author: MR. CHIEF JUSTICE TURNAGE MR. JUSTICE SHEEHY,

text:
    In the Matter of the APPLICATION OF ROBERT PETERSON, on Behalf of B.S.M., a youth.
    No. 88-182.
    Submitted Sept. 8, 1988.
    Decided Jan. 6, 1989.
    767 P.2d 319.
    Robert M. Peterson, Helena, for petitioner.
    David G. Rice, Hill County Atty., Havre, Mike Greely, Atty. Gen., Helena, for respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

This petition for writ of habeas corpus arises from the Youth Court of the Twelfth Judicial District. The Youth Court determined that B.S.M. was a delinquent youth. The Youth Court committed B.S.M. to the Department of Family Services, Linda K. Walker, Regional Administrator, for placement in an appropriate facility. The petitioner alleges that the Department of Family Services does not have the authority to place delinquent youths, but that placement lies with the judiciary.

The petition for writ of habeas corpus is denied. The following issues are presented:

1. Whether the decision by the Department of Family Services to place the delinquent youth in the Pine Hills School for Boys was a violation of the Separation of Powers Clause, Art. Ill, § 1, 1972 Mont. Const.

2. Whether the youth was denied due process of law when the Department of Family Services placed him in the Pine Hills School for Boys without an adversarial hearing to decide proper placement.

The following facts are uncontested. B.S.M. was sixteen years old at the time of commitment to the Department of Family Services (Department). On May 7, 1987, B.S.M. was charged with burglary, theft, and possession of drugs. In addition, he was charged with the unauthorized use of a motor vehicle, and refusal to obey the reasonable and lawful demands of his parents. The allegations were admitted by the youth on May 21, 1987. Thereafter, the judge ordered extensive psychological evaluation for B.S.M., pursuant to § 41-5-523(2), MCA, including forty-five days at the Youth Evaluation Program in Great Falls. A consent decree was proposed to the Youth Court by both parties requesting that the youth be placed on probation for one year in the custody of his mother. The decree was approved on November 3, 1987.

A second petition was filed on February 1, 1988, by the deputy county attorney from Hill County, alleging that B.S.M. had committed fifteen counts of theft, burglary, criminal trespass, unlawful possession of an intoxicating substance and of being a runaway between December 31, 1987, and January 17, 1988. The allegations were admitted by the youth on February 2,1988, and by order of the Youth Court on February 3, 1988, B.S.M. was committed to the Department’s care until the age of eighteen.

Upon entry of the Youth Court commitment order, the chief probation officer for the Twelfth Judicial District issued a referral under ARM § 11.7.404(2) to the Youth Placement Committee for the district. The Youth Placement Committee recommended that B.S.M. be placed in the Pine Hills youth correctional facility. The Department accepted the recommendation on February 22, 1988, pursuant to § 41-5-527, MCA. B.S.M. petitioned this Court for writ of habeas corpus.

In 1987, the Montana legislature created a new state agency, the Department of Family Services. Section 2-15-2401, MCA. The purpose of the Department is to develop and maintain consolidated programs and services for youth and families, within available resources. Section 52-1-101 et seq., MCA (1987). The new statute delegates authority to the Department for supervision, care, and control of youth, powers formerly held by the youth courts. Section 52-1-103, MCA. Section 41-5-523, MCA, gives authority to the Youth Court to decide the commitment of delinquent youths and youths in need of supervision. After disposition by the Youth Court, § 41-5-523(l)(b) now leaves with the Department authority to place the youth in an appropriate facility.

The first issue is whether the decision by the Department of Family Services to place the delinquent youth in the Pine Hill School for Boy’s was a violation of the Separation of Powers Clause, Art. Ill, § 1, 1972 Mont. Const.

According to the petitioner, if the decision to incarcerate the delinquent youth is made by the Department, the decision is not being made by the proper authority. The legislature created the Department and the governor appoints the Department director, making it an executive agency. Therefore, the executive branch is making the decision and this is a violation of the Separation of Powers Clause. Art. II, Sections 15, 17, and 24, 1972 Mont. Const. Petitioner contends the judiciary is the proper decision-making body for the placement of delinquent youths.

We hold that there is no violation of the Separation of Powers Clause in this case. There are a series of steps to the dispositional/ sentencing phase of § 41-5-523. The Youth Court is solely responsible for choosing which of the various alternatives in § 41-5-523 is appropriate in each individual case. The alternatives are: § 41-5-523(l)(a), place the youth on probation; (l)(b), commit the youth to the department; (l)(c), “order such further care and treatment or evaluation that does not obligate funding from the department without the department’s approval;” (l)(d), order restitution by the youth or his parents; (l)(e), “impose a fine as authorized by law if the violation alleged would constitute a criminal offense if committed by an adult;” (l)(f), require the performance of community service; (l)(g), require the youth or his parents to receive counseling; (l)(h), require medical and psychological evaluation of the youth or his parents; (l)(i), “require the parents, guardians, or other persons having legal custody of the youth to furnish such services as the Court may designate;” or (l)(j), require “such further care, treatment, evaluation, or relief that the court considers beneficial to the youth and the community.”

Section 41-5-523(l)(b) allows the judge to place the youth with the Department. Once the Youth Court judge decides that the delinquent youth is to be put in the hands of the Department, then the court has limited control over the placement of the youth.

There is no constitutional violation here by giving the Department the authority to place the child. The decision to commit the youth is made by the court. It then hands the placement duties over to the Department.

The power of the Youth Court is not diminished through granting the Department placement power of a delinquent youth. The court has the exclusive power to sentence the youth. If the court chooses to place the youth with the Department, it is just one of the possible proper dispositions. Furthermore, the court reserves residual power, pursuant to § 41-5-523(5), which allows it to revoke or modify the disposition of the Department at any time, upon notice to the Department and subsequent hearing. This assures that the youth retains his rights in case the Department exceeds or abuses its authority.

We conclude that § 41-5-526, MCA, provides the Youth Court with authority to order the delinquent youth to be placed with the Department. It is then up to the Department to place the youth in a proper setting. We also conclude that the Youth Court has the authority to review the decision of the Department to determine if the placement is in the best interests of the minor. See: State v. A.C. (Alaska App. 1984), 682 P.2d 1131.

It is within the power of the legislature to limit the placement power of the Youth Court. Public policy dictates that as the voice of the people, the legislature has the power to make placement of youths an administrative power. If the people choose to turn full power of placement back to the Youth Court, they will do so through the elective process. This Court will not replace legislative discretion with our own.

The petitioner is concerned with the fact that the same body which now places delinquent youths also holds the purse strings. Under § 41-5-526, MCA, one of the requirements in placing the youth is to review all relevant available resources. Section 41-5-102(2), MCA, though, puts forth as the primary goal the supervision, care, and rehabilitation of the youth, not financial considerations. Petitioner contends that incarceration expenses are often less than rehabilitation expenses and this will affect the decision of the Department, who pays for the care — that is, Pine Hills will be used more readily than other more expensive types of foster care. However, there is no showing that a youth will receive inadequate care because he is sent to Pine Hills rather than a home or an out-of-state facility. The Department must consider all available resources and, if it concludes that Pine Hills is the appropriate facility, the placement will be regarded as proper, absent a finding of abuse of discretion by the Youth Court.

Cases from other jurisdictions which have similar youth placement services, have commented on the propriety of an administrative agency holding the authority to place delinquent youths. In In Interest of G.P. (1988), 227 Neb. 512, 418 N.W.2d 258, the Nebraska Supreme Court held that it is within the child’s best interest to grant the power to place the youth with the Department of Social Services. The Nebraska statute is identical to § 41-5-523.

Respondent shows that there are other state courts which have accepted the proposition that a youth court can commit a youth to a state agency for supervision and treatment. For example, in State v. Dennis F. (Ct.App. 1986), 104 N.M. 619, 725 P.2d 595, 597, the court held:

“Once the children’s court has committed a child to the custody of the department, the jurisdiction of the court is ended, and the Department of Corrections is responsible for the care and rehabilitation of the delinquent child.”

Other jurisdictions have passed upon statutes that grant placement authority with a state agency after commitment by the youth court, see: State v. A.C. (Alaska App. 1984), 682 P.2d 1131; In Interest of C.D.P. (Iowa 1982), 315 N.W.2d 731; In Interest of R.D. (1977), 141 Ga.App. 843, 234 S.E.2d 680; Craft v. State (1984), 281 S.C. 205, 314 S.E.2d 330; Dept. of Health & Rehab. v. McGregor (Fla. App. 5 Dist. 1987), 511 So.2d 1096.

The second issue is whether the youth was denied due process of law when he was placed in the Pine Hills School for Boys by the Department without an adversarial hearing to decide the placement of the youth. Petitioner contends that the youth was deprived of fundamental rights prescribed in the Constitution, including: the right to counsel at all proceedings, the right to confront witnesses, and the right to cross-examine witnesses who prepare the social summary or predisposition report. Counsel for the youth is also concerned that a youth’s lawyer will not be allowed into the placement committee hearing to assure that the testimony is not misinterpreted and that no testifying parties unfairly testify against the petitioner.

ARM § 11.7.406(6) states that the youth’s attorney may submit a written statement concerning placement and request an opportunity to appear before the committee which makes the recommendation to the Department for the youth’s placement. There is no indication that the committee would deny the attorney the right to appear, and in this case the attorney was granted the right to be present.

Petitioner stresses the need for the presence of counsel at the placement of the minor to insure that the conviction and disposition are not based on misinformation or a misreading of court records. However, the attorney is present at the dispositional stage — the hearing in which the Youth Court commits the youth to the Department. The dispositional stage is complete once the court chooses one of the subsections of § 41-5-523, MCA. Beyond commitment of the youth by the court, the delinquent youth has no absolute right to counsel at the placement hearing.

