author: JUSTICE TRIEWEILER

text:
    JAMES B. TRANKEL, Plaintiff and Appellant, v. STATE OF MONTANA, DEPARTMENT OF MILITARY AFFAIRS, MONTANA ARMY NATIONAL GUARD, Defendants and Respondents.
    No. 96-026.
    Submitted October 22, 1996.
    Decided April 30, 1997.
    54 St.Rep. 380.
    282 Mont. 348.
    938 P.2d 614.

      See C. J.S. States § 202.

      For Appellant: Erik B. Thueson and James T. Towe (argued); Thueson & Lamb; Helena.
    For Respondents: Hon. Joseph P. Mazurek; Attorney General; James M. Scheier and Thomas G. Bowe (argued); Assistant Attorneys General; Agency Legal Services; Helena; William Gianoulias; Risk Management and Tort Division; State of Montana; Helena; LTC Mike T. McCabe; Staff Judge Advocate; Helena (for Montana National Guard).
   JUSTICE TRIEWEILER

delivered the opinion of the Court.

The plaintiff, James B. Trankel, commenced this action in the District Court for the First Judicial District in Lewis and Clark County to recover damages for personal injuries sustained while working on property owned and controlled by the defendant, State of Montana, through its Department of Military Affairs. The State moved to dismiss Trankers complaint pursuant to Rule 12(b)(6), M.R.Civ.P. After considering the arguments of the parties, the District Court concluded that Trankel’s claim was barred by the U.S. Supreme Court’s decision in Feres v. United States (1950), 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152, and our prior decision in Evans v. Montana National Guard (1986), 223 Mont. 482, 726 P.2d 1160. The District Court granted the State’s motion to dismiss. Trankel appeals from the District Court’s order granting the State’s motion. We reverse the judgment of the District Court.

Trankel raises the following issues on appeal:

1. Can a person who is allegedly injured by the negligence of the State of Montana, acting through its Department of Military Affairs, while in the course of his employment with the United States Army, sue the State of Montana to recover damages for those injuries?

2. Did the District Court err when it concluded that the plaintiff’s allegations of statutory violations failed to state a claim?

STANDARD OF REVIEW

The District Court dismissed Trankel’s claim pursuant to Rule 12(b)(6), M.R.Civ.P., based on the court’s conclusion that it failed to state a claim for which relief could be granted.

A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Lockwood v. W.R. Grace & Co. (1995), 272 Mont. 202, 207, 900 P.2d 314, 317.
A motion to dismiss under Rule 12(b)(6), M.R.Civ.P., has the effect of admitting all well-pleaded allegations in the complaint. In considering the motion, the complaint is construed in the light most favorable to the plaintiff, and all allegations of fact contained therein are taken as true.
Lockwood, [272 Mont. at 207,] 900 P.2d at 317 (quoting Boreen v. Christensen (1994), 267 Mont. 405, 408, 884 P.2d 761, 762). The determination that a complaint fails to state a claim upon which relief can be granted is a conclusion of law. We review a district court’s conclusions of law to determine whether the court’s interpretation of the law is correct. Lockwood, [272 Mont. at 207,] 900 P.2d at 317.

Common Cause of Montana v. Argenbright (1996), 276 Mont. 382, 386, 917 P.2d 425, 427.

FACTUAL BACKGROUND

The following facts were alleged in the plaintiff’s complaint. For the reasons set forth above, we assume that they are true for the purpose of reviewing the plaintiff’s appeal.

The Army National Guard of the State of Montana operates under the supervision and direction of the Department of Military Affairs for the State of Montana which is established pursuant to Titles 2 and 10 of the Montana Code Annotated.

James B. Trankel enlisted in the Montana Army National Guard on March 28, 1991. However, in 1992, after assuming full-time employment in the Guard, he was called to active duty in the United States Army pursuant to Title 10 of the United States Code.

In early 1992, the Guard began a program known as Southwest Asia Vehicle Rebuild Program (SWAREB), the function of which was to repair and rebuild vehicles that had been damaged in the GulfWar and then distribute them for use to National Guard units, including Montana’s unit. That program was based out of facilities at Fort Harrison in Montana. In October 1992, while still in full-time service to the United States Army, Trankel was assigned to that section of the SWAREB program responsible for body repair and undercoating of vehicles. He performed his duties in a building located at Fort Harrison and designated as the paint and body shop.

During the course of his duties, Trankel was required to work with and around toxic and hazardous materials and stand in a pit below the ground surface while spraying these materials on the undersides of vehicles. However, the facilities were not properly vented and he was not provided with adequate equipment, including respirators and proper clothing. Trankel became drenched with toxic chemicals and inhaled dangerous levels of toxic substances because the State failed to implement and enforce safe operating procedures.

As a result of his exposure to toxic materials, Trankel has been treated for bronchitis and sinusitis, and has suffered permanent physical injuries, including injury to his brain and internal organs. He contended that his injuries were a result of the State’s negligent failure to implement safe operating procedures for the SWAREB activities that were performed on its premises.

Trankel also contended, in Counts II, III, and IV of his complaint, that the State violated the Occupational Health Act of Montana found at §§ 50-70-101 to -118, MCA; the Montana Safety Act found at §§ 50-71-101 to -334, MCA; and the Employee and Community Hazardous Chemical Information Act found at §§ 50-78-101 to -402, MCA.

The State moved to dismiss Trankel’s complaint pursuant to Rule 12(b)(6), M.R.Civ.P., based on its contention that his claim was barred as a matter of law by the U.S. Supreme Court’s decision in Feres v. United States (1950), 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152, and our prior decision in Evans v. Montana National Guard (1986), 223 Mont. 482, 726 P.2d 1160. It was and is the State’s position that the Feres doctrine bars claims which arise from activities “incident to military service” regardless of the substantive law upon which the claim is based, the status of the plaintiff at the time he is injured, or the status of the party against whom the claim is made. In addition, it is the defendant’s contention that the acts upon which Counts II, III, and IV were based do not provide private causes of action, but can be enforced only by means of the administrative remedies provided for in those Acts.

The District Court agreed with the State. It held that because Trankel’s injuries were incident to his service in the National Guard, it is immaterial whether he was serving in a state or federal status at the time of his injuries, and therefore, that his claims were barred by the prior decisions in Feres and Evans. It also concluded that the Acts relied on in Counts II, III, and IV do not create private causes of action for recovery of damages, but instead must be enforced by the various agencies to whom responsibility is given within the Acts. Trahkel’s complaint was, therefore, dismissed with prejudice and judgment was entered for the State of Montana.

ISSUE 1

Can a person who is allegedly injured by the negligence of the State of Montana, acting through its Department of Military Affairs, while in the course of his employment with the United States Army, sue the State of Montana to recover damages for those injuries?

Essential to an understanding of Trankel’s employment status at the time of his injury is an understanding of the statutory framework pursuant to which members of the United States Army Reserve forces are required to serve.

The “Army National Guard” refers to the organized militia of the several states. 32 U.S.C. § 101(4) (1994). The “Army National Guard of the United States” is a reserve component of the United States Army. However, its members are required to be members of the “Army National Guard.” 32 U.S.C. § 101(5) (1994).

The President of the United States may call into “Federal service” members of the Army National Guard of any state when he deems it necessary and it is appropriate, based on circumstances provided by law. 10 U.S.C. § 12406 (1994).

However, when a member of the “Army National Guard” is ordered to active federal duty, he or she is relieved from duty in the National Guard of his or her state, from the effective date of the order to active duty in the federal military. 32 U.S.C. § 325 (1994). Members of the “Army National Guard of the United States” who have been ordered to active duty become reserves of the Army, 10 U.S.C. § 12403 (1994), and are, thereafter, subject to the laws and regulations governing the United States Army. 10 U.S.C. § 12405 (1994).

The practical effect of this statutory framework was explained by the U.S. Supreme Court in Perpich v. Department of Defense (1990), 496 U.S. 334, 110 S.Ct. 2418, 110 L.Ed.2d 312. There, the Court stated that:

Thus, under the “dual enlistment” provisions of the statute that have been in effect since 1933, a member of the Guard who is ordered to active duty in the federal service is thereby relieved of his or her status in the State Guard for the entire period of federal service.
The unchallenged validity of the dual enlistment system means that members of the National Guard of Minnesota who are ordered into federal service with the National Guard of the United States lose their status as members of the state militia during their period of active duty. If that duty is a training mission, the training is performed by the Army in which the trainee is serving, not by the militia from which the member has been temporarily disassociated. “Each member of the Army National Guard of the United States or the Air National Guard of the United States who is ordered to active duty is relieved from duty in the National Guard of his State or Territory, or of Puerto Rico or the District Columbia, as the case may be, from the effective date of his order to active duty until he is relieved from that duty.” 32 U.S.C. § 325(a).
... [T]he state affiliation is suspended in favor of an entirely federal affiliation during the period of active duty.

Perpich, 496 U.S. at 346-49, 110 S.Ct. at 2425-27.

We acknowledged the decision in Perpich and the distinction between federal and state status of National Guard members in Grove v. Montana Army National Guard (1994), 264 Mont. 498, 501-02, 872 P.2d 791, 793, and Evans v. Montana National Guard (1986), 223 Mont. 482, 483-84, 726 P.2d 1160, 1161.

Therefore, based on the facts assumed to be true in this case, Trankel, at the times relevant to his claim, had no formal affiliation with the Army National Guard for the State of Montana. He was employed by and acting entirely within the scope of his duties for the United States Army. It is, therefore, in that status that we must review the authorities relied upon by the parties and the District Court.

The State contends that members of the federal military cannot bring suit against other soldiers or military organizations for service-related injuries, based on Feres, 340 U.S. 135, 71 S.Ct. 153. It contends that this rule applies regardless of the identity of the tort-feasor, pursuant to United States v. Johnson (1987), 481 U.S. 681, 107 S.Ct. 2063, 95 L.Ed.2d 648; that it applies even though the claim may be based on state law, pursuant to Stauber v. Cline (9th Cir.1988), 837 F.2d 395, cert. denied (1988), 488 U.S. 817, 109 S.Ct. 55, 102 L.Ed.2d 33; and that we have held that the Feres doctrine bars claims against the National Guard for injuries incident to military service in Evans, 223 Mont. 482, 726 P.2d 1160. The District Court agreed.

