of Montana” for general jurisdictional purposes, but the Turners have alleged a tort action which confers jurisdiction under subsection (b) of the above statute. A claim for legal malpractice falls within the definition of a “tort action” as set forth in Subsection (b) above. Yates v. Muir (1985), 130 Ill.App.3d 604, 86 Ill.Dec. 20, 474 N.E.2d 934, 937. Accordingly, we find the Turners’ first issue with regard to jurisdiction based on legal malpractice to be dispositive of this appeal.

This Court applies a three part test for determining if a Montana court may exercise long-arm jurisdiction over a defendant whose activities are neither “substantial” nor sufficiently “continuous and systematic” to invoke general jurisdiction. Simmons v. State of Montana (Mont. 1983), [206 Mont. 264,] 670 P.2d 1372, 1376, 40 St.Rep. 1650, 1652. These tests, as articulated in Simmons, are as follows:

“1. The non-resident defendant must do some act or consummate some transaction within the forum or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking its laws.
“2. The claim must be one which arises out of or results from the defendant’s forum-related activities.
“3. Exercise of jurisdiction must be reasonable.”

Simmons, 670 P.2d at 1378, 40 St.Rep. at 1656 (citing Data Disk, Inc. v. Systems Tech Assoc., Inc. (9th Cir. 1977), 557 F.2d 1280, 1287). Applying the above-mentioned tests, we first find that Tranakos “purposefully availed himself of the privilege of” practicing law in the state of Montana by representing the Turners in Liberty County District Court Cause No. 3010. We further find that it is exactly those acts of representing the Turners that are the basis of the Turners’ claims for relief in this matter. Taking the Turners’ allegations as true, as we must in a motion to dismiss, sufficient grounds have been pled for a legal malpractice action resulting from Tranakos’ representation of the Turners in Cause No. 3010.

Finally, our review of the record leads us to a determination that the exercise of jurisdiction over Tranakos is reasonable under the circumstances. Foremost in this determination is Montana’s interest in regulating the practice of law within the state. It is imperative in this case that an attorney, whether or not licensed to practice law in Montana, not be allowed to escape the consequences of in-state representation by residing in some other state. We also note that only Tranakos is situated outside of Montana. The Turners, their farm and Liberty County District Court Cause No. 3010 all are situated in Montana. The burden of inequities of requiring the Turners to prosecute this action in Georgia would be greater than the burden of requiring Tranakos to defend himself in Montana.

We find that Arthur P. Tranakos is personally subject to the jurisdiction of the Montana courts for his alleged legal malpractice and all reasonably related actions thereto. Because of this finding we need not address the Turners’ remaining two issues. The decision of the District Court is reversed and the cause is remanded for further proceedings.

Reversed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, SHEEHY and McDONOUGH concur.


author: MR. JUSTICE McDONOUGH

text:
    MICHAEL S. CAREY and Kristine J. Carey, Plaintiffs and Respondents, v. ORVILLE WALLNER and Grace Wallner, Defendants and Appellants.
    No. 87-199.
    Submitted on Briefs Aug. 6, 1987.
    Decided Oct. 29, 1987.
    744 P.2d 881.

      Morrow, Sedivy & Bennett; Terry Schaplow, Bozeman, for defendants and appellants.
    Michael J. Lilly, Bozeman, for plaintiffs and respondents.
   MR. JUSTICE McDONOUGH

delivered the Opinion of the Court.

Both parties appealed the first judgment in this action. See Carey v. Wallner (Mont. 1986), [223 Mont. 260,] 725 P.2d 557, 43 St.Rep. 1706. Therein this Court affirmed in part, and reversed and remanded in part with instructions to amend the judgment. Pursuant to the remand, the District Court of the Eighteenth Judicial District entered an amended judgment on January 6, 1987. The appeal currently before us contests the validity of that judgment. We affirm.

Briefly summarized, the facts from the former case reveal a contract for deed dispute. Careys petitioned for rescission of the parties’ contract alleging failure of consideration and breach of warranty. The District Court found that Wallners breached certain warranties, and concluded that Careys should receive damages and Wallners should receive the return of the contract property. In its first judgment, however, the District Court failed to formally revest title, and failed to formally grant rescission.

On appeal of the first judgment, Wallners contended that the District Court erred in granting rescission because restoration of the property would not return them to the pre-contract status quo. Carey, 725 P.2d at 561. This Court affirmed the District Court’s finding because:

“Absolute and literal restoration is not required, it being sufficient if the restoration be such as is reasonably possible or as demanded by equity. O’Keefe v. Routledge (1940), 110 Mont. 138, 146-147, 103 P.2d 307, 310.”

Carey, 725 P.2d at 561. Although the District Court was affirmed in regard to Wallners’ appeal, the case was remanded with instructions to the District Court to correct its error in calculating Careys’ damages. Carey, 725 P.2d at 562.

The District Court fulfilled the instructions over more objections by Wallners. At the hearing held pursuant to the remand, Wallners attached an affidavit and various unsworn statements to a brief supporting their proposed amended judgment. The affidavit and the statements purported to show that the property’s value had dropped from $75,000 to $30,000, and Wallners’ proposed amended judgment held Careys liable for the alleged drop in value. The District Court refused to adopt Wallners’ amended judgment reasoning in its order memorandum that:

“For this Court to accept that value would clearly contravene the opinion of the Montana Supreme Court which pegged the value at SEVENTY-FIVE THOUSAND DOLLARS ($75,000). Furthermore, it would be making a leap of faith that such decreased value was due to the Plaintiffs’ neglect rather than a fluctuation in the real estate market. Also, as the Plaintiffs argue, the property has actually been in the hands of the Defendants since the Defendants did not request a stay of execution of of this Court’s judgment. It appears to this Court that to decrease that value would be totally inappropriate.”

Wallners have appealed the amended judgment contending that this Court’s prior ruling, and equity, require the award of more than the allegedly devalued property. First, in regard to the prior ruling, Wallners contend that this Court’s decision depended on the return of property valued at $75,000. Second, in regard to equity, Wallners contend that the risk of damage to the contract property remained with Careys during the pendancy of the appeal. In support of the equity argument, Wallners contend that (1) they could not retake title due to the District Court’s failure to revest title, (2) Careys vacated the property despite the fact that title had not been revested in Wallners, (3) Careys’ failure to remain caused damage to the property, and (4) the damage caused by Careys constitutes a violation of their statutory duty to return everything of value received under the contract.

We have considered and decided both issues. First, in regard to the effect of the former opinion, Montana law empowers this Court to order the proper judgment. Section 3-2-204, MCA. Once we order a particular judgment, the lower court has no discretion to alter it. See In re the Marriage of Sarsfield (Mont. 1985), [215 Mont. 123,] 695 P.2d 473, 474, 42 St.Rep. 231, 233; State ex rel. Olson v. District Court of Nineteenth Judicial District (1979), 184 Mont. 346, 349, 602 P.2d 1002, 1003-4; In re Stoain’s Estate (1960), 138 Mont. 384, 390, 357 P.2d 41, 45. Applying this rule to demands for relief on a second appeal, the Court of Appeals of Oregon stated:

“Relief from asserted changed conditions or rights allegedly accruing or injuries allegedly occurring pending or following appeal can be had, if at all, only by resort to an original proceeding by which appropriate relief may be sought. See for example Mackall v. Richards, 116 U.S. 45, 6 S.Ct. 234, 29 L.Ed. 558 (1885); Galbreath v. Wallrich, 48 Colo. 127, 109 P. 417 (1910).”

City of Idanha v. Consumers Power Inc. (1973), 13 Or.App. 431, 509 P.2d 1226, 1228. We adopt the Court of Appeals of Oregon’s reasoning in the application of this rule. Thus, this Court’s previous opinion limited the District Court’s remand powers. Its discretion extended only to the entry of the proper judgment.

