author: JUSTICE WEBER

text:
    STATE OF MONTANA, ex rel. MARVIN WAYNE FLETCHER, THOMAS RAYMEYER, WILLIAM ALAN SCHIKORA, JR., DALE DEAN ORSBORN, LOWELL LAWSON, JAMES DANIEL DONEY, STEVEN JAMES DONEY, LOWELL ALLEN McMILLAN, MARK DOUGLAS BRICKEY, MICHAEL DAVID SEEFELDT, RUSSELL CARLTON SMITH, BETTY JEAN REICHEL, KRAIG ALAN WOOD, JOHN TICE HENDRICKS, PATRICK DANIEL PRIOR, RANDY DEAN NIXON, KEVIN DEAN WALSTON, LARRY LELAND LANMAN, PATRICIA LYNN SEEFELDT, a/k/a TUNI SEEFELDT, DRU ALLEN ORR, ALBERT HARRIS WATT, MICHAEL DAVID KNOCK, RICHARD CARL ERICKSON, and WILLIAM REICHEL, Petitioners, v. DISTRICT COURT OF THE NINETEENTH JUDICIAL DISTRICT OF THE STATE OF MONTANA, IN AND FOR THE COUNTY OF LINCOLN, THE HONORABLE JUDGE ROBERT S. KELLER, Presiding, Respondent.
    No. 93-121.
    Dated August 26, 1993.
    50 St.Rep. 992.
    260 Mont. 410.
    859 P.2d 992.

      For Petitioners: Ann C. German, L. Charles Evans, William A. Douglas and Charles Sprinkle, Douglas & Sprinkle; Donald L. Shaffer, and Amy N. Guth, Lincoln County Public Defender, Libby; Donald Vemay, and Richard DeJana, Kalispell; John Smith, Missoula; and David Stenerson, Hamilton.
    For Respondent: Joseph P. Mazurek, Atty. Gen., Barbara C. Harris, Asst., Helena; Scott Spencer, Lincoln County Atty.; Robert S. Keller, Dist. Judge; and Lucille Briggs, Libby.
   OPINION AND ORDER

On March 10,1993, the Petitioners applied for a writ of supervisory control after entry of an Order filed in the Nineteenth Judicial District Court on March 5, 1993, denying the motions of the twenty-four Petitioners to dismiss various drug cases and one burglary case because of outrageous government conduct. This Court issued an Order on March 11, 1993, staying the proceedings in the District Court and giving the District Court, the Attorney General, and the Lincoln County Attorney time to file responses to the petition for a writ.

On May 4,1993, upon motion by the Attorney General, this Court stayed further proceedings on the petition and lifted the stay of proceedings in the District Court for the limited purpose of allowing the District Court to consider motions to dismiss which were filed by the Lincoln County Attorney at the direction of the Attorney General. The District Court held a hearing on the motions to dismiss on May 5, 1993. During that hearing, the District Court dismissed the informations pending against Petitioners Patrick Prior and John Hendricks, because of the length of their pre-hearing incarceration.

As to the remaining twenty-two Petitioners, the District Court initially denied the motions to dismiss, seeking guidance from this Court on the issue of outrageous government conduct. However, the District Court gave the Attorney General one week to file a brief in support of the motions to dismiss.

The Attorney General filed a brief in support of the motions and explained that he had reviewed the record in these cases and the applicable law on the issue of outrageous government conduct. As a result of that review, the Attorney General stated that he directed the Lincoln County Attorney not to use any evidence generated by or derived from Bradley Tilton (the Tilton evidence), the confidential informant in these cases. The Attorney General requested that, given the absence of other sufficient, untainted evidence on which to continue the prosecutions, the cases against the Petitioners be dismissed without prejudice.

Nevertheless, the District Court, by written Order and Memorandum, denied the motions to dismiss on June 14, 1993. In that Memorandum, the district judge stated that he had to “guess” this Court’s position on outrageous government conduct and requested our guidance on that issue.

On June 23, 1993, this Court ordered responses to the original petition for writ of supervisory control. The Petitioners, the Attorney General, the Lincoln County Attorney, and the District Court filed briefs.