Trankel, on the other hand, contends that Feres and Johnson are not applicable to this case because they are based on claims made pursuant to the Federal Tort Claims Act at 28 U.S.C. §§ 1346(b), 2671 - 80 (1994); Stauber is not applicable because it was not based on and did not include an analysis of Montana law; and Evans was wrongly decided and should be reversed. Trankel further contends that sovereign immunity was abolished in Montana in 1972 pursuant to Article II, Section 16, of the Montana Constitution, and that the Legislature has not seen fit to extend immunity under these circumstances. Trankel further contends that § 10-1-104, MCA, which makes federal laws and regulations applicable to Guard members, provides an exception where those laws or regulations are inconsistent with Montana’s Constitution.

For purposes of oral argument, and consideration on appeal by this Court, this case was combined with Dorothy J. Lake, et al. v. State of Montana, Supreme Court Cause No. 96-095, which involves the same issue and the same defendant acting in the same capacity. The plaintiff in that case also contends that to bar a claim against the State for injuries sustained during the course of employment by a person who was not, at the time of injury, employed by the State, would violate Article II, Section 16, of the Montana Constitution.

We first consider the applicability of the federal authorities relied on by the State. All other federal authorities are affirming of Feres. In Feres, the plaintiff’s decedent was on active duty in the military service of the United States when he died from injuries caused by fire in his barracks. The plaintiff alleged, pursuant to the Federal Tort Claims Act found at 28 U.S.C. §§ 2671 to 2680, that the Army had negligently quartered Feres in barracks which it knew or should have known were unsafe. The U.S. Supreme Court framed the issue in Feres as follows: “The only issue of law raised is whether the Tort Claims Act extends its remedy to one sustaining ‘incident to the service’ what under other circumstances would be an actionable wrong.” Feres, 340 U.S. at 138, 71 S.Ct. at 155.

The Court in Feres referred to its task as one of “statutory construction” and ultimately concluded that since the Federal Tort Claims Act extended liability to the United States in the same manner that a private individual would be hable, and since there was no historical basis for imposing liability on a private individual for injuries to a member of the military, there could be no liability pursuant to the Tort Claims Act for injuries incident to military service. Feres, 340 U.S. at 141-42, 71 S.Ct. at 157. In arriving at its conclusion, that Court took into consideration enactments of Congress which provided no-fault systems of compensation for members of the military who are injured or killed during the course of their service. The Court concluded:

If Congress had contemplated that this Tort Act would be held to apply in cases of this kind, it is difficult to see why it should have omitted any provision to adjust these two types of remedy to each other. The absence of any such adjustment is persuasive that there was no awareness that the Act might be interpreted to permit recovery for injuries incident to military service.

Feres, 340 U.S. at 144, 71 S.Ct. at 158.

We find the Feres decision inapplicable to the facts of this case for several reasons: (1) Trankel is not suing the United States for his injuries; (2) Trankel’s claim is not brought pursuant to the Federal Tort Claims Act; (3) the type of action brought by Trankel against the National Guard is the kind traditionally recognized by the common law in the State of Montana; and (4) although this case does not involve state workers’ compensation benefits, the Montana Legislature has specifically recognized that third-party claims may be made by those who receive statutory benefits for injuries sustained during the course of their employment, and has enacted laws to adjust the two types of remedy to each other. See §§ 39-71-412 and -414, MCA.

The State contends that the Feres doctrine applies to all claims made for injuries which are incidental to military service because the U.S. Supreme Court extended the doctrine to claims for subrogation by nonmilitary personnel in Stencel Aero Engineering Corp. v. United States (1977), 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665; to claims by military personnel who are off-duty at the time of their injury in United States v. Shearer (1985), 473 U.S. 52, 105 S.Ct. 3039, 87 L.Ed.2d 38; and to claims by military servicemen against nonmilitary federal employees in United States v. Johnson (1987), 481 U.S. 681, 107 S.Ct. 2063, 95 L.Ed.2d 648. However, regardless of the variation in the circumstances presented by each of the cited cases, each case was brought pursuant to the Federal Tort Claims Act and is part of the federal case law interpreting the scope of remedies provided for by that Act. None of the cited cases is relevant to this Court’s interpretation of the remedies provided for by state statutory and case law, and guaranteed by our state Constitution.

Neither is the State’s reliance on Chappell v. Wallace (1983), 462 U.S. 296, 103 S.Ct. 2362, 76 L.Ed.2d 586, and United States v. Stanley (1987), 483 U.S. 669, 107 S.Ct. 3054, 97 L.Ed.2d 550, persuasive. Although the Feres doctrine was applied by the Supreme Court in those cases to claims which were not based on the Federal Tort Claims Act, they did involve claims by members of the United States military who alleged that their superiors had violated their constitutional rights and 42 U.S.C. §§ 1985 and 1983, respectively. It is the function of the U.S. Supreme Court to define and limit the scope of rights afforded pursuant to those constitutional causes of action. However, those decisions have little bearing on the scope of rights afforded under state law and guaranteed by our state Constitution.

The State also relies on the Ninth Circuit in Stauber v. Cline (9th Cir. 1988), 837 F.2d 395, cert. denied (1988), 488 U.S. 817, 109 S.Ct. 55, 102 L.Ed.2d 33. In that case, the plaintiff was employed by the federal government as a mechanic-technician, but like the plaintiff in this case, was also required to be a member of the National Guard as a condition of his employment pursuant to 32 U.S.C. §§ 709(b), 709(e)(1) and (2) (1994). The individual defendants were members of the Army National Guard of Alaska who were superior in rank to the plaintiff. The defendants were sued for intentional infliction of emotional distress and libel. Stauber, 837 F.2d at 396.

Stauber filed his action in state court, but it was removed to federal district court where it was tried before a jury which returned an award of damages in his favor. Following that verdict, pursuant to post-trial motions, the district court concluded that all of the parties were National Guardsmen under the direct command of the same U.S. Army lieutenant colonel; that plaintiff’s work was incident to military service; and therefore, that his claim was barred by the Feres doctrine. Stauber, 837 F.2d at 397. The Ninth Circuit affirmed, relying primarily on those federal decisions previously discussed which were based on federal statutory or common law. There is no mention in the Stauber case whether state or federal substantive law applied, and if the former, what was the substantive law in Alaska upon which the claim was based. Neither is there any analysis in the Stauber case regarding the applicability of the aforementioned federal authorities to a situation in which a party’s claim is made against a non-federal party and based on state law. Therefore, we conclude that Stauber is not persuasive regarding Trankel’s rights which are asserted pursuant to Montana law and the Montana Constitution.

Finally, the State contends, and the District Court agreed, that Trankel’s claim is barred as a matter of law pursuant to our prior decision in Evans v. Montana National Guard (1986), 223 Mont. 482, 726 P.2d 1160. In Evans, the plaintiff was a member of the Montana Army National Guard who was injured while in State service while attempting to move a Coke machine from one part of a building to another. He sued the Guard for negligence, and his claim was dismissed by summary judgment. Evans, 223 Mont, at 483, 726 P.2d at 1161. We affirmed the District Court. However, our decision was based on our conclusion that § 2-9-102, MCA, of the State Tort Claims Act, did not authorize suits against the National Guard. Evans, 223 Mont, at 484, 726 P.2d at 1161. We held that that section authorized suits against “governmental entities” which were defined at § 2-9-101(3), MCA, as “the state and political subdivisions as herein defined,” and that the National Guard was not included in the definition of political subdivisions found at § 2-9-101(5), MCA. Evans, 223 Mont, at 484, 726 P.2d at 1161. We did not address why the National Guard or the Department of Military Affairs for the State of Montana, which was also named as a defendant, were not subject to liability pursuant to that part of § 2-9-101(3), MCA, which defines “governmental entity” to include “the state.”

The state is defined at § 2-9-101(7), MCA, as follows: “ ‘State’ means the state of Montana or any office, department, agency, authority, ... or other instrumentality thereof.”

“Agency” is defined at § 2-15-102(2), MCA, to include any “department” or “instrumentality of the executive branch of state government,” and § 2-15-104(l)(b), MCA, lists the Department of Military Affairs as one of the constitutionally established departments or entities of the executive branch of government. Therefore, it is beyond question that the National Guard and Department of Military Affairs are governmental entities within the meaning of § 2-9-101(3), MCA, and our conclusion to the contrary in Evans was erroneous. Therefore, to that extent, our decision in Evans is overruled.

The State also cites Evans for the proposition that “[t]raditionally, the federal government and state governments have not been held liable in tort for injuries that rise ‘in the course of activity incident to service.’ ” Evans, 223 Mont, at 485, 726 P.2d at 1161. However, that language from Evans is not precedent for the facts which gave rise to this case for several reasons. First, it was dicta following the actual basis for our decision which was that the National Guard was not covered by our State Tort Claims Act. Second, it was applied to the facts of that case which involved a member of the National Guard on active state duty suing his employer, in effect, for injuries he sustained during the course of his employment. Third, the constitutional basis on which we decide this case was neither raised in that case nor would it be applicable to the facts of that case. For these reasons, we conclude that Evans does not resolve the issue raised by this appeal.

Trankel cites decisions from the State of Washington in Emsley v. Army National Guard (Wash. 1986), 722 P.2d 1299, and Kirtley v. State (Wash. Ct. App. 1987), 748 P.2d 1128, in support of his right to maintain his cause of action in this case. While those cases do appear on point, it is not necessary that we rely on authority from another jurisdiction for our decision.

Trankel’s claim is brought in state comb pursuant to the State Tort Claims Act and names the State of Montana as a defendant. The question with which we are presented is whether based on state law we would apply the Feres doctrine to Trankel’s claim simply because his injury was incident to military service, or whether we are precluded from doing so based on state law, and specifically, our state Constitution. We conclude that Article II, Section 16, of the Montana Constitution, precludes application of the Feres doctrine to the factors in this case. Article II, Section 16, provides as follows:

Courts of justice shall be open to every person, and speedy remedy afforded for every injury of person, property, or character. No person shall be deprived of this full legal redress for injury incurred in employment for which another person may be liable except as to fellow employees and his immediate employer who hired him if such immediate employer provides coverage under the Workmen’s Compensation Laws of this state. Right and justice shall be administered without sale, denial, or delay.

(Emphasis added.)