At any rate, Wallners misconstrue our first opinion. We did not order that the District Court revest title to property currently valued at $75,000. Rather, we affirmed the District Court’s finding that Wallners should receive no more than the return of the contract property valued near the time Careys offered to return it. This was all Wallners were to receive because the burden of the mistake which lead to the breach of the warranties “must fall on Wallners.” Carey, 725 P.2d at 561.

In regard to Wallners’ equitable contentions, we need only point out that a “land contract such as is involved here is an executory contract and the legal title does not pass until the conveyance is actually made.” Dobitz v. Oakland (1977), 172 Mont. 126, 130, 561 P.2d 441, 443. Thus, although the contract transferred the beneficial interest in the realty to Careys, they never received legal title from Wallners. Therefore, Wallners have no grounds to argue that Careys’ duty to maintain the premises continued until Wallners received the return of title to the property. Wallners never lost title to the property.

Furthermore, any duty to maintain the property incident to Careys’ possession terminated when the District Court found that rescission was appropriate. This is true because rescission extinguishes contract duties. See Section 28-2-1701, MCA. Wallners may attempt to argue that rescission never occurred because the District Court failed to formally grant rescission in its judgment. To prevent the appearance of that issue before this Court, we now take the opportunity to point out that Wallners’ original appeal contested the propriety of the rescissionary remedy. Wallners may not appeal an issue on the one hand, and on the other deny the basis for its existence. Our previous decision constitutes res judicata as to this issue. In particular, as we stated previously in the face of similar contentions, there “must be an end to litigation, and in this matter it has been reached.” Gray v. Bohart (1957), 131 Mont. 522, 524, 312 P.2d 529, 531.

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


author: MR. JUSTICE WEBER

text:
    VIRGIL and BARBARA BURNS, Plaintiffs and Appellants, v. JIM HINMAN, Defendant and Respondent.
    No. 87-127.
    Submitted on Briefs Aug. 20, 1987.
    Decided Oct. 29, 1987.
    744 P.2d 879.

      Manley, Smith & Dupuis, James A. Manley, Poison, for plaintiffs and appellants.
    M. Richard Gebhardt, Ronan, for defendant and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

Plaintiffs Burns sued Mr. Hinman for breach of a haying contract. The District Court for the Twentieth Judicial District, Lake County, concluded that plaintiffs had proven breach, but had failed to prove that Mr. Hinman caused their damages. It ordered that plaintiffs take nothing by their complaint and awarded Mr. Hinman his costs of suit. We affirm.

The issues are:

1. Did the District Court err in denying plaintiffs consequential damages for their lost second hay crop?

2. Did the District Court err in denying plaintiffs recovery for damages to their tractor?

In the spring of 1985, the parties entered an oral agreement that Mr. Hinman would cut and bale the Burns’ first hay cutting of the year. Mr. Hinman is in the business of custom farming other people’s land. Mr. Hinman had cut the Burns’ hay in the previous year, and was familiar with the Burns’ hay operation. He was also familiar with the Burns’ summer schedule of conducting ten-day pack trips into the Bob Marshall Wilderness.

The parties agreed that the cutting and baling would be done by July 10. However, because he got a late start and because of equipment problems, Mr. Hinman did not actually complete the cutting and baling until July 20. By that time, the crew which the Burns had hired to stack the bales had returned to the Bob Marshall. The Burns asked Mr. Hinman to get someone to put the hay up, and Mr. Hinman agreed that he would try. Mr. Hinman hired three high school age boys who stacked approximately 40 acres of the 100 acres to be stacked. The Burns returned from the Bob Marshall August 3 and completed the hay stacking with their own crew.

Mr. Hinman presented the Burns with a $1,507 statement for the swathing, baling, and stacking he had done. Mrs. Burns gave Mr. Hinman a check for $750 on August 3, but later stopped payment on the check. Mr. Hinman obtained a justice court default judgment for his work. The Burns have paid that judgment. The Burns filed their own suit in justice court, alleging that the late harvest of their first hay crop prevented them from harvesting a second hay crop that year. They also alleged damages to their tractor while it was under Mr. Hinman’s control. The Burns obtained judgment of $3,500 in justice court. Mr. Hinman appealed to district court.

The District Court ruled that the Burns had “failed to prove that the ten-day delay in the completion of the swathing and baling by [Mr. Hinman] was the cause of [the Burns] not getting a second cutting of hay in 1985.” It also ruled that the record failed to establish that Mr. Hinman bore any fault for the damages to the Burns’ tractor. The court therefore ordered that the Burns take nothing by their complaint.

I

Did the District Court err in denying plaintiffs consequential damages for their lost second hay crop?

The District Court found

“[t]hat the Plaintiffs failed to prove that the failure to get a second cutting of hay in 1985 was caused by Defendant not completing the swathing and baling until July 20, 1985 rather than July 10, 1985 according to the terms of their oral agreement.”

The District Court’s findings will be affirmed if they are supported by substantial credible evidence. Cameron v. Cameron (1978), 179 Mont. 219, 227, 587 P.2d 939, 944. Where the evidence conflicts, the trial judge’s resolution of those conflicts will not be disturbed unless there is a clear preponderance of evidence against the court’s findings. Cameron, 587 P.2d at 944.

The record contains conflicting evidence on this issue. Mr. Burns testified at trial that the delay in harvesting and stacking his first hay crop caused his second crop to dry up from not being irrigated during the delay. However, Mr. Hinman was not obligated under the parties’ oral contract to stack the hay. Therefore, only ten days of delay is attributable to Mr. Hinman’s late performance under the contract. Mr. Burns admitted that no second cutting was made off the fields in 1984, either. Mr. Hinman offered his opinion that the Burns should have started watering on each field as soon as the hay bales were picked up, instead of waiting until the bales were picked up from all the fields before beginning any watering. Further, Mr. Hinman testified that he had finished harvesting and stacking the Burns’ hay in 1984 on approximately the same date as he finished in 1985.

We conclude that substantial evidence supports the District Court’s finding that there was a failure to prove that the absence of a second crop in 1985 was a result of delay caused by Mr. Hinman.

II

Did the District Court err in denying plaintiffs recovery for damages to their tractor?

The District Court found that

“Plaintiffs’ evidence established that approximately $981.00 in damages were done to their tractor, but the record does not establish by any preponderance of the evidence as to who caused the damages or that there was any fault on the part of the Defendant.”

Again, the issue is whether substantial evidence supports this finding, on which there was conflicting testimony.

The damages to the tractor included a dent in one side which prevented a door from operating properly, broken windows, and a broken steering wheel. Although Mr. Burns testified that it appeared the tractor had been dented in a collision with his haying wagon, Mr. Hinman testified that the position of the dent on the tractor was not consistent with such an explanation. Mr. Burns admitted that persons other than Mr. Hinman could have had access to the tractor during the relevant time. One of the high school boys hired by Mr. Hinman testified the door wouldn’t close on the tractor when they first used it. The boys denied breaking windows in the tractor, although they did admit that one window accidentally broke while they were haying on rough ground. The Burns’ mechanic admitted that he could not determine by inspection exactly when the damage to the tractor occurred.

We conclude that substantial evidence supports the lower court’s finding that damages to the tractor were not proven to be Mr. Hin man’s fault. The District Court did not err.

Affirmed.

MR. JUSTICES HARRISON, HUNT, SHEEHY and GUL BRANDSON concur.


author: MR. JUSTICE HARRISON MR. JUSTICE HUNT,

text:
    LARRY D. THORNOCK, Plaintiff and Appellant, v. STATE OF MONTANA, Defendant and Respondent.
    No. 87-68.
    Submitted Sept. 15, 1987.
    Decided Nov. 4, 1987.
    745 P.2d 324.