Petitioner asserts that there is danger in allowing the committee to act without the presence of an attorney because of the language in ARM § 11.7.406(7), which states that the committee which recommends placement “may invite persons with specific or special knowledge to provide information to the committee which will assist the committee in developing placement recommendations for the youth.” The danger arises because there is no limit to the information available to the committee and there is no opportunity to cross-examine those testifying.

Placement of the youth begins with a recommendation for placement of the youth by the committee created through § 41-5-525. The committee includes experts in the field of child care. The committee members are: “a representative of the department, a representative of a county department of public welfare, a youth probation officer, a mental health professional, and a representative of a school district within the boundaries of the judicial district.” § 41-5-525(2). These people are qualified persons in recommending the placement of a youth.

The youth is not without due process rights at this point. The committee makes a recommendation to the Department, which can choose to accept or reject the recommendation under § 41-5-527. Regardless of the decision of the Department, the Youth Court can modify that decision if the placement is not in the best interests of the child. Moreover, in this case, the youth was sentenced by the judge until the time that he reaches majority. The statute allows for a period of placement and probation until the age of twenty-one. We conclude that B.S.M. was not denied due process.

We deny the petition for writ of habeas corpus.

MR. JUSTICES HARRISON, WEBER, McDONOUGH, GULBRANDSON and HUNT concur.

MR. JUSTICE SHEEHY,

dissenting:

I dissent from the foregoing opinion upon the grounds that the 1987 Amendments by the legislature to the Youth Court Act with respect to sentencing and placing juvenile offenders deprives the juveniles of due process, and further the legislation invades the judicial power of the court.

The declared purpose of the Montana Youth Court Act is to provide judicial procedures in which the parties are assured a fair hearing and recognition and enforcement of their constitutional and statutory rights. Section 41-5-102(4), MCA. Punishment, as such is not a purpose of the Act. Rather the Act requires that it be interpreted and construed “to remove from youth committing violations of the law the element of retribution and to substitute therefor a program of supervision, care, rehabilitation, and, in appropriate cases, restitution as ordered by the youth Court.” Section 41-5-102(2), MCA.

One would be blind to reality not to recognize that the 1987 Amendments to the Youth Court Act have the principal purpose of delimiting to the point of elimination any power of the court to provide supervision, care and rehabilitation, except for commitment to the Pine Hills facility.

Refusing to recognize that the Youth Court has been deprived of the ultimate sentencing authority, the majority rely on those provisions of § 41-5-523, MCA, which allow the Youth Court to enter as judgment-making several possible dispositions. The fact of the matter however is that in any case requiring confinement, the Youth Court must commit the youth to the Department of Family Services. Section 45-5-523(l)(b), MCA. The courts power to do anything further is restricted so that it may not act without the approval of the Department. Thus the Youth Court may “order such further care and treatment or evaluation that does not obligate funding from the Department without the Department’s approval.” Section 41-5-523(c), MCA. The majority also rely on the possibility that the Youth Court may modify its order at any time. Even that provision however is limited so that “[A]ny order the court may be modified at any time. In the case of a youth committed to the Department, an order pertaining to the youth may be modified only upon notice to the Department and subsequent hearing.” Section 41-5-523(5), MCA. What these statutes say is that the Department, an executive agency, has an equal say with the court, a judicial agency, in matters involving sentencing. That is usurpation by the executive of a judicial function.

The due process implications of the Amendments to the Youth Court Act are not adequately met by the majority. Article II, Section 15 of the Montana Constitution states:

“The rights of persons under 18 years of age shall include, but not limited to, all the fundamental rights of this Article unless specifically precluded by laws which enhance the protection of such persons.”

In testimony before the House Committee considering the 1987 Amendments, one proponent remarked that “the Youth Court is not a due process court.” The legislature may have been under that misapprehension. The State Constitution guarantees due process to persons under 18 years of age as well as to adults.

A review of the Youth Court Act for procedural protections find a great deal of due process rights accorded youths under this Act. The rights accorded youths under this Act have all the trappings of a criminal proceeding especially in light of the loss of freedom if a youth is adjudicated delinquent. Under § 41-5-303, MCA, a youth has a right against self incrimination, a right to counsel, parents or legal guardians must be immediately notified of a youth’s detention, and determination of probable cause must be made in order to detain a youth longer than 24 hours. Section 41-5-309, MCA, provides that a youth may be released on bail and the court shall use the provisions of Title 46 (Criminal Procedure Code) Chapter 9 as guidance. In order to proceed on a formal petition to declare the youth delinquent the youth or his parents must be served with a summons. Section 41-5-502, 503, MCA. Most important, § 41-5-511, MCA, provides that a youth has the right to counsel at all stages of the proceedings. Additionally, youths have the right to confront and cross-examine witnesses, and to the protections against inadmissible evidence, or illegally seized evidence or coerced confessions; the standard of proof is beyond a reasonable doubt and youths must be fully advised of their rights. The 1987 Amendments of the Youth Court Act and the Administrative Rules promulgated by the Department to implement the changes conflict with those rights under the Act.

ARM 11.7.404(3)(8-F) and 11.7.406(7) presents serious problems with regard to admissibility of statements made and the right to confront and cross examine witnesses testifying against the youth. If the people presenting evidence to the Youth Placement Committee did not testify in court, they should not be allowed to present evidence at a later hearing. ARM 11.7.406(6) does not allow for counsel to be present; a counsel may submit a written statement, but this does not guarantee the protection of the youth’s rights under the Act, nor is it specifically stated in the rule that a request for an attorney to be present will be granted by the Placement Committee. Thus there is a conflict with § 41-5-511, MCA, which guarantees the youth’s right to have counsel present “at all stages of the proceedings.” This is a crucial step in the proceedings and counsel ought to automatically be involved. The time of sentencing is a critical stage in the criminal case and counsel’s presence is necessary to ensure that the conviction and sentence are not based on misinformation or a misreading of the court record. Townsend v. Burke (1948), 334 U.S. 736, 68 S.Ct. 1252, 92 L.Ed. 1690.

Finally, the “Placement Committee” that will decide the placement is loaded in favor of the Department of Family Services. The Committee must include a representative of the Department, a representative of the County Department of Public Welfare, a youth probation officer, a mental health professional, and a representative of a school district located within the boundaries of the judicial district. The Committee is appointed by the Department of Family Services. The mental health professional is not necessarily a psychiatrist or a psychologist. He may be a professional person certified under § 53-21-106, MCA, under the provisions of ARM 11.7.401(1)(c). See Matter of J.M. (Mont. 1985), [217 Mont. 300,] 704 P.2d 1037, 1042, (Sheehy, J., specially concurring.)

The legislature, in its overweening concern for the “appropriation of resources” (interpret as “read our lips — we will not raise taxes”) has removed the power of the court to order rehabilitation for a delinquent youth and it has done so unconstitutionally.


source: Caselaw Access Project

author: MR. JUSTICE McDONOUGH

license: Public Domain

text:
    BRUNO BOYER, Plaintiff and Appellant, v. JOHN RICHARD ETTELMAN, Defendant and Respondent.
    No. 88-389.
    Submitted on Briefs Dec. 2, 1988.
    Decided Jan. 6, 1989.
    767 P.2d 324.

      Dane C. Schofield, Peterson, Schofield & Leckie, Billings, for plaintiff and appellant.
    William J. Gregoire, Smith, Walsh, Clarke & Gregoire, Great Falls, Sherman V. Lohn, Garlington, Lohn & Robinson, Missoula, for defendant and respondent.
   MR. JUSTICE McDONOUGH

delivered the Opinion of the Court.

This appeal concerns an alleged accord and satisfaction in settlement of a personal injury claim. The District Court of the Thirteenth Judicial District, Yellowstone County, sat as finder of fact and held that the parties reached an accord and that appellant’s cashing of respondent’s check constituted a satisfaction. We affirm.

Appellant Bruno Boyer presents the following issues for review:

(1) Whether the Court erred in concluding that the draft itself operated as a full and final release?

(2) Whether the Court erred in concluding that an accord and satisfaction resulted from the conduct between Boyer and Hartford?

(3) Whether the findings of the Court are supported by substantial evidence?

Respondent, Ettelman, and his insurer, Hartford Accident and Indemnity, (Hartford), complain that the issues should be changed to reflect the lower court’s focus on determining the existence of an accord and satisfaction. We agree and determine this appeal by reviewing Bruno Boyer’s issue (2): Whether the District Court erred in concluding an accord and satisfaction resulted from the parties’ conduct?

The District Court’s essential conclusion on accord and satisfaction reads:

“That the draft was tendered to the plaintiff under such circumstances that he is bound to know that it was tendered in full settlement of the claim resulting in an accord and satisfaction between the parties and a discharge of the plaintiff’s whole claim.”

The following facts are relevant to reviewing this conclusion: Ettelman’s car collided with a vehicle being driven by Rose Gonzales. Boyer, Gonzales, and several other passengers in Gonzales’s car were injured. Hartford admitted liability for the claims against Ettleman. Ettleman’s insurance provided $55,000 in coverage.

Hartford’s employee Charles Gailey attempted to divide the $55,000 among the injured parties. Boyer’s father, Melvin Boyer, negotiated with Gailey for Boyer’s share of the insurance. Attorneys representing other claimants also negotiated with Gailey.

Melvin Boyer demanded $35,000 for his son’s claim. Gailey rejected the offer. Gailey settled with most of the other claimants, and informed Melvin Boyer that only $10,000 of the $55,000 in coverage remained. Gailey proposed that Bruno Boyer accept the $10,000 as a full settlement. Melvin and Bruno Boyer met with Gailey to discuss the offer. Melvin Boyer instructed his son to reject Gailey’s proposal. Gailey told Bruno Boyer that as an adult, he could settle the claim without his father’s authorization. Gailey then gave him a release instrument and a check for $10,000 to take home. Bruno Boyer accepted and negotiated the check but never signed the release.