It is clear from the minutes of the Constitutional Convention that the second sentence of Section 16 was in response to our decision in Ashcraft v. Montana Power Co. (1971), 156 Mont. 368, 480 P.2d 812. In that case, the plaintiff was injured while working on behalf of his employer on property owned by the Montana Power Company. He sued the power company based on his allegation that its negligence caused his injury. Ashcraft, 156 Mont. at 369, 480 P.2d 812-13. On appeal, this Court held that pursuant to § 92-438, RCM (1947), the power company could not be sued because it had required the plaintiff’s employer to carry workers’ compensation coverage. Ashcraft, 156 Mont, at 371, 480 P.2d at 813. The second sentence of Article II, Section 16, was a response to that decision based on the delegates’ intent that employees not be barred from third-party suits for injuries sustained during the course of their employment. The following minutes from the Constitutional Convention illustrate that point.

In his report to the Convention as a whole, Delegate Murray, representing the Bill of Rights Committee which drafted Section 16, gave the following explanation for the second sentence of that section:

Under Montana law, as announced in the recent decision of Ash-craft versus Montana Power Company, the employee has no redress against third parties for injuries caused by them if his immediate employer is covered under the Workmen’s Compensation law. The committee feels that this violates the spirit of the guarantee of a speedy remedy for all injuries of person, property or character. It is this specific denial, and this one only, that the committee intends to alter with the following additional wording: “No person shall be deprived of his full legal redress for injury incurred in employment for which another person may be liable except as to fellow employees and his immediate employer who hired him if such immediate employer provides coverage under the Workmen’s Compensation laws of this state.” In other words, the committee wants to insure that the Workmen’s Compensation laws of the state will be used for their original purpose — to provide compensation to injured workmen — rather than to deprive an injured worker of redress against negligent third parties, beyond his employer and fellow employees, because his immediate employer is covered by Workmen’s Compensation. ... To permit no remedy against third parties in cases where they employer is covered by Workmen’s Compensation is to encourage persons with rundown premises to contract out work without improving the quality of the premises. The committee urges that this is an abuse of the Workmen’s Compensation law and constitutes a misapplication of that law to protect persons who are negligent. The committee commends this provision to the Convention with the belief that it is an important, if technical, aspect of the administration of justice. Those are the remarks which are contained in the booklet. Let me amplify them by saying basically this: we feel that the right to third-party action is a right which we should establish in our Constitution. It is a right which working men and women who are unfortunate enough to be injured have had for nearly 80 years in this state. We feel that it was wrongly taken away from these people by the Supreme Court decision which was mentioned. We feel that we perhaps are legislating in asking that this be written into our Constitution, but we of the committee really believe that we are acting in a judicial manner in asking that it be written in the Constitution for we feel that this Convention, perhaps, is the court of last resort for injured working men and women in Montana with respect to the third-party lawsuit, and we recommend that the section be adopted.

Montana Constitutional Convention, Vol. V at 1754, March 8, 1972 (emphasis added).

The second sentence of Section 16 was extensively debated. Delegate Habedank moved that it be deleted. That motion was defeated by a vote of 76-14 (Montana Constitutional Convention, Vol. V at 1759, March 8, 1972), and Section 16 was ultimately approved by a vote of 76-21 (Montana Constitutional Convention, Vol. VII at 2644, March 18, 1972).

It is clear from these Convention Minutes that while the United States Supreme Court used statutory benefits as a basis for denying a service member’s claims for damages based on negligence, our constitutional delegates felt that the opposite result was appropriate.

We have considered the impact of Article II, Section 16, on numerous occasions and, without exception, have held that it precludes limitations on claims by injured employees against persons other than the employee’s employer or fellow employee. See Francetich v. State Comp. Mut. Ins. Fund (1992), 252 Mont. 215, 827 P.2d 1279; Meech v. Hillhaven West, Inc. (1989), 238 Mont. 21, 776 P.2d 488; Webb v. Montana Masonry Constr. Co. (1988), 233 Mont. 198, 761 P.2d 343; and Hayes v. Aetna Fire Underwriters (1980), 187 Mont. 148, 609 P.2d 257.

In Webb, 233 Mont, at 204, 761 P.2d at 346, we stated that:

The second sentence of Section 16 speaks loudly and clearly for itself. If there could be any question about what the members intended the sentence to mean, the question can be answered by reference to the transcript of the convention. Delegate Marshall Murray, a Kalispell attorney, moved, on behalf of a unanimous Bill of Rights Committee, for the adoption of Section 16, which amended the 1889 Constitution by adding the workmen’s compensation provision of the second sentence.

We then referred to the same comments by Murray, which are previously cited in this opinion, Webb, 233 Mont, at 204-05, 761 P.2d at 346-47, and then concluded that:

[T]he Ashcraft holding was expressly and specifically overruled by the people of the state with their approval of Article II, Section 16, of the 1972 Constitution, in which they directed that immunity would be restricted to an “immediate employer who hired” the workmen and who had provided coverage.

Webb, 233 Mont, at 207, 761 P.2d at 349.

In Meech, we noted that:

The narrow purpose the delegates ascribed to the change in the remedy guarantee is further reflected in the Proposed 1972 Constitution for the State of Montana, Official Text with Explanation, circulated to the voters prior to the vote on adopting the 1972 Constitution. According to the explanation in the voters’ information pamphlet, the amendment
“Adds to 1889 constitution by specifically granting to a person injured in employment the right to sue a third party causing the injury, except his employer or fellow employee when his employer provides coverage under workmens [sic] compensation laws.”

Meech, 238 Mont, at 40, 776 P.2d at 500 (alteration in original).

Finally, in Francetich we held that limitations on an injured employee’s right to be fully compensated for his injuries in a claim against a third party by allowing subrogation prior to full recovery was precluded by Article II, Section 16. Francetich, 252 Mont, at 224, 827 P.2d at 1285. In language relevant to the issue before us, we stated that:

Section 39-71-414(6)(a), MCA, restricts an injured worker’s right to obtain a full legal redress against third-party tortfeasors. The second sentence of Article II, Section 16, states this cannot be done. The record of the debate at the Convention is clear that this was the delegates’ intent in amending the provision. The second sentence is mandatory, prohibitive, and self-executing and it prohibits depriving an employee of his full legal redress, recoverable under general tort law, against third parties. Finally, as noted above, we recognized and explained this very idea in Meech.

Francetich, 252 Mont at 224, 827 P.2d at 1285 (emphasis added).

We reaffirm that pursuant to the second sentence in Article II, Section 16, of the Montana Constitution, any statute or court decision which deprives an employee of his right to full legal redress, as defined by the general tort law of this state against third parties, is absolutely prohibited. That sentence is mandatory and self-executing, and leaves no room for erosion based on what federal courts or the courts of other states would do pursuant to federal laws or the laws of other states.

For these reasons, we conclude that because James B. Trankel was not employed by the Army National Guard of the State of Montana or the Department of Military Affairs for the State of Montana at the time complained of, his claim against the State of Montana, pursuant to the State Tort Claims Act found at §§ 2-9-101 to -805, MCA, is neither barred by the Feres doctrine, nor our prior decision in Evans. The District Court erred when it concluded otherwise. That part of the District Court’s judgment is reversed.

ISSUE 2

Did the District Court err when it concluded that the plaintiff’s allegations of statutory violations failed to state a claim?

The District Court held that Counts II, III, and IV of the plaintiff’s complaint, based on the Occupational Health Act, §§ 50-70-101 to -118, MCA; the Montana Safety Act found at §§ 50-71-101 to -334, MCA; and the Employee and Community Hazardous Chemical Information Act found at §§ 50-78-101 to -402, MCA, respectively, do not provide separate statutory bases on which to recover damages for personal injury. The District Court held that these acts define various duties of employers which may be relevant in a negligence action, but that since Trankel’s negligence action was barred pursuant to Feres and Evans, Counts II, III, and IV were also barred.

We review a district court’s conclusions of law to determine whether the court’s interpretation of the law is correct. Common Cause of Montana v. Argenbright (1996), 276 Mont. 382, 386, 917 P.2d 425, 427.

Trankel contends that we have previously held that the Safety Act provides an independent basis for a cause of action to recover damages in Cain v. Stevenson (1985), 218 Mont. 101, 706 P.2d 128, and Shannon v. Howard S. Wright Construction Co. (1979), 181 Mont. 269, 593 P.2d 438, and that there is no basis for holding otherwise regarding the other two acts which have the same purpose and provide similar protections.

The State contends that enforcement of the several acts in question is delegated to various state agencies and that when interpreting similar statutory provisions, the U.S. Supreme Court has held that federal statutes did not authorize private causes of action. See Middlesex County Sewerage Auth. v. National Sea Clammers Ass’n (1981), 453 U.S. 1, 101 S.Ct. 2615, 69 L.Ed.2d 435. The State concedes, however, that the statutes may establish a duty for the purpose of proving negligence per se.

In Shannon, the plaintiff was employed by a subcontractor who had subcontracted with the general contractor and defendant, Howard S. Wright Construction Co., to perform plumbing and mechanical work at the Big Sky Resort. Shannon, 181 Mont, at 271, 593 P.2d at 439. Plaintiff was injured when he fell from a ladder while trying to gain access to the second level of a condominium that was under construction. He sued both Wright Construction and Big Sky Resort. During the jury trial, the district court instructed the jury pursuant to § 50-71-201, MCA (the Montana Safety Act), that an employer, including the prime contractor, has a duty to provide employees with a safe place to work. Shannon, 181 Mont, at 281, 593 P.2d at 445. On appeal, the defendants contended that neither of them was an “employer,” as defined by the Safety Act. We held that the “safe place to work” provision of the Safety Act did establish a duty from the prime contractor to employees of subcontractors. Shannon, 181 Mont, at 283,593 P.2d at 445-46. However, we did not distinguish between the duty which forms the basis for a claim of negligence and a duty which gives rise to an independent statutory cause of action.

In Cain, the plaintiff subcontracted to do electrical work for the defendant dining the construction of an apartment building. The defendant was the owner of the building and the general contractor. The plaintiff fell and injured himself while trying to exit the building without the benefit of steps or a ladder and sued the defendant based on allegations of negligence. Cain, 218 Mont, at 102-03, 706 P.2d at 129. From a jury verdict in favor of the plaintiff, the defendant appealed the district court’s conclusion that the safe place to work statute imposed a duty running from the defendant to the plaintiff. The defendant argued that pursuant to the Shannon decision, the statutes only applied in situations where the claim is presented by an employee of a subcontractor and the general contractor had control over the workplace. He contended that it did not apply in this situation where the plaintiff was, himself, the subcontractor. Cain, 218 Mont, at 103, 706 P.2d at 130. We held that the duty established by § 50-71-201, MCA, did apply to the subcontractor in that case while working for the general contractor. Cain, 218 Mont, at 104-05, 706 P.2d at 131. However, once again, we did not discuss whether the duty created simply served as a basis for a claim of negligence, or gave rise to a separate statutory cause of action.