      Edward K. Duckworth, Ronan, Michael J. McKeon argued, Anaconda, for plaintiff and appellant.

      R. Scott Currey argued, Agency Legal Services Bureau, Helena, for defendant and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

Plaintiff Larry D. Thornock appeals from an order of the District Court of the Twentieth Judicial District granting summary judgment for the State. He had claimed that the State had been negligent in failing to inspect hazardous places of employment as required by Section 50-71-321, MCA. He argues that this inaction by the State allowed the sawmill at which Thornock worked to operate in a hazardous condition and led to an accident in which Thornock lost his left arm at the elbow. We are presented with the question of whether the Federal Occupational Safety and Health Act (29 U.S.C. Sections 651 et seq.) preempted that statutory duty. The District Court ruled that it did and granted summary judgment for the State. We affirm.

On December 1, 1982, Thornock injured his left arm while attempting to unjam a block of wood that had stalled a conveyor belt called a feed chain at the Flathead Lumber Company in Poison, Montana. He did not turn off the power that fed the machine. The result was that his arm was pulled into the drive chain and sprocket. Thornock filed a claim for Workers’ Compensation benefits and received a full and final settlement in September 1984. One of the owners of the mill stated in his deposition that the State had never inspected that feed chain in the five years that the sawmill had been operating. Section 50-71-321, MCA, adopted as part of the Montana Safety Act in 1969, provides:

“(1) The division [of Workers’ Compensation] shall inspect from time to time all the places of employment defined in the Montana Workers’ Compensation Act as being hazardous and the machinery and appliances therein contained for the purpose of determining whether they conform to law.
“(2) A report of such periodic inspection shall be filed in the office of the division and a copy thereof given the employer. Such report shall not be open to public inspection or made public except on order of the division or by the division in the course of a hearing or proceeding.”

Mr. Thornock filed his claim against the State on January 10,1985. In paragraph V of his complaint, he alleged that the State’s failure to inspect the feed chain constituted negligence that was a proximate cause of the “traumatic amputation” of his arm. The State answered that it had no responsibility for the safety of working conditions at the Flathead Lumber Company in December 1982 because its authority had been preempted by the federal Occupational Safety and Health Act. Both parties moved for summary judgment and briefed the issue. On January 21, 1987, the District Court granted the State’s motion for summary judgment, pursuant to Rule 54(b), M.R.Civ.P., and denied Thornock’s motion. The District Court wrote:

“In 1970 the U.S. Congress enacted OSHA to assure safe and healthful working conditions and provides [sic] that states may assert jurisdiction where there are no federal standards in effect.
“29 C.F.R., Section 1900.265 was adopted and set federal safety standards for sawmills and adopted specific construction, operation and maintenance standards for conveyors . . . Since the adoption of OSHA and said regulations, the State of Montana has not followed the procedure provided therein for the state to assert jurisdiction over occupational safety in this area of conveyors in sawmills.
“The federal law and regulations adopted pursuant thereto have preempted the state law which is the basis of Plaintiff’s complaint and Defendant is therefore entitled to summary judgment as a matter of law.”

On appeal, Thornock concedes that OSHA preempts the promulgation of safety standards and enforcement of such standards from the State’s purview. However, he argues that OSHA has not preempted the State’s responsibility of gathering and compiling information as to safety in the Work place. He argues also that the wording of OSHA does not meet the United States Supreme Court’s test for the applicability of the doctrine of preemption as set forth in Silkwood v. Kerr-McGee Corp. (1984), 464 U.S. 238, 104 S.Ct. 615, 78 L.Ed.2d 443. We shall consider these arguments in turn.

His first argument — that the State’s duty to inspect hazardous work places and prepare reports on their safety is not preempted by OSHA — is founded on the premise that OSHA was intended to preempt states from setting and enforcing their own standards as to worker safety but not as to inspections. He notes that 29 U.S.C. Section 667(a) allows state agencies to “[assert] jurisdiction under state law over any occupational safety or health issue with respect to which no standard is in effect under Section 655 of this title.” He notes that 29 U.S.C. Section 655 establishes the rulemaking procedure by which the Secretary of Labor may “promulgate, modify, or revoke any occupational safety or health standard,” and claims this does not include the process of inspection. Because inspection is not included in 29 U.S.C. Section 655, he claims that Section 50-71-321, MCA, is still valid because of 29 U.S.C. Section 667(a)’s provisions guarding state duties. Furthermore, he notes that 29 U.S.C. Section 667(b) provides a means by which any state may petition the Secretary of Labor “to assume responsibility for development and enforcement ... of occupational safety and health standards relating to any occupational safety or health issue with respect to which a Federal standard has been promulgated . . .” He concedes, however, that the State of Montana has never completed such a petition.

Thornock relies on P & Z Co., Inc. v. District of Columbia (D.C. 1979), 408 A.2d 1249, in which the Court of Appeals for the District of Columbia distinguished the three functions of OSHA as standard specification, standard enforcement, and information gathering and reporting. P & Z Co., 408 A.2d at 1250. That court held that OSHA does not preempt state duties unless standards have been promulgated under 29 U.S.C. Section 655. Thornock contends that since information gathering and reporting has not been considered to be a standard, information gathering and reporting are not preempted by OSHA. P & Z Co., 408 A.2d at 1250. The District of Columbia Court of Appeals found nothing in the legislative history of OSHA to support the appellant’s claim that a statute requiring an employer to report employee injuries had been preempted by OSHA. P & Z Co., 408 A.2d at 1251, n. 7. Similarly, in Berardi v. Getty Refining & Marketing (1980), 107 Misc.2d 451, 435 N.Y.S.2d 212, the court ruled that while OSHA was meant to be exclusive in the promulgation and enforcement of standards, a state may take jurisdiction over any safety issue on which there is no federal standard. Berardi, 435 N.Y.S.2d at 216. Thornock’s reliance on these two cases, however, is misplaced because the holdings of these cases are at odds with the allegations of Thornock’s complaint. In his complaint, Thornock cites Section 50-71-321, MCA, as requiring the State to inspect the sawmill’s feed chain and enforce standards. He claims it was the State’s failure to inspect the premises along with the State’s failure to require the sawmill to be operated safely that was the proximate cause of his injuries. Whereas P & Z Co. holds that a state or other local jurisdiction can exercise duties not preempted by OSHA, Thornock specifically incorporates into his complaint a duty preempted by OSHA — the right to enforce standards. The thrust of the holding in P & Z Co. is that the adoption and enforcement of work place safety standards by the states is preempted where federal standards have been promulgated. P & Z Co., 408 A.2d at 1250.

Section 50-71-321, MCA, does not exist in a vacuum; it is an integral part of a state scheme to set and enforce safety codes, Sections 50-71-101 through 50-71-334, MCA. Thornock concedes, however, that the provisions in that state scheme for establishing and enforcing safety standards are preempted by OSHA, but contends the element of the scheme providing for State inspection is still vital. He argues, in effect, that the State still has a duty to inspect work sites even though its authority to set the standards to be inspected or to impose sanctions for discrepancies has been superseded.

The tort of negligence arises when one has a duty recognized by law, he breaches that duty, the breach of the duty serves as a legal cause of another’s injury, and that injury is an actual loss or damage. Roy v. Neibauer (Mont. 1981), 623 P.2d 555, 556, 38 St.Rep. 173, 174; Pretty on Top v. City of Hardin (1979), 182 Mont. 311, 315, 597 P.2d 58, 60. If no duty exists there can be no negligence. Ambrogini v. Todd (1982), 197 Mont. 111, 118, 642 P.2d 1013, 1017, citing Prosser on the Law of Torts Section 30; Green v. Haegele (1979), 182 Mont. 155, 158, 595 P.2d 1159, 1161. No duty on the part of the State lies here because of the federal government’s usurpation of the Montana Safety Act when Congress passed OSHA in 1970. Congress declared its role in 29 U.S.C. Section 651(b) as being “to assure so far as possible every working man and woman in the Nation safe and healthful working conditions . . .” by creating occupational health and safety standards, establishing an enforcement program, and providing appropriate reporting procedures. Subsection 11 of 29 U.S.C. Section 651(b) allows states to assume administration of workers’ safety programs if they submit plans approved by the Department of Labor.