At trial Bruno Boyer testified that Gailey lead him to believe that the check was for coverage of his medical bills only, and that even if he accepted and cashed the check, he could still pursue a claim for his other damages. He relies principally on Gailey’s statement during the meeting that if $10,000 were not enough, Boyer would have to sue. According to Boyer, this statement reasonably lead him to believe he could cash the check, and sue for the rest of his damages.

Boyer also claims that the following facts and contentions support his claim: Gailey never communicated the limits of the policy to Boyers; Gailey told Boyers that either a judge would determine each claimant’s share, or a meeting would be held and the claimants could attempt to determine shares; Gailey settled with other claimants prior to informing Boyers that no meeting would occur; Boyers’ demand for a $35,000 settlement separated medical damages from other damages; at the time of the settlement meeting, Bruno Boyer’s medical bills totaled $6,248, and Boyers told Gailey that at least $2,000 would be needed in the future; Gailey told Boyers at the meeting that the $10,000 should be used to pay medical bills; Gailey wrote to Bruno Boyer shortly after the settlement meeting and stated that medical bills should be paid from the $10,000.

Gailey testified that both Melvin and Bruno Boyer appeared to understand that the $10,000 could be retained by Bruno Boyer only if he agreed to accept the money in full settlement of the claim. He also testified that he told Bruno Boyer that if he wanted to keep the money, he must sign the release and send it back to Hartford. Gailey admitted telling Bruno and Melvin Boyer that they would have to sue to collect more than $10,000. However, Gailey claims Boyer mischaracterizes his statement. According to Gailey, he told Boyers if they refused the settlement offer, he would tender the remainder of the coverage, that is, $10,000, to the District Court, and they would have to sue to collect on their claim. Gailey testified that he never lead Boyers to believe that he tendered the $10,000 for medical damages only.

Hartford points out that beneath the names of the insurer and the claimant on the front of the check in regular print Hartford typed in the words “In Full Settlement of All Claims”. Hartford also contends that the following findings of the lower court are supported by substantial evidence and refute Boyer’s contentions:

“19. That in August or September, 1982, Gailey contacted Boyer and his father, and informed them that there was Ten Thousand and no/100 Dollars ($10,000) of the policy proceeds remaining with which to settle Boyer’s case.

“20. That Bruno and Mel Boyer traveled to Great Falls, Montana to pick up the check. A friend of theirs, Gerald Davidson, accompanied them on the trip.

“21. That when Bruno and Mel Boyer met with Gailey, Mel tried to get Gailey to increase his $10,000 offer of settlement, which Gailey refused to do. Mel Boyer then told Gailey that he would not sign anything.

“22. That Gailey then offered a $10,000 draft and a release to Bruno Boyer and told him he could sign the release since he was now 18 years old.

“23. That Bruno Boyer took the $10,000 draft and the release from Gailey, saying he wanted to think about it, and returned to Billings, Montana.

“24. That Gailey told Bruno Boyer if he wanted to accept the $10,000 to sign the release and return it to him.

“25. That Bruno Boyer cashed the draft, putting $4,000.00 in his savings account and giving $6,000 to his father.

“26. That Bruno Boyer believed he threw the release away, but later learned his father was in possession of the release form.

“27. That Gailey, subsequent to giving the draft and release form to Boyer, sent a letter and a separate release form to Boyer, asking that he review and execute the same. This Boyer refused to do.

“28. That Gailey would, as a standard course of business, when a claimant was not sure whether they wanted to accept a check as full and final payment, send both the draft and a release with the claimant, with the instructions that if they accepted the draft they were to sign and return the release.

“29. That the Boyers knew that the $10,000 check was being tendered as full and final settlement of Bruno’s claims. Mel Boyer knew this at least as of the September 8, 1982 meeting with Gailey in Great Falls, and Bruno Boyer learned this from his father at least by the time he cashed the draft, if not before. He knew he was to sign and return the release to Gailey if he cashed the check.

“30. The Boyers have retained the $10,000.00 they received and have not refunded or offered to refund the money or any part thereof to the Hartford.

“31. The Boyers instituted this action a full twenty seven months after cashing the $10,000 draft.”

The resolution of this case in the lower court depended largely on choosing between conflicting evidence. Boyer argues for this Court to reweigh the conflicting evidence. Rule 52(a), M.R.Civ.P., constricts our review of findings of fact, and this Court affirms if substantial evidence supports the lower court’s findings. Price Bld. Service Inc. v. Christiansen (Mont. 1985), 215 Mont. 372, 697 P.2d 1344, 1347, 42 St.Rep. 440, 444.

Generally, a disputed, unliquidated obligation may be extinguished where the obligated party offers to exchange an amount different from or less than the obligation in full settlement of the obligation. Section 28-1-1401, MCA. And the party owed the obligation agrees to accept and does accept the amount offered in full settlement of the obligation. Section 28-1-1402, MCA. See also Sawyer v. Somers Lumber Co. (1929), 86 Mont. 169, 282 P. 852. The intent of the parties generally controls the issue. Barbarich v. Chicago etc. Ry. Co. (1932), 92 Mont. 1, 10, 9 P.2d 797, 799.

This case hinges on whether Boyer’s acceptance and negotiation of the check from Hartford occurred under such circumstances that Boyer was bound “to know that the intention was to make the payment in full settlement of the claim . . .” Sawyer, 282 P. at 854. Put differently, in the case of a disputed and unliquidated obligation, the finder of fact properly concludes an accord and satisfaction occurred where the obligated party makes:

“an offer in full satisfaction of the obligation, accompanied by such acts and declarations as amount to a condition that if it is accepted, it is to be in full satisfaction, and the condition must be such that the party to whom the offer is made is bound to understand that if he accepts it, he does so subject to the conditions imposed.”

1 Am.Jur.2d Accord & Satisfaction § 1 (1962).

The District Court findings thoroughly set out the circumstances surrounding acceptance of the check. Substantial evidence supports the findings.

For example, prior to the meeting, evidence demonstrated that both Boyers knew that Gailey wanted to settle the claim within the remaining amount of coverage. Bruno Boyer first denied that he knew only $10,000 remained, and then admitted he may have communicated the policy limits to a friend, Gerald Davidson, prior to the meeting. Davidson testified that Bruno had discussed the $10,000 policy limit with him prior to the settlement meeting.

Bruno Boyer also claimed that he understood at the settlement meeting that the $10,000 would be a medical damages settlement only. However, he also testified he took the release home after Gailey told him to sign and return the release, and that he knew that the release purported a full and final settlement. Bruno also witnessed the argument at the settlement meeting between Melvin Boyer and Gailey over the adequacy of $10,000 as a complete settlement. Moreover, it is undisputed that at the time of the settlement meeting, medical bills totaled under $10,000.

Boyer denied reading the face of the check except that he read his name, noted Gailey’s signature, and the figure recited in payment. He testified that the full settlement notation escaped his attention. Nevertheless, the presence of the notation provides evidence for the District Court’s conclusion.

These facts and circumstances, when considered with Gailey’s version of events, constitute sufficient evidence to sustain the District Court’s decision. This Court “will not overturn the holdings or findings of a trial court simply because the evidence furnishes reasonable grounds for different conclusions.” Price, 97 P.2d at 1397. Thus, we affirm.

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


author: MR. JUSTICE WEBER MR. JUSTICE HARRISON,

text:
    BETTY BESTWINA, Individually and as Guardian ad Litem for Lawrence Bestwina, an incapacitated person, Plaintiffs and Appellants, v. The VILLAGE BANK and Richard Olson, Defendants and Respondents.
    No. 88-112.
    Submitted Oct. 13, 1988.
    Decided Jan. 10, 1989.
    767 P.2d 338.

      Cotter & Cotter, Patricia O’Brien Cotter, argued, Great Falls, for plaintiffs and appellants.
    Emmons & Coder, Robert Emmons, argued, J. David Slovak, argued, Ugrin, Alexander, Zadick & Slovak, Great Falls, for defendants and respondents.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

Plaintiff appeals from the dismissal of her complaint for wrongful discharge. The District Court for the Eighth Judicial District, Cascade County, ruled that the claim was barred by the statute of limitations. We reverse in part, affirm in part, and remand to the District Court.

The issues are:

1. Was summary judgment improper because of a factual question as to whether Lawrence Bestwina was seriously mentally ill so as to toll the statute of limitations?

2. Does the question of whether the defendants fraudulently concealed the facts surrounding Mr. Bestwina’s discharge preclude summary judgment?

Defendant Village Rank has raised as a third issue whether the District Court’s summary judgment is an appealable order. Apparently Village Bank is concerned because the summary judgment is entitled as an “order.” We conclude that the title of the document does not render the appeal invalid. It is clear from the body of the summary judgment order that it disposes of plaintiff’s claims. We will consider the appeal.

Lawrence Bestwina was employed as vice president of the Village Bank in Great Falls, Montana. In March of 1977, he began treatment with a psychiatrist for depression. In November 1977, he was discharged from his employment. In January 1978, Mr. Bestwina was hospitalized for depression. He has since been diagnosed as suffering from chronic bipolar disorder with manic and depressive episodes. His condition has deteriorated over the years and has not been controlled with medication or electric shock treatments.

The original complaint alleging wrongful discharge was filed on October 4, 1985, with Mr. Bestwina’s wife acting as his guardian ad litem. The complaint included a consortium claim on Mrs. Bestwiná’s behalf. The District Court granted dismissal of the consortium claim, ruling that the statute of limitations had passed. Plaintiff then filed an amended complaint, omitting the consortium claim. After some discovery, defendants Village Bank and Richard Olson, who have retained separate counsel, both moved for summary judgment on grounds that the complaint was untimely filed and that the statute of limitations had run. Plaintiff argued that the complaint was timely filed because the applicable three-year statute of limitations was tolled as a result of Mr. Bestwina’s mental illness. Section 27-2-401, MCA, is the statute which allows tolling:

“(1) If a person entitled to bring an action ... is, at the time the cause of action accrues, . . . seriously mentally ill . . . the time of such disability is not a part of the time limited for commencing the action. However, the time so limited cannot be extended more than 5 years by any such disability except minority.”