More recently, in Stratemeyer v. Lincoln County (1996), 276 Mont. 67, 79-80, 915 P.2d 175, 182, we held that the Montana Safety Act establishes a duty to provide a workplace which is safe from mental injury, as well as physical injury. It is not clear from the reported opinion whether Stratemeyer alleged failure to comply with § 50-71-201, MCA, as a basis for his negligence claim, or whether he alleged a separate statutory cause of action. However, we stated that:

Stratemeyer contends that his claim is based on Lincoln County’s failure to train, supervise, treat and debrief him following the incident. According to Stratemeyer, the traumatic nature and consequences of responding to the suicide were foreseeable, and post-traumatic stress disorder is a common injury for law enforcement personnel, emergency medical technicians and disaster and emergency services personnel.

Stratemeyer, 276 Mont, at 79,915 P.2d at 182. Areasonable inference from the facts which are reported in the Stratemeyer decision is that the duty alleged in that case formed the basis for Stratemeyer’s claim of negligence.

We conclude that there is no prior authority for the position that statutory acts, such as those in question, create independent causes of action aside from their relationship to proof of negligence, and also conclude, based on our prior decision in Pollard v. Todd (1966), 148 Mont. 171, 418 P.2d 869, that statutory acts, like those included in Counts II, III, and IV of the plaintiff’s complaint, establish duties, the violation of which is negligence per se.

In Pollard, the plaintiff fell from a make-shift scaffolding constructed to the specifications of his employer, the defendant. Pollard, 148 Mont, at 175, 418 P.2d at 871. The defendants were exempt from coverage of the Workers’ Compensation Act, and the plaintiff did not make a claim pursuant to that Act. We held that because of the duties imposed by the “Scaffolding Act,” which was then found at Title 69, Chapter 14, RCM (1947), but is now found at Title 50, Chapter 77, MCA, the Legislature intended an absolute statutory duty upon owners of real estate to protect workmen and others from extraordinary hazards associated with scaffolds, and therefore, that plaintiff was entitled to an instruction that breach of the statutorily-created duty was negligence per se. Pollard, 148 Mont, at 180, 418 P.2d at 873. The acts, which plaintiff alleges in Counts, II, III, and IV of his complaint were violated by the State, provide similar duties which were enacted for similar purposes. We therefore conclude that the violation of those statutes is also negligence per se, and that in the appropriate situation the jury should be so instructed. However, we also conclude, as did the District Court, that the Acts in question do not give rise to causes of action independent from a claim of negligence.

For these reasons, we affirm the District Court’s conclusion that the Occupational Health Act, the Montana Safety Act, and the Employee and Community Hazardous Chemical Information Act did not give rise to independent causes of action. However, we reverse the District Court’s conclusion that claims of negligence, based on violations of these Acts, are barred by the Feres doctrine, or our decision in Evans, and we furthermore reverse the District Court’s conclusion that the sole means of enforcement of the duties imposed by these Acts are the administrative remedies provided therein.

The judgment of the District Court is reversed and this case is remanded to the District Court for further proceedings consistent with this opinion.

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


source: Caselaw Access Project

author: JUSTICE REGNIER

license: Public Domain

text:
    BRUCE L. ERICKSON, M.D., Petitioner and Appellant, v. STATE OF MONTANA ex rel. BOARD OF MEDICAL EXAMINERS, Respondent and Respondent.
    No. 96-199.
    Submitted on Briefs March 4, 1997.
    Decided May 6, 1997.
    54 St.Rep. 395.
    282 Mont. 367.
    938 P.2d 625.

      See C.J.S. Physicians, Surgeons, and Other Health Care Providers § 38.

      For Appellant: John C. Doubek; Small, Hatch, Doubek & Pyfer; Helena.
    For Respondent: Patricia I. England, Staff Attorney; Department of Commerce; Board of Medical Examiners; Helena.
   JUSTICE REGNIER

delivered the Opinion of the Court.

Bruce L. Erickson appeals from an order of the First Judicial District Court, Lewis and Clark County, dated March 13, 1996. The District Court’s order upheld the Montana Board of Medical Examiners’revocation of Erickson’s license to practice medicine. We affirm.

The issues on appeal are:

1. Is a criminal conviction conclusive evidence of unprofessional conduct and sufficient grounds for a revocation of a medical license under § 37-3-323, MCA (1993)?

2. Was the hearing examiner’s conflict of interest prejudicial error requiring reversal of the Board of Medical Examiners decision to revoke Erickson’s medical license?

FACTUAL BACKGROUND

Erickson was a licensed Montana physician and board certified ophthalmologist who operated eye clinics in Great Falls and Helena. On March 12, 1994, he was convicted by a federal jury of knowingly and willfully filing false, fictitious, or fraudulent claims for Medicare payment with the United States Department of Health and Human Services.

On March 17, 1994, the Montana Board of Medical Examiners served Erickson with a notice of proposed board action in which it sought to revoke his license. The notice also included a motion and order of summary suspension of his license, based on his conviction and other alleged misrepresentations made to the Board on license renewal forms.

After being served with the notice, Erickson applied to the First Judicial District Court for a temporary restraining order, asking the court to enjoin the Board from enforcing the March 17,1994, order of summary suspension. The Board eventually stipulated to the entry of a preliminary injunction.

Erickson also requested a hearing before the Board pursuant to the Montana Administrative Procedure Act. The Board appointed J. Dennis Moreen, a Helena attorney, as the hearing examiner. On March 10, 1995, after an administrative hearing was held, the hearing examiner issued his findings of fact, conclusions of law, and proposed order which recommended revocation of Erickson’s license to practice medicine. On May 22, 1995, the Board adopted the examiner’s recommendations and gave Erickson a two-week stay for the purpose of transferring patients and records to other physicians. Erickson again applied to the District Court for a stay of the revocation pending judicial review of the Board’s decision. The stay was granted on June 8,1995.

Erickson filed a petition for judicial review of the Board’s decision on June 2, 1995. While the petition was pending, the Ninth Circuit Court of Appeals affirmed his criminal conviction. The Board notified the District Court of the Ninth Circuit’s decision, arguing that since the conviction was no longer on appeal, it was conclusive evidence of unprofessional conduct and that further judicial review was unnecessary. On March 13, 1996, the District Court affirmed the decision of the Board of Medical Examiners. The District Corut’s decision was based solely on the criminal conviction. Erickson sought certiorari of the Ninth Circuit’s decision to the United States Supreme Court which was denied on May 28, 1996.

Erickson appealed to this Court, arguing that the District Court erred by not conducting a full judicial review and by holding that a criminal conviction in and of itself was sufficient grounds for a license suspension. Erickson was also granted leave to file a supplemental initial brief in which he alleged that the hearing examiner had a conflict of interest. After consideration of the briefs, this Court remanded the case to the District Court for further proceedings on the conflict of interest issue.

The alleged conflict of interest arose from the following facts. As hearing examiner, Moreen conducted hearings on the Erickson case from October 3 through October 6, 1994. In November 1994, Allen Chronister, one of Moreen’s law partners, requested that Erickson send him all the medical records for “R.K.” This was apparently in connection with a potential medical malpractice claim. On March 10, 1995, Moreen issued his findings of fact, conclusions of law, and proposed order in the Erickson case. On May 17, 1996, Moreen submitted an application for review to the Montana Medical Legal Panel on behalf of R.K. and against Erickson.

On November 27, 1996, the District Court issued its findings of fact and conclusions of law on remand. The District Court concluded that the test to determine whether a hearing examiner should be disqualified for a conflict of interest is “whether a reasonable person, knowing all the relevant facts, would harbor doubts about the [hearing examiner’s] impartiality.” The District Court decided that a reasonable person could harbor doubts about Moreen’s impartiality in this case.

ISSUE 1

Is a criminal conviction conclusive evidence of unprofessional conduct and sufficient grounds for a revocation of a medical license under § 37-3-323, MCA (1993)?

When reviewing an administrative agency’s findings of fact, this Court will defer to the agency’s findings unless they are clearly erroneous. Findings of fact are clearly erroneous if they are not supported by substantial credible evidence. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 803 P.2d 601. Our standard for reviewing conclusions of law of an agency or a district court, however, is simply to determine whether they are correct. This is because there is no discretion involved when a tribunal arrives at a conclusion of law, the tribunal either correctly or incorrectly applied the law. Steer, 245 Mont. at 474, 803 P.2d at 603.

Relying on § 37-1-203, MCA, Erickson argues that the Board of Medical Examiners must ascertain whether his conviction relates to the public health, welfare, and safety before making its decision to revoke his medical license. Section 37-1-203, MCA, provides:

Conviction not a sole basis for denial. Criminal convictions shall not operate as an automatic bar to being licensed to enter any occupation in the state of Montana. No licensing authority shall refuse to license a person solely on the basis of a previous criminal conviction; provided, however, where a license applicant has been convicted of a criminal offense and such criminal offense relates to the public health, welfare, and safety as it applies to the occupation for which the license is sought, the licensing agency may, after investigation, find that the applicant so convicted has not been sufficiently rehabilitated as to warrant the public trust and deny the issuance of a license.

In support of his position, Erickson cites Mills v. Commissioner of Insurance (1987), 226 Mont. 387, 736 P.2d 102. In Mills, we held that a license for an insurance agent could not be revoked solely for a conviction of a crime involving moral turpitude, but that the Commissioner of Insurance was required to first make findings on whether the conviction was related to public health, welfare, or safety under § 37-1-203, MCA. The Board argues that under Mills, and the subsequent case of Gilpin v. Board of Nursing (1992), 254 Mont. 308, 837 P.2d 1342, a conviction alone could indeed constitute a bar to licensure.