The applicable standard of review is whether the District Court, in denying the Lincoln County Attorney’s motions to dismiss, abused its discretion. State v. Schwictenberg (1989), 237 Mont. 213, 216, 772 P.2d 853, 856.

One purpose of supervisory control is:

... to enable this court to control the course of litigation in the inferior courts where those courts are proceeding within [their] jurisdiction, but by mistake of law, or willful disregard of it, are doing a gross injustice, and there is no appeal or the remedy of appeal is inadequate.

State ex rel. Forsyth v. District Court (1985), 216 Mont. 480, 484, 701 P.2d 1346, 1348. In these cases, the Attorney General determined that there was insufficient, untainted evidence to maintain the prosecutions. He also concluded that the interests of justice and society were served when unsupported charges are dismissed. Finally, the Attorney General determined that forcing the continuation of the Petitioners’ cases would result in unnecessary expenditures of time and resources.

Under such circumstances, it was appropriate that the Attorney General direct the Lincoln County Attorney to file motions to dismiss the various cases against the Petitioners. We conclude that the District Court violated the doctrine of separation of powers and abused its discretion in refiising to grant the Lincoln County Attorney’s motions to dismiss. We hold that, while proceeding within its jurisdiction, the District Court was doing so under a mistake of law; that continuing these prosecutions would result in gross injustice; that the remedy of appeal is inadequate; and that our exercise of supervisory control is appropriate in this case.

In reaching these conclusions, we first look to the legal authority and responsibility of the county attorney in commencing, prosecuting, and controlling criminal cases. We then consider the authority of the Attorney General in supervising county attorneys. Next, we examine the statutory basis for dismissal of felony charges, and we then discuss the doctrine of separation of powers and abuse of discretion by the District Court. Finally, we respond to the District Court’s request for guidance on the issue of outrageous government conduct.

I — AUTHORITY AND RESPONSIBILITY OF THE COUNTY ATTORNEY

In Montana, a county attorney “not only directs under what conditions a criminal action [is] commenced, but from the time it begins until it ends his supervision and control is complete, limited only by such restrictions as the law imposes.” Halladay v. State Bank of Fairfield (1923), 66 Mont. 111, 118, 212 P. 861, 863. It is not only incumbent upon the county attorney to determine when or when not to prosecute a case, but when the facts of a case support a possible charge of more than one crime, the crime to be charged is a matter of prosecutorial discretion. State v. Booke (1978), 178 Mont. 225, 230, 583 P.2d 405, 408.

While prosecuting attorneys have broad discretionary powers, such powers are not without limit. It has been held that a prosecutor should seek justice and not simply an indictment or a conviction. Preston v. State (Alaska 1980), 615 P.2d 594, 601.

The duties and responsibilities of a prosecutor are aptly summarized as follows:

The prosecutor’s role is a unique one within the criminal justice system. Though the [county] attorney must diligently discharge the duty of prosecuting individuals accused of criminal conduct, the prosecutor may not seek victory at the expense of the defendant’s constitutional rights, [citations omitted] Thus, the prosecution is obligated to respect the defendant’s right to a fair and impartial trial in compliance with due process of law. [citations omitted] Moreover, the prosecutor may not bring criminal charges against an individual unless supported by probable cause, and, once charges are instituted, must reveal to the court any information which negates the existence of probable cause, [citations omitted] ...
[T]he role of the prosecutor ... [is not] simply a specialized version of the duty of any attorney not to overstep the bounds of permissible advocacy... In all his activities, his duties are conditioned by the fact that he “is the representative not of any ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all...” [citations omitted] Thus, the prosecutor must execute the duties of his representative office diligently and fairly, avoiding even the appearance of impropriety that might reflect poorly on the state.

People v. Trevino (Cal. 1985), 704 P.2d 719, 724-25, overruled on other grounds, People v. Johnson (Cal. 1989), 767 P.2d 1047, 1057.

Where the state determines that, in gathering evidence in a criminal case, the defendant’s constitutional rights were likely violated and that there is insufficient, untainted evidence remaining on which to continue the prosecution or sustain a conviction, then the furtherance of justice and the integrity of the criminal justice system require the prosecutor to exercise the broad discretion which he or she possesses under the law and to seek dismissal of the charges.