Plaintiff also claimed that the defendants fraudulently concealed the real reason for the termination of Mr. Bestwina’s employment until 1983, and that the statute of limitations did not begin to run until then.

The District Court concluded that the fraudulent concealment claim was filed too late because the statute of limitations for that claim began to run on the date Mr. Bestwina’s employment was terminated. It also concluded that plaintiff had failed to prove continuous and complete disability so as to toll the statute of limitations.

I

Was summary judgment improper because of a factual question as to whether Lawrence Bestwina was seriously mentally ill so as to toll the statute of limitations?

Summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c), M.R.Civ.P. The District Court concluded that the burden of proving facts sufficient to toll the statute of limitations fell on plaintiff. At paragraph 6 of its conclusions of law, the court stated:

“Plaintiff has failed to meet the burden of establishing a complete and continuous disability as required by § 27-2-401, MCA, to toll the statute of limitations .... The disability must be sufficient to preclude the Plaintiff from comprehending his legal rights, and such a disability has not been established. Rather, the record reflects not only a comprehension of legal rights related to the alleged términation, but successful pursuit of the same through various legal remedies then available.”

The defendants contend, as they did in the District Court, that Mr. Bestwina’s pursuit of claims for social security benefits and workers’ compensation demonstrate an absence of serious mental illness.

While we recognize that Mr. Bestwina’s pursuit of these claims is certainly proper for consideration on the issue of mental illness, we conclude that the pursuit of the claims does not conclusively establish an absence of serious mental illness. Our conclusion agrees with those of courts in several other states. Retention of counsel is evidence, although not conclusive, of a person’s legal capacity for purposes of tolling the statute of limitations. Harrington v. County of Ramsey (Minn. 1979), 279 N.W.2d 791. In a case involving facts similar to those of the present case, the Supreme Court of Alaska stated that,

“The fact that [the plaintiff] could actively work for sometime after the accident, travel, obtain workmen’s compensation benefits and retain an attorney might support an inference that [the plaintiff] was not ‘insane,’ but this is an issue to be decided at trial, not on a motion for summary judgment.”

Adkins v. Nabors Alaska Drilling, Inc. (Ak. 1980), 609 P.2d 15, 24. See also Hill v. Clark Equipment Company (1972), 42 Mich.App. 405, 202 N.W.2d 530.

In the present case, Donald Engstrom, M.D., submitted his affidavit stating that Mr. Bestwina has been under his psychiatric treatment since March of 1977, about 8 months prior to his discharge. He stated that in 1978 and during the next four years, Mr. Bestwina was hospitalized at least six times for severe depression. He stated that drug therapy and electroconvulsive treatments had not yielded improvement in Mr. Bestwina’s condition and that Mr. Bestwina’s condition had deteriorated from 1977 to the date of the affidavit. He also stated that, “In my opinion, since 1977 when he commenced treatment, Bestwina has never returned to his ‘pre-1977’ self.”

The lower court’s four pages of findings of fact, along with the foregoing summary of the positions of the parties, demonstrate to us the presence of issues of material fact as to the serious mental illness of Mr. Bestwina. This is not a question which is susceptible to resolution based on written affidavits, without the benefit of cross-examination in court. We therefore conclude that there is a material issue of fact precluding summary judgment.

For the assistance of the District court on remand, it is necessary that we review the provisions of § 27-2-401, MCA, as applied to this case. In substance, that statute provides that if a person is seriously mentally ill at the time the cause of action accrues, the time of such disability is not counted. We therefore conclude that the District Court must determine whether or not Mr. Bestwina was seriously mentally ill at the time the cause of action accrued in November 1977. If the court determines that he was seriously mentally ill on that date, then the court must consider the following portion of the statute, which in substance states that the time of Mr. Bestwina’s disability shall not be considered as a part of the time limit under the statute but that the time cannot be extended more than 5 years. We conclude that the District Court then must determine the period or periods during which the disability continued, and the total of such time of disability shall not be counted against Mr. Bestwina. While the statute does not specifically contemplate a separate proceeding prior to trial on the merits, we conclude that such a separate proceeding is appropriate in this case and we therefore direct the District Court to proceed to make a determination as above set forth prior to the trial of the cause of action on the merits.

We reverse and remand to the District Court for the determination of whether Mr. Bestwina has met the requirements for the tolling of the statute of limitations because of his claim of serious mental illness, and for such further proceedings as are appropriate.

II

Does the question of whether the defendants fraudulently concealed the facts surrounding Mr. Bestwina’s discharge preclude summary judgment?

Plaintiff argues that it was not until Richard Olson was deposed in October 1983 that Mr. Bestwina’s counsel was aware that Mr. Bestwina had been fired in 1977 and that the firing was because of an unrelated personal matter between him and Mr. Olson. Mr. Bestwina’s counsel submitted his affidavit that until October 1983, he believed that Mr. Bestwina had been placed on a medical leave of absence in 1977. Plaintiff asserts that under the discovery doctrine, the statute of limitations should be tolled until October 1983. In ruling on this issue, the District Court did not elaborate beyond stating that it deemed controlling its ruling in the claim Mrs. Bestwina brought in her own behalf.

Plaintiff points out that dismissal of an action as to a person in her individual capacity is not res judicata as to a later action in which that person appears in a representative capacity. S-W Co. v. John Wight, Inc. (1978), 179 Mont. 392, 405-06, 587 P.2d 348, 355. Law of the case does not apply because a slightly different issue is presented here. Previously the court ruled that the discovery doctrine did not apply as to Mrs. Bestwina. Here, the question is whether the discovery doctrine applies as to Mr. Bestwina.

In any event, no authority has been cited which states that the discovery doctrine, which .has been recognized in other kinds of cases, should be extended to apply in this case. Nor has plaintiff made a persuasive argument that the doctrine should be so extended. We decline to expand the discovery doctrine to cover this situation. We therefore affirm the District Court’s ruling that the plaintiff’s fraudulent concealment claim does not toll the statute of limitations.

Reversed in part, affirmed in part, and remanded for further proceedings consistent with this opinion.

MR. JUSTICES SHEEHY, HUNT and McDONOUGH concur.

MR. JUSTICE HARRISON,

dissenting.

I dissent. Facts, like figures, can be either distorted or described in a certain way to achieve a specific outcome. The District Court spent considerable time in this case observing all parties involved and I feel the District Court arrived at the correct decision in granting summary judgment to the defendants.

Viewing the facts as the District Court did and as I see them from the record, appellant’s husband, Lawrence Bestwina, former vice president of the Village Bank in Great Falls, did not file his action for wrongful discharge until eight years after he was separated from his employment on November 6, 1977. During that eight year period, he personally, pursued a number of legal remedies directly connected with and based upon his alleged unlawful discharge. Three years after his discharge, on May 30, 1980, he personally retained counsel, C.L. Overfelt, to pursue a Workers’ Compensation claim against the defendant Village Bank. He personally executed a retainer fee and agreement on that date and signed a claim for compensation on June 10,1980. That Workers’ Compensation claim was brought by Lawrence Bestwina, in his individual capacity, without the necessity of appointing a guardian ad litem or a conservator. It is emphasized that this Workers’ Compensation litigation focused on the same discharge from employment as this action. That claim based upon his discharge, was initially denied, and a petition for hearing was filed before the Workers’ Compensation Court in August, 1983. That petition for a hearing and the litigation involved before the Workers’ Compensation Court, was brought solely in the name of Lawrence Bestwina in his individual capacity, again without the need of a guardian or a conservator. Through a pretrial deposition he testified at that court proceeding, and was listed as a trial witness. At that time no contention of incompetency was made during the proceedings.

While that Workers’ Compensation Court action was subsequently resolved through a full and final settlement prior to trial, it was Lawrence Bestwina who signed the petition for a full and final compromise settlement in his individual capacity, which settlement was approved by the court.

Of the eight year period which Lawrence Bestwina now claims should be tolled, he obviously was competent for four of those years.

Additionally, during the time in question, specifically on July 20, 1979, Lawrence Bestwina personally applied for social security disability benefits by executing a document with the Social Security Administration. While that first application for benefits was denied, he requested a reconsideration which also was denied. Following that he requested a hearing with the Social Security Administration. That hearing was held October 29,1979. During the hearing he testified under oath and as a result, disability benefits were granted in March, 1980.

The entire record reflects, and it is as obvious to me as it was to the District Court Judge who heard the matter, that Lawrence Bestwina’s actions in obtaining various benefits, indicates he fully understood his legal rights and how to exercise them. In my opinion there was not one instance during the time he used the legal system that he showed the necessity of having a guardian or conservator appointed for him. I feel the record shows uncontroverted facts which illustrate Bestwina failed to prove a continuous and uninterrupted mental disability.

I would affirm the District Court’s holding in finding that Bestwina failed as a matter of law to establish any entitlement to any exception to the three year statute of limitations.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICE GULBRANDSON join in the dissent of MR. JUSTICE HARRISON.


author: MR. JUSTICE SHEEHY

text:
    ROGER KOOPMAN, d/b/a Career Concepts, Plaintiff and Appellant, v. PATRICIA BAGGETT, Defendant, Respondent and Cross-Appellant.
    No. 88-323.
    Submitted on Briefs Nov. 17, 1988.
    Decided Jan. 10, 1989.
    767 P.2d 332.

      White & Seel; Karl P. Seel, Bozeman, for plaintiff and appellant.
    Landoe, Brown, Planalp & Kommers, James M. Kommers, Bozeman, for defendant, respondent and cross-appellant.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

The District Court of the Eighteenth Judicial District, Gallatin County, granted judgment after bench trial in favor of Roger Koopman, d/b/a Career Concepts, and against Patricia Baggett on Koopman’s claim based on an employment agency contract, but the District Court denied Koopman’s claim for attorney’s fees and costs. Koopman appealed to this Court from the denial of attorney’s fees and costs, and Patricia Baggett cross-appealed from the judgment of the District Court that she was liable for an employment fee under the employment agency contract. We reverse the District Court’s determination that Koopman was entitled to an employment fee, affirm the denial of attorney’s fees and costs to Koopman, direct that attorney’s fees and costs be awarded to Patricia Baggett, and remand for that purpose.