In Mills and Gilpin, this Court did not distinguish between the statutory criteria for revocation of a license and the statutory criteria for issuing a license for the first time to a person with a previous criminal conviction or relicensing a person after a revocation. Therefore, Erickson’s reliance on Mills seems well grounded. However, a closer review of the statutes applicable to license issuance and license revocation discloses that there are different considerations involved. The real question, overlooked in Mills and Gilpin, is whether § 37-1-203, MCA, applies to, and thereby modifies, the Board of Medical Examiners’ power to revoke a medical license under § 37-3-323, MCA (1993).

Part 2, Chapter 1, of Title 37 deals with the licensure of criminal offenders and is found in the General Provisions section of Title 37, which deals with Professions and Occupations. The legislative history reveals that the rationale behind the enactment of § 37-1-203, MCA, was to provide ex-offenders the opportunity to rehabilitate themselves after they have paid their debt to society. Hearings on H.B. 395 before the Thirty-third Meeting of the House Judiciary Committee, statement by bill sponsor Mike Meloy (February 17,1975). For § 37-1-203, MCA, to have any bearing in this case, it must be found to be applicable to licensure revocations, and in this instance, to the revocation of a medical license.

Chapter 3 of Title 37 governs the medical profession. Section 37-3-323, MCA (1993), sets forth the procedure that the Board of Medical Examiners must follow when revoking or suspending a medical license. Under § 37-3-323, MCA (1993), the Board may investigate when there is a “reason to suspect that a person having a license or certificate to practice medicine” has engaged in a practice or has committed an offense listed under subsection (1). In this case, Erickson is appealing the decision of the Board, affirmed by the District Court, to revoke his medical license. Erickson is not a rehabilitated ex-offender appealing the denial of the issuance or reissuance of his medical license due to a past criminal conviction. In both Mills and Gilpin, we improperly mixed the statutory criteria for revocation and the statutory criteria for licensing a person previously convicted of a criminal offense in the first instance or relicensing after a revocation. This was wrong and we, therefore, hold that § 37-1-203, MCA, does not apply to the revocation of a license, such as in Erickson’s case.

This matter originated when the Board of Medical Examiners served notice on Erickson that it would revoke his license for, among other things, his conviction in the Federal District Court for Medicare fraud in violation of 18 U.S.C. § 287 (1994). The Board adopted the hearing examiner’s farther conclusions that, by reason of his criminal conviction of Medicare fraud, Erickson was guilty of unprofessional conduct as a doctor within the meaning of § 37-3-322(7), MCA (1993), and was unfit to practice medicine. Section 37-3-322(7), MCA (1993), defined “unprofessional conduct” to include a “conviction of an offense involving moral turpitude or conviction of a felony involving moral turpitude, and the judgment of the conviction, unless pending on appeal, is conclusive evidence of unprofessional conduct.” The District Corut affirmed the Board’s order.

The precise language of § 37-3-323(4), MCA (1993), authorized the Board to revoke Erickson’s license. Section 37-3-323(4), MCA (1993), stated in relevant part:

At the hearing, the board shall adopt a resolution finding the accused guilty or not guilty of the matters charged.... If the board finds that the offenses or conditions referred to in 37-3-322 ... do exist and the person is found guilty, the board shall:
(a) revoke the person’s license [.]

Under a straightforward statutory analysis, Erickson’s conviction was “unprofessional conduct” as defined in § 37-3-322(7), MCA (1993), and conclusive evidence of the same. Section 37-3-323(4), MCA (1993), requires by the use of the word “shall” that the Board can revoke a license if an offense or condition referenced in § 37-3-323, MCA (1993), exists and the licensee is guilty of it. Nothing in § 37-3-323, MCA (1993), refers to or suggests that there are additional criteria which must be considered before a license can be revoked. Nor is there any cross-reference in § 37-3-323, MCA (1993), to § 37-1-203, MCA.

Both the legislative history and the statutory framework disclose that § 37-1-203, MCA, and § 37-3-323, MCA (1993), serve different purposes. Section 37-1-203, MCA, was passed by the Legislature to provide ex-offenders, who have lost their license or are seeking a license for the first time, an opportunity to rehabilitate themselves after they have paid their debt to society. Section 37-3-323, MCA (1993), provides the criteria to be followed by the Board of Medical Examiners in the revocation or suspension of a medical license. A person who has had his license revoked under § 37-3-323, MCA (1993), as a result of a criminal conviction would be entitled to be considered under the provisions of § 37-1-203, MCA, when he has been rehabilitated and seeks a new license.

Therefore, this Court is not persuaded by Erickson’s argument that the Board of Medical Examiners must make a determination whether a conviction specifically relates and affects the public’s health, safety, and welfare before action may be taken to revoke a license. Furthermore, we expressly overrule Mills v. Commissioner of Insurance (1987), 226 Mont. 387, 736 P.2d 102, which holds that a license cannot be revoked solely for conviction of a felony involving moral turpitude, but requires a further finding that the conviction was related to public health, welfare, or safety. We also overrule Gilpin v. Board of Nursing (1992), 254 Mont. 308, 837 P.2d 1342, insofar as it relied on Mills in addressing a revocation rather than a licensing of a person previously convicted of a criminal offense in the first instance or a relicensing after a revocation.

ISSUE 2

Was the Hearing Examiner’s conflict of interest prejudicial error requiring reversal of the Board of Medical Examiners’ decision to revoke Erickson’s medical license?

We previously remanded this case to the District Court for additional findings of fact and conclusions of law regarding the conflict of interest claim brought by Erickson. Erickson argues that the hearing examiner had a conflict of interest which requires reversal of the hearing examiner’s findings and a remand to the Board of Medical Examiners. The Board contends that Erickson bears the burden of proving that a substantial right was prejudiced by the conflict of interest and that such a showing has not been made.

On remand, the District Court relied on § 2-4-611(4), MCA, regarding the disqualification of hearing examiners, and decided that a person could reasonably question the hearing examiner’s impartiality in this case. Section 2-4-611(4), MCA, states:

On the filing by a party... in good faith of a timely and sufficient affidavit of personal bias, lack of independence, disqualification by law, or other disqualification of a hearing examiner or agency member, the agency shall determine the matter as a part of the record and decision in the case. The agency may disqualify the hearing examiner or agency member and request another hearing examiner pursuant to subsection (2) or assign another hearing examiner from within the agency. The affidavit must state the facts and the reasons for the belief that the hearing examiner should be disqualified and must be filed not less than 10 days before the original date set for the hearing.

Erickson first raised the issue of the hearing examiner’s alleged conflict of interest in his supplemental brief filed with this Court, long after the hearing was held.

On remand, the District Court should have addressed the issue under § 2-4-704(1), MCA, rather than under § 2-4-611(4), MCA. Under this section, the alleged conflict of interest could be addressed as an irregularity in procedure before the agency and an alleged “unlawful procedure” or “affected by other error of law.” However, this error of procedure was harmless to the District Court’s analysis and findings.

Although the District Court found that the hearing examiner had a conflict of interest, this Court concludes that the substantial rights of Erickson were not prejudiced by the conflict of interest. The mere existence of an error does not mandate reversal; the error must cause substantial prejudice. In re Petition of Carruthers v. Board of Horse Racing (1985), 216 Mont. 184, 188, 700 P.2d 179, 181. Here, Erickson cannot show prejudice. As discussed above, the conviction, which is not pending on appeal, is conclusive evidence of unprofessional conduct. Erickson can show no prejudicial effect of any conflict of interest by the hearing examiner because of the conclusive nature of the evidence against him. Where the evidence is conclusive and objective, bias or conflict of interest on the part of a hearing examiner will not adversely affect the outcome of the case at hand.

We hold that, in revoking Erickson’s license, the Board of Medical Examiners and the District Court properly considered the criteria for the revocation of a license under § 37-3-323, MCA (1993).

We affirm the order of the District Court revoking Erickson’s license to practice medicine in Montana.

JUSTICES NELSON, GRAY, TRIEWEILER and THOMAS A. OLSON, District Judge sitting for CHIEF JUSTICE TURNAGE, JOHN S. HENSON, District Judge sitting for JUSTICE HUNT and JOHN W. WHELAN, District Judge sitting for JUSTICE LEAPHART concur.


author: JUSTICE GRAY

text:
    MARY SWANK and FARMERS INSURANCE EXCHANGE, a reciprocal or inter-insurance exchange, Plaintiffs and Appellants, v. CHRYSLER INSURANCE CORPORATION, Defendant and Respondent.
    No. 96-173.
    Submitted January 30, 1997.
    Decided May 6, 1997.
    54 St.Rep. 390.
    282 Mont. 376.
    938 P.2d 631.

      See C.J.S. Insurance § 472.

      For Appellants: William J. Gregoire (argued), Dennis P. Clarke; Smith, Walsh, Clarke & Gregoire, Great Falls.
    For Respondent: Robert F. James (argued); James, Gray & McCafferty, Great Falls.
   JUSTICE GRAY

delivered the Opinion of the Court.

Mary Swank and her insurer, Farmers Insurance Exchange, appeal from the judgment entered by the Eighth Judicial District Court, Cascade County, on its order granting Chrysler Insurance Corporation’s motion for summary judgment. We reverse and remand with instructions.

FACTS

The facts are not in dispute. On June 22, 1994, Mary Swank (Swank) was test-driving a vehicle owned by Haggarty Motors (Haggarty), an automobile dealership in Great Falls. During the test-drive, she was involved in an accident with Bonnie May (May). May subsequently filed suit against Swank.

Chrysler Insurance Corporation (Chrysler) was Haggarty’s automobile liability insurer on the date of the accident. Swank made a demand on Chrysler for coverage and a defense against May’s suit. Chrysler refused the demand. Thereafter, Farmers Insurance Exchange (Farmers), Swank’s personal automobile insurer, undertook the defense of May’s suit on Swank’s behalf.

Swank and Farmers (collectively, hereafter, Swank) filed a declaratory judgment action in the District Court alleging that Swank was an insured under the Chrysler policy and that Chrysler’s refusal to provide coverage violated § 61-6-301, MCA, Montana’s mandatory motor vehicle liability insurance statute. Swank also alleged that, under the terms of the Chrysler and Farmers policies, the Chrysler policy should provide primary coverage, and the Farmers policy secondary coverage, for the accident. In its answer, Chrysler denied that Swank was entitled to coverage under its policy.

The parties filed cross-motions for summary judgment and the District Court granted Chrysler’s motion. It concluded that Farmers must provide primary coverage to Swank and that Chrysler would be liable only to the extent coverage was necessary to reach the statutorily-required minimum coverage. Swank appeals.