II — SUPERVISORY AUTHORITY OF THE ATTORNEY GENERAL

Here, that mandate was clearly recognized by the Attorney General. In Montana, the attorney general has statutory authority to supervise and direct county attorneys in all matters pertaining to the duties of their office.

Section 2-15-501, MCA, provides, in pertinent part:

It is the duty of the attorney general:... (4) to exercise supervisory powers over county attorneys in all matters pertaining to the duties of their offices and from time to time require of them reports as to the condition of public business entrusted to their charge. The supervisory powers granted to the attorney general by this subsection include the power to order and direct county attorneys in all matters pertaining to the duties of their office. The county attorney shall, when ordered or directed by the attorney general, promptly institute and diligently prosecute in the proper court and in the name of the state of Montana any criminal or civil action or special proceeding.

Under § 2-15-501(4), MCA, the Attorney General was well within his authority to review the cases against the Petitioners and to direct the Lincoln County Attorney not to use the Tilton evidence. Similarly, the Attorney General was well within his authority to then conclude that there was insufficient, untainted evidence on which to continue prosecution of these cases and to direct the Lincoln County Attorney to file motions to dismiss the charges against the Petitioners.

Ill — STATUTORY BASIS FOR DISMISSAL OF FELONY CHARGES

Section 46-13-401, MCA, provides, in pertinent part:

(1) The court may, either on its own motion or upon the application of the prosecuting attorney and in furtherance of justice, order a complaint, information, or indictment to be dismissed. However, the court may not order a dismissal of a complaint, information, or indictment, charging a felony, unless good cause for dismissal is shown and the reasons for the dismissal are set forth in an order upon the minutes.

Thus, dismissal of felony charges is allowed in the furtherance of justice and upon a showing of good cause. Schwictenberg, 772 P.2d at 856.

The showing of good cause and the furtherance of justice required under § 46-13-401(1), MCA, by the state, while minimal because of the prosecutor’s responsibilities and broad discretionary powers regarding the charging and maintaining of criminal actions as outlined above, is, nevertheless, mandated, and should the district court find that either the good cause or furtherance of justice elements are not met, then the court properly exercises its discretion in denying the motion.

Here, the Attorney General’s conclusion that there was a basis on which outrageous government conduct would likely be found in connection with Tilton’s activities in these cases which, in turn, resulted in the Attorney General’s direction to the Lincoln County Attorney that the Tilton evidence not be used and which left insufficient, untainted evidence remaining, certainly meets the good cause and furtherance of justice requirements of § 46-13-401(1), MCA. Notwithstanding, the District Court denied the prosecutor’s motions.

IV — SEPARATION OF POWERS AND ABUSE OF DISCRETION

In denying the lawful motions to dismiss filed in Petitioners’ cases, the District Court intruded on the prosecutorial discretion of the Attorney General and the Lincoln County Attorney and, in so doing, violated the separation of powers between the executive and judicial branches of government.

Article III, Section 1 of the Montana Constitution provides:

The power of the government of this state is divided into three distinct branches — legislative, executive, and judicial. No person or persons charged with the exercise of power properly belonging to one branch shall exercise any power properly belonging to either of the others, except as in this constitution expressly directed or permitted.

It has been said that the principle of the separation of powers is fundamental to the existence of constitutional government. National Mut. Ins. Co. v. Tidewater Transfer Co. (1949), 337 U.S. 582, 590, 69 S.Ct. 1173, 1177, 93 L.Ed. 1556, 1567. Each branch constitutes a check or balance upon the other branches, in order that no one branch has too much power in its hands. Parker v. Riley (Cal. 1941), 113 P.2d 873. 877.

The Attorney General and the Lincoln County Attorney are members of the executive branch, and the district judge is a member of the judicial branch. In the legitimate exercise of his authority, the Attorney General concluded that taking Petitioners’ cases to trial was without proper evidentiary basis and, therefore, inconsistent with the interests of justice. This decision was well within the powers granted to the Attorney General under his authority to supervise county attorneys in criminal matters.