The principal issue is whether Koopman, d/b/a Career Concepts, is entitled to a fee for employment agency services under the facts of this case.

Patricia Baggett moved to Montana from Georgia, with her husband, in November 1986. She entered into an applicant contract with Career Concepts on December 9, 1986. After entering into the written agreement with Career Concepts, Patricia Baggett also went to the Montana Job Service in Bozeman, Montana.

On January 13, 1987, Patricia Baggett heard on the radio about a job she might be interested in through a Job Service advertisement. She called the Job Service to inquire. She attended a seminar that afternoon conducted by the Job Service where she learned that the opening was with KBOZ, a local Bozeman radio station. The next morning, January 14, 1987, Patricia Baggett went to the Job Service office, where she obtained a referral card. At 9 o’clock a.m. of the same morning, Harvey Hasler of Career Concepts telephoned the defendant to inform her of the job opening at KBOZ.

At 11:30 a.m. of the same morning, Patricia Baggett telephoned KBOZ to set up an appointment. The KBOZ employee informed the defendant that Career Concepts had already called and set an interview for her at 4 o’clock that afternoon. At about noon, Baggett learned from her husband that Career Concepts had called about the 4 p.m. interview. At 3:30 p.m. in the afternoon the Career Concepts employee again called Baggett and they discussed the KBOZ interview. From conflicting testimony, the District Court found that Career Concepts had arranged for the interview for Patricia Baggett prior to the time that she called KBOZ.

After the 4 o’clock interview and a subsequent interview, Baggett accepted the position with KBOZ. When she refused to pay the fee under the contract, Koopman, d/b/a Career Concepts, sued her for the employment fee in the Justice Court in Gallatin County. Baggett cross-claimed for an amount of damages outside the jurisdiction of the Justice Court, and so the cause was removed to the District Court for a decision. There the District Court decided as we have set out above, from which this appeal has resulted.

The legal issue in this case swirls around language in the employment contract signed by Baggett and prepared and formulated by Koopman. The essence of the argument is whether the Job Service could be construed as an “employment agency” under the terms of the contract so as to preclude the collection of the employment fee by Career Concepts. The District Court, relying on the definitions in § 39-5-502, MCA, determined that the Job Service was not an “employment agency;” that Career Concepts had completed its contract; that thereby Career Concepts was entitled to the employment fee, but not to an award of attorney’s fees and costs. Although the employment contract provided for attorney’s fees and costs to the prevailing party, the court considered that provision to be a penalty, and without sufficient notice being given to the person signing the employment contract that it was contained in the contract.

Free state employment services are conducted through the “Job Service” offices, as they are popularly called. The state employment offices exist because of the passage by Congress in 1933 of the United States Employment Act. (29 U.S.C.A., § 49 et seq.) Originally called the Wagner-Peyser Act, the United States Employment Service Act was intended to develop a national system of employment offices to assist persons in obtaining employment; its primary purpose is to connect an unemployed worker with a job. It is especially directed to migrant workers. See Frederick County Fruit Growers Association v. Marshall (1977 D.C. Virginia), 436 F.Supp. 218.

The Wagner-Peyser Act provides for federal monies to be appropriated for the purposes of the Act, and that in order to obtain the benefits of appropriations under the Act, a state shall, through its legislature, accept the provisions of the Act, and designate or authorize the creation of a state agency vested with all power necessary to cooperate with United States Employment Service Act. 29 U.S.C. § 49(c). Further, any state desiring to receive the benefits of the Act, must submit detailed plans for carrying out the provisions of the act within the state. 29 U.S.C., § 49(g).

The establishment of employment service offices through the several states did not come about by accident. In Ribnik v. McBride (1927), 277 U.S. 350, 48 S.Ct. 545, 72 L.Ed. 913 the United States Supreme Court heard a case involving New Jersey’s Employment Agency Law. The law prohibited the charging of fees by private employment agencies over a certain amount, and in effect was considered by the Supreme Court to be price-fixing by the state. The Court invalidated the law on the basis of due process under the Fourteenth Amendment. However a dissent in that case was written describing the evils of private employment agencies and suggested the creation of a federal system of public employment agencies.

The dissent in Ribnik echoes what was said by Justice Brandéis in Adams v. Tanner (1916), 244 U.S. 590, 37 S.Ct. 662, 61 L.Ed. 1336. There, the majority set aside a law of the state of Washington regulating employment agencies. Justice Brandéis castigated in his dissent the inequities and wrongful practices of private employment agencies at the time.

In creating the United States Employment Bureau, under the Act, in 1933, Congress set out the scope of the law in 29 U.S.C., § 49(b):

“It shall be the province and duty of the bureau to promote and develop a national system of employment offices for men, women and juniors who are legally qualified to engage in gainful occupations, including employment, counseling, and placement services for handicapped persons, to maintain a veterans service to be devoted to securing employment for veterans, to maintain a farm placement service, to maintain a public employment service for the District of Columbia, and assist and establish and maintaining systems of public employment offices in the several states . . . .”

The state of Montana joined in the national effort, in 1937, when the legislature passed what is now § 39-51-307, MCA, requiring the Montana Department of Labor to “establish and maintain free public employment offices in such number and in such places as may be necessary for the proper administration of this chapter and for the purpose of performing such duties as are within the purview of the act of Congress entitled [the Wagner-Peyser Act].”

In 1971, the legislature adopted “The Employment Agency Act” to regulate private employment agencies. Koopman, d/b/a Career Concepts, has qualified as a licensee under that Act. Career Concepts is an “employment agency” under the Act because its gross or net income is derived from fees received from applicants for offering, promising, procuring or attempting to procure employment for applicants. Section 39-5-102(1) MCA.

The Employment Agency Act also defines the term employment agency as follows:

“(c) The term ‘employment agency’ does not include labor unions organizations, temporary service contractors, propriety schools, musical booking services, agents for professional athletes, or the Montana State Employment Agency. (Emphasis supplied.)”

Section 39-5-102(1) (c), MCA.

Therein lies the nub of the controversy here.

The Employment Agency Act also provides for the payment of fees when an applicant is referred by two agencies.

“39-5-310. Payment of fee when applicant referred by two agencies. When an applicant is referred to the same position by two employment agencies, the fee shall be paid to the agency that first contacted the applicant considering the specific opening, provided that such agency has given the name of the employer to the applicant and has arranged an interview or submitted a resume to the employer within ten days of such contact with the applicant.”

The contract signed by Patricia Baggett with the employment agency, Career Concepts, included a paragraph which mirrors § 39: 5-310, MCA. The contractual provision follows:

“7. When an applicant is referred to the same position by two employment agencies, the fee shall be paid to the agency that first contacted the applicant concerning the specific opening, provided that such agency has given the name of the employer to the applicant and has arranged an interview or submitted a resume to the employer within ten days of such contact with the applicant.” Koopman contends, and the District Court agreed, that since by definition under the Employment Agency Act, the Job Service Office acting as a Montana State Employment Agency, is not an “employment agency,” that therefore the first reference to Baggett of this specific job by the Job Service is of no concern. In effect the District Court held that Career Concepts was the only “employment agency” under the Act which referred her to the job opening and therefore she must pay Career Concepts.

That interpretation of the term “employment agency” in the employment contract is wrong for two reasons: (1) The purpose of the definition of “employment agency” under Montana’s Employment Agency Act is to define those private agencies that must be licensed and regulated by the Department of Labor. The Job Service Offices, established by an act of the legislature requires no license; and (2) public policy requires the recognition of the Job Service as a full employment agency on which applicants for employment can rely.

A review of the federal and state statutes relating both to the Job Service Offices existing in Montana and private employment agencies shows that each of these exist for the same ultimate purpose, to connect an unemployed applicant with a job. It is the public policy of this state that the Job Service Offices shall exist side by side with any private employment agencies. Moreover, the Job Service agency is subsidized by the taxpayers as a free employment service which any citizen has the right to utilize. Therefore an interpretation of the employment contract which runs counter to the purpose for the existence of the state employment service runs counter to the public policy of the state.

There is no question in this case that Koopman has insisted for quite some time that a Job Service referral is not a referral by an “employment agency” when the interpretation of his Career Concepts contract involves a collection of a fee where the Job Service office has also made a referral. On the basis of the contract, he has sued applicants in Justice Courts 112 times since 1983, and 12 times in the District Court. We do not know if all of those suits involved the precise interpretation of the contracts in relation to the facts here, but if they do, they cause an intolerable burden to be placed upon the court system in Gallatin County.

We therefore interpret the State Employment Agency Act to mean that the State Employment Offices (Job Service offices), which “procure or attempt to procure employment for applicants” are an “employment agency” even though they need not be licensed as an employment agency under the Employment Agency Act. Therefore, in construing Career Concepts’ contract, a Job Service referral must be regarded as one by an employment agency.

When that is understood, the Career Concepts’ contract can be properly interpreted.

To be entitled to a payment of a fee under § 39-5-310, supra, Career Concepts must qualify on two of three possibilities when an applicant is referred to the same position by two employment agencies: One, Career Concepts must be the agency that first contacted the applicant concerning the specific opening, and two, it must give the name of the employer to the applicant and arrange an interview, or three, submit a resume to the employer within 10 days of such contact with the applicant.

In this case, Career Concepts is not the agency that first contacted the applicant concerning the specific opening, since she first learned of it through the Job Service Office. Accordingly under the contract and the statute, Koopman, d/b/a Career Concepts, is not entitled to an employment applicant’s fee.

The contract between Career Concepts and Patricia Baggett provides that Career Concepts, in the event of a breach of the agreement, is entitled to reasonable fees, costs, and expenses incurred including attorney’s fees and court costs. Since it is not the prevailing party, in this case, Koopman, d/b/a Career Concepts, is not entitled to an attorney’s fee, and his appeal must be denied. On the other hand, because of the reciprocity provisions of § 28-3-704, MCA, Baggett is entitled to attorney’s fees and costs for which we remand for determination to the District Court.

We deny Baggett’s request to return the cause for determination of punitive damages.

Accordingly, the judgment in favor of Koopman d/b/a Career Concepts and against Patricia Baggett is reversed; and the cause is remanded to the District Court for the determination of attorney’s fees and costs in favor of Patricia Baggett.

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


author: MR. CHIEF JUSTICE TURNAGE

text:
    CONNIE S. ROLLINS, Plaintiff and Appellant, v. SYLVIA M. BLAIR, d/b/a Cheerleaders Pom Pom Clinic, NCA Investments, Inc., f/k/a/ National Cheerleaders Association; and Fergus County High School; School District #1, Defendants and Respondents.
    No. 88-411.
    Submitted on Briefs Nov. 17, 1988.
    Decided Jan. 10, 1989.
    767 P.2d 328.

      Jack E. Sands, Billings, for plaintiff and appellant.
    Don M. Hayes, Berg, Stokes, Tollefsen & Hayes, Bozeman, for Blair.
    Robert J. Emmons, Emmons & Coder, Great Falls, for Fergus County High.
    Charles R. Cashmore, Crowley Law Firm, Billings, for NCA.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

From a decision in the District Court of the Eighteenth Judicial District, Gallatin County, Connie Rollins appeals the summary judgment in favor of Fergus County High School, District No. 1 (Fergus) and the jury verdict for defendants, NCA Investments and Sylvia Blair, for injuries sustained while attending a privately-sponsored summer cheerleading clinic at Montana State University in Bozeman, Montana.

The issues on appeal are:

1. Whether the District Court properly granted the motion of Fergus County High School, District No. 1, for summary judgment.

2. Whether the District Court’s refusal of plaintiff’s proposed instructions was proper.

Connie Rollins was a varsity cheerleader for Fergus County High School during the summer of 1985 when her cheerleading squad attended a cheerleading camp. On the evening of July 15, 1985, she was practicing the “home cheer” with the other cheerleaders from the Fergus squad during a free period before the camp’s evening activities. The “home cheer” involves the building of a human pyramid formation. This is a cheer that the girls from Fergus practiced for over two months prior to the camp and had also demonstrated during athletic activities in years past. The pyramid was not a formation that they had learned at the cheerleading camp. While practicing the pyramid, Rollins fell from an off-the-ground position, injuring the lumbo-sacral area of her spine. At the time, she did not feel any pain and continued with the night’s cheerleading activities. It was not until the next day that the injury was too severe to continue at the camp.

Rollins was familiar with the “home cheer” and had been practicing the cheer with the other cheerleaders that summer. She was also aware that injury could occur from an off-the-ground position. She had injured an ankle in a fall from the pyramid prior to the cheer-leading camp. Another cheerleader had broken her ankle also from a fall.

Rollins sued the school district as the party responsible for its students during school, during extracurricular activities and as principal of its agent, LaVonne Simonfy, the cheerleading advisor, for negligent supervision. Plaintiff also sued NCA Investments, a private entity, and the sponsor of the cheerleading camp, Sylvia M. Blair, for negligence. The District Court granted summary judgment in favor of Fergus, finding that the school district had no active part in the summer cheerleading camp with the exception of providing a bus for transportation. At trial, the jury found that the remaining defendants had not acted negligently. Rollins seeks a reversal of both the summary judgment and the jury verdict.

The first issue is whether the District Court erred in granting summary judgment in favor of Fergus. Appellant makes two assertions. Appellant first contends that Fergus played an active role in sending the cheerleaders to the Bozeman camp. Second, Fergus sent LaVonne Simonfy to the camp as an advisor to the girls and is liable for Simonfy’s negligence for improper supervision. Appellant urges that we allow these issues to be addressed at a jury trial.

We have made it clear that:

“The standard of review is whether the District Court properly held there is no genuine issue of material fact and therefore the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P.”

Sevalstad v. Glaus (Mont. 1987), [227 Mont. 117,] 737 P.2d 1147, 1148, 44 St.Rep. 930, 932; Pipinich v. Battershell (Mont. 1988), [232 Mont. 508,] 759 P.2d 148, 45 St.Rep. 1237. The standard of review set forward by this Court was established in Reagan v. Union Oil Company of California (1984), 208 Mont. 1, 6, 675 P.2d 953, 956. The standard is essentially the same that is used by the district court in reviewing the evidence under Rule 56, M.R.Civ.P., which is that summary judgment is to be granted where there is no genuine issue as to material fact. We see no genuine issue here.

We uphold the District Court’s summary judgment finding and declare that Fergus was outside the scope of requisite care necessary to find it liable. The threshold requirement for holding Fergus liable for appellant’s injuries is to find that Fergus had a duty to appellant.

“It is an elementary principle of law that before a claim for relief can be made against a defendant for negligence, the existence of a duty by the defendant to the plaintiff must be shown, along with the breach of the duty and a resulting injury.”

Roy v. Neibauer (Mont. 1981), [191 Mont. 221,] 623 P.2d 555, 556, 38 St.Rep. 173, 174; Jackson v. William Dingwall Co. (1965), 145 Mont. 127, 399 P.2d 236; Kakos v. Byrum (1930), 88 Mont. 309, 292 P. 909.

Appellant asserts that Fergus owed a duty because of its active participation in the events leading up to the injury at the camp. For example, the cheerleaders were selected by the students and faculty of Fergus. Money was raised for the camp and deposited in the school district accounts. The cheerleaders also learned of the camp through literature sent by Sylvia Blair and NCA to the school.

On the motion for summary judgment, Fergus showed that it merely provided a bus for the girls’ transportation. The funds which were raised to send the cheerleaders to the camp were private funds raised by the girls themselves. To hold the school district liable for injuries to a cheerleader simply because she was chosen by other students of the school is insufficient to find a duty. Moreover, posters advertising the camp provided by Blair is also insufficient to find that Fergus owed a duty to Rollins. The cheerleading camp was run by private parties independent of the school district. It would be improper to hold that Fergus had a duty of supervision to Rollins for an extracurricular activity during the summer months which was governed by independent parties.

New York is one of the few states to have addressed the issue of a school’s duty to students involved in extracurricular activities. In Rubtchinsky v. State University of New York (1965), 46 Misc.2d 679, 260 N.Y.S.2d 256, a college freshman was injured while participating in an intramural game of “push ball” with knowledge that it was a contact sport. The New York court held that a school does not owe a duty to students involved in extracurricular activities. Fergus was in no way involved in the cheerleading camp with the exception of providing a bus for the cheerleaders. A proper nexus has not been established to find that Fergus had a duty.

Appellant contends that Fergus is liable to Rollins through its agent, LaVonne Simonfy. However, Simonfy’s participation was too limited to owe a duty as a supervisor and was not Fergus’s agent. She was not under contract with the school district during the summer months and when she attended the camp. She used her own funds to attend the camp rather than accept school funds to attend. Her attendance at the camp was personal and not as an employee of Fergus. “Under the doctrine of respondeat superior an employer is liable for the acts of his employee only if the employee is acting within the scope of his employment.” Haker v. Southwestern Railway Co. (1978), 176 Mont. 364, 372, 578 P.2d 724, 728; Hoffman v. Roehl (1921), 61 Mont. 290, 203 P. 349. As the cheerleaders’ advisor, Simonfy played a limited role in molding the cheerleaders. She had final say as to the girls’ cheers and critiqued their outfits but did not participate in the creation or development of the cheers. Appellant Rollins testified that Simonfy was not experienced in cheerleading. Simonfy attended the camp to prevent bickering among the cheerleaders, a reoccurring problem from the previous year. Furthermore, she was not in attendance at the meetings for advisors at the camp, nor was she present when appellant was injured. Fergus was under no duty to Rollins through Simonfy. Simonfy was not an agent of Fergus.

The second issue to be addressed by this Court is whether the District Court erred in refusing two of appellant’s proposed instructions. During the course of the trial, Sylvia Blair and representatives of NCA Investments testified that they took correct preventative measures in running the cheerleading camp. Specifically, NCA’s employees testified that they held a meeting for all the advisors at the beginning of the camp which admonished them of safety proceedings, such as suggesting the use of spotters. Jeff Miller, the head instructor at the camp, stated they did not teach the pyramid formation and did not suggest that they practice the cheer.

On cross-examination of the appellant, the questions related to the experience of the appellant and the other cheerleaders on her squad and the role that Simonfy played at the camp. Appellant regarded the examination of NCA’s witnesses and cross-examination of appellant as “blame-shifting” — that is, the remaining defendants state that they took all necessary precautions, implicating Fergus and Simonfy as the liable parties, who had been dismissed from the case.

During the testimony, appellant did not object to the line of questioning but instead requested special instructions to admonish the jury that the defendants could not shift the blame for liability to anyone not a party to the action. The judge agreed that there would be such instructions.

Two of appellant’s proposed instructions referring to “blame-shifting” were denied by the judge. The appellant asserts that instructions admitted by the court were not sufficient. The refused proposed instructions are as follows.

“[Proposed instruction 14] More than one person may be liable for causing an injury. A defendant may not avoid liability by claiming that some other person whether or not named as a defendant in this action helped caused [sic] the injury.

“Fergus County High School — through LaVonne Simonfy — was originally listed as a defendant in this action, but has been found not liable as a matter of law. Therefore, you may not consider the actions or inactions of Ms. Simonfy or Fergus County High School as having helped cause plaintiffs injury.