State laws dealing with workers’ safety are preempted once OSHA enacts similar standards. New Jersey State Chamber of Commerce v. Hughey (3rd. Cir. 1985), 774 F.2d 587, 592. In that case, the court refused to hold that OSHA preempted all of New Jersey’s environmental protection laws since the Secretary of Labor’s preemptive authority applies only to State occupational safety and health laws. Chamber of Commerce, 774 F.2d at 593. OSHA itself provides the Secretary of Labor and his agents with the authority to enter any factory, construction site or other work place to inspect and investigate machinery and working conditions. Such inspections are sanctioned under 29 U.S.C. Section 657. See, 61 Am.Jur.2d Plant and Job Safety Section 62 (1981). Since the federal legislation itself provides such inspection authority, it makes no difference whether standards for inspection have been approved under 29 U.S.C. Section 655. In Ohio Manufacturers’ Association v. City of Akron (6th Cir. 1986), 801 F.2d 824, the court interpreted the legislative history of OSHA. It determined that OSHA was intended to establish a national standard, which would be needed to insure that all states would at least meet certain minimum work safety requirements. To that degree, the court held that state workers’ safety laws were preempted expressly. Ohio Manufacturers’ Association, 801 F.2d at 831. It also concluded that OSHA standards on communication of hazards, 29 F.R. Section 1910, impliedly preempted a city ordinance that regulated the presence of hazardous substances in the work place. Ohio Manufacturers’ Association, 801 F.2d at 834. That court ruled that OSHA’s desire to achieve uniformity would aid in the enforcement of, and compliance with, its standards.

The reasoning employed by the Sixth Circuit Court of Appeals in Ohio Manufacturers’ Association is sound and is applicable to the question before this Court. Thornock must persuade this Court that federal powers granted in OSHA do not relieve the State of its burden to inspect dangerous work sites. As we have noted previously he bases that argument on the fact that OSHA expressly relieves the State of its right to set standards and to enforce standards, but fails to expressly relieve the State of its duty to inspect. Such an argument fails. Congress has stated expressly that formulation and enforcement of work place safety will be a prerogative of OSHA. The power to inspect the work place is part and parcel of the enforcement of standards. Without inspections, the governing agency has no grounds for enforcement. Similarly, without enforcement powers, which Thornock concedes the State no longer has, inspection privileges are meaningless.

Congress may preempt state laws in either of two manners. The first occurs when Congress manifests an intent to occupy the field; the second occurs when Congress passes federal legislation not intended to occupy the field. In that case, any contradictory state laws must yield to the federal legislation. Pacific Gas & Electric Co. v. State Energy Resources Conservation & Development Commission (1983), 461 U.S. 190, 203-04, 103 S.Ct. 1713, 1722, 75 L.Ed.2d 752, 765; State ex rel. Nepstad v. Danielson (1967), 149 Mont. 438, 440, 427 P.2d 689, 691. The first of these scenarios controls this case.

It is plain from reading the Occupational Safety and Health Act that Congress intended to occupy the field of assuring worker safety. Congress accomplished this by setting minimum federal standards that all employers must meet. Thornock’s argument that Congress did not occupy the field because it expressly included provisions in OSHA by which the various states could resume workers safety programs is not persuasive. In order to regain the right to set and enforce work safety rules, a state must submit to the Secretary of Labor a plan that is “at least as effective in providing safe and healthful employment and places of employment as the standards promulgated under section 655 . . .” 29 U.S.C. Section 667(c)(2). So while states may choose to exercise work safety programs, they may do so only on the federal government’s terms. This field has been occupied by federal law; as such we need not concern ourselves with whether Section 50-71-321, MCA, is or is not contrary to OSHA. Such an analysis would be required only if the field had not been occupied by the federal government but one party claimed State law and federal law clashed.

The doctrine of preemption stems from Article VI, cl. 2 of the United States Constitution, which states that the United States Constitution and the laws of the United States shall be the Supreme Law of the Land . . . “ Congress’ intent to preempt state law may be either explicit in the statute or implicit in its structure and purpose. Marshall v. Burlington Northern, Inc. (9th Cir. 1983), 720 F.2d 1149, 1152. In Jones v. Rath Packing Co. (1977), 430 U.S. 519, 97 S.Ct. 1305, 51 L.Ed.2d 604, the United States Supreme Court ruled that when Congress has “unmistakably ordained” that its enactments alone will regulate a portion of commerce, any State laws regarding that aspect must fall. Jones, 430 U.S. at 525-26, 97 S.Ct. at 1310, 51 L.Ed.2d at 614. The interpretation and application of state law, vis-a-vis federal law, is as crucial in this determination as is the actual wording of the competing acts. Jones, 430 U.S. at 526, 97 S.Ct. at 1310, 51 L.Ed.2d at 614.

Montana law recognizes that it is not the wording that determines if a state law has been preempted by federal action. “It is well settled that the question of whether a statute is invalid under the supremacy clause depends upon the intent of Congress.” Mountain States Telephone & Telegraph Co. v. Commissioner of Labor and Industry (1979), 187 Mont. 22, 41, 608 P.2d 1047, 1057, appeal dismissed 445 U.S. 921, 100 S.Ct. 1304, 63 L.Ed.2d 754. As we have noted earlier Congress stated that OSHA was meant to assure every working person “safe and healthful working conditions.” 29 U.S.C. Section 651(b). Congress also has stated a desire to return the function of protecting workers’ safety to the various states as soon as the state submits a plan at least as stringent as OSHA to the federal government for approval. 29 Ü.S.C. Section 667(b). Montana has completed no such state plan. This combination of effective federal standards and State acquiescence to those standards despite the fact that the State could, if it wanted to, recapture those powers demonstrates that the federal government has occupied the field. Thus, Congress has preempted the Montana Safety Act.

As his second issue, Thornock claims OSHA falls short of the test for preemption established in Silkwood, supra. In Silkwood, an award of punitive damages under state law for the decedent’s contamination by plutonium was not preempted even though Congress had passed the Atomic Energy Act in an effort “to encourage widespread participation in the development and utilization of atomic energy for peaceful purposes.” Silkwood, 464 U.S. at 257, 104 S.Ct. at 626, 78 L.Ed.2d at 458, citing 42 U.S.C. Section 2013(d). The Supreme Court also noted that punitive damages would not be contrary to the federal act since 42 U.S.C. Section 2013(d) said such development and utilization of atomic power should be done “consistent with the health and safety of the public”. The award of punitive damages did not contravene federal purposes. Silkwood, 464 U.S. 257, 104 S.Ct. at 626, 78 L.Ed.2d at 458.

Such rationale does not comport well with the circumstances of this case. In 29 U.S.C. Section 657, the Secretary of Labor is provided with means by which he may enter and inspect a work site. Subsection (d) says very specifically that any such inspections by federal agencies or by proper state agencies shall not be unnecessarily burdensome on the employer.

“(d) Obtaining of Information

“Any information obtained by the Secretary, [of Labor] the Secretary of Health and Human Services, or a State agency under this chapter shall be obtained with a minimum burden upon employers, especially those operating small businesses. Unnecessary duplication of efforts in obtaining information shall be reduced to the maximum extent feasible” (Emphasis added.)