Similarly, in the legitimate exercise of his authority, and pursuant to the direction of the Attorney General, the Lincoln County Attorney moved to dismiss the various cases against the Petitioners. As we have stated above, because the Tilton evidence could not be used, and because there was insufficient other untainted evidence on which to continue the prosecutions, the Lincoln County Attorneys motions met the good cause and furtherance of justice requirements of § 46-13-401(1), MCA.

Under such circumstances, the District Court’s denial of the motions to dismiss and its consequent intervention in the Attorney General’s legitimate decision to direct the Lincoln County Attorney to dismiss the cases against the Petitioners was improper and constituted an abuse of discretion. While under § 46-13-401(1), MCA, the district court may, for good cause and in the furtherance of justice, dismiss a felony criminal charge on its own motion, it does not follow that the district court may deny a motion to dismiss filed by the prosecutor when that motion meets the good cause and furtherance of justice elements of the statute. When they are acting lawfully and within their constitutional and statutory authority, the district court may not interfere in the prosecutorial functions of the Attorney General and the county attorney — the executive branch — without violating the separation of powers embodied in Article III, Section 1 of the Constitution of the State of Montana. To hold otherwise would erode that fundamental constitutional mandate.

V — REQUEST FOR GUIDANCE ON OUTRAGEOUS GOVERNMENT CONDUCT

Finally, in refusing to dismiss the charges against the Petitioners, the District Court requested our guidance on the issue of outrageous government conduct. Having disposed of Petitioners’ application for supervisory control on the basis that the District Court violated the doctrine of separation of powers and abused its discretion in denying the Lincoln County Attorneys motions, we decline to discuss outrageous government conduct. This Court does not issue advisory opinions. Sink v. School District No. 6 (1982), 199 Mont. 352, 362, 649 P.2d 1263, 1268. The District Court’s desire for further guidance and development of the doctrine of outrageous government conduct must await a case and controversy directly involving that issue.

IT IS HEREBY ORDERED THAT the petition for writ of supervisory control should be and is hereby GRANTED as to the twenty-two remaining Petitioners, and this matter is remanded to the District Court for dismissal, without prejudice, of the actions pending against those Petitioners.

IT IS HEREBY FURTHER ORDERED THAT the petition for writ of supervisory control as to Defendants Prior and Hendricks should be and is hereby DISMISSED, as the actions pending against them have already been dismissed by the District Comb.

IT IS HEREBY FURTHER ORDERED THAT the Clerk mail a copy hereof to counsel of record for the Petitioners; Joseph P. Mazurek, Attorney General; Scott Spencer, Lincoln County Attorney; and to the Honorable Robert S. Keller, District Judge.

DATED this 26th day of August, 1993.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, TRIEWEILER, HUNT and HARRISON concur.

JUSTICE WEBER

specially concurs as follows:

I concur with and join in the Opinion and Order of the majority with the exception of Part IV — Separation of Powers and Abuse of Discretion.

I agree that because the Tilton evidence could not be used, and because there was insufficient other untainted evidence on which to continue prosecutions, the County Attorney’s motions met the good cause and furtherance of justice requirements of § 46-13-401(1), MCA. I also agree with the conclusion that the denial of that motion by the District Court constituted an abuse of discretion. I do not agree with the separation of powers discussion and holding which follows.

In substance the majority concludes that the District Court may not interfere in the prosecutorial functions of the Attorney General and the County Attorney without violating the separation of powers embodied in Article III, Section 1 of the Montana Constitution. That constitutional issue was not raised and a decision upon that issue is not required by this opinion.

As pointed out in the majority opinion, under § 46-13-401(1), MCA, the District Court is granted authority to dismiss a criminal complaint or information when such dismissal is in furtherance of justice and good cause for dismissal is demonstrated. Clearly that section requires an exercise of discretion by the District Court. Here this Court has agreed that denial of the motion was an abuse of discretion. I am unable to see how such an abuse of discretion under authority specifically given to the District Court somehow becomes interference in the prosecutorial functions and a violation of the separation of powers embodied in Article III, Section 1. If it was a constitutional breach to have denied the motion, then it would appear that if the court on its own motion makes an order of dismissal as provided in the statute, then it could be charged with violating the separation of powers doctrine. I would not so hold.