<<* * *

“[Proposed instruction 24] You are instructed that, as a matter of law, LaVonne Simonfy and Fergus County High School had no legal obligation to nor any supervisory responsibility for Connie S. Rollins, the Plaintiff, while she attended the Cheerleading Clinic.

“Therefore you may not consider the actions or inactions of LaVonne Simonfy or Fergus County High School as having helped cause Plaintiffs injuries.”

The District Court instead adopted proposed Instruction 14a (Instruction 14):

“More than one person may be liable for causing an injury. A defendant may not avoid liability by claiming that some other person whether or not named as a defendant in this action helped caused [sic] the injury.”

Appellant claims that the single instruction is inadequate to inform the jury of the dangers of shifting the blame. We disagree.

“It is not reversible error for a District Court to refuse an offered instruction unless such refusal affects the substantial rights of the party proposing the instruction thereby prejudicing him .... A party is not prejudiced by the failure to give an offered instruction where the subject matter is adequately covered by other instructions submitted by the court to the jury.”

Payne v. Sorenson (1979), 183 Mont. 323, 327-328, 599 P.2d 362, 365; Kuchan v. Harvey (1978), 179 Mont. 7, 585 P.2d 1298; Holland Furnace Co. v. Rounds (1961), 139 Mont. 75, 360 P.2d 412.

We hold that the instruction adopted by the court was adequate in directing the jury that the defendants could not place the blame for liability on Fergus or Simonfy. Instruction 14 clearly stated that the only parties that could be held liable were those named in the suit at the time of trial. If the instructions that were proposed by appellant had been adopted by the court, the effect would have been prejudicial to respondents. In stating that Fergus had been dismissed from the action, the jury could have assumed that the court on summary judgment had not dismissed the remaining defendants because they were responsible for appellant’s injuries. The substantial rights of appellant were not prejudiced.

Furthermore, the instructions in their entirety were adequate to instruct the jury on the causes of action. It was obvious that the other instructions stated that NCA and Blair were the only defendants in the case and if liability was to be found it would be with one of the named defendants. For example, the first instruction stated that in this action the plaintiff was Rollins and the defendants were NCA and Blair. The very same instruction gave no indication that the defendants were trying to “pass the buck” because it stated that the defendants were denying liability and if anyone was at fault it was Rollins herself.

“ [Instructions must be considered in their entirety, and to determine whether instructions were properly given or refused this Court will read them in connection with other instructions given and consider them in the light of the evidence introduced.”

Fox v. Fifth West, Inc. (1969), 153 Mont. 95, 101, 454 P.2d 612, 615; Brown v. North American Mfg. Co. (1978), 176 Mont. 98, 114, 576 P.2d 711, 721. We hold that the instructions given to the jury were sufficient.

We find no reversible error on the part of the District Court. Affirmed.

MR. JUSTICES WEBER, GULBRANDSON, McDONOUGH and HUNT concur.


author: MR. JUSTICE HARRISON

text:
    KIM RIVERA, Petitioner and Respondent, v. JANET E. ESCHLER, Justice of the Peace, Justice Court, Yellowstone County, Montana, Respondent and Appellant. STATE EX REL., TERRY VUKASIN, Plaintiff and Respondent, v. The JUSTICE COURT OF YELLOWSTONE COUNTY, Montana, and Janet E. Eschler, Justice of the Peace, Defendants and Appellants.
    No. 88-415, 88-422.
    Submitted Dec. 9, 1988.
    Decided Jan. 10, 1989.
    767 P.2d 336.
    Harold Hanser, County Atty., David Hoefer, Deputy, Billings, for respondent and appellant.
    Scott Gratton, Anderson, Brown Law Firm, Addison Sessions, Thompson & Sessions, Billings, for petitioner and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This case comes to us from the issuance of a writ of certiorari by the Honorable Robert Holmstrom, Thirteenth Judicial District Court, Montana, annulling an order entered by the appellant, Janet Eschler, Justice of the Peace, Yellowstone County. We affirm.

On September 23, 1986, the respondent, Kim Rivera, was found guilty of driving a motor vehicle under the influence of alcohol. Appellant Janet Eschler, Yellowstone County Justice of the Peace, sentenced the respondent to a one-year suspended sentence, imposed a fine of $400, required respondent to complete the Rimrock Foundation DUI school and “treatment as necessary.” At the completion of counseling, respondent engaged in an exit interview. On the basis of the interview, Rimrock Foundation counselors recommended the respondent enroll in an inpatient treatment facility. On February 4, 1987, appellant ordered the respondent to follow the recommendations of the counselor at the Rimrock Foundation and perform the following:

“(a) That the defendant enroll in a licensed chemical dependency center;

“(b) That the defendant abide by all aftercare recommendations made by the facility upon completion of treatment;

“(c) That the defendant abstain from all use of alcohol and drugs;

“(d) That the defendant appear before this court on February 9, 1987, at 4:30 p.m. At this time defendant shall state to the court the place and date of his treatment enrollment. All arrangements must be made by said date or cause a warrant to be issued, and defendant incarcerated.”

The respondent petitioned the District Court to exercise certiorari. On May 26, 1988, District Court Judge Holmstrom annulled the order, finding appellant lacked jurisdiction to modify the initial sentence.

The facts and procedure involving the second respondent, Terry Vukasin, are directly analogous to the Rivera case. Pursuant to a sentencing order dated November 30, 1987, Vukasin completed an alcohol treatment program. On January 21, 1988, Justice Eschler directed Vukasin to follow recommendations of Rimrock Foundation counselors, enroll in a licensed chemical dependency treatment center and attend aftercare treatment. On June 20, 1988, District Court Judge G. Todd Baugh deferred to Judge Holmstrom’s decision in the Rivera case and directed the January 21, 1988 order annulled. The appellant’s motion for consolidation acknowledges the analogous nature of the two cases.

Appellant presents a single issue on appeal:

1. Did Justice of the Peace Eschler have jurisdiction, pursuant to § 61-8-714(4), MCA, to order respondents, both convicted of the offense of driving under the influence of alcohol, to enroll in a licensed chemical dependency center, to abstain from all use of alcohol and drugs, and to abide by all aftercare recommendations made by the facility upon the completion of treatment?

In addition, respondents question the constitutionality of the orders, alleging a violation of their due process rights by the disallowance of a hearing and counsel prior to sentencing. Because this appeal can be decided solely on the question of statutory authority, we need not address respondents’ constitutional argument.

Section 61-8-714, MCA, provides in pertinent part:

“61-8-714. Penalty for driving under the influence of alcohol or drugs. (1) A person convicted of a violation of 61-8-401 shall be punished by imprisonment in the county jail for not less than 24 consecutive hours or more than 60 days, and shall be punished by a fine of not less than $100 or more than $500 . . .

“(4) In addition to the punishment provided in this section, regardless of disposition, the defendant shall complete an alcohol information course at an alcohol treatment program approved by the Department of Institutions, which may include alcohol or drug treatment, or both, if considered necessary by the counselor conducting the program. Each counselor providing such education or treatment shall, at the commencement of the education or treatment, notify the court that the defendant has been enrolled in a course or treatment program. If the defendant fails to attend the course or the treatment program, the counselor shall notify the court of the failure.”

Appellant contends the language of § 61-8-714(4), MCA, allows for continuing authority to modify respondents’ sentences, claiming the subsequent order is necessary to enforce the sentencing statute. This Court does not agree with appellant’s interpretation.

This Court has consistently held that “[o]nce a valid sentence has been pronounced, the court imposing the same is lacking in jurisdiction to vacate or modify the sentence, except as otherwise provided by statute. . .” State v. Porter (1964), 143 Mont. 528, 540, 391 P.2d 704, 711; Wilkinson v. State (1983), 205 Mont. 237, 667 P.2d 413. For example, we found such specific authorization in § 46-18-203, MCA,.previously 95-2206, RCM (1947):

“[A] judge, magistrate, or justice of the peace who has suspended the execution of a sentence or deferred the imposition of a sentence of imprisonment under 46-18-201... is authorized in his discretion to revoke the suspension or impose a sentence and order the person committed. He may also, in his discretion, order the prisoner placed under the jurisdiction of the department of institutions as provided by law or retain such jurisdiction with the court . . . (Emphasis added.)”

The plain meaning of the statute gave the district court three mutually exclusive alternatives for handling a defendant who violated the terms of his probation, and could thereby modify the sentence. State v. Downing (1979), 181 Mont. 242, 593 P.2d 43. “While [the alternatives] give the District Court some latitude in dealing with probation violators, they do not vest the court with completely unbridled discretion.” Downing, 593 P.2d at 45. The explicit authorization necessary to modify the original sentence is notably absent in the present case.

Section 61-8-714, MCA, contemplates all punishment and treatment be contained in the original order. Any other interpretation, we believe, would amount to an improper exercise of jurisdiction. Therefore, we conclude that upon imposition of the valid sentence, the appellant’s authority to vacate or modify the sentence ceased.

Affirmed.

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


author: MR. JUSTICE HARRISON MR. JUSTICE GULBRANDSON,

text:
    HORACE MANN INSURANCE, an Illinois corporation, Plaintiff and Respondent, v. MATTHEW HAMPTON, Safeco Insurance Company of America, a Washington corporation, and Lawrence Blundell, an individual, Defendants and Appellants.
    No. 88-212.
    Submitted Aug. 11, 1988.
    Decided Jan. 11, 1989.
    Rehearing Denied Feb. 16, 1989.
    767 P.2d 343.

      Richard Ranney, Williams Law Firm, Missoula, for defendants and appellants.
    Kim L. Ritter, Milofragovich, Dale & Dye, Missoula, for plaintiff and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

Respondent Horace Mann Insurance filed a declaratory judgment action in the District Court of the Fourth Judicial District of Montana, Missoula County, seeking to avoid coverage under its automobile liability policy issued to Bernard and Claudia Wever. The District Court granted summary judgment in favor of respondent, holding that the terms of the policy were violated when the vehicle was not used within the scope of the owners’ consent. We reverse.

On the evening of January 21, 1987, near East Missoula, Montana, Matthew Hampton (Hampton) was seriously injured in an automobile accident caused by Lawrence Blundell (Blundell). Blundell was driving the other vehicle involved in this accident, a 1977 Chevrolet Malibu, owned by Bernard and Claudia Wever. Blundell was under the influence of alcohol, crossed the center line, and struck Hampton’s vehicle nearly head-on. The Wever vehicle was insured by Horace Mann. Blundell had no insurance of his own.

Blundell was a mechanic and rented a shop building and lot from Sophie Wever, Bernard’s mother and de facto owner of the car. Because he was behind in his rent, Blundell agreed with the Wevers to overhaul the engine on the 1977 Chevrolet Malibu in exchange for three months rent credit. On January 21, 1987, at about 5:30 p.m., Blundell took possession of the car at Sophie Wever’s house and drove it a short distance to the shop. Blundell expected another customer to pick up a vehicle which would make room for the Wever car at his shop. Blundell waited for approximately one hour but the customer did not arrive. As a result, Blundell believed it would be unsafe to leave the Wever car at his shop overnight because of possible theft or vandalism. For this reason, and to test drive it for diagnostic purposes, Blundell determined he would drive the car to his home that evening.

At about 6: 30 p.m., Blundell drove with his son in the Wever car to a local tavern. There the two drank beer for several hours and talked. Blundell then drove his son home and was enroute to his home when the accident occurred about 11:15 p.m.

Hampton made claim for his damages against Blundell and Wevers’ liability insurer, Horace Mann Insurance Company. Horace Mann filed this declaratory judgment action against Blundell, Hampton, and Safeco Insurance Company of America (Hampton’s uninsured motorist insurer) denying liability coverage to Blundell based on the omnibus clause in its policy which reads in part as follows:

“WHO IS AN INSURED?

“When we refer to your car, a newly acquired car or a temporary substitute car, insured means:

“1. you;

“2. your relatives;

“3. any other person while using your car if its use is within the scope of your consent;”

Horace Mann contends the consensual use of the vehicle granted to Blundell by the Wevers was narrow and that Blundell exceeded the scope of the consent by driving to the tavern for personal purposes and driving while intoxicated. The argument is that the Wevers did not consent to the use of the car for the purpose to which it was applied and for the atrocious behavior of drunk driving and causing an accident. Therefore, the consensual use was extinguished and liability insurance coverage did not extend. The effect of Horace Mann’s argument would be that permittee drivers become uninsured motorists when they exceed the scope of their authorized use.

The issue on appeal is whether Montana’s Mandatory Liability Protection Act, § 61-6-301, MCA, requires automobile liability insurance policies to continue in force and effect for the use by Blundell of Wever’s automobile. We answer that it does extend coverage to the minimum statutory requirement.

Prior to the enactment of § 61-6-301, MCA, Montana relied solely upon a statutory scheme of insurance protection under what is known as the Financial Responsibility Act, or the “Motor Vehicle Safety-Responsibility Act,” § 61-6-101, MCA. Under this act, a driver whose license has been revoked by the state must have proof of financial responsibility as required by the statute. This may be accomplished by filing a certificate of insurance, a bond or a certificate or deposit of money or securities. Section 61-6-132, MCA.

In 1979, Montana’s Legislature enacted the Mandatory Liability Protection Act which reads in part:

“61-6-301. Required motor vehicle insurance. (1) Every owner of a motor vehicle which is registered and operated in Montana by the owner or with his permission shall continuously provide insurance against loss resulting from liability imposed by law for bodily injury or death or damage to property suffered by any person caused by maintenance or use of a motor vehicle, as defined in 61-1-102, in an amount not less than that required by 61-6-103, or a certificate of self-insurance issued in accordance with 61-6-143.”

The clear purpose of this statute is to protect innocent members of the general public injured on the highways through the negligence of financially irresponsible motorists. Iowa Mutual Ins. Co. v. Davis (Mont. 1988), [231 Mont. 166,] 752 P.2d 166, 45 St.Rep. 514. As stated in 12A Couch on Insurance 2d (Rev. ed.), § 45:692, the statute is remedial in nature, and insurance policies issued under this scheme must be liberally construed in light of the clear purpose and public policy of the statute — to provide compensation to those injured by automobiles.

In Transamerica Ins. Co. v. Royle (1983), 202 Mont. 173, 656 P.2d 820, we examined a “household exclusion” in an automobile insurance policy in light of the Mandatory Liability Protection Act language requiring insurance protection against bodily injury and property damage to “any person.” We held this statutory language to be an express outlawing of household exclusion clauses.

Similarly, in Bill Atkin Volkswagen Inc. v. McClafferty (1984), 213 Mont. 99, 689 P.2d 1237, we held Montana’s Mandatory Liability Protection Act required an automobile dealer’s insurance to extend to customers using “loaner cars.” By focusing on the statute’s “every owner of a motor vehicle” language, we rejected the argument of the insurance company and held that an automobile dealer, though not an operator, is an owner and therefore required by law to provide liability coverage to its permittees.

Most recently, in Iowa Mutual, supra, we carefully examined the validity of a named driver exclusion in light of the Mandatory Liability Protection Act. We concluded that such an attempted exclusion was contrary to public policy and therefore invalid. The analysis made in Iowa Mutual is particularly pertinent to this case. We there pointed out that under Bill Atkin, other than the specific exceptions listed in § 61-6-303, MCA, there were no exceptions to the statutory requirement that “every owner of a motor vehicle registered and operated in Montana by the owner or with his permission [is] to provide insurance for liability caused by maintenance or use of the motor vehicle.” Iowa Mutual, 752 P.2d at 168. In that case we emphasized the statutory requirement for insurance of a vehicle operated with permission unless it met one of the other exceptions. Those exceptions are not applicable to the present case.

In Iowa Mutual, we next referred to Bain v. Gleason (Mont. 1986), [223 Mont. 442,] 726 P.2d 1153, 43 St.Rep. 1897, where we stated:

“In Bain we recognized that ‘it is the public policy of [the state of Montana] . . . that every owner of a motor vehicle [licensed and] operated in Montana must procure a policy of insurance which continuously provides coverage up to the limits set forth in [§ 61-6-103, MCA]. Bain, 726 P.2d at 1156 . . .”

Iowa Mutual, 752 P.2d at 169. This underscored the need for an owner to provide continuous coverage up to the required statutory limits.

The insurance carrier argued in Iowa Mutual that the invalidation of the driver exclusion would thwart public policy and create a burden on the insureds. In response to those arguments we then stated:

“We are convinced that the opposite is true. Our ruling today will eliminate yet another avenue through which the compensation of innocent automobile accident victims can be sidestepped. Our ruling does not, however, prohibit an insurer from entering into agreements with their insureds to limit coverage to the statutory minimum amounts as set forth in § 61-6-103, MCA. Other states have reached similar conclusions.

“The enforcement of minimum statutory coverage is mandated by statute in Montana and is a minor burden on insureds when compared to increased protection of the general traveling public.”

Iowa Mutual, 752 P.2d at 170-71.

As we further stated in Iowa Mutual, laws established for the benefit of the public cannot be contravened by private contract. Iowa Mutual, 752 P.2d at 169. When an insurer fails to provide a policy in compliance with the requirements of a statute mandating insurance protection, the courts are forced to reform the policy so that it is in compliance. 12A Couch on Insurance 2d (Rev. ed.), § 45:692.

We conclude that we shall give effect to the requirement of § 61-6-103, MCA, which requires motor vehicle liability insurance to provide continuous coverage up to the limits of the statute, for every motor vehicle operated with the permission of the owner. Where a driver of a motor vehicle initially obtains control and operates a vehicle with the permission of the owner, we hold that Montana’s Mandatory Liability Protection Act requires liability insurance must continue to cover the vehicle even though the permittee may have exceeded the scope of the owner’s permission or consent. As we did in Iowa Mutual, we further hold that the enforcement of minimum statutory coverage in Montana is mandated. We recognize that the lower court may wish to reconsider whether permission was given by the insured in a manner sufficient to warrant the extension of liability coverage in excess of the statutory minimum.

The judgment is reversed and remanded for further proceedings consistent with this decision.

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

MR. JUSTICE GULBRANDSON,

dissenting.

I respectfully dissent.

In my view, the majority, by adopting the “initial permission” test (more colorfully known by many writers as the “Come hell or high water rule”) has departed drastically from authority previously enunciated in decisions of this Court, without reference to, or discussion of, those decisions.

To illustrate the previous view, two examples should suffice. In Mountain West Farm Bureau v. Farmers Insurance (1984), 209 Mont. 467, 680 P.2d 330, this Court declared:

“A complete and unreasonable departure from the intended use, or an intentionally dangerous and wrongful operation could support a ruling that the use was outside of the scope of permitted use as a matter of law. (Emphasis included.)”

Mountain West, 680 P.2d at 331. Thereafter, in Farmer’s Ins. Exchange v. Janzer (Mont. 1985), 215 Mont. 260, 697 P.2d 460, 42 St.Rep. 337, this Court, in commenting on Mountain West, supra, stated:

“Mountain West involved a question regarding the degree of permission granted . . . This court affirmed the lower court’s ruling that Mountain West was the insurer of the defendant for the defense of the action and the payment of any damages arising out of the incident. The instant case, likewise, presents a question involving scope of ‘permission.’ ” (Emphasis added.)

Farmer’s Ins. Exchange, 697 P.2d at 465-466.

The foregoing statements clearly indicated to the bench and bar of this state, in my opinion, that this Court had adopted, or would adopt, some rule other than the “initial permission” rule. The decision to now adopt a minority absolute rule, in the light of contra expressions of this Court, should, in my view be left to the Montana Legislature.

I would affirm the judgment of the trial judge.