STANDARD OF REVIEW

Summary judgment is proper when no genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P. We review a district court’s grant of summary judgment de novo and apply the same Rule 56(c), M.R.Civ.P., criteria used by that court. Jarrett v. Valley Park, Inc. (1996), 277 Mont. 333, 338, 922 P.2d 485, 487 (citing Matter of Estate of Lien (1995), 270 Mont. 295, 298, 892 P.2d 530, 532). Ordinarily, such a review requires that we first determine whether the moving party met its burden of establishing the absence of genuine issues of material fact and entitlement to judgment as a matter of law. Jarrett, 922 P.2d at 487.

In this case, however, the facts are undisputed. Through their cross-motions for summary judgment, each party asserted entitlement to judgment as a matter of law. Therefore, our review is confined to the District Court’s conclusions of law. We review a district court’s conclusions of law to determine whether the court’s interpretation of the law is correct. Carbon County v. Union Reserve Coal Co., Inc. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.

DISCUSSION

Did the District Court err in granting Chrysler’s motion for summary judgment?

In granting Chrysler’s motion, the District Court determined that Farmers must provide coverage to Swank because the Chrysler policy, by its terms, provides no coverage where there is other insurance meeting the statutory mínimums. In making that determination, the court implicitly concluded that the Chrysler policy met the requirements of § 61-6-301, MCA.

Haggarty is the named insured under the Chrysler policy, which contains the standard Montana endorsement providing that it conforms to the minimum requirements of Montana law and that any nonconforming provision is amended to conform. The policy’s standard insuring clause for covered autos provides that Chrysler will pay all suns an insured legally must pay as damages.

Under the Chrysler policy, an “insured” is defined expansively to include, in addition to Haggarty, anyone using a covered auto owned by Haggarty with Haggarty’s permission. Thereafter, however, customers using such vehicles with permission (permissive use customers) are expressly excluded from the definition of “insureds;” they become “insureds” only if they are uninsured or underinsured and, in that event, the coverage provided is limited to the amounts required by financial responsibility laws. Thus, Chrysler’s definition of “insured” generally excludes Haggarty’s permissive use customers from coverage and extends coverage only when, and to the extent, they are uninsured or underinsured. We refer to these provisions below as the exclusion-limitation language relating to permissive use customers.

On appeal, Swank asserts that § 61-6-301, MCA, and Bill Atkin Volkswagen, Inc. v. McClafferty (1984), 213 Mont. 99, 689 P.2d 1237, require Chrysler to provide her coverage for the accident without regard to the existence of her own liability policy. Chrysler argues that its policy meets the requirements of Montana law because it provides coverage to customers using vehicles with permission if they do not have insurance of their own and that Bill Atkin Volkswagen is distinguishable.

Section 61-6-301(1), MCA, provides that:

[A]n owner of a motor vehicle that is registered and operated in Montana by the owner or with the owner’s 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 ... in an amount not less than that required by 61-6-103 ....

We addressed § 61-6-301(1), MCA, in Bill Atkin Volkswagen, which involved whether a permissive user of an automobile dealer’s vehicle was an insured as defined in the dealer’s policy. Given Swank’s position that that case is dispositive here, we first discuss its applicability.

William McClafferty (McClafferty) had left his vehicle for repair at Bill Atkin Volkswagen (Atkin VW), a Butte automobile dealership. While driving a loaner vehicle owned by the dealership, McClafferty was involved in an accident which admittedly was his fault. Bill Atkin Volkswagen, 689 P.2d at 1238. McClafferty was sued by the owner of the other vehicle and tendered defense of the suit to Universal Underwriters Insurance Company (Universal), Atkin VW’s insurer. Bill Atkin Volkswagen, 689 P.2d at 1238. Universal denied coverage and McClafferty’s own insurer defended the case. The dealership also commenced an action against McClafferty and coverage issues arose in third-party pleadings. Bill Atkin Volkswagen, 689 P.2d at 1238.

In pertinent part, the liability policy issued by Universal extended coverage to any person “required by law” to be an insured while using a covered automobile with the dealer’s permission. Bill Atkin Volkswagen, 689 P.2d at 1239. Universal argued that § 61-6-301, MCA, did not require it to insure all permissive users and that the statute was satisfied by McClafferty and Atkin VW each maintaining coverage. Bill Atkin Volkswagen, 689 P.2d at 1239. The district court concluded that § 61-6-301, MCA, requires an automobile dealer to provide liability coverage for permissive users and, as a result, that McClafferty was an insured under the Universal policy. Bill Atkin Volkswagen, 689 P.2d at 1240.

On appeal by Universal, we determined that § 61-6-301, MCA, requires coverage by the owner where a vehicle is operated with the owner’s permission, observing that no statutory exception existed for situations in which the operator was covered under a separate liability policy. Thus, the fact that the operator of the vehicle maintained his own policy did not exempt the owner from the statutory requirement of insuring against liability resulting from permissive use of its vehicles .Bill Atkin Volkswagen, 689 P.2d at 1239. Because § 61-6-301, MCA, required Atkin VW to maintain a liability insurance policy extending coverage to a person using a loaner vehicle with the dealer’s permission, we held that McClafferty was an “insured” under the Universal policy defining insured as any person required by law to be an insured. Bill Atkin Volkswagen, 689 P.2d at 1240.

Our holding in Bill Atkin Volkswagen does not resolve the question presently before us. We did nothing more in Bill Atkin Volkswagen than reiterate the statutory language contained in § 61-6-301, MCA, determine that no statutory exception existed for a permissive user who had his own liability policy, and apply the statute to the facts before us. Because § 61-6-301, MCA, required coverage, the permissive user was an insured under the Universal policy definition of insured as “any person required by law to be an insured.”

Here, the Chrysler policy maintained by Haggarty contains substantially different language. It first defines “insured” to include all permissive users of Haggarty’s vehicles. This language clearly meets the requirements of § 61-6-301, MCA, and Bill Atkin Volkswagen. The Chrysler policy goes on, however, to exclude permissive use customers such as Swank from the definition of insured; it then extends coverage to her if, and to the extent, other insurance is not available which meets the mandatory minimum coverage required by Montana law. Thus, the threshold issue is whether this exclusion-limitation language in the Chrysler policy satisfies the requirements of § 61-6-301, MCA.

As set forth above, § 61-6-301(1), MCA, requires the owner of a vehicle operated with its permission to continuously provide insurance against loss resulting from liability caused by use of the vehicle in an amount not less than that required by § 61-6-103, MCA. This plain statutory language requires Haggarty’s Chrysler policy to provide coverage to any person operating a covered auto with Haggarty’s permission in an amount not less than the statutory minimum.

The Chrysler policy at issue, however, extends coverage to permissive use customers of Haggarty-owned vehicles only if they are uninsured or underinsured and, in that event, coverage is provided only up to the statutorily-mandated minimum. It is clear that the Chrysler policy does not extend coverage to any customer using a Haggarty-owned vehicle with its permission. It initially excludes customers and then extends coverage only to certain of those customers; namely, permissive use customers who do not provide their own liability coverage or who are underinsured. It is equally clear that, as to those underinsured customers to whom coverage is extended, the coverage extended may be less than that required by statute in Montana by virtue of the language limiting coverage to “the amount by which the compulsory or financial responsibility law limits exceed the limit of their other insurance.” In this regard, the Chrysler policy sets a “ceiling” level of coverage rather than the “floor” — or minimum — amount of coverage required by the “not less than” language in § 61-6-301(1), MCA, and that ceiling level of coverage can be less than the statutory minimum. We conclude that the definition of “insured” contained in the Chrysler policy does not meet the requirements of § 61-6-301(1), MCA.

Our prior decisions interpreting insurance policies in the context of mandatory liability coverage establish that policy language which excludes statutorily-mandated coverage is void as contrary to public policy. Allstate Ins. Co. v. Hankinson (1990), 244 Mont. 1, 4, 795 P.2d 480, 482 (citing Horace Mann Ins. v. Hampton (1989), 235 Mont. 354, 767 P.2d 343; Iowa Mutual Ins. Co. v. Davis (1988), 231 Mont. 166, 752 P.2d 166). On that basis, it is clear that the exclusion-limitation language in the Chrysler policy is void as contrary to public policy and unenforceable, because that language excludes or limits coverage mandated by § 61-6-301(1), MCA, for permissive operators of vehicles.

The effect of our conclusion that the exclusion-limitation portions of the definition of an insured in the Chrysler policy are void and unenforceable remains to be resolved. Chrysler argues that, in the event we determine there is coverage for Swank under its policy, coverage is limited to the minimum amount of coverage mandated by §§ 61-6-103 and 61-6-301, MCA. Swank contends that the full general liability policy limits contained in the Chrysler policy apply.

We recently rejected the argument Chrysler advances here. In Leibrand v. Nat. Farmers Union (1995), 272 Mont. 1, 10-11, 898 P.2d 1220, 1226, we determined that certain amendatory policy endorsements were unenforceable and then addressed the effect of that determination on the amount of coverage to be extended. Addressing the insurers’ argument that the unenforceable provisions were invalid only to the extent coverage was required under Montana’s mandatory liability protection laws, we adopted as “more persuasive [that line of cases] which hold that when insurance policy exclusions are unenforceable, the policy should be enforced according to the remainder of its terms.” We quoted at length from Meyer v. State Farm Mutual Auto Ins. Co. (Colo. 1984), 689 P.2d 585, where, in the context of policy language invalid by virtue of violating statutory requirements, the Colorado Supreme Court stated that:

[O]ur choice of rules is supported by the well-established principle of contract law that where a provision in a contract is void because it is contrary to public policy, the remaining portions of the agreement are enforceable to the extent the illegal provision can be separated from the valid promises. [Citations omitted.]

Leibrand, 898 P.2d at 1226 (citing Meyer, 689 P.2d at 593). On that basis, we concluded that the full amount of general liability coverage in the policies at issue was available to the insureds. Leibrand, 898 P.2d at 1227.

Applying Leibrand to the present case, we conclude that the void and unenforceable exclusion-limitation language relating to Haggarty’s permissive use customers in the Chrysler policy can be easily separated from the remaining portions of the policy. Deleting those offending provisions leaves an insured defined, in pertinent part, as “[a]nyone else while using with your permission a covered ‘auto’....” This definition of insured fully meets the requirements of § 61-6-301, MCA, and Bill Atkin Volkswagen. We conclude, therefore, that Swank must be extended coverage to the full amount provided for under the general liability amount contained in the Chrysler policy.