I would exclude any reference to the separation of powers doctrine in the majority opinion. With that exception, I join in the Opinion and Order.


source: Caselaw Access Project

author: JUSTICE GRAY

license: Public Domain

text:
    CITY OF HELENA, Plaintiff and Respondent, v. JOHN T. LEWIS, Defendant and Appellant. CITY OF HELENA, Plaintiff and Respondent, v. CLAIRE BRISENDINE, Defendant and Appellant.
    Nos. 92-407 and 92-443.
    Submitted on Briefs May 20, 1993.
    Rehearing Denied Oct. 15, 1993.
    Decided September 20, 1993.
    50 St.Rep. 1103.
    260 Mont. 421.
    860 P.2d 698.

      For Defendants and Appellants: Patrick F. Flaherty, Great Falls.
    For Plaintiff and Respondent: Joseph P. Mazurek, Attorney General, Patricia J. Jordan, Asst. Attorney General, and Robert Wood, Assistant City Attorney, Helena.
   JUSTICE GRAY

delivered the Opinion of the Court.

Appellants Claire Brisendine and John Lewis appeal from separate orders of the First Judicial District Court, Lewis and Clark County, finding Claire Brisendine guilty of criminal trespass and disorderly conduct and John Lewis guilty of criminal trespass. The appeals were consolidated pursuant to order of this Court. We affirm.

We phrase the issues on appeal as follows:

1) Did the District Court err in granting the City’s motion in limine to prohibit the Defendants from introducing evidence regarding the defenses of necessity and justifiable use of force?

2) Did the District Court properly instruct the jury in Lewis’ case?

3) Did the Defendants possess the requisite mental state for conviction under the criminal trespass and disorderly conduct statutes?

4) Did the prosecution wrongfully withhold exculpatory material from the Defendants in violation of Brady v. Maryland?

Claire Brisendine (Brisendine) and John Lewis (Lewis) attended a demonstration at the Intermountain Planned Parenthood Clinic (Clinic) in Helena, Montana, on December 6, 1991. “No trespassing” signs were posted around the perimeter of the property, and a statewide injunction forbidding all but patients and staff from entering the Clinic premises also was posted. People in groups of three, Lewis and Brisendine included, had joined themselves together at the neck with bicycle locks and were sitting in triangular patterns in front of the doorway to the Clinic. The Helena City Police were called to the Clinic and informed the demonstrators that they were trespassing. Both Brisendine and Lewis refused to leave when asked to do so by the Clinic director and the police. The Helena Fire Department arrived and cut off the bicycle locks. Lewis and Brisendine, among others, were arrested. Brisendine was charged in City Court with criminal trespass and disorderly conduct; Lewis was charged with criminal trespass.

After their convictions in City Court, both Brisendine and Lewis appealed to the District Court. Brisendine was represented by counsel in District Court; Lewis appeared pro se throughout the proceedings. In both cases, the City promptly filed a motion in limine requesting the District Court to prohibit Brisendine and Lewis from making any references to the propriety of abortion or any other matters that were not relevant to the charges of criminal trespass and disorderly conduct. In response to the City’s motion in limine, Brisendine filed notice of the affirmative defense of justifiable use of force under § 45-3-102, MCA, and also filed a motion to dismiss the charges.

In Brisendine’s case, District Court Judge Jeffrey Sherlock granted the City’s motion in limine and denied Brisendine’s motion to dismiss. At a bench trial held July 31, 1992, Brisendine waived her right to a jury trial and stipulated that she had been on the Clinic’s private property and had obstructed ingress and egress to the Clinic. Over the City’s objection, Brisendine made an offer of proof, testifying briefly as to the motivations behind her actions. On August 3,1992, the District Court issued an order finding Brisendine guilty of disorderly conduct and criminal trespass and reinstating the sentence previously imposed by the City Court. Her sentence was stayed pending appeal.