The intent of Congress is clear. It has created federal law by which to insure the safety of the work place. It has established an agency to set standards and to enforce them. This has been done to create a uniform minimal level of safety. Thus, state eiforts to set and enforce standards have been superseded. In addition, Congress has realized that a plethora of inspectors from all sorts of agencies is not needed, and ordered that such inspections not be unduly repetitious. The State of Montana, with no standards of its own or any enforcement powers, decided not to inspect dangerous work places. It concluded that OSHA had assumed that responsibility.

As a last-ditch argument, Thornock cites 29 U.S.C. Section 653(b)(4) and argues that it exempts his cause of action from OSHA preemption. That subsection reads:

“Nothing in this chapter shall be construed to supersede or in any manner affect any workmen’s compensation law or to enlarge or diminish or affect in any other manner the common law of statutory rights, duties, or liabilities of employers and employees under any law with respect to injuries, diseases, or death of employees arising out of, or in the course of, employment.” (Emphasis added.)

This argument has little merit. In United Steel Workers of America v. Marshall (D.C. Cir. 1980), 647 F.2d 1189, cert. denied, National Association of Recycling Industries, Inc. v. Secretary of Labor, 453 U.S. 913, 101 S.Ct. 3149, 69 L.Ed.2d 997, an issue was whether the monitoring of blood-lead levels and the payment of benefits to those that exhibited high blood-lead levels was an attempt to federalize workers’ compensation laws. The Circuit Court termed 29 U.S.C. Section 653(b)(4) as “vague and ambiguous on its face,” and further stated that OSHA’s legislative history reveals “essentially nothing” about the section. United Steel Workers, 647 F.2d at 1234, see also n. 70. It is true that the general rule of statutory construction in Montana is that a court should interpret the statute so as to allow the intent of the legislature to control if possible. Darby Spar, Ltd. v. Department of Revenue (Mont. 1985), [217 Mont. 376,] 705 P.2d 111, 113, 42 St.Rep. 1262, 1264. In interpreting an act of Congress, a court may not depart from the statute’s clear meaning. Adams v. Morton (9th Cir. 1978), 581 F.2d 1314, 1320, cert. denied sub nom, Gros Ventre Tribe v. United States (1978), 440 U.S. 958, 99 S.Ct. 1498, 59 L.Ed.2d 771. It can be clearly determined from the language of this section that Congress did not mean to interfere with the various states’ workers’ compensation schemes. Beyond that, Congress’ intention is obscure. We conclude that Thornock’s cause of action is not exempted from OSHA.

After a careful review of the record and a weighing of the arguments we agree that the State’s duty to inspect had been superseded by the federal act. Thus, the fact that the State had not inspected the sawmill at which Thornock was injured does not make the State negligent for the most important element of negligence — duty — had been assumed by the federal government. We affirm the District Court’s order granting summary judgment for the State.

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

MR. JUSTICE HUNT,

dissenting:

In this Opinion, as in Thornock v. Pack River Management Co. (1987), [227 Mont. 524,] 740 P.2d 149, the majority posits an argument which denies Larry Thornock any third party action recovery for the tragic amputation of his left arm. I disagree with the result of the majority opinion and would reverse the judgment of the District Court.

MR. JUSTICE SHEEHY concurs in the foregoing dissent of MR. JUSTICE HUNT.


author: MR. JUSTICE SHEEHY MR. JUSTICE GULBRANDSON,

text:
    The STATE OF MONTANA, Plaintiff and Respondent, v. PHIL WILKINS, Defendant and Appellant.
    No. 87-217.
    Submitted on Briefs Sept. 10, 1987.
    Decided Nov. 4, 1987.
    Rehearing Denied Jan. 5, 1987.
    746 P.2d 588.

      Phil Wilkins, pro se.
    Mike Greely, Atty. Gen., Betsy Brandborg, Asst. Atty. Gen., Helena, Susan Loehn, Co. Atty., Scott B. Spencer, Deputy Co. Atty., Libby, for plaintiff and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

Following trial by jury in the District Court of the Nineteenth Judicial District, Lincoln County, defendant was convicted of two counts of criminal sale of dangerous drugs. We reverse.

Defendant raises the following issues on appeal:

1. Did the District Court err when it informed the defendant of his right to testify in front of the jury?

2. Did the District Court correctly admit hearsay evidence of other acts?

3. Was the State’s evidence sufficient to prove that the substance sold by the defendant was marijuana?

We find the first issue dispositive.

As a result of an undercover drug operation, the defendant was charged by information with two counts of criminal sale of dangerous drugs. At arraignment, the defendant indicated he would represent himself. Although the District Court granted the defendant’s request to proceed pro se. David Harman was appointed standby counsel. Harman assisted the defendant with the preparation and presentation his case.

During trial, the District Court engaged in the following exchange with the defendant before the jury:

“MR. HARMAN: We have no further witnesses and we rest our case. Is that right, Mr. Wilkins?
“MR. WILKINS: Yes.
“THE COURT: You don’t wish to take the stand yourself?
“MR. WILKINS: No, Your Honor.
“THE COURT: You have a right to.
“MR. WILKINS: Thank you.
“THE COURT: You have a right to do that. You choose not to; is that right?
“MR. WILKINS: That is right.
“THE COURT: Do you have any rebuttal, Mr. County Attorney?”

The defendant did not object to the remarks of the District Court. Nor did he move for a mistrial.

Following settlement of instructions, the District Court raised the issue of whether there should be an instruction on the defendant’s failure to testify. A curative instruction was subsequently offered by the defendant and given by the District Court.

As a general rule, this Court will not entertain issues not raised at trial. State v. St. Goddard (Mont. 1987), [226 Mont. 158,] 734 P.2d 680, 44 St.Rep. 551. If a defendant fails to lodge a timely objection to the remarks and conduct of the presiding judge, he will not be heard on appeal. State v. Martin (Mont. 1987), [226 Mont. 491,] 736 P.2d 477, 480, 44 St.Rep. 804, 808. Contrary to the defendant’s assertion, the failure to object in a timely manner does in fact constitute a waiver of any alleged error. Section 46-20-104, MCA. Allegations that objection would be futile or contrary to modern defense tactics are without merit.

General rules are not without exception, however. In Halldorson v. Halldorson (1977), 175 Mont. 170, 573 P.2d 169, we recognized that appellate courts have a duty to assure that the substantial rights of the parties have not been infringed. 175 Mont. at 174, 573 P.2d at 172. The plain error doctrine provides a remedy in such situations to prevent manifest injustice. When the substantial rights of a defendant are involved, the lack of timely objection does not preclude us from exercising our power of discretionary review to examine any error at the trial court level. State v. Harris (Mont. 1984), [209 Mont. 511,] 682 P.2d 159, 162, 41 St.Rep. 866, 870; Rule 103(d), M.R.Evid.

The power of discretionary review is to be employed sparingly. As the Commission Comments to Rule 103, M.R.Evid. indicate, the plain error doctrine “will be used in exceptional cases and should not be relied upon by counsel.” We will invoke plain error only when it is necessary to insure a fair and impartial trial. Halldorson, 175 Mont. at 174, 573 P.2d at 172. The case at hand is such a case.

Art. II, Section 25 of the Montana Constitution guarantees the right against self-incrimination. Inherent in the concept is the right of a criminal defendant to refrain from taking the witness stand with impunity. State v. Gonyea (Mont. 1987), [225 Mont. 56,] 730 P.2d 424, 427, 44 St.Rep. 39, 43. “For comment on the refusal to testify is a remnant of the ‘inquisitorial system of criminal justice’ which the [right against self-incrimination] outlaws.” Griffin v. California (1965), 380 U.S. 609, 614, 85 S.Ct. 1229, 1232, 14 L.Ed.2d 106, 109. “It cuts down on the privilege by making its assertion costly.” Griffin, 380 U.S. at 614, 85 S.Ct. at 1233, 14 L.Ed.2d at 110.

The defendant contends that the court’s remarks concerning taking the stand infringed on his right to remain silent. The test to be applied is whether the court’s remarks were “manifestly intended or [were] of such character that the jury would naturally and necessarily take it to be a comment on the failure of the accused to testify.” State v. Anderson (1970), 156 Mont. 122, 125, 476 P.2d 780, 782, citing Knowles v. United States (10th Cir. 1955), 224 F.2d 168, 170. Upon a showing that there is a reasonable possibility that the comments complained of might have contributed to the conviction, reversible error will be presumed. See Chapman v. California (1967), 386 U.S. 18, 24, 87 S.Ct. 824, 828, 17 L.Ed.2d 705, 710. In order to rebut the presumption, the State must prove beyond a reasonable doubt that the error did not taint the conviction. State v. Gladue (Mont. 1984), [208 Mont. 174,] 677 P.2d 1028, 41 St.Rep. 249.

We find no evidence that the District Court manifestly tended to comment on the defendant’s failure to take the stand. Quite to the contrary, the record is replete with examples of the District Court making every effort to ensure that the defendant’s decision to represent himself did not work to his detriment. The District Court’s inquiry represented an attempt to ensure that the defendant, an Australian citizen here on a one year visa, was fully aware of his right to testify.

However, we are unable to find, beyond a reasonable doubt, that the District Court’s remarks were harmless error. The exchange clearly emphasized the defendant’s failure to take the stand. “What the jury may infer, given no help from the court, is one thing. What is may infer when the court solemnizes the silence of the accused into evidence against him is quite another.” Griffin, 380 U.S. at 614, 85 S.Ct. at 1233, 14 L.Ed.2d at 110. The District Court’s comments had the effect of focusing the jury’s attention on the defendant’s silence at a late stage of the trial. We are not convinced that the curative instruction remedied the error. The judgment of the District Court is therefore reversed and remanded.

Although we do not reach the remaining issues, judicial economy demands comment. We caution the District Court concerning the testimony of Detective Bernall. At the time he testified on recall that the defendant was suspected of selling drugs, it had not been alleged that the undercover agent had fabricated his story nor had the defendant yet called his character witnesses.

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

MR. JUSTICE GULBRANDSON,

dissenting.

I respectfully dissent.

In my opinion, the legal issue upon which the majority bases its reversal is controlled by State v. Martin (Mont. 1987), [226 Mont. 463,] 736 P.2d 477, 480, 44 St.Rep. 804, 808, and 6-20-104(2), MCA.

There was no objection made to the trial judge’s inquiry until the filing of appellant’s brief with this Court. There was no request for an in-chambers objection to the inquiry, no motion for dismissal or new trial, and in fact two curative jury instructions were prepared by defense counsel and given by the trial judge.

Those instructions read as follows:

“INSTRUCTION NO. 12
“It is a constitutional right of a defendant in a criminal trial that he may not be compelled to testify. You may not draw any inference from the fact that he does not testify. Further, you must neither discuss this matter nor permit it to enter into your deliberations in any way.
“INSTRUCTION NO. 13
“In deciding whether or not to testify, the defendant may choose to rely on the state of the evidence and upon the failure, if any, of the State to prove beyond a reasonable doubt every essential element of the charge against him, and no lack of testimony on the defendant’s part will supply a failure of proof by the State so as to support a finding against him on any such essential element.”

I would not invoke the plain error doctrine under the facts of this case.


author: MR. JUSTICE SHEEHY

text:
    JOHN G. BOWEN, Claimant and Appellant, v. SUPER VALU STORES, INC., Employer and Liberty Mutual Insurance Company, Defendant and Respondent.
    No. 86-253.
    Submitted on Briefs Sept. 25, 1986.
    Decided Nov. 5, 1987.
    745 P.2d 330.

      Lawrence A. Anderson, Great Falls, for claimant and appellant.
    Larry W. Jones, Garlington, Lohn & Robinson, Missoula, for defendant and respondent.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

This case concerns a dispute between the employer’s insurer and the injured employee over the proper procedure to be pursued by the insurer to obtain pretrial discovery of medical information regarding the compensability of the injured employees claim.

We determine that such pretrial discovery of medical information is governed by applicable statutes and the Rules of the Workers’ Compensation Court as herein set forth. We also determine that an injured employee, to sustain a right to Workers’ Compensation benefits, must waive any privilege or claim of confidentiality as to medical information relating to the compensability of his claim.

On February 19, 1986, John G. Bowen, through his counsel, filed a petition in the Workers’ Compensation Court claiming that he had suffered an industrial injury on January 17, 1985, in the course of his employment with Super Valu Stores, Inc. in Great Falls, Montana; that he had become totally disabled, and that he needed a lump sum award to assist him in retraining and rehabilitation. On February 25, 1986, the Workers’ Compensation Court set the case for trial during the week of June 9,1986, and the pretrial conference on April 21, 1986.

Bowen’s claim is based upon kidney failure which he alleges came from working under extreme mental pressure which caused him a great amount of stress which in turn caused uncontrolled hypertension resulting in the renal failure.

On March 20,1986, the attorney for Liberty Mutual wrote to three hospitals, nine doctors, two clinics, and one transplant center similar letters which included the following paragraphs:

“I am the attorney representing the workers’ compensation insurer carrier against whom John Bowen has filed the enclosed claim for Workers’ Compensation benefits. Please note that the form, as indicated in the lower left hand corner, is also an authorization for release of medical records.
“Please copy your entire file on Mr. Bowen and send it to me by placing it in the mail no later than April 1, 1986. Delete absolutely no documents from your original file before making the copy of the file I have requested. Included with the copy I have requested any invoice for copying costs.”

In the letters which were written to the doctors, the foregoing paragraphs were repeated, but there was also added in the letters to the doctors the following:

“Please answer the following questions, based on your examination, testing and/or treatment of Mr. Bowen so that I and my client can better understand the exact nature of Mr. Bowen’s medical condition and associated claim for workers’ compensation benefits. Include with your answers any bill for professional services provided in answering these questions:
“1. What is the most current diagnosis of medical condition or conditions for which you have treated or examined Mr. Bowen?
“2. Is your diagnosis based on a reasonable degree of medical certainty, i.e., more probable than not?
“3. What in your opinion is the cause of the condition or conditions you have diagnosed?
“4. If in your opinion the claimant’s work was in any way causally related to any condition you have diagnosed, then please state (1) the work you believe the claimant was doing that is causally related to a condition you have diagnosed and (2) what that causal relation is.
“5. Has each condition reached a point where it will not improve even though Mr. Bowen may continue to have some symptoms resulting from the condition, including pain?
“6. What are the symptoms (i.e., subjective complaints) and signs (i.e., objective findings) on which you relied for diagnosing each condition you have diagnosed?”

Copies of each of the foregoing noted letters were sent to the attorney for the claimant. On March 21, 1986, counsel for the claimant wrote to each of the medical providers a letter in which the key paragraph follows:

“You may have recently received correspondence from opposing counsel requesting medical records and responses to various questions. It is our position that Mr. Bowen does not give you authority to respond to that request. The Montana Rules of Civil Procedure and the Montana Supreme Court prescribe the rules by which medical information is disseminated in litigation. The Rules and the Montana Supreme Court do not authorize the procedure undertaken by opposing counsel. See, Jaap v. District Court, [_ Mont. -,] 623 P.2d 1389, 38 St.Rep. 280 (1981). We have accordingly advised opposing counsel that we object to his correspondence to you.”

Also on March 21, 1986, Bowen’s counsel wrote to the attorney for Liberty Mutual, advising that on March 20, 1986, Bowen had undergone a kidney transplant, and further advising that he had instructed the treating physicians and health care providers not to respond to the correspondence of the attorney for Liberty Mutual.

Meanwhile, on March 21, 1986, Liberty Mutual filed interrogatories and requests for production of documents. On April 1, 1986, Liberty Mutual filed a motion to vacate the trial setting and a motion to dismiss claimant’s petition on the ground that the court lacked jurisdiction because Bowen was asserting his physician-patient privilege.

At least one doctor and one clinic advised Liberty Mutual after receiving the letter from the claimant’s attorney that they would not answer questions concerning Bowen’s condition without specific written direction from Bowen.

On April 22, 1986, the claims examiner for the Workers’ Compensation Court entered an order vacating the trial setting and ruling that the matter would not appear on the court calendar for trial until the court received confirmation that every medical provider contacted by Bowen’s counsel had received written instructions to conform to the rulings of the Workers’ Compensation Court and that such medical records had been provided to defendant’s counsel in sufficient time to prepare for trial. In the same order the hearings examiner denied Liberty Mutual’s motion to dismiss.

Bowen moved for reconsideration of the hearings examiner’s order. The Workers’ Compensation judge, after receiving briefs, denied reconsideration, thus keeping in effect both the examiner’s orders vacating the trial date and denying dismissal of the action. This appeal followed from both sides.

Neither side has discussed except incidentally whether this Court has jurisdiction to hear this appeal. Section 39-71-2904, MCA, grants a right of appeal from a “final” decision of the Workers’ Compensation judge to the Montana Supreme Court. An order refusing to dismiss a cause is not ordinarily appealable. The order vacating the trial date is not on its face a final order but the effect of the order is: if we were to deny jurisdiction, Bowen would in effect give up his right of appeal in order to get his case tried. When the effect of the order is to destroy the appellant’s right of appeal if he complies, the order, even though interlocutory, should be appealable. “. . . finality of an . . . order depends upon the nature of the order rather than its chronology ...” Northern Plains Resource Council v. Bd of Natural Resources (1979), 181 Mont. 500, 515, 594 P.2d 297, 306.

The critical issue in this appeal arises from the procedure adopted by Liberty Mutual to obtain medical information, and the reaction of Bowen asserting a right of privilege against the procedure. Liberty Mutual claims that when Bowen asserted the physician-patient privilege his action prevented the Workers’ Compensation Court from determining his physical condition before and after the industrial accident and that this has the effect of removing his claim from the jurisdiction of the Workers’ Compensation Court. Bowen, on the other hand, contends that discovery procedures in the Workers’ Compensation Court are controlled by the Montana Rules of Civil Procedure, particularly Rule 35, and that under Jaap v. District Court (Mont. 1981), [_ Mont. _,] 623 P.2d 1389, 1390, 38 St.Rep. 280, private interviews between counsel for one party and possible adversary witnesses may be granted.

Both parties, it appears, have overlooked the applicable provisions.

First, we examine the basis for the Workers’ Compensation Court’s decision. It is found in the order of the hearings examiner, which the Workers’ Compensation Court refused to reconsider, that “defendant’s motion to vacate the trial date is GRANTED on the grounds that the claimant has refused to comply with the free exchange of medical information required under Rule 24.29.1404(3) A.R.M

The portion of Rule 24.29.1404, A.R.M. relied on by the hearings examiner follows:

“(3) The rule of privileged communication is waived by the injured worker seeking benefits under the Workers’ Compensation or Occupational Disease Acts.”

Overlooked in the order was the fact that Rule 24.29.1404 is a rule promulgated by the Workers’ Compensation Division and not by the Workers’ Compensation Court. The Division and the Court are separate entities. Neither has control of the other, and particularly their rules are separate and stem from different sources of authority.

Section 2-15-1014, MCA, establishes the office of the Workers’ Compensation judge. It provides in part:

“(1) There is the office of Workers’ Compensation Judge. The office is allocated to the Department of Administration for administrative purposes only as prescribed in 2-15-121.”

Under our law, when an agency is allocated to a department for administrative purposes the agency nevertheless acts independently of the department. Section 2-15-121, MCA, states in part:

“(1) An agency allocated to a department for administrative purposes only in this chapter shall:
“(a) exercise its quasi-judicial, quasi-legislative, licensing and policy making functions independently of the department and without approval or control of the department;
“(2) The department to which an agency is allocated for administrative purposes only in this title shall:
“(e) Print and disseminate for the agency any required notices, rules, or orders adopted, amended, or repealed by the agency.” (Emphasis added.)

It is clear from Section 2-15-121, MCA, that the Workers’ Compensation judge as an agency allocated to the Department of Administration for administrative purposes, nonetheless is completely independent of the Department in the exercise of its quasi-judicial functions. The rules adopted by the Department, in this case the Division, have no application to proceedings before the Workers’ Compensation Court. We must look to another source for rules to be applied in that court. That source is found in Section 39-71-2903, MCA and subsequent administrative rules adopted by the Workers’ Compensation Court.

Section 39-71-2903, MCA, provides:

“All proceedings and hearings before the workers’ compensation judge shall be in accordance with the appropriate provisions of the Montana Administrative Procedure Act. The workers’ compensation judge is bound by common law and statutory rules of evidence.”

As an administrative agency, the Workers’ Compensation Court is given the authority to adopt rules of practice. In Section 2-4-201, MCA, we find:

“In addition to other rulemaking requirements imposed by law, each agency shall:
“(2) Adopt rules of practice, not inconsistent with statutory provisions, setting forth the nature and requirements of all formal and informal procedures available, including a description of all forms and instructions used by the agency.” (Emphasis added.)

Pursuant to the power of law vested in the Workers’ Compensation judge in Section 2-4-201, MCA, the Workers’ Compensation Court has adopted rules of practice and procedures in matters handled by it. They will be found, beginning at page 245, in the Montana Rules of Court (1987 Desk Copy) published by West Publishing Company. The Workers’ Compensation Court has adopted rules of pretrial discovery. They are found in Rule 2.52.322, Depositions; Rule 2.52.323, Interrogatories; Rules 2.52.324, Motions to Produce; Rule 2.52.325, Limiting Discovery; and Rule 2.52.326, Sanctions for Failure to Make Discovery. The only provision of the Procedural Rules of the Workers’ Compensation Court relating specifically to medical records is Rule 2.52.317 which follows:

“(1) Prior to any scheduled trial, the parties shall exchange all medical records based upon examination of the claimant. Failure to exchange such materials on a timely basis before trial shall preclude its use at trial. Medical records will only be accepted by the court as evidence if stipulated to by the parties or by the laying of proper foundation.”

Aside from the duties of the parties to exchange medical records based upon the examination of the claimant found in Rule 2.52.317 of the Procedural Rules of the Workers’ Compensation Court, we find no statement in any of the Rules that a Workers’ Compensation claimant by making a claim thereby waives the physician-patient privilege. We turn, therefore, to the statutes adopted by the legislature to determine what they provide on this subject.

The physician-patient privilege itself is found in Section 26-1-805, MCA, which provides:

“Except as provided in Rule 35, Montana Rules of Civil Procedure, a licensed physician, surgeon, or dentist cannot, without the consent of his patient, be examined in a civil action as to any information acquired in attending the patient which was necessary to enable him to prescribe or act for the patient.”

There is no direct statement in the Workers’ Compensation Act that a claimant waives the physician-patient privilege. Waiver may be implied, however, from certain provisions of the statutes which follow:

“Section 39-71-604. (1) Where a worker is entitled to benefits under this chapter, the worker shall file with the insurer or the division all reasonable information needed by the insurer to determine compensability. It is the duty of the workers’ attending physician to lend all necessary assistance in making application for compensation and such proof of other matters as may be required by the rules of the division without charge to the worker. The filing of forms or other documentation by the attending physician does not constitute a claim for compensation.
“Section 39-71-605. (l)(a) Whenever in case of injury the right to compensation under this chapter would exist in favor of any employee, he shall, upon the written request of the insurer submit from time to time to examination by a physician or panel of physicians, who shall be provided and paid by such insurer, and shall likewise submit to examination from time to time by any physician or penal of physicians selected by the division.
“(b) . . . The employee shall be entitled to have a physician present at any such examination .... any physician or panel of physicians employed by the insurer or the division who shall make or be present at any such examination may be required to testify as to the results thereof.”

(There is a further provision for examination by a panel of physicians in Section 39-71-605(2), MCA.)

At the time that this matter arose in the Workers’ Compensation Court, the provision of Sections 50-16-301 to -314 inclusive, were in force and effect. Those statutes have since been repealed by the legislature (Ch. 632; Laws of Montana (1987)) and the Uniform Health Care Information Act was enacted in their place. Sections 50-16-501, et seq. While it could be argued that under former Section 50-16-311(e), MCA, an employer or his Workers’ Compensation insurer could receive reasonably necessary information from a health care provider, it was equally clear that under former Section 50-16-314, MCA, confidential health information was not subject to compulsory legal process in any type of proceeding, including any pretrial or preliminary proceedings unless required by Rule 35, Montana Rules of Civil Procedure, or otherwise ordered by a court.

Even though the statutes referred to have been repealed, it is now necessary for us to examine the situation under the Uniform Health Care Information Act, since its provisions will apply to future proceedings in this cause in the Workers’ Compensation Court and to other proceedings there.

The pertinent sections of the Uniform Health Care Information Act are:

“50-16-525. Disclosure by health care provider. (1) Except as authorized in 50-16-529 and 50-16-530 or as otherwise specifically provided by law or the Montana Rules of Civil Procedure, a health care provider, an individual who assists a health care provider in the delivery of health care, or an agent or employee of a health care provider may not disclose health care information about a patient to any other person without the patient’s written authorization. A disclosure made under a patient’s written authorization must conform to the authorization.
“50-16-535. When health care information available by compulsory process. Health care information may not be disclosed by a health care provider pursuant to compulsory legal process or discovery in any judicial, legislative, or administrative proceeding unless:
“(3) The patient is a party to the proceeding and has placed his physical or mental condition in issue; . . .
“50-16-536. Method of compulsory process ....
“(2) Service of compulsory process or discovery requests upon a health care provider must be accompanied by a written certification, signed by the person seeking to obtain health care information or his authorized representative, identifying at least one subsection in Section 50-16-535 under which compulsory process or discovery is being sought... a person may sign the certification only if the person reasonably believes that the subsection of 50-16-535 identified in the certification provides an appropriate basis for the use of discovery or compulsory process . .

What the legislature has given under Section 50-16-536(2), MCA, it has apparently taken away under Subdivision 3:

“(3) Production of health care information under 50-16-535 and this section does not in itself constitute a waiver of any privilege, objection, or defense existing under other law or rule of evidence or procedure.”

It is our duty, from the morass of statutes and rules foregoing, to distill such a construction of the statutes and rules as to give effect to all. Section 1-2-101, MCA.

The statute most clearly authorizing Bowen’s health care providers to give confidential health information respecting him to Liberty Mutual’s attorney following his letter to them, without Bowen’s consent, is Section 50-16-535(3), MCA. That information, however, under the terms of that statute and Section 50-16-536, MCA, can be obtained only by compulsory process or discovery.

Clearly, the March 20, 1986, letter from the attorney for Liberty Mutual to Bowen’s medical providers was too broad. The letter demanded from each provider not just the information relating to the compensability of Bowen’s claim, but copies of the “entire file,” without regard to relevance. The procedure adopted by Liberty Mutual’s attorney for pretrial discovery is not found in any of the rules of practice of the Workers’ Compensation Court or other applicable statutes. The best, shortest and cheapest procedure for pretrial medical discovery is for the respective parties to cooperate in the procurement and exchange of relevant medical information relating to compensability. If such cooperation is not possible, then, in Workers’ Compensation cases, the rules of pretrial discovery adopted by the Workers’ Compensation Court come into play. Under Rule 2.52.323, interrogatories may be served upon the adverse party (not upon a health provider who is not an adverse party). Likewise, under Rule 2.52.324, motions to produce may be served upon the “adverse party.” With respect to persons not a party to the action who may also be health care providers, the procedure to be followed is to take depositions upon oral examination. Rule 2.52.322. In this case, subpoenas addressed to the nonparty may be issued under Rule 2.52.331, and materials in the possession of the nonparty can be reached through a subpoena duces tecum. Rule 2.52.322(2).

At all times, the Workers’ Compensation Court may limit discovery as provided in Rule 2.52.325.

As we construe the Workers’ Compensation statutes, the statutes relating to the patient-physician privilege, the provisions of former Sections 50-16-311 and 50-16-314, and the new Uniform Health Care Information Act, we determine that Liberty Mutual is entitled to confidential health care information from the medical providers relating to the compensability to Bowen’s claim. When Bowen’s attorney objected and raised the privilege, he was acting in conformance with former Section 50-16-314, MCA, and new Section 50-16-525, MCA.

Under Section 39-71-604, MCA, Bowen in this case has a duty to file with the insurer and with the court all reasonable information needed by the insurer and the court to determine compensability. Bowen has a duty therefore through the use of depositions, or medical reports obtained from such health care providers to carry his burden of proof of compensability. Such examination reports which relate to compensability as are in Bowen’s possession, or in his attorney’s possession are to be freely exchanged with the insurer and his counsel under Rule 2.52.317 of the Procedural Rules of the Workers’ Compensation Court. Bowen is likewise entitled to an exchange of reports from Liberty Mutual.

Liberty Mutual has the right to require an examination of Bowen by its own attending physician or physicians under Section 39-71-605, MCA.

Rules adopted by the Workers’ Compensation Division as distinguished from the Workers’ Compensation Court have no application in the Workers’ Compensation Court. Since discovery may be necessary beyond the exchange of exhibits by the parties, it should be governed by the rules of practice adopted by the Workers’ Compensation Court, to which rules we have heretofore adverted. Anything in the declaratory ruling filed February 13, 1985 by the Workers’ Compensation Court in Docket No. 8412 — 728, entitled Parker v. Central Montana Hospital and Nursing Home (unpublished) inconsistent with this opinion is overruled.

In order to clarify the statutes and rules, we hold that a claimant for Workers’ Compensation benefits waives any privilege of confidentiality in health care information which is relevant to the subject matter involved in his claim. If as in this case, a Workers’ Compensation benefits claimant exercises his right under Sections 26-1-805 or 50-16-525, MCA, to prevent any medical witness from disclosing confidential health information, and subsequently application is made by the adverse party to the Workers’ Compensation Court for an order authorizing such discovery, the Workers’ Compensation Court should authorize such discovery as is relevant to the subject involved in the pending action. It should not be a ground for an objection that the information sought will be inadmissible at the trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence, but the information obtained must be reasonably necessary to determine compensability. The protection for the claimant in such case from too broad discovery lies in the provision of Rule 2.52.317 and Rule 2.52.326 of the Procedural Rules of the Workers’ Compensation Court and in our decision in Hert v. J.J. Newberry (1978), 179 Mont. 160, 587 P.2d 11.

We find no merit in the cross appeal to the effect that the Workers’ Compensation Court has no jurisdiction of this cause.

Accordingly, we reverse the order of the Workers’ Compensation Court that no further trial date will be set in this case, and remand for further proceedings in accordance with this Opinion. Costs to Bowen.

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