Nor, in light of Leibrand, can Chrysler limit its liability exposure by relying on the Montana endorsement in its policy which states that any policy provision not conforming to the minimum requirements of a Montana statute “is amended to conform to such statute.” Leibrand is controlling and requires that Chrysler extend coverage to the policy limits. Leibrand, 898 P.2d at 1226-27. We have “conformed” the Chrysler policy accordingly. At most, application of Lei-brand’s mandate that the policy be enforced “according to the remainder of its terms” would result in a conflict between the provision limiting Chrysler’s responsibility to the statutory minimum and the general liability limits provision. In such a circumstance, the legislative intent to maximize rather than minimize coverage (see Leibrand, 898 P.2d at 1226 (citing Meyer, 689 P.2d at 593)) would necessitate extending coverage in the larger amount. To do otherwise would permit Chrysler to limit its liability to the statutory minimum after having failed in its effort, through artful drafting, to avoid the statutory requirements altogether or limit those requirements in a manner not authorized by statute.

The final question before us is how coverage for Swank should be coordinated between the Farmers and Chrysler policies. Recalling that the vehicle Swank was driving in this case was owned by Haggarty, not Swank, we turn first to the language contained in each policy. Swank’s Farmers policy states that the insurance it provides for any vehicle not owned by Swank “shall be excess over any other collectible insurance.” The Chrysler policy’s “Other Insurance” clause provides that “[flor any covered ‘auto’ you own, this Coverage Form provides primary insurance [;]” it also contains a pro rata share provision in the event the Chrysler policy and any other policy “covers on the same basis, either excess or primary ....”

The language of both policies is clear and unambiguous and, when applied to the facts of this case, produces consistent results. Swank was driving a vehicle not owned by her at the time of her accident with May. Furthermore, based on our earlier conclusion, the Chrysler policy provides collectible insurance other than Swank’s Farmers policy. Thus, pursuant to the Farmers “Other Insurance” provision, the Farmers insurance is excess over the Chrysler insurance. The Chrysler policy, on the other hand, states clearly that, for any covered auto “you own,” it provides primary insurance. ‘You” is defined as the named insured, Haggarty, and it is undisputed that Haggarty owned the vehicle Swank was driving at the time of the accident. Thus, pursuant to its terms, the Chrysler policy provides primary coverage.

Chrysler contends that, because its policy does not afford coverage to a Haggarty permissive use customer operating a Haggarty-owned vehicle who has her own policy, the vehicle was not a “covered auto” under the terms of the policy. This contention is not further developed, explained or supported. Having concluded above that the Chrysler policy must extend coverage to Swank, we need not attempt to decipher the meaning of this contention or address it further.

Chrysler also contends that the pro rata share provision in its policy is applicable by its terms and pursuant to Bill Atkin Volkswagen. First, we observe that Chrysler characterizes its policy as providing that “if there is other insurance for an accident, that Chrysler will not be ‘primary,’ but instead it will pay pro rata with the other company.” The actual policy language differs significantly from Chrysler’s paraphrasing of it, however; it states that “[w]hen this Coverage Form and any other Coverage Form or policy covers on the same basis, either excess or primary, we will pay only our share.” (Emphasis added.) We concluded above that, pursuant to the plain language of both policies, the Chrysler policy provides primary coverage and the Farmers policy provides excess coverage. Thus, this case does not involve two policies covering “on the same basis, either excess or primary” and, therefore, the pro rata share provision in the Chrysler policy is inapplicable. Moreover, the Bill Atkin Volkswagen discussion of pro rata sharing is inapposite here. There, we held that where both the vehicle owner’s policy coverage and the operator’s policy coverage are excess with respect to a particular event, each insurer is liable for a pro rata share of the loss. Bill Atkin Volkswagen, 689 P.2d at 1242. Again, because the Farmers and Chrysler policies do not provide coverage on the same basis, a pro rata sharing of coverage does not result here. Based on the plain language of the two policies, we conclude that Chrysler must provide primary coverage to Swank up to its policy limits, with Farmers responsible for excess coverage.

We hold that the District Court erred in granting Chrysler’s motion for summary judgment.

As a final matter, we observe that, where all of the facts bearing on the resolution of the legal issues are before us, this Court has the power to reverse a district court’s grant of summary judgment and direct it to enter summary judgment in favor of the other party. Matter of Estate of Langendorf (1993), 262 Mont. 123, 128, 863 P.2d 434, 438; Duensing v. Traveler’s Companies (1993), 257 Mont. 376, 386, 849 P.2d 203, 210. The material facts in this case are undisputed and, indeed, both parties moved for summary judgment in the District Court on that basis. For the reasons set forth herein, we hold that Swank is entitled to summary judgment.

Reversed and remanded for entry of summary judgment in Swank’s favor consistent with this opinion.

CHIEF JUSTICE TURNAGE, JUSTICES HUNT, REGNIER, NELSON, TRIEWEILER and LEAPHART concur.


author: JUSTICE LEAPHART

text:
    TUNGSTEN HOLDINGS, INC., Plaintiff and Appellant, v. MARIE PARKER, Defendant and Respondent.
    No. 96-556.
    Submitted on Briefs April 10, 1997.
    Decided May 6, 1997.
    54 St.Rep. 399.
    282 Mont. 387.
    938 P.2d 641.
    See C.J.S. Dedication § 22.

      For Appellant: Scott B. Spencer, Attorney at Law, Libby.
    For Respondent: William A. Douglas; Douglas Law Firm, Libby.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Tungsten Holdings, Inc. (Tungsten) filed a “Complaint for Declaratory Judgment and Quiet Title” seeking to quiet title to a parcel of property owned by Marie Parker, or in the alternative, for declaration that Tungsten had the right to an easement for purposes of ingress and egress across the disputed property. The matter was tried to the District Court sitting without a jury and, after having personally viewed the property in the presence of the parties, the District Court entered findings of fact, conclusions of law and an order denying Tungsten’s prayer for judgment quieting title and also denying Tungsten’s claim of right of easement to use the property in question for ingress and egress. We affirm.

Tungsten does not challenge the District Court’s findings of fact but does contend that the District Court erred in its conclusions of law.

The following facts, which are undisputed, are excerpted from the District Court’s findings of fact:

1. Tungsten and Parker each own real estate along the banks of Warland Creek, a drainage located in Lincoln County, [Montana] approximately 25 miles north of Libby near the Lake Koocanusa Reservoir.
2. Tungsten owns two separate parcels, lot 21, consisting of approximately 10 acres, and lots 27 and 28, consisting in total of approximately 22 acres. Lot 21 is separated from lots 27 and 28 by Parker’s property to the south, and by Forest Service property to the north.... [T]he distance between lot 21 and lots 27 and 28 is approximately 1500 feet. Parker’s property spans this entire distance.
3. Tungsten’s property and Parker’s property are located within a bizarrely divided tract of land known as “the McAlmond Claim.” The first recorded plat for the McAlmond Claim is dated May 12, 1967.
4. Several amended plats for the McAlmond Claim were recorded since the original, the most recent of which was recorded with the Lincoln County Clerk and Recorder on October 23,1968. The 1968 plat, identified as plat 1453, shows a serpentine lot, 40 feet wide and approximately 2700 feet in length, consisting of 2.695 acres, extending from the eastern boundary of lot 21 to the western boundary of the McAlmond Claim. This parcel, identified as lot 34 of the McAlmond Claim, traverses the entire northern boundary of Parker’s property and serves as a boundary between property to the north and property to the south of lot 34. None of the plats recorded prior to the 1968 plat showed lot 34 or anything which resembles a roadway in the location now occupied by lot 34.
5. On August 5, 1992, Parker obtained title to lot 34 of the McAlmond Claim by Tax Deed, and since that date, she has been the record owner of lot 34. A notation on the tax deed for lot 34 contains the word “ROAD” in the property description. ...
6. Neither the deed by which lots 27 and 28 were conveyed to Tungsten in 1993, nor any of the previous deeds by which those parcels were transferred to Tungsten’s predecessors in interest, reference the existence of a roadway. All of the deeds by which lots 27 and 28 were conveyed to Tungsten and its predecessors in interest reference various plats on record with the Lincoln County Clerk and Recorder. None of the plats referenced in the deeds conveying lots 27 and 28 mention the existence of a road where lot 34 is located.

Although there is nothing in the 1968 amended plat which specifically identifies lot 34 as a roadway, the District Court found that it was clear that lot 34 was intended to be a roadway. The court stated, “[t]here is no other conceivable purpose a parcel of this configuration (a meandering 40’ wide strip of land extending some 2700’) could reasonably serve. Furthermore, without a roadway at this location, a number of lots, not just lots 27 and 28, would be landlocked and inaccessible.”

The court further found that lot 34 generally follows along a creek bottom, and while it is badly overgrown with brush and small trees, it shows some evidence of prior usage as a roadway at some point in the distant past. Who used the road and when it was used is unknown. It is unclear if lot 34 could have been a usable roadway in 1968, when plat 1453 was filed. If lot 34 were used as a road as recently as 1968, it would have had to have been an unimproved roadway by today’s standards. Lot 34 is unusable as a roadway in its current condition and would require extensive improvement in order to be made usable as a roadway.

Tungsten purchased lots 27 and 28 in 1993. There is no evidence that Tungsten or any of its predecessors in interest ever used lot 34 to access lots 27 and 28. Further, there is no evidence that lot 34 was ever created or dedicated as a county roadway or that it was used by the general public.

DISCUSSION

The District Court held, and Tungsten does not dispute, that the fact that Parker’s tax deed for lot 34 contains the notation “ROAD” in the property description does not, by itself, make lot 34 a dedicated roadway or create access for use of lot 34 as a roadway. Rather, Tungsten argues that lot 34 is a dedicated roadway created by the filing of plat 1453 in the year 1968. Tungsten argues that the filing of plat 1453 constituted a dedication of lot 34 as a road. While the District Court found that it is reasonably clear that lot 34 was intended by the developers of the McAlmond Claim to serve as a roadway, we agree with the District Court that there is no evidence that lot 34 was ever dedicated or used as a roadway. Rather, lot 34 is identified as a separate parcel of property, the title to which was legally acquired by Parker.