In Lewis’ case, District Court Judge Thomas Honzel granted the City’s motion in limine. The charge against Lewis proceeded to trial, and the jury found him guilty of criminal trespass. The court sentenced Lewis to 180 days in jail, with 179 days suspended and credit for one day served, imposed a $300 fine, and assessed jury costs. Judgment against Lewis was entered on June 23, 1992. Both Brisendine and Lewis appealed.

On November 5,1992, this Court granted Lewis’ and Brisendine’s motion to consolidate the two cases. Although they presented distinct arguments regarding their defenses to the District Court, Brisendine and Lewis have filed a consolidated brief on appeal. Therefore, for purposes of discussing their arguments, Brisendine and Lewis will be referred to collectively as the Defendants.

Did the District Court err in granting the City’s motion in limine to prohibit the Defendants from introducing evidence regarding the defenses of necessity and justifiable use of force?

In Brisendine’s case, the District Court reasoned that her opposition to the motion in limine centered around her argument that Roe v. Wade (1973), 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147, was incorrectly decided. The District Court concluded that the activities at the Clinic were legal, and that it could not overrule Roe v. Wade. For that reason, the court ruled that the defense of necessity was not appropriate, nor was reference to any other matter dealing with the abortion process. In granting the City’s lengthy motion in limine, the District Court allowed Brisendine to indicate why she was acting as she did on December 6, 1991, but prohibited her from an “extended foray” into the issues surrounding abortion. In Lewis’ case, the District Court also granted an identical motion in limine, but did so without explanation of record.

On appeal, the Defendants primarily challenge the following provision of the motion in limine, which excluded all

“legal arguments” or “legal documents” deemed inadmissible as a matter of law, including but not limited to the “necessity defense,” “justifiable use of force” defense, treaties, biblical or moral justification for their actions, arguments that abortion is illegal, Roe v. Wade is bad law, or that the charges filed against the Defendant are unconstitutional.

The Defendants assert that they were improperly “gagged” from referring to their defenses at trial. The City asserts that because the defenses are inapplicable as a matter of law, they are necessarily irrelevant under Rule 402, M.R.Civ.R, and, therefore, properly excluded by the motions in limine.

“The purpose of a motion in limine is to prevent the introduction of evidence which is irrelevant, immaterial, or unfairly prejudicial.” Feller v. Fox (1989), 237 Mont. 150, 153, 772 P.2d 842, 844. Accordingly, the authority to grant or deny a motion in limine “rests in the inherent power of the court to admit or exclude evidence and to take such precautions as are necessary to afford a fair trial for all parties.” Feller, 772 P.2d at 844, quoting Wallin v. Kinyon Estate (1974), 164 Mont. 160, 165, 519 P.2d 1236, 1238. Thus, we will not overturn a district court’s grant of a motion in limine absent an abuse of discretion. See Feller, 772 P.2d at 844; State v. Oman (1985), 218 Mont. 260, 264, 707 P.2d 1117, 1119. Keeping this standard in mind, we review the District Courts’ decisions to exclude the evidence regarding their asserted defenses.

This Court recently clarified the applicability of the “necessity” defense in Montana and concluded that the defense has been codified in § 45-2-212, MCA. State v. Ottwell (1989), 240 Mont. 376, 379, 784 P.2d 402, 404. In Ottwell, we explained that the defenses of necessity, justification, compulsion, duress, and the “choice of two evils” have been merged statutorily and labeled “compulsion” under § 45-2-212, MCA. Ottwell, 784 P.2d at 404. Thus, the common law elements and distinctions between the aforementioned defenses are no longer applicable in Montana, with one exception which is inapplicable here. Ottwell, 784 P.2d at 404; see also State v. Pease (1988), 233 Mont. 65, 71, 758 P.2d 764, 768. Therefore, we apply the elements of § 45-2-212, MCA, to the case before us.

Montana’s compulsion statute reads:

A person is not guilty of an offense, other than an offense punishable with death, by reason of conduct which he performs under the compulsion of threat or menace of the imminent infliction of death or serious bodily harm if he reasonably believes that death or serious bodily harm will be inflicted upon him if he does not perform such conduct.

Section 45-2-212, MCA. The compulsion defense does not include imminent threats of harm to a third party. State v. Spalding