author: JUSTICE NELSON JUSTICE GRAY,

text:
    JAMES D. McCLURE, Petitioner and Appellant, v. STATE COMPENSATION INSURANCE FUND, Insurer and Respondent for BLAZE CONSTRUCTION, INC., Employer and Respondent.
    No. 94-489.
    Submitted on Briefs February 23, 1995.
    Decided July 27, 1995.
    52 St.Rep. 685.
    272 Mont. 94.
    899 P.2d 1093.

      For Appellant: Edward K. Duckworth, Ronan.
    For Respondent: Susan C. Witte, State Compensation Mutual Insurance Fund, Helena.
   JUSTICE NELSON

delivered the Opinion of the Court.

The appellant, James McClure appeals from the Workers’ Compensation Court’s order denying his petition for new trial and certifying judgment as final dated September 7,1994. We reverse and remand.

BACKGROUND

.On June 8, 1992, the appellant James McClure (McClure) was injured in the course and scope of his employment with Smith Enterprises, Inc. (Smith). At the time of the injury, Smith, a tribal-owned business, was an independent contractor of Blaze Construction, Inc. (Blaze). Blaze was the prime contractor for the Bureau of Indian Affairs (BIA) to construct streets in a subdivision located on the Flathead Indian Reservation. Blaze’s contract with the BIA required evidence of workers’ compensation insurance. Aletter incorporated as part of that contract provided in part:

(a) Workers’ Compensation Insurance. The Contractor shall furnish evidence to the Government that all operations to be performed under the contract are covered by Workers’ Compensation Insurance or that this liability is otherwise provided for in accordance with applicable State laws. [Emphasis added.]

Similarly, Blaze’s contract with Smith required Smith to acquire workers’ compensation coverage:

(h) To pay Industrial Insurance and all other payments required under Workmen’s Compensation laws as the same become due, and to furnish to the CONTRACTOR with evidence that the same has been paid before final payment is made on this SUB-CONTRACT.

Moreover, the subcontract which Smith signed also provided in pertinent part:

2. [Smith agrees] To be bound by the terms of said MAIN CONTRACT [the contract between Blaze as prime contractor and the property owner] with the OWNER (including every part of and all the general and special conditions, drawings, specifications and addenda) in any way applicable to this Subcontract...

Blaze carried workers’ compensation coverage, however, Smith did not. Because Smith was not insured at the time of McClure’s injury, McClure initially filed a claim with the State Compensation Insurance Fund (State Fund) seeking benefits from the Uninsured Employers Fund. The State Fund denied liability on the basis that the Uninsured Employers Fund does not have jurisdiction over businesses owned by tribal members operating solely within the confines of the reservation. McClure then filed a claim for compensation against Blaze pursuant to § 39-71-405(1), MCA (1991).

On October 7, 1993, the Workers’ Compensation Court denied McClure’s motion for declaratory ruling yet agreed to bifurcate the issue of the applicability of Montana’s workers’ compensation laws to the Flathead Indian Reservation. On December 22, 1993, McClure filed a renewed motion for declaratory ruling. The Workers’ Compensation Court again denied the motion and on September 7, 1994 issued an order denying McClure’s petition for new trial and certifying judgment as final. McClure appeals the September 7, 1994 order denying petition for new trial and certifying judgment as final.

ISSUES

McClure raises two issues on appeal. They are:

Did the Workers’ Compensation Corut err in its determination that McClure is not entitled to benefits under § 39-71-405, MCA?

Did the Workers’ Compensation court err in its determination that a claim for workers’ compensation benefits based upon a third-party beneficiary contractual theory is beyond the scope of its jurisdiction?

STANDARD OF REVIEW

The facts of this case are essentially undisputed. McClure argues that the District Court erred in its legal conclusions when it determined that McClure is not entitled to benefits under § 39-71-405(1), MCA, and that a claim for workers’ compensation benefits based upon a third-party beneficiary contractual theory is beyond the scope of its jurisdiction. In reviewing the Workers’ Compensation Court’s conclusions of law, we determine if the court’s interpretation of the law is correct. Plainbull v. Transamerica Ins. Co. (1994), 264 Mont. 120, 124, 870 P.2d 76, 79 (citing Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603).

DISCUSSION

(1) Did the Workers’ Compensation Court err in its determination that McClure is not entitled to benefits under § 39-71-405, MCA?

McClure appeals the Workers’ Compensation Court’s holding that he is not entitled to benefits under Blaze’s workers’ compensation coverage because Smith does not fall within the purview of the Workers’ Compensation Act and therefore the applicable independent contractor statute, § 39-71-405(1), MCA, is not triggered.

McClure argues that pursuant to § 39-71-405(1), MCA, Blaze, the prime contractor, is liable for payment of benefits to McClure, an employee of Smith, the independent contractor, because Smith did not carry workers’ compensation coverage. According to McClure, state workers’ compensation jurisdiction over Indian employers is not at issue here. In summary, McClure argues that Smith’s contractual obligation triggers § 39-71-405(1), MCA, placing liability on Blaze.

The resolution of the issues presented hinges on § 39-71-405(1), MCA (1991), which provides:

Liability of employer who contracts work out. (1) An employer who contracts with an independent contractor to have work performed of a kind which is a regular or a recurrent part of the work of the trade, business, occupation, or profession of such employer is liable for the payment of benefits under this chapter to the employees of the contractor if the contractor has not properly complied with the coverage requirements of the Worker’s Compensation Act. Any insurer who becomes liable for payment of benefits may recover the amount of benefits paid and to be paid and necessary expenses from the contractor primarily liable therein. [Emphasis added.]

The Workers’ Compensation Court found that on its face, the statute “applies only in cases where the subcontractor ‘has not properly complied with the coverage requirements of the Worker’s [sic] Compensation Act,’ a situation commonly referred to as involving an ‘uninsured employer.’ ” Due to the bifurcation of the issue of the applicability of the Montana Workers’ Compensation Act to the Flathead Indian Reservation, the court assumed that the Act did not apply to Smith. Therefore, the court interpreted the phrase “properly complied with the coverage requirements” to apply only to situations where the independent contractor is statutorily required to provide coverage for its employees and fails to do so.

At the outset, we note that the 1991 codes, not the 1993 codes, apply to McClure’s 1992 injury. Buckman v. Montana Deaconess Hosp. (1986), 224 Mont. 318, 321, 730 P.2d 380, 382. Accordingly, § 39-71-401(2)(m), MCA, (exempting from the Workers’ Compensation Act “a person who is employed by an enrolled tribal member who operates solely within the exterior boundaries of an Indian reservation.”) does not apply here. However prior to 1993, the Attorney General opined that Montana’s workers’ compensation statutes do not apply to Indian businesses conducted on an Indian reservation. 37 Op.Att’y Gen. 28 (May 25, 1977). Accordingly, at the time of McClure’s injury, Smith, an Indian employer operating within the exterior boundaries of an Indian reservation, was not required by Montana law to provide workers’ compensation coverage for his employees. With that status of the law in mind, we analyze the issues before us.

According to the rules of statutory construction, we construe the language of the statute according to its plain meaning. In construing a statute, “the office of the judge is simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted.” Section 1-2-101, MCA; Tongue River Elec. Coop. v. Mont. Power Co. (1981), 195 Mont. 511, 515, 636 P.2d 862, 864. The plain language of § 39-71-405(1), MCA, merely makes the employer liable for the payment of benefits to the contractor’s employee if the contractor fails to properly comply with the requirements of the Workers’ Compensation Act. There is no language in § 39-71-405(1), MCA, indicating that the independent contractor must have a statutory obligation to obtain coverage before the section is triggered. In fact, it is not relevant why the independent contractor did not “properly comply” with the Act’s requirements, only that the independent contractor did not properly comply with the Act’s requirements, while having some obligation to do so.

This Court has not previously addressed the issue before us. However, in Webb v. Masonry Const. Co. (1988), 233 Mont. 198, 761 P.2d 343 (concerning immunity from tort liability under the Workers’ Compensation Act), we interpreted the legislative intent of § 39-71-405(1), MCA, stating the Workers’ Compensation Act “was conceived, enacted and is supposed to be implemented primarily to provide aid and relief to injured working men and women.” Webb, 761 P.2d at 350.

Pursuant to § 39-71-405(1), MCA, a “contractor-under” statute, if Smith has not properly complied with the requirements of the Act, having an obligation to do so, then Blaze is liable for McClure’s benefits. Here, the nature and source of Smith’s obligation to provide workers’ compensation benefits does not derive from the Act, however, for although Smith did not have a statutory obligation to comply with the Act, Smith did have a contractual obligation to comply. Moreover, under Blaze’s contract with the BIA, Blaze had the obligation to make sure that “all operations to be performed under the contract [were] covered by Workers’ Compensation Insurance.” (Emphasis added). Accordingly, it was Blaze’s obligation to enforce his contract with Smith to ensure that Smith carried workers’ compensation coverage for the benefit of his employees. We conclude that Smith’s contract with Blaze triggers Smith’s obligation under § 39-71-405(1), MCA, to properly comply with the coverage requirements of the Workers’ Compensation Act, and, hence, Blaze’s “contractor-under” obligation when Smith failed to do so.

We note, in passing, that this case does not present the issue of whether the State can enforce its workers’ compensation laws against an Indian employer within the exterior boundaries of an Indian reservation. See 37 OpAtt’y Gen. 28 (May 25, 1977), and the 1993 amendments to § 39-71-401, MCA, at subparagraph (2)(m), 1993 Montana Laws ch. 555, § 4. While the State may not require an Indian employer operating within the reservation to comply with the Workers’ Compensation Act, it does not follow that the Indian employer who, nevertheless, elects coverage because of, for example, a contractual obligation to purchase such coverage, would be precluded from doing so.

We hold that McClure is entitled to benefits under § 39-71-405(1), MCA. Because we conclude that McClure is entitled to benefits pursuant to § 39-71-405(1), MCA, we will not address his third-party beneficiary claims. We reverse and remand to the Workers’ Compensation Court to fix and determine the amount of McClure’s benefits.

JUSTICES TRIEWEILER, HUNT, WEBER and LEAPHART concur.

JUSTICE GRAY,

specially concurring.

I concur in the Court’s opinion but not in everything which is said therein. I write separately to clarify what I perceive to be the thrust of the Court’s decision.

In pertinent part, Blaze’s contract with the BIA required Blaze to furnish evidence that all operations to be performed under the contract were covered by workers’ compensation insurance. Blaze’s subcontract with Smith required Smith to be bound by all terms of the primary contract; this provision, of course, would include the BIA-Blaze contract term that all operations be covered by workers’ compensation insurance. Thus, Blaze’s contract with Smith, taken together with the BIA-Blaze contract required Smith to obtain workers’ compensation insurance. Smith did not do so and, therefore, liability is properly imposed on Blaze pursuant to § 39-71-405(1), MCA.

The portion of the Court’s opinion with which I do not agree states that the following language in the Blaze-Smith subcontract required Smith to acquire workers’ compensation coverage:

(h) To pay Industrial Insurance and all other payments required under Workmen’s Compensation laws as the same become due .... The quoted language does not require Smith to obtain workers’ compensation coverage because, as the Court correctly states, the Workers’ Compensation Act does not apply to Smith. Thus, because the Act did not require Smith to obtain coverage, this provision in the Blaze-Smith subcontract is not a proper basis for the Court’s conclusion in this case.

CHIEF JUSTICE TURNAGE concurs in the foregoing special concurrence.


source: Caselaw Access Project

author: JUSTICE TRIEWEILER JUSTICE LEAPHART,

license: Public Domain

text:
    DAVID C. HOLMBERG and KAROL M. HOLMBERG, Plaintiffs, v. RICHARD A. STRONG, STRONG’S CRANE SERVICE, INC., RICHARD E. LUTTON and CROWN PARTS AND MACHINE, INC., Defendants. RICHARD E. LUTTON and CROWN PARTS AND MACHINE, INC., Cross-claimants & Appellants, v. RICHARD A. STRONG and STRONG’S CRANE SERVICE, INC., Cross-Defendants & Respondents.
    No. 95-093.
    Submitted on Briefs June 8, 1995.
    Decided August 3, 1995.
    52 St.Rep. 710.
    272 Mont. 101.
    899 P.2d 1097.

      For Appellants: James L. Jones, Dorsey & Whitney, Billings.
    For Respondents: Michael W. Tolstedt, Brown, Gerbase, Cebull, Fulton, Harman & Ross, Billings.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

The plaintiffs, David C. Holmberg and Karol M. Holmberg, filed a complaint in the District Court for the Thirteenth Judicial District in Yellowstone County against the defendants, Richard A. Strong, Strong’s Crane Service, Inc., Richard E. Lutton, and Crown Parts and Machine, Inc., in which they alleged that the defendants’ negligently injured David and that they were jointly and severally liable for the couple’s damages. Richard E. Lutton and Crown Parts and Machine, Inc. (referred to collectively as Crown Parts), cross-claimed against Richard A. Strong and Strong’s Crane Service, Inc. (referred to collectively as Strong’s), for contribution. The District Court granted Strong’s motion for summary judgment and held that Strong’s was not liable to Crown Parts for contribution. Crown Parts appeals from the District Court’s judgment and order. We affirm the District Court.

The issue on appeal is:

Did the District Court err when it granted Strong’s motion for summary judgment?

FACTUAL BACKGROUND

On August 13,1991, David Holmberg was driving his vehicle west on Highway 87 when he stopped his vehicle in order to make a left hand turn. Before he turned, David was hit from behind by a truck driven by defendant Richard E. Lutton and owned by defendant Crown Parts. Prior to the collision, Richard A. Strong was driving a crane owned by Strong’s in an easterly direction, and while turning right off Highway 87, allegedly caused the boom of the crane to encroach into the westbound lane, distracting Lutton and contributing to the accident.

On February 10, 1994, Holmbergs filed a complaint against Richard A. Strong, Strong’s Crane Service, Inc., Richard E. Lutton, and Crown Parts and Machine, Inc. Their complaint alleged that the defendants negligently caused David’s injuries and were jointly and severally liable. On February 28, 1994, Crown Parts filed its answer and a cross-claim against Strong’s for contribution. On March 4,1994, Holmbergs and Crown Parts filed a joint motion for the District Court’s approval of their settlement agreement, dismissal of Holmbergs’ complaint, and permission for Crown Parts to proceed with its cross-claim. On March 17, 1994, Holmbergs signed a settlement agreement with Crown Parts. That same day the District Court approved the settlement and dismissed with prejudice Holmbergs’ complaint against all defendants, but allowed Crown Parts to proceed with its cross-claim.

In October 1994, Strong’s moved for dismissal of Crown Parts’ claim by summary judgment. In December 1994, the District Court granted Strong’s motion and held that because Holmbergs had released all tort-feasors from liability, Strong’s and Richard Strong are not parties against whom recovery is allowed pursuant to § 27-1-703, MCA, and Sprinkle v. Burlington Northern (1989), 236 Mont. 383, 769 P.2d 1261. Therefore, the court held that Crown Parts had no right of contribution against Strong’s or Richard Strong.

DISCUSSION

Did the District Court err when it granted Strong’s motion for summary judgment?

Our inquiry on review of an order granting summary judgment is identical to that of the district court. Spain-Morrow Ranch, Inc. v. West (1994), 264 Mont. 441, 444, 872 P.2d 330, 331. Summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.R; Spain-Morrow, 872 P.2d at 331-32.

Crown Parts requests that we reverse the District Court’s judgment and, in so doing, expressly overrule Sprinkle. We decline to do so.

Montana has altered the common law and recognizes a statutory right to contribution. Section 27-1-703, MCA. In Senate Bill 212, the Fifty-Fourth Montana Legislature amended § 27-1-703, MCA, so that it now provides in relevant part:

(1) Except as provided in subsections (2) and (3), whenever the negligence of a party in any action is an issue, each party against whom recovery may be allowed is jointly and severally liable for the amount that may be awarded to the claimant but has the right of contribution from any other person whose negligence may have contributed as a proximate cause to the injury complained of.
(4) On motion of any party against whom a claim is asserted for negligence resulting in death or injury to person or property, any other person whose negligence may have contributed as a proximate cause to the injury complained of may be joined as an additional party to the action.' For purposes of determining the percentage of liability attributable to each party whose action contributed to the injury complained of, the trier of fact shall consider the negligence of the claimant, injured person, defendants, and third-party defendants. The liability of nonparties, including persons released from liability by the claimant and persons immune from liability to the claimant, must also be considered by the trier of fact, as provided in subsection (6). The trier of fact shall apportion the percentage of negligence of all persons listed in this subsection. Contribution must be proportional to the liability of the parties against whom recovery is allowed. Nothing contained in this section makes any party indispensable pursuant to Rule 19, Montana Rules of Civil Procedure.

S.B. 212, 54th Leg. 1995 (emphasis added).

We interpreted the underlined statutory language in State ex rel. Deere & Co. v. District Court (1986), 224 Mont. 384, 730 P.2d 396. Although Deere interpreted § 27-1-703, MCA, before the Legislature’s 1995 amendment, the highlighted language is in both versions of the statute. Therefore, what was said in Deere is still applicable.

In Deere, a bulldozer manufactured by Deere & Company and driven by an employee for Wade’s Backhoe backed into the plaintiff. The plaintiff filed a complaint against Deere and Wade’s Backhoe. Before trial, the plaintiff settled with Deere and released Deere from all claims. Following the settlement, Wade’s Backhoe filed a third-party complaint against Deere for contribution. At issue was whether a joint tort-feasor who settled with the plaintiff before judgment was entered was subject to a contribution claim from a nonsettling joint tort-feasor pursuant to § 27-1-703, MCA. Deere, 730 P.2d at 398.

We stated that:

[A] joint tortfeasor who settles with the claimant before judgment on the claim is entered in a district court is not subject to claims for contribution or indemnity from the non-settling joint tortfeasors. ... [T]he right of contribution under the amended statute [§ 27-1-703, MCA] is “proportional to the negligence of the parties against whom recovery is allowed.” Clearly that statutory language excludes a party against whom recovery is not allowed, e.g. a tortfeasor who has previously settled.

Deere, 730 P.2d at 402. Therefore, we held that, based on the statutory language, a joint tort-feasor against whom a judgment for the plaintiff was entered could not seek contribution from another joint tort-feasor, or joint tort-feasors, who settled with the plaintiff before the entry of judgment. Deere, 730 P.2d at 398.

Three years later, in a factual situation nearly identical to this case, we followed the general principles announced in Deere. Sprinkle, 769 P.2d 1261. In Sprinkle, the plaintiff was injured while working for Burlington Northern (BN) and brought suit in the United States District Court for the District of Montana pursuant to the Federal Employers Liability Act. BN j oined Tire Guys as a third-party defendant and sought contribution pursuant to § 27-1-703, MCA. Before trial, BN settled with the plaintiff in exchange for a release of all claims, including claims, if any, against Tire Guys. BN then pursued its claim for contribution against Tire Guys. Sprinkle, 769 P.2d at 1261-62.

Tire Guys moved for summary judgment and the Federal District Court certified the following question to this Court:

Plaintiff commences a negligence action against defendant # 1. Defendant # 1 in turn joins defendant # 2 seeking contribution. Prior to trial, defendant # 1 settles with the plaintiff in return for a general release of all claims, including claims against defendant [#] 2. Can defendant # 1 continue its action for contribution against defendant # 2 under Montana law?

Sprinkle, 769 P.2d at 1261. The certified question in Sprinkle is identical to the issue on appeal in this case.

Relying on principles set forth in Deere, we held that:

Regardless of the change in positions here as between the joint tortfeasors, the principle announced in Deere remains the same. The plaintiff’s case has ended and the nonsettling tortfeasor is not one “against whom recovery is allowed.” As we said in Deere, supra, that statutory language excludes from any duty of contribution a party against whom recovery is not allowed.

Sprinkle, 769 P.2d at 1263.

In this case, Holmbergs filed their complaint and named Crown Parts, as well as Strong’s. Crown Parts filed its claim for contribution from Strong’s. Crown Parts and the Holmbergs jointly sought the District Court’s order which approved their settlement and dismissed Holmbergs’ complaint against “all Defendants ... with prejudice.” Although the settlement agreement did not include Strong’s as a releasee, the recitals indicate that Holmbergs agreed to “settle and dismiss all claims they have or may have as against all parties who caused their injuries,” indicating that Holmbergs intended to release Strong’s.

The fact that Holmbergs initially named all defendants in their complaint does not distinguish this case from Sprinkle. As in Sprinkle, Crown Parts obtained a general release of all claims, including claims against Strong’s. Crown Parts sought contribution from Strong’s and Strong’s moved for summary judgment. Recognizing that Sprinkle was nearly identical, to this case, the District Court granted Strong’s motion.

Crown Parts urges that we reverse Sprinkle because it is contrary to the plain statutory language of § 27-1-703, MCA, legislative intent, public policy encouraging settlement, and language from this Court’s recent opinion in Linder v. Missoula County (1992), 251 Mont. 292, 824 P.2d 1004. Crown Parts also relies on cases from other jurisdictions and the Uniform Contribution Among Tortfeasor’s Act (UCATA).

We disagree with Crown Parts’ reliance on cases from other jurisdictions because each case is based on a state statute with statutory language that differs from § 27-1-703, MCA, and because Sprinkle already applied the relevant language of Montana’s contribution statute in the present context, based on the plain language of the statute. We also disagree with Crown Parts’ reliance on the UCATA because Montana has not adopted the UCATA. As we recognized in Sprinkle, reliance on the UCATA has created difficulty in jurisdictions which have adopted comparative negligence. Therefore, in Sprinkle, 769 P.2d at 1263-64, we declined BN’s suggestion that we follow the UCATA.

Neither is Crown Parts’ argument based on Linder persuasive. The plaintiff in Linder contracted tuberculosis and filed a negligence claim against Missoula County, alleging that the County did not adequately monitor a tubercular who moved to Missoula County. Missoula County filed a third-party claim against the State of Montana in which it sought contribution. Linder, 824 P.2d at 1005. The State moved for summary judgment on the basis that the relevant statute of limitations precluded the plaintiff from suing the State. Therefore, the State argued, it was “a party against whom recovery is not allowed,” pursuant to § 27-1-703, MCA. Linder, 824 P.2d at 1007.

We rejected the State’s position and noted that although both Linder and Deere involved a plaintiff and two potential defendants, the

similarity ends [t]here .... In the instant case, the plaintiffs settled with neither party; this is a stark difference from the facts of Deere. Clearly, this difference makes the case at bar distinguishable from Deere and the cases that follow it. (See Sprinkle v. B.N. Railroad (1989), 236 Mont. 383, 769 P.2d 1261).

Linder, 824 P.2d at 1007. Therefore, we concluded that the situation in Linder did not fall within the statutory language of § 27-1-703, MCA.

We then addressed the statute of limitations argument and concluded that the statute of limitations in the underlying claim by the plaintiff did not apply to the contribution claim brought by Missoula County against the State. In this situation, “an existing defendant should not be prevented from obtaining contribution from a non-settling party.” Linder, 824 P.2d at 1007-08.

We distinguished Linder from Deere and Sprinkle because the plaintiffs in Linder did not settle with either defendant. We conclude that the rule set forth in Sprinkle applies to the facts of this case.

The relevant statutory language interpreted in Deere, Sprinkle, and Linder remained unchanged by the Legislature’s 1995 amendment in Senate Bill 212. Therefore, we conclude that Crown Parts’ reliance on public policy favoring settlement is not persuasive, and that because our decisions simply apply the plain statutory language of § 27-1-703, MCA, legislative history is irrelevant to our decision. Dorn v. Board of Trustees (1983), 203 Mont. 136, 144, 661 P.2d 426, 430.

We affirm the District Court’s order and judgment granting Strong’s motion for summary judgment based on our conclusion that Strong’s was not a party against whom recovery is allowed pursuant to § 27-1-703, MCA.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY and HUNT concur.

JUSTICE LEAPHART,

specially concurring.

I specially concur. The philosophy behind contribution among tortfeasors is one of promoting settlement. Our holdings in State ex rel. Deere & Co. v. District Court (1986), 224 Mont. 384, 730 P.2d 396 and Sprinkle v. Burlington Northern Railroad (1989), 236 Mont. 383, 769 P.2d 1261, and now the present case have so narrowed the circumstances under which a defendant can obtain contribution that, in the final analysis, we are discouraging settlement. In Deere we held that when defendant Deere settled with the plaintiff, Deere bought his peace and could not then be brought back into the litigation by means of a third party complaint from defendant Wade’s Backhoe.

In Sprinkle we then held that when defendant 1 joins defendant 2 seeking contribution and then settles with the plaintiff, obtaining a release of all parties, defendant 2 is no longer a party “against whom recovery is allowed.” Accordingly, defendant 1 can no longer pursue his contribution claim against defendant 2. Likewise, in the case at hand, defendant Crown Parts had a cross-claim for contribution pending against defendant Strong when Crown Parts settled with plaintiff Holmberg. The District Court not only approved the settlement but also specifically allowed Crown Parts to proceed with its cross-claim for contribution. The court then reversed itself when it granted Strong’s motion for summary judgment on the theory that, as a consequence of the settlement, Strong was no longer a party “against whom recovery is allowed” under § 27-1-703, MCA. Presumably Crown Parts will not again make the mistake of unilaterally settling with a plaintiff.

The next logical step in this progression is to take the Deere scenario a step further. Deere settled at a time when there were no claims for contribution pending against Deere. We held that Deere could not be brought back into the litigation after the fact; that is, after the settlement. What about a defendant who is subject to an outstanding claim for contribution at the time of settlement? Under our case law, there appears to be no reason why that defendant cannot circumvent the claim for contribution by unilaterally settling with the plaintiff in an amount less than his/her/its proportionate amount thereby rendering itself a party “against whom recovery is [not] allowed.”

I am concerned that this line of authority seriously hinders the public policy considerations favoring contribution among tortfeasors by restricting contribution to situations where multiple defendants refuse to settle and force the plaintiff to go to trial. However, short of usurping the legislature’s prerogative and rewriting § 27-1-703, MCA, I can think of no viable alternatives. Accordingly, I reluctantly and specially concur in the result.


author: JUSTICE WEBER

text:
    MARSHA L. KIRCHNER, Plaintiff and Appellant, v. WESTERN MONTANA MENTAL HEALTH CENTER, RIVER HOUSE PROGRAM, JOHN LYNN, Director of River House Program, RIVER HOUSE HIRING COMMITTEE, JANE AND JOHN DOES 1 THROUGH 10, Defendants, Respondents and Cross-Appellants.
    No. 94-623.
    Submitted on Briefs May 11, 1995.
    Decided August 4, 1995.
    52 St.Rep. 753.
    272 Mont. 110.
    899 P.2d 1102.

      For Appellant: Marsha L. Kirchner, Pro Se, Missoula.
    For Respondent: James A. Haynes, James A. Haynes Law Firm, Hamilton.
   JUSTICE WEBER

delivered the Opinion of the Court.

Marcia Kirchner (Kirchner) appeals a partial summary judgment order of the Fourth Judicial District Court, Missoula County. We dismiss her appeal as premature and remand to the District Court for further proceedings. We also deny the cross-appeal by Western Montana Regional Center (Center) which contends that the District Court lacked jurisdiction to set aside the dismissal because the 45-day time limit under Rule 60(b), M.R.Civ.R, had expired.

Appellant Kirchner, acting pro se, has presented several issues on appeal and respondents have cross-appealed several issues. We consider the following issues to be dispositive:

I. Has Kirchner filed a proper appeal to this Court?

II. Was Kirchner’s motion to set aside dismissal controlled by Rule 60(b), M.R.Civ.P., with the result that the District Court was divested of jurisdiction by the passage of 45 days under the Rule?

We will summarize the basic fact framework of this case as set forth by the District Court. Kirchner began probationary employment with the Center on May 16, 1990, as a social worker/case manager. The Center’s Board of Directors formally approved Kirchner’s employment contract on June 15, as a temporary, half-time, probationary status position. Her contract was reissued in July of 1990, to reflect a cost of living adjustment. The personnel policies and procedures manual states that all new employees are on probationary status for the first six months of employment. The District Court then concluded that the manual clearly showed that Kirchner’s status was probationary.

Kirchner was interviewed for the position she wanted but was not hired. The Center offered her a transitional case manager position in October of 1990. Kirchner declined, left her employment and filed the present suit.

By order dated November 10, 1992, the District Court dismissed Kirchner’s case with prejudice. Kirchner filed a motion to set aside the dismissal. On November 23, 1992, the court ordered that a hearing on the matter should be held on December 15, 1992. Before that hearing could be held, Kirchner appealed the case to this Court. Kirchner v. W. Mont. Regional Community Mental Health Center (1993), 261 Mont. 227, 861 P.2d 927. In that case we concluded that this Court did not have jurisdiction to consider Kirchner’s appeal and remanded to the District Court for hearing on Kirchner’s motion to set aside the order of dismissal.

By opinion and order dated December 29, 1993, the District Court had previously set aside its order of dismissal as originally entered on November 10,1992. Defendants moved for reconsideration of that order and by opinion and order dated January 31, 1994, the District Court determined that it had jurisdiction and denied the request for reconsideration.

In its opinion and order dated November 17, 1994, the District Court concluded that summary judgment was not proper on counts III and IV of the complaint. The District Court granted summary judgment on count VI and count VIII. The District Court then concluded that the remaining claims of Kirchner sound in equity and that the court was disposed to hear the claims by means of a bench trial.

I.

Has appellant filed a proper appeal to this Court?

Kirchner argues that this Court can hear her appeal under Rule 1(b)(1), M.R.App.P, on the theory that the District Court’s order of partial summary judgment was a final judgment. The Center refers to the original Kirchner case. That reference is correct.

For the benefit of Kirchner we restate the following from our original Kirchner opinion:

Montana’s Rules of Appellate Procedure make clear that appeal can be taken only from a final judgment or a special order made after final judgment. Rule 1, M.R.App.P. A final judgment is one in which there has been a final determination of the rights of the parties, and any decree which leaves matters undetermined is interlocutory in nature and is not a final judgment for purposes of appeal. ...
In this instance, the November 23, 1992, order is clearly not a final judgment. The court did not rule on Kirchner’s motion to set aside the dismissal, but scheduled a hearing in order to consider the parties’ arguments. That order was interlocutory in nature because no final determination of the rights of the parties had been made. ... Kirchner’s appeal to this Court is premature. An appeal which is premature must be dismissed for lack of jurisdiction. (Citation omitted.)

Kirchner, 261 Mont. at 229-30, 861 P.2d at 929. The foregoing Kirchner holding applies to the present case which is rooted in a partial summary judgment ruling by the District Court — all of Kirchner’s issues have not been determined by the court’s grant of partial summary judgment. As a result, the present appeal is premature and must be dismissed for lack of jurisdiction.

Kirchner’s appeal is therefore dismissed and the case is remanded to the District Court for further consideration.

II.

Was Kirchner’s motion to set aside dismissal controlled by Rule 60(b), M.R.Civ.P, with the result that the District Court was divested of jurisdiction by the passage of 45 days under the Rule?

In substance the Center argues that the 45-day provision of Rule 60(b), M.R.Civ.P., must be applied in this case, and that the 45 days has run when the time is considered which ran prior to the notice of appeal in the original Kirchner case and then adding in the time which had elapsed after the remittitur in Kirchner.

This Court remanded the case back to the District Court specifically for a hearing on Kirchner’s motion to set aside her dismissal. We conclude that the 45-day provision of Rule 60(b), M.R.Civ.P, did not begin to run until the filing of remittitur on the first appeal. The record shows that the District Court made its determination within 45 days of the issuance of remittitur. As a result, the Center’s cross-appeal is denied.

This case is remanded for further proceedings consistent with this opinion.

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


author:
JUSTICE WEBER JUSTICE NELSON CHIEF JUSTICE TURNAGE,
      JUSTICE TRIEWEILER

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JAMES ALLEN EGELHOFF, Defendant and Appellant
    No. 93-405.
    Heard Oct. 27. 1994.
    Submitted February 23, 1995.
    Decided July 6, 1995.
    52 St.Rep. 548.
    272 Mont. 114.
    900 P.2d 260.

      For Appellant: Ann C. German, Libby, Montana; Amy Guth, Lincoln County Public Defender, Libby.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General, Pamela P. Collins, Assistant Attorney General, Helena; Scott B. Spencer, Lincoln County Attorney, Libby.
   JUSTICE WEBER

delivered the Opinion of the Court.

James Allen Egelhoff (Egelhoff) appeals his conviction in the District Court of the Nineteenth Judicial District, Lincoln County, on two counts of deliberate homicide for the shooting deaths of his two companions following a day of drinking. Egelhoff was sentenced to forty years on each count and an additional two-year term for use of a weapon on each count, a total of eighty-four years, to run consecutively. The District Court also designated him as a dangerous offender for parole purposes. We reverse and remand.

The following issues are presented on appeal:

I. Was Egelhoff denied due process by a jury instruction that voluntary intoxication may not be taken into consideration in determining the existence of a mental state which is an element of the offense?

II. Did the District Court err in permitting a lay witness to give opinion testimony?

III. Are the jury verdicts finding Egelhoff guilty of two counts of deliberate homicide supported by substantial evidence?

IV. Did the District Court err in designating Egelhoff a dangerous offender for purposes of parole?

We conclude that Issue I is dispositive.

Egelhoff was convicted by a jury of two counts of deliberate homicide for the July 12,1992 shooting deaths of Roberta Pavola (Pavola) and John Christianson (Christianson). At approximately midnight on July 12,1992, their bodies were found in the front seat of the station wagon belonging to Christianson and Egelhoff was found in the rear cargo area, alive but intoxicated.

Egelhoff and a friend from Helena went to the Yaak area near Troy to pick mushrooms in early July 1992. Egelhoff had no transportation and no personal effects apart from some clothing and a .38 caliber handgun which he kept in a holster on his right hip.

Pavola and Christianson, also in the Yaak area to pick mushrooms, camped in an area near the place where they picked mushrooms. Egelhoff and his companion camped in the same area as Christianson and Pavola and became acquainted with them. Egelhoff’s companion departed prior to the day Pavola and Christianson were killed.

Egelhoff, Pavola and Christianson sold their mushrooms on Sunday, July 12,1992 and then bought beer and went to a party at a Troy apartment. They spent most of the day drinking at the party and in bars. The trio left the party sometime after 9:00 p.m. in Christianson’s station wagon with Christianson driving, Pavola in the front passenger seat and Egelhoff in the rear.

Much of what occurred after they left the party that evening is unknown. Testimony at trial indicated that Egelhoff and Christian-son were seen in an IGA grocery store at approximately 9:20 p.m. and that Christianson’s station wagon was seen being driven in an erratic manner on Highway 2 west of Troy a while later. Christianson’s vehicle was also observed going off the road into a ditch several times. Law enforcement officers later located five places in the area where a vehicle had gone off the highway.

Numerous witnesses testified about their observations during this period of time. Two of the witnesses who observed the Christianson vehicle reported a possible drunken driver to the Lincoln County Sheriff’s department shortly before midnight. When the station wagon came to its final stop and the sheriff’s officers arrived, it was situated in a ditch, Pavola and Christianson were dead and Egelhoff was yelling obscenities from the rear of the vehicle.

Both Pavola and Christianson died from gunshot wounds. Pavola had been shot in the left temple area and Christianson was shot in the right back side of his head. Pavola’s body remained in the passenger seat near the window and Christianson’s body was found in the middle of the front seat close to Pavola with his legs on the floorboards in front of the passenger’s seat and Pavola’s upper body slumped over his legs. Egelhoff’s gun was found on the floorboard near the brake pedal on the driver’s side and Egelhoff was in the back of the station wagon where the back seat had been laid flat. Egelhoff’s revolver was found with four loaded rounds and two empty casings. Egelhoff was lying on his right side with his head towards the back of the cargo area.

Detective Clint Gassett responded to a call about 1:00 a.m. on July 13, 1992, and came to the Libby hospital where Egelhoff had been brought by officers. He testified that Egelhoff was intoxicated, combative and cursing profusely. Detective Gassett, another officer and others attempted to physically restrain Egelhoff by holding him down on the table by his arms and chest. Detective Gassett testified that Egelhoff continued to act wildly during the five to six hours Gassett was at the hospital. Egelhoff would calm down at times only to repeatedly flare up again.

According to the testimony of Detective Gassett, at one point when another detective was preparing to take Egelhoff’s photograph, Egelhoff looked directly at the detective, pulled his leg back and kicked the camera out of the detective’s hands with the flat of his foot, knocking the camera to the floor. Detective Donald Bernall testified that he thought Egelhoff’s coordination was good and he was surprised to learn that Egelhoff’s blood alcohol content was .36 percent.

Egelhoff testified that he did not remember much of what happened on the evening of July 12,1992, his last memory being that he was at the party at the Troy apartment and that the sun had not gone down. He testified he did not remember leaving the party, being in the station wagon, shooting the gun, or kicking Detective Bernall at the hospital. He further testified he remembered that at one point in the evening the station wagon was parked somewhere, and he and Christianson were sitting on a hill or a bank passing a bottle of Black Velvet back and forth between them. He had no recollection of Pavola being with them at that time.

Forensics testing identified gunshot residue on Egelhoff’s hands. The bullet that killed Pavola entered her head at the left temple, exited the right back side of her head and was never found. Testimony by the State’s firearms examiner indicated that the bullet which killed Christianson could have come from thousands of guns with characteristics like Egelhoff’s gun.

At trial, Egelhoff contended that because he had been found unconscious and suffering from intoxication measured at .36 one hour after being brought to the hospital, his level of intoxication precluded him from having driven the car or undertaking the physical tasks necessary to have done what the prosecution claimed he had done. He contended that he suffered from an alcohol-induced amnesia (blackout) which prevented him from recalling the events of the night in question.

When ambulance attendants came to take him to the hospital, Egelhoff kept asking questions like, “Did you find him?” When he sobered up the next day, Egelhoff did not recall asking the questions or to whom he may have been referring when he asked them. Part of Egelhoff’s theory which he presented at trial was that there was a fourth person in the car who had disappeared before officers arrived at the scene of the accident.

Dr. Clyde Knecht, a medical doctor who practiced in Libby, examined Egelhoff in the emergency room at the Libby hospital in the early morning hours of July 13, 1992. He testified that Egelhoff, judging from his blood alcohol level and his behavior, probably suffered from alcoholic “blackout” at some point in time and for some period of time prior to the time of Dr. Knecht’s examination. He also testified that an intoxicated person experiencing such a blackout may walk, talk, and fully function, with people around the person unable to tell that the person experienced a blackout.

A jury found Egelhoff guilty of two counts of deliberate homicide for the deaths of Christianson and Pavola. Because defendant is granted a new trial as a result of our reversal of his conviction as discussed below, we decline to address the remaining issues raised by Egelhoff.

I

Was Egelhoff deprived of due process when the District Court instructed the jury that voluntary intoxication may not be taken into consideration in determining the existence of a mental state which is an element of the offense of deliberate homicide?

Although Egelhoff raised four issues on appeal, oral argument was granted only on this issue concerning the constitutional validity of the 1987 amendment to § 45-2-203, MCA, regarding consideration by the jury of evidence of intoxication in criminal trials. Egelhoff voluntarily consumed alcoholic beverages on the day of the homicides to the extent that his blood alcohol level measured at least .33% and possibly .36%.

The District Court gave the following instruction to the jury containing statutory language from § 45-2-203, MCA, referring to voluntary intoxication:

INSTRUCTION NO. 11
Aperson who is in an intoxicated condition is criminally responsible for his conduct and an intoxicated condition is not a defense to any offense and may not be taken into consideration in determining the existence of a mental state which is an element of the offense unless the Defendant proves that he did not know that it was an intoxicating substance when he consumed the substance causing the condition.

We first address the State’s argument that Egelhoff did not object to Instruction No. 11 on the ground now asserted. Egelhoff objected to Instruction No. 11 for several reasons, including constitutional reasons. Egelhoff’s counsel objected to the instruction at the time of settling jury instructions. At that time, she claimed that § 45-2-203, MCA, is unconstitutional because it has the effect of negating the requirement that the State prove a mental state when proving deliberate homicide where the defendant is voluntarily intoxicated. She also argued that § 45-2-203, MCA, is unconstitutional because it shifts the burden of proof on the element of mental state from the prosecution to the defendant. In addition to making these objections during the trial, Egelhoff’s counsel also made the same arguments and explained them in greater detail in her post-trial motion for a new trial. We conclude from our review of the record that Egelhoff’s counsel properly objected to the giving of this instruction.

Egelhoff was convicted of two counts of deliberate homicide. To convict on a charge of deliberate homicide, the State must prove as an element of the offense that the defendant acted “knowingly” or “purposely” in causing the death of another human being. Section 45-5-102, MCA. Egelhoff claimed § 45-2-203, MCA, is unconstitutional because it deprives defendants of due process by removing from the jury’s consideration facts relevant to a determination of mental state, an essential element of the offense to be proven beyond a reasonable doubt by the State.

Section 45-2-203, MCA, as amended in 1987, provides:

45-2-203. Responsibility — intoxicated condition. A person who is in an intoxicated condition is criminally responsible for his conduct and an intoxicated condition is not a defense to any offense and may not be taken into consideration in determining the exist ence of a mental state which is an element of the offense unless the defendant proves that he did not know that it was an intoxicating substance when he consumed, smoked, sniffed, injected, or otherwise ingested the substance causing the condition. (Emphasis supplied.)

In 1985, § 45-2-203, MCA, provided:

45-2-203. Responsibility — intoxicated or drugged condition. A person who is in an intoxicated or drugged condition is criminally responsible for conduct unless such condition is involuntarily produced and deprives him of his capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of law. An intoxicated or drugged condition may be taken into consideration in determination of the existence of a mental state which is an element of the offense. (Emphasis supplied.)

Egelhoff does not contend that he has the right to the affirmative defense of voluntary intoxication. He challenges only the exclusion of evidence from the jury’s deliberations for purposes of determining mental state (the 1987 amendment). Egelhoff contends that Instruction No. 11, containing the statutory language from § 45-2-203, MCA, removed evidence of alcohol intoxication from the jury’s consideration in determining whether he acted “knowingly’ or “purposely’ and relieved the prosecution of its burden to prove the required mental state for deliberate homicide, which is constitutionally impermissible.

The State contends that Egelhoff was not prejudiced because he was allowed to use the evidence of intoxication in order to explain his inability to remember the events of the evening as being the result of an alcohol-induced “blackout” and also as evidence of his lack of physical coordination which would have made it impossible for him to have driven Christianson’s station wagon the night of the homicides. The State also argues that Egelhoff was not deprived of due process because the court also instructed the jury that the State had the burden of proving all elements of the offense beyond a reasonable doubt.

It is well established that in order to afford a defendant due process under the Fourteenth Amendment of the United States Constitution, the State must prove every element of the offense beyond a reasonable doubt. See In Re Winship (1970), 397 U.S. 358, 364, 90 S.Ct. 1068, 1072, 25 L.Ed.2d 368, 375. In addition, Sandstrom v. Montana (1979), 442 U.S. 510, 524, 99 S.Ct. 2450, 2459, 61 L.Ed.2d 39, 51, held that an instruction which shifted the burden of proof on the element of mental state to the defendant is unconstitutional. In Sandstrom, the burden shifting resulted from instructing the jury that “[t]he law presumes that a person intends the ordinary consequences of his voluntary acts.” The Sandstrom presumption was a rebuttable presumption.

Egelhoff argues that in Sandstrom the defendant was at least allowed the opportunity to rebut the presumption. He contends he is denied that opportunity because the instruction prohibits consideration of his intoxication in determining whether he acted knowingly and purposely. Egelhoff also contends that Morissette v. United States (1952), 342 U.S. 246, 72 S.Ct. 240, 96 L.Ed. 288, supports his arguments because the United States Supreme Court there condemned a process by which a defendant could be convicted of criminal intent without proof by the government, which was determined to be inconsistent with our philosophy of criminal law.

Our concern here is with proof of the mental state element of the offense of deliberate homicide. The evidence presented at trial established that Egelhoff had a level of intoxication measured at .36. It is clear that such evidence was relevant to the issue of whether Egelhoff acted knowingly and purposely; yet Instruction No. 11 precluded the jury from considering it for that purpose.

The prosecution presented a great deal of evidence which reflected on Egelhoff’s ability to shoot Pavola and Christianson despite his level of intoxication. That evidence included the following: In order to commit the crimes, he had to take the gun from the glove compartment of the vehicle. He made an attempt to flee after he went into the ditch. He tried to avoid detection when Rebecca Garrison tried to approach the car. Ms. Garrison noticed a stick which she assumed must have been used by Egelhoff to depress the accelerator so that Egelhoff could drive from the back seat. He could talk. At the IGA store at 9:20 p.m., Egelhoff spoke well and did not slur his words. He later told Ms. Garrison to “stay away” and he talked to the ambulance driver. He had physical energy and strength. He tried to avoid detection by another of the witnesses who had stopped to give assistance. Detective Bemall testified that his coordination was good as was demonstrated by his kicking of the camera. The evidence was presented by the State to establish that Egelhoff acted “purposely” or “knowingly.” Such evidence could be properly considered by the jury in its determination of whether or not he acted “purposely or “knowingly.”

However, Egelhoff was not allowed to rebut such evidence with evidence that his level of intoxication precluded him from forming the requisite mental state. As a result of the elimination of the opportunity of using this rebuttal evidence, the prosecution’s burden of proof for the element of mental state was reduced.

This is a denial of due process. Due process is “the right to a fair opportunity to defend against the State’s accusations.” Chambers v. Mississippi (1973), 410 U.S. 284, 294, 93 S.Ct. 1038, 1045, 35 L.Ed.2d 297, 308. This right to present a defense is fundamental. Chambers, 410 U.S. at 302, 93 S.Ct. at 1049, 35 L.Ed.2d at 312. In Martin v. Ohio (1987), 480 U.S. 228, 233, 107 S.Ct. 1098, 1101, 94 L.Ed.2d 267, 274, the United States Supreme Court upheld a conviction of murder where the defendant attempted to prove self defense. The Supreme Court held it was not a violation of due process to place the burden of proving self defense on a defendant charged with committing aggravated murder. The Court in Martin emphasized that the defendant had the opportunity under the law and instructions to justify the killing by showing herself blameless because she acted in self defense. As a part of that discussion the Martin Court then stated:

It would be quite different if the jury had been instructed that self-defense evidence could not be considered in determining whether there was a reasonable doubt about the State’s case, i.e., that self-defense evidence must be put aside for all purposes unless it satisfied the preponderance standard. Such instruction would relieve the State of its burden and plainly run afoul of Winship’s mandate. 397 U.S., at 364, 90 S.Ct. at 1072-73. The instructions in this case could be clearer in this respect, but when read as a whole, we think they are adequate to convey to the jury that all of the evidence, including the evidence going to self-defense, must be considered in deciding whether there was a reasonable doubt about the sufficiency of the State’s proof of the elements of the crime.
When the prosecution has made out a prima facie case and survives a motion to acquit, the jury may nevertheless not convict if the evidence offered by the defendant raises any reasonable doubt about the existence of any fact necessary for the finding of guilt. Evidence creating a reasonable doubt could easily fall far short of proving self-defense by a preponderance of the evidence.

Martin, 480 U.S. at 233-34, 107 S.Ct. at 1102, 94 L.Ed.2d at 274-75. While the above statement may not have been essential to the holding of the Court, it emphasizes a clear distinction between placing a burden upon a defendant to prove a specific aspect of her defense, in this case self defense, and instructing a jury that self defense evidence could not be considered in determining whether there was a reasonable doubt as to her guilt. The analysis is clearly applicable to our present case. While Egelhoff was given the opportunity to present evidence of his level of intoxication, the instruction prevented consideration by the jury as it decided whether or not there was a reasonable doubt as to Egelhoff’s acting “knowingly” and “purposely.” Because the jury was not allowed to consider that evidence for such a purpose, the State was relieved of part of its burden to prove beyond a reasonable doubt every fact necessary to constitute the crime charged. It was reversible error to instruct the jury not to consider it.

By allowing the jury to consider such evidence, we permit the jury to make its decision on all of the relevant evidence as required under Martin. By instructing the jury that it may not consider intoxication evidence for purposes of determining a mental state of “knowingly’ or “purposely,” the jury may be misled into believing the State has proved the mental state beyond a reasonable doubt and that is why defendant cannot introduce evidence in opposition to a specific state of mind. The State should never escape its burden of proof of each element of the offense.

Egelhoff’s argument focuses on “burden shifting” which is not technically what happens in a case such as the present one. The burden is not shifted but rather it is lessened because the defendant is precluded from presenting arguments concerning the prosecution’s “failure of proof’ of the subjective mental state element required for conviction of a crime which includes the mental state of acting “knowingly’ or “purposely.”

Similar arguments were presented in State v. Byers (1993), 261 Mont. 17, 41-41, 861 P.2d 860, 875. There are significant factual differences between Byers and the present case, because Byers did not rely upon intoxication as an element of his defense and because there was no question in Byers that he had committed the two homicides, whereas in the present case Egelhoff relies on the intoxication defense as part of his argument and the basic issue was whether or not he actually committed the homicides.

In Byers the holding was that the district court did not commit reversible error by instructing the jury that voluntary intoxication is not a defense to criminal activity. Our holding in the present case does not conflict with the express holding in Byers. In Byers we did state that the intoxication instruction which was identical to that in the present case did not relieve the State of its burden of proving beyond a reasonable doubt all of the elements of the offense. In making that statement, although it was dicta, we were not correct as appears from our foregoing analysis. We overrule any of the statements made in Byers to the extent that it indicates it is constitutional to instruct that an intoxicated condition may not be taken into consideration in determining the existence of a mental state which is an element of the offense.

We conclude that the defendant had a due process right to present and have considered by the jury all relevant evidence to rebut the State’s evidence on all elements of the offense charged. We conclude that the following portion of § 45-2-203, MCA (1993), is a violation of due process and is therefore unconstitutional:

[an intoxicated condition] ... may not be taken into consideration in determining the existence of a mental state which is an element of the offense. ...

We hold Egelhoff was denied due process when the jury was instructed that voluntary intoxication may not be taken into consideration in determining the existence of a mental state which is an element of the offense.

For the benefit of the bench and bar of Montana, we briefly discuss the extent to which the holding of this decision has application to other cases. In a criminal case we have noted that, at a minimum, all “new” rules of constitutional law must be applied to cases still subject to direct review at the time the “new” decision is handed down. State, City of Bozeman v. Peterson (1987), 227 Mont. 418, 420, 739 P.2d 958, 960, citing Shea v. Louisiana (1985), 470 U.S. 51, 57, 105 S.Ct. 1065, 1069, 84 L.Ed.2d 38, 45.

The United States Supreme Court has refined its position since we decided Peterson, stating as follows:

We therefore hold that a new rule for the conduct of criminal prosecutions is to be applied retroactively to all cases, state or federal, pending on direct review or not yet final [.]

Griffith v. Kentucky (1987), 479 U.S. 314, 328, 107 S.Ct. 708, 716. 93 L.Ed.2d 649, 661. We conclude that the foregoing rule is binding upon this Court.

With regard to the question of retroactivity, the United States Supreme Court has additionally made its position more clear and we find this also to be binding upon us:

Retroactivity is properly treated as a threshold question, for, once a new rule is applied to the defendant in the case announcing the rule, evenhanded justice requires that it be applied retroactively to all who are similarly situated. ...
It is admittedly often difficult to determine when a case announces a new rule, and we do not attempt to define the spectrum of what may or may not constitute a new rule for retroactivity purposes. In general, however, a case announces a new rule when it breaks new ground or imposes a new obligation on the States or the Federal Government. To put it differently, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant’s conviction became final. [Citations omitted.]

Teague v. Lane (1989), 489 U.S. 288, 300-01, 109 S.Ct. 1060, 1070, 103 L.Ed.2d 334, 349.

We conclude that we have here established a “new rule.” Based upon the foregoing authorities, we conclude that our decision is applicable to all cases still subject to direct review by this Court on the date of this opinion. With regard to collateral review as compared to a direct review of cases, the United States Supreme Court has clarified its position as to collateral review of criminal convictions, stating:

[W]e now adopt Justice Harlan’s view of retroactivity for cases on collateral review. Unless they fall within an exception to the general rule, new constitutional rules of criminal procedure will not be applicable to those cases which have become final before the new rules are announced.
The first exception suggested by Justice Harlan — that a new rule should be applied retroactively if it places “certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe,” ...
The second exception suggested by Justice Harlan — that a new rule should be applied retroactively if it requires the observance of “those procedures that ... are ‘implicit in the concept of ordered liberty,’ ” [citation omitted] — we apply with a modification. The language used by Justice Harlan in Mackey leaves no doubt that he meant the second exception to be reserved for watershed rules of criminal procedure [.]

Teague, 489 U.S. at 310-11, 109 S.Ct. at 1076. We conclude that such view of retroactivity for cases on collateral review is binding upon this Court.

We conclude that this decision does not fall within either of the two above described exceptions to the general rule of non-retroactive application to collateral review. We therefore state this opinion will apply retroactively to those cases still subject to final decision on direct review on the date of this opinion, but will not apply retroactively to cases on collateral review after the date of this opinion.

Reversed and remanded for a new trial.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, NELSON and DISTRICT JUDGE PURCELL, concur.

JUSTICE NELSON

specially concurs.

I concur in our opinion. I write separately only because of my lingering concern that our decision will be misread as allowing an affirmative defense of voluntary intoxication in criminal cases. That is absolutely not so. This case is not about a defense. Rather, it deals with burden of proof and the fundamental obligation of the State to prove each element of a criminal charge — including the mental state element — beyond a reasonable doubt.

As a general proposition, the legislature may enact statutes that specify what defenses are and are not available to a charge of criminal conduct. In Montana, the legislature has, permissibly, determined that voluntary intoxication is not a defense to the commission of a crime and that, while voluntarily intoxicated, a person is still criminally responsible for his or her conduct. In other words, a defendant may not come before the jury and say: “I shot and killed Smith because (or while) I was drunk. You must, therefore, acquit me.” To that extent, the portion of § 45-2-203, MCA, which provides that “an intoxicated condition is not a defense to any offense” was and is constitutional. That portion of the statute is not at issue in this case.

On the other hand, as pointed out in our opinion, it is always the obligation of the State to prove beyond a reasonable doubt each and every element of the crime charged, including that the defendant acted with the requisite mental state. If, in a given case, the only way that the prosecution can prove the defendant’s mental state is by prohibiting the jury from considering the fact that the defendant was too intoxicated to form the requisite mental state, then the State effectively and impermissibly has been relieved of all or part of its burden to prove beyond a reasonable doubt an essential element of the crime charged. Under both the Montana and federal constitutions, the defendant must be allowed to come to the jury and, in effect, say: “I did not act purposely or knowingly; and the reason that I did not, is because I was too drunk to act with either of those two mental states. If you, jury, conclude that to be true — and that is solely your call based on all the evidence — then you must also conclude that the prosecution has not proven an essential element of the crime charged beyond a reasonable doubt, and you must, therefore, acquit me.”

In short, the language "... and may not be taken into consideration in determining the existence of a mental state which is an element of the offense ...” (emphasis added) inserted in the 1987 and subsequent versions of § 45-2-203, MCA, effectively and impermissibly relieves or lessens the burden of the State to prove beyond a reasonable doubt an essential element of the offense charged — the mental state element — by statutorily precluding the jury from considering the very evidence that might convince them that the State had not proven that element.

It remains the burden of the State to prove beyond a reasonable doubt mental state despite the defendant being intoxicated. The statutory language at issue here eliminates or lessens that burden and is, therefore, constitutionally infirm.

Under § 45-2-203, MCA, and our decision here, a voluntarily intoxicated defendant remains criminally responsible for his conduct and his voluntarily intoxicated condition continues not to be a defense to any offense. However, the defendant’s intoxicated condition may be taken into consideration by the finder of fact in determining the existence of a mental state which is an element of the offense charged.

JUSTICE GRAY joins in the foregoing special concurrence.

CHIEF JUSTICE TURNAGE,

specially concurring:

I respectfully specially concur, specifically to the majority opinion holding that the opinion will apply retroactively to those cases still subject to final decision on direct review on the date of this opinion but will not apply retroactively to cases on collateral review after the date of this opinion.

I further specially concur and urge the next session of the Montana legislative assembly to amend § 45-2-203, MCA, to eliminate the problem this Court finds to exist in the 1987 amended version of this statute. I would recommend that the legislature consider amending § 45-2-203, MCA, to reinstate the provisions thereof that existed in the 1985 version of this statute. Such amendment would essentially reinstate language that “[a]n intoxicated or drugged condition may be taken into consideration in determination of the existence of a mental state which is an element of the offense.”

JUSTICE TRIEWEILER

specially concurring in part and dissenting in part.

I concur with the majority’s conclusion that the stricken portions of § 45-2-203, MCA (1993), violated Egelhoff’s right to due process, and therefore, were unconstitutional. However, I do not agree with all that is said in the majority opinion.

I specifically disagree that a principle of constitutional law can be made applicable to some citizens and not others.

In my view, the role of this Court is to interpret the Constitution and apply it to the parties before it. Whether the parties come before this Court by direct appeal, or by statutorily authorized collateral review, is irrelevant. The protections afforded by the Constitution apply to everyone. It makes no sense to have different interpretations based on the procedure by which an unconstitutionally treated person arrives in our Court.

The majority relies on Teague v. Lane (1989), 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d. 334, for the principle that “new” rules of constitutional law must be applied to all cases still subject to review, but only under limited circumstances to cases which are collaterally reviewed. Teague, and the U.S. Supreme Court’s earlier decision in Griffith v. Kentucky (1987), 479 U.S. 314, 107 S. Ct. 708, 93 L. Ed. 2d 649, are based largely on the earlier dissent of Mr. Justice Harlan in Mackey v. United States (1971), 401 U.S. 667, 91 S. Ct. 1160, 28 L. Ed. 2d. 404. In Mackey, the majority of the U.S. Supreme Court refused to apply two of its decisions interpreting the Fifth Amendment right against compulsory self-incrimination to other cases which were pending on direct appeal at the time those cases were decided. In dissent, Justice Harlan pointed out that selectively applying the Constitution to people who are similarly situated based merely on the circumstances or timing of their appearance in court is the antithesis of the judiciary’s responsibility. Since his observations are equally applicable to the distinction made between those defendants who appear by direct appeal and those who appear by collateral review, they are worth repeating.

We announce new constitutional rules, then, only as a correlative of our dual duty to decide those cases over which we have jurisdiction and to apply the Federal Constitution as one source of the matrix of governing legal rules. We cannot release criminals from jail merely because we think one case is a particularly appropriate one in which to apply what reads like a general rule of law or in order to avoid making new legal norms through promulgation of dicta. This serious interference with the corrective process is justified only be necessity, as part of our task of applying the Constitution to cases before us. Simply fishing one case from the stream of appellate review, using it as a vehicle for pronouncing new constitutional standards, and then permitting a stream of similar cases subsequently to flow by unaffected by that new rule constitute an indefensible departure from this model of judicial review.
... In truth, the Court’s assertion of power to disregard current law in adjudicating cases before us that have not already run the full course of appellate review, is quite simply an assertion that our constitutional function is not one of adjudication but in effect of legislation. We apply and definitively interpret the Constitution, under this view of our role, not because we are bound to, but only because we occasionally deem it appropriate, useful, or wise. That sort of choice may permissibly be made by a legislature or a council of revision, but not by a court of law.
... I continue to believe that a proper perception of our duties as a court of law, charged with applying the Constitution to resolve every legal dispute within our jurisdiction on direct review, mandates that we apply the law as it is at the time, not as it once was. Inquiry into the nature, purposes, and scope of a particular constitutional rule is essential to the task of deciding whether that rule should be made the law of the land. That inquiry is, however, quite simply irrelevant in deciding, once a rule has been adopted as part of our legal fabric, which cases then pending in this Court should be governed by it.

Mackey, 401 U.S. at 678-81, 91 S.Ct. at 1172-74, 28 L. Ed. 2d at 412-14 (Harlan, J., dissenting).

While Justice Harlan was unwilling to apply the same logic to those cases reviewed by a petition for a federal writ of habeas corpus, I can see no reason for making such a distinction under state law. The bases by which criminal convictions can be collaterally reviewed in Montana are very limited. See § 46-22-101, MCA (habeas corpus), and § 46-21-105(2), MCA (limitations on post-conviction relief). Furthermore, no criminal conviction can be reversed under Montana law, even if constitutional rights were violated, where the constitutional infraction did not contribute to the defendant’s conviction. Section 46-20-104, MCA.

The effect of the majority’s limitation on the application of their decision, then, is to hold that even in those cases where people have been convicted and jailed in violation of their right to due process, and even where that violation is raised properly by collateral review, we will not consider the constitutional infraction simply because it is brought to our attention by collateral review, rather than direct appeal.

This dichotomy is irrational and offends the very traditions of fairness and due process which we, as a judicial body, are charged to enforce.

For these reasons, while I concur with the result arrived at in this case, I dissent from that part of the majority opinion which would selectively apply the constitution of this State, or of the United States, based upon the procedure by which offensive governmental conduct is brought to our attention.

JUSTICE HUNT joins in the foregoing concurring and dissenting opinion.


author: JUSTICE WEBER JUSTICE GRAY, JUSTICE LEAPHART,

text:
    ARTHUR D. MILLER, Plaintiff and Appellant, v. DAVE HERBERT and SAFECO INSURANCE COMPANY, Defendants and Respondents.
    No. 95-032.
    Submitted on Briefs May 19, 1995.
    Rehearing Denied August 10, 1995.
    Decided July 25, 1995.
    52 St.Rep. 655.
    272 Mont. 132.
    900 P.2d 273.

      For Appellant: W.M. Hennessey, Hennessey, Joyce, McCarthy & Wing, Butte.
    For Respondent: P. Keith Keller, Keller, Reynolds, Drake, Johnson & Gillespie, Helena.
   JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal from a decision of the Third Judicial District Court, Anaconda-Deer Lodge County, granting summary judgment in favor of Defendants/Respondents, Dave Herbert and Safeco Insurance Company. We affirm.

The issue on appeal is did the District Court err in granting summary judgment for the reason that Plaintifi/Appellant, Arthur D. Miller (Miller), failed to establish a material issue of fact?

Defendant/Respondent, Safeco Insurance Company (Safeco) moves this Court to dismiss this appeal.

The issue on Safeco’s motion to dismiss is whether Miller’s notice of appeal was timely? We deny Safeco’s motion to dismiss this appeal for untimeliness.

Facts

Miller was involved in an automobile accident with an uninsured motorist, defendant Dave Herbert, on December 25,1989. Miller was covered by an uninsured motorist insurance policy through Safeco. Miller received a check from Safeco, dated March 18, 1991, and then endorsed and deposited said check on March 20,1991. Directly above Miller’s endorsement, the check stated:

Your endorsement releases the Safeco Group of Insurance Companies and their insureds, where applicable, from all claims arising out of the referenced occurrence. [The occurrence referenced on the face of the check is the December 25, 1989, accident.]

On December 21,1992, Miller filed a claim with the District Court for additional uninsured motorist insurance proceeds arising from the December 25, 1989 automobile accident. Safeco answered alleging Miller had accepted a check in compromise and complete accord and satisfaction for his claim, thus, releasing Safeco. Safeco subsequently filed a motion for summary judgment which motion was granted by the District Court on October 27, 1994.

Miller filed and served a motion for reconsideration on November 9, 1994; and on the same day the District Court filed its Judgment dismissing Miller’s complaint on its merits with prejudice. Notice of entry of the court’s judgment was served on Miller on November 23, 1994. The District Court denied Miller’s motion for reconsideration on December 12, 1994.

Miller filed a notice that he was appealing the District Court’s summary judgment on December 29, 1994. On January 30, 1995, Safeco filed a motion with this Court requesting we dismiss Miller’s appeal as untimely.

Motion to Dismiss Appeal

The issue on Safeco’s Motion to Dismiss is whether Miller’s notice of appeal was timely made?

Rule 5, M.R.App.P., provides time limits for filing notices of appeal. Rule 5.
(a) Appeals in civil cases.
(1) In civil cases the notice of appeal required by [these rules] shall be filed with the clerk of the district court within 30 days from the date of the entry of the judgment or order appealed from, except that in cases where service of notice of entry of judgment is required by Rule 77(d) of the Montana Rules of Civil Procedure the time shall be 30 days from the service of notice of entry of judgment; ...
(4) If a timely motion under the Montana Rules of Civil Procedure is filed in the district court by any party: (i) for judgment under Rule 50(b); (ii) under Rule 52(b) to amend or make additional findings of fact, whether or not an alteration of the judgment would be required if the motion is granted; (iii) under Rule 59 to alter or amend the judgment; or (iv) under Rule 59 for a new trial, the time for appeal for all parties shall run from the entry of the order denying a new trial or granting or denying any other such motion,

Miller filed his appeal in the District Court thirty-six days after he was served with a notice of entry of judgment. Safeco argues Miller’s motion for reconsideration was not a motion which could extend his time to file under Rule 5(a)(4), M.R.App.P. Safeco asserts the post-judgment motions referred to in Rule 5(a)(4) apply only to well-defined circumstances, and must be decided in accordance with specific standards.

Safeco argues Miller failed to present any new facts or original legal arguments; thus, Miller impermissibly asked the lower court to revisit the identical issue it already decided. Safeco concludes, because Miller’s motion for reconsideration cannot be deemed to be a Rule 50(b), 52(b) or 59 motion, the last date upon which a notice of appeal could have been filed was December 23,1994. Miller filed his appeal on December 29,1994. Therefore, Safeco concludes the appeal was untimely and should be dismissed by this Court.

Miller argues, while a motion for reconsideration is not specifically referred to in Rule 59(g), M.R.Civ.R, this Court has equated it to a motion to alter or amend a judgment under that rule. Easley v. Burlington Northern Railroad (1988), 234 Mont. 290, 292, 762 P.2d 870, 871. Miller concludes that when he filed his motion for reconsideration he extended his time for filing an appeal of the summary judgment under Rule 5(a)(4), M.R.App.R, to thirty days after the District Court denied his motion.

Miller points to the fact the District Court denied his motion for reconsideration on December 16, 1994, and he filed his notice of appeal on December 29, 1994 — well within the thirty day time limit set forth in Rule 5(a)(4), M.R.App.P. Miller requests that we deny Safeco’s motion to dismiss because his notice of appeal was timely made under this Court’s bolding in Easley.

In Easley, we stated:

A motion for reconsideration, while not specifically referred to in Rule 59(g), M.R.Civ.P., has been equated to a motion to alter or amend a judgment. ...

Easley, 762 P.2d at 871. We find no authority to support this statement in Easley in its broadest interpretation. A motion for reconsideration will not be equated to a Rule 59(g) motion to alter or amend unless the substance of the motion constructively requests that the court alters or amends the judgment. We shall look to the substance of a motion, not just its title, to identify what motion has been presented.

On February 28th, 1995, we reserved ruling on Safeco’s motion to dismiss Miller’s appeal for further consideration of its merits. After such consideration, we conclude Safeco’s motion to dismiss will be denied in this instance because of our holding in Easley. It would be unfair to Miller to dismiss his appeal when he may have been mislead by the statement in Easley that a motion for reconsideration has been equated to a motion to alter or amend. We do conclude that it is necessary to limit the holding in Easley for future cases.

We hold that the statement in Easley — that a motion for reconsideration may be equated to a motion to alter or amend a judgment — is limited to motions which contain statements or allegations demonstrating that such motion is the equivalent to a motion to amend or a motion to alter a judgment. We further hold that Miller’s notice of appeal was timely and deny Safeco’s motion to dismiss the appeal.

Appeal of Summary Judgment

Did the District Court err in granting summary judgment for the reason that Miller failed to establish a material issue of fact?

Miller states, in order for Safeco to prevail on its motion for summary judgment, it must prove there is no existence of any material fact at issue. Miller contends Safeco failed to meet its burden because Miller’s understanding that he released his claims against Safeco is a genuine issue of material fact.

Miller refers to his affidavit, submitted in opposition to Safeco’s motion for summary judgment, where he stated he has suffered from mental and psychological disorders for a number of years and he was suffering from such disorders during the time he allegedly released all claims against Safeco. He further stated he did not understand that he was releasing any claims when he endorsed the check, and he believed he was merely recouping further medical expenses.

Miller claimed he did not realize Safeco’s adjuster, Mark Sannes, was seeking a release of all claims when they discussed the matter on March 14, 1991. Miller contends his affidavit conflicts with Mark Sannes’ affidavit which states it was Mr. Sannes’ intention to obtain a full release. Furthermore, Miller argues his inability to understand such release at that time is supported by the affidavit of Dr. Timothy Casey (Dr. Casey) who has been Miller’s psychologist since April of 1991. Miller concludes these affidavits clearly demonstrate a material issue of fact; therefore, the District Court’s grant of summary judgment was improper.

Safeco contends, according to Miller’s claims, his appeal succeeds or fails on the question of his mental capacity and whether he furnished the District Court with sufficient evidence to create a material fact issue. Safeco argues Miller’s claim of not understanding is insufficient without more to create a fact issue. Safeco surmises that any release or settlement agreement is vulnerable to the claim, after the fact, that it was not understood.

The standard we apply in reviewing a District Court’s summary judgment is the same as that used by the District Court under Rule 56(c), M.R.Civ.R — “[s]ummary judgment is proper only when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law.” Spain-Morrow Ranch, Inc. v. West (1994), 264 Mont. 441, 444, 872 P.2d 330, 331-32, (citing Minnie v. City of Roundup (1993), 257 Mont. 429, 431, 849 P.2d 212, 214).

The District Court found that Miller “failed in his burden to produce evidence of a genuine issue of material fact.” The court also found that Miller “effectively released Defendant Safeco Insurance Company from all claims and that the parties did reach complete accord and satisfaction. [Miller’s] claim that he lacked capacity to consent at the time he signed the release is not supported by any competent evidence. Dr. Casey’s Affidavit is pure speculation.” These findings are supported by the record; and, in fact, there is nothing in the record to contradict these findings.

Miller relies on Morrow v. FBS Insurance (1988), 230 Mont. 262, 749 P.2d 1073, to argue that it was improper for the District Court to grant summary judgment where Miller’s credibility was crucial to the decision of material fact. We agree with the District Court’s conclusion that “this is not a case where [Miller’s] credibility is essential to a determination of the issues.”

In Morrow, 749 P.2d at 1075, we stated:

... all “reasonable inferences that may be drawn from the offered proof are to be drawn in favor of the party opposing summary judgment.” [Citation omitted.]
Morrow asserts that in applying this rule, the lower court ignored the material fact questions created by the conflicting affidavits and depositions of the parties. In support of this argument, Morrow cites § 26-1-301, MCA, which provides:
One witness sufficient to prove a fact. The direct evidence of one witness who is entitled to full credit is sufficient for proof of any fact, except perjury and treason.
We agree with Morrow’s argument.

The Court then considered all reasonable inferences in favor of Morrow’s offered proof and concluded that there was not the appropriate absence of material fact. In that case, the record contained specific statements of fact contradicted by specific statements of fact of other witnesses. Morrow, 749 P.2d at 1073-76. Here, we have merely the statements on the part of Miller which the District Court said required more of an expert on the matter of mental capacity.

There was no expert testimony to establish Miller’s incapacity to understand mentally what he was doing at that time. Dr. Casey testified that it was “possible [Miller’s] judgment may have been compromised at that time and he may not have understood the import of what he was doing.” We have consistently held that speculation is not a sufficient basis on which to raise a genuine issue of material fact. Fauerso v. Maronick Construction (1983), 203 Mont. 106, 661 P.2d 20; General Insurance Company of North America v. Town Pump, Inc. (1984), 214 Mont. 27, 692 P.2d 427; Brothers v. General Motors Corporation (1983), 202 Mont. 477, 658 P.2d 1108. We agree with the District Court’s finding that this testimony is entirely speculative and insufficient to create an issue of material fact.

We hold the District Court did not err in granting summary judgment for the reason that Miller failed to establish a material issue of fact.

CHIEF JUSTICE TURNAGE and JUSTICE NELSON concur.

JUSTICE GRAY,

specially concurring.

I concur in the Court’s opinion on the substantive issue involving summary judgment. I specially concur in the Court’s opinion insofar as it relates to the motion to dismiss the appeal, agreeing with the result but not with the rationale.

The Court concedes that there is no basis for the statement in Easley that a motion for reconsideration has been equated to a motion to alter or amend a judgment. Indeed, it is clear that the Montana Rules of Civil Procedure do not provide for, or authorize, a motion to reconsider at all; as a result, no such motion is encompassed within Rule 5(a), M.R.App.P. Under these circumstances, it is my view that the better course would be to overrule the entirety of the statement in Easley, rather than to merely limit it as the Court has done. I would hold that any motion captioned a motion to reconsider is to be entirely disregarded by opposing parties and district courts because no such motion exists within the purview of the rules of civil procedure.

JUSTICE LEAPHART,

dissenting.

I dissent. In opposing Safeco’s motion for summary judgment, Miller put forth essentially two separate arguments: (1) that at the time of signing the release, he was suffering from mental problems which effected his capacity to comprehend what he was doing, and (2) that he did not understand the terminology and scope of the specific release language. With regard to the question of his mental capacity, I think that Miller raised a genuine issue of material fact sufficient to defeat the motion for summary judgment. Miller submitted the affidavit of a psychologist, Timothy Casey, who testified that he had diagnosed Miller as having somatoform pain disorder and Axis II diagnosis of paranoid personality disorder; further, that these disturbances may have compromised Miller’s judgment at the time of signing the release. The District Court rejected Casey’s testimony because he was not treating Miller at the time of the release. However, Miller submitted his own affidavit which stated that he had suffered from a mental and psychological disorder for a number of years and “was suffering from such disorders in March, 1991” — the date of the release. Without commenting upon the strength or weight of this testimony, I believe that the psychologist’s affidavit combined with Miller’s uncontroverted affidavit raises a genuine issue of material fact as to whether Miller was of “unsound mind” under § 28-2-201, MCA, and thus incapable of executing a valid release, irrespective of the particular language of the release in question. I would reverse the summary judgment.

JUSTICE TRIEWEILER and JUSTICE HUNT join in the foregoing dissent of JUSTICE LEAPHART.