An easement by reservation must arise from the written documents of conveyance. Ruana v. Grigonis (1996), 275 Mont. 441, 447, 913 P.2d 1247, 1251. Deeds which reference plats are deemed to convey all easements which are established by the recording of the plat. Ruana, 913 P.2d at 1253.

Plat 1453 is the only plat showing lot 34 and this plat does not identify or dedicate lot 34 as being a road. Neither the deed nor the plat reference the existence of a road easement. The mere fact that lot 34’s long and narrow configuration gives it the appearance of a roadway or that the developers may have intended it as roadway is not sufficient. Easements by reservation must be created or reserved in writing. Tungsten can point to no deed or plat which contains any language dedicating or identifying lot 34 as a roadway.

The District Court’s conclusions of law are correct. The Order of the District Court is affirmed.

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


text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DAVID ROLLYN PALM LEE, Defendant and Appellant.
    No. 96-557.
    Submitted on Briefs March 20, 1997.
    Decided May 6, 1997.
    54 St.Rep. 401.
    282 Mont. 391.
    938 P.2d 637.

      See C.J.S. Motor Vehicles § 593(1, 2).
    For Appellant: Francis J. McCarvel, Attorney at Law; Glasgow.
    For Respondent: Hon. Joseph P. Mazurek, Attorney General; Christina Lechner Goe, Assistant Attorney General; Helena; Ken Oster, Valley County Attorney; C. David Gorton, Deputy County Attorney; Glasgow.
   JUSTICE REGNIER

delivered the Opinion of the Court.

David Lee was cited with driving while under the influence of alcohol pursuant to § 61-8-401, MCA, on April 30, 1995. After a hearing, the Valley County Justice Court denied Lee’s motion to suppress evidence of the arresting officer’s field observations and subsequent breathalyzer test result and found Lee guilty. Lee appealed this determination to the District Court. Prior to trial at the District Court, Lee again moved to suppress this evidence. The Seventeenth Judicial District Court, Valley County, denied Lee’s motion to suppress evidence due to lack of probable cause for the stop, concluding that the arresting officer, acting on information from a citizen informant coupled with his own observation and experience, could infer suspicion of criminal conduct giving rise to Lee’s arrest. The District Court heard the case de novo pursuant to § 25-33-301, MCA, and found Lee guilty. Lee appeals from the sentence and judgment of the District Court and from the order denying his motion to suppress evidence. We reverse.

The issue on appeal is whether Patrolman Collins had a particularized suspicion to justify an investigative stop of Lee’s vehicle.

BACKGROUND

At 11:46 p.m. on April 29, 1995, Montana Highway Patrolman Arthur Collins received a report from law enforcement dispatchers that an anonymous citizen informant had called to notify the police that a purple Chevrolet Camero with a tan convertible top, driven by David Lee, was heading toward Glasgow on the Fort Peck highway. The complainant believed Mr. Lee was under the influence of alcohol, and speeding. Collins determined that Lee lived in Glasgow, and responded by heading south on the Fort Peck highway from Glasgow.

Less than one-half hour later after receiving the report, Collins observed Lee’s vehicle heading northbound on the Fort Peck Highway toward Glasgow. The officer, using radar, determined the vehicle’s speed to be 52 miles per hour. At that time, the nighttime speed limit was 55 miles per hour. The officer made a U-turn in the roadway and sped up behind the vehicle. As Collins came within two or three car lengths behind Lee’s vehicle, Lee slowed to approximately 35 miles per hour. There were no other vehicles on the highway. At this time, Collins activated his overhead lights and pulled Lee off the road. After stopping the vehicle, Officer Collins was able to identify the driver as Lee, the man described in the dispatch report. Subsequently, Collins arrested Lee for driving while under the influence of alcohol.

DISCUSSION

Did Patrolman Collins have a particularized suspicion to justify an investigative stop of Lee’s vehicle?

The standard of review for a district court’s denial of a motion to suppress is whether the court’s findings of fact are clearly erroneous and whether those findings were correctly applied as a matter of law. State v. Flack (1993), 260 Mont. 181, 185-88, 860 P.2d 89, 92-94.

Lee argues that the District Court erred in denying his motion to suppress and in finding him guilty of driving under the influence of alcohol. Lee claims that Officer Collins did not have a particularized suspicion to justify an investigatory stop pursuant to § 46-5-401, MCA. Section 46-5-401, MCA, provides:

Investigative stop. In order to obtain or verify an account of the person’s presence or conduct or to determine whether to arrest the person, a peace officer may stop any person or vehicle that is observed in circumstances that create a particularized suspicion that the person or occupant of the vehicle has committed, is committing, or is about to commit an offense.

The Fourth Amendment applies to seizures of the person, including brief investigatory stops such as the stop of a vehicle. Reid v. Georgia (1980), 448 U.S. 438, 440, 100 S. Ct. 2752, 2753, 65 L. Ed. 2d 890, 893. An investigatory stop must be justified by some objective manifestation that the person stopped is, or is about to be, engaged in a crime. Brown v. Texas (1979), 443 U.S. 47, 51, 99 S. Ct. 2637, 2640, 61 L. Ed. 2d 357, 362. For sufficient cause to stop a person, the detaining police officers must have a particularized and objective basis for suspecting the particular person stopped of criminal activity. Brown, 443 U.S. at 51, 99 S.Ct. at 2640-41.

In United States v. Cortez (1981), 449 U.S. 411, 101 S. Ct. 690, 66 L. Ed. 2d 621, the United States Supreme Court set forth a two-part test to evaluate whether the police have sufficient cause to stop a person. First, the assessment must be based upon all circumstances. Cortez, 449 U.S. at 418, 101 S.Ct. at 695. Second, the assessment of the whole picture must raise a suspicion that the particular individual being stopped is engaged in wrongdoing. Cortez, 449 U.S. at 418, 101 S.Ct. at 695.

This Court adopted the test laid out in Cortez in State v. Gopher (1981), 193 Mont. 189, 631 P.2d 293. In asserting that an officer had the particularized suspicion to make an investigatory stop, the State has the burden to show:

(1) objective data from which an experienced officer can make certain inferences; and
(2) a resulting suspicion that the occupant of a certain vehicle is or has been engaged in wrongdoing or was a witness to criminal activity.

Gopher, 193 Mont, at 194, 631 P.2d at 296.

Whether a particularized suspicion exists is a question of fact which depends on the totality of circumstances. State v. Reynolds (1995), 272 Mont. 46, 899 P.2d 540. In Reynolds, the arresting officer himself observed a pickup track driven by the defendant, which the officer testified was “bordering on traveling too fast” for conditions. A short time later the officer met the vehicle again, and testified that the defendant waited at an intersection for seven to ten seconds before proceeding. The officer observed no other violations of law or driving anomalies. The driver was arrested and later convicted of driving under the influence of alcohol. This Court reversed the district court’s finding of substantial credible evidence which supported particularized suspicion. We concluded that under the totality of circumstances, a possible traffic violation combined with no other objective data could not support a particularized suspicion that a driver had been engaged in wrongdoing.

This Court has recognized that an arresting officer may rely on information conveyed by a reliable third person, including an anonymous citizen informant, in forming the basis for a particularized suspicion to justify an investigative stop. See Boland v. State (1990), 242 Mont. 520, 792 P.2d 1; State v. Ellinger (1986), 223 Mont. 349, 725 P.2d 1201. For example, this Court has determined that a citizen report of a DUI, the reported vehicle observed half-way off the road, and the vehicle pulling away when an officer approached is sufficient to establish a particularized suspicion. State v. Sharp (1985), 217 Mont. 40, 702 P.2d 959. Likewise, two anonymous phone calls corroborated by officers and evidence of excessive speed were sufficient grounds for a justifiable stop. State v. Shaffer (1987), 227 Mont. 221, 738 P.2d 491. In both Sharp and Shaffer, the information provided by the citizen informant was corroborated by independent observation of wrongdoing or illegality by the officer in order to meet the particularized suspicion standard.

In the case before us, the anonymous caller stated that she “believed Lee was under the influence of alcohol and speeding.” This statement, along with a description of the car and the direction it was heading, was all the information that was provided to the dispatcher. The dispatcher relayed this information to Officer Collins. The caller did not provide the dispatcher with any basis for her belief that Lee was driving under the influence of alcohol or speeding. At the time of the call, the informant did not state whether she had personally observed Lee drinking or that he was speeding or driving erratically. The informant merely believed that Lee was speeding and under the influence of alcohol.

Before Officer Collins stopped Lee, he did not have any contact with the informant to assess whether the information provided was reliable or had any basis in fact. Officer Collins saw a car matching the informant’s description traveling north on the Fort Peck highway and turned around to follow it. Collins testified that the car was not speeding, weaving, or swerving. When the patrol car accelerated to get behind the vehicle driven by Lee, Lee slowed down to 35 miles per hour. Outside of this deceleration, Officer Collins observed no violations of the law or driving anomalies. Lee did not exhibit patterns consistent with a person driving while under the influence of alcohol; there was no evidence of erratic driving.

The State argues that information based on the personal observations of a citizen informant and corroborated by Collins’s identification of the suspect vehicle, combined with Lee’s slowing down, gives rise to a particularized suspicion on Collins’s part to make an investigative stop. However, Lee’s act of slowing down after observing Collins’s police car making a U-tum and speeding up to come within two to three car lengths behind his vehicle, certainly is not illegal and provides no evidence of wrongdoing or illegality on Lee’s part. The citizen informant stated that she believed that Lee was speeding and drunk. No other information was provided by the informant as a basis for this belief. When Officer Collins observed Lee driving, he was not speeding, nor did he exhibit any characteristics of driving while under the influence of alcohol. In this instance, there was no objective data from which the officer could reach any conclusion justifying the investigative stop. Therefore, we conclude that under the totality of the circumstances, as applied to the facts in this case, information provided by the citizen informant alone, with no other objective data, does not support a particularized suspicion that Lee had been engaged in wrongdoing.

Because Officer Collins did not have facts supporting a particularized suspicion that Lee had committed, was committing, or was about to commit an offense, we therefore hold that the investigative stop of Lee’s vehicle was not justified pursuant to § 46-5-401, MCA. We reverse and remand with instructions to enter an order of dismissal consistent with this opinion.

JUSTICES HUNT, LEAPHART, NELSON and TRIEWEILER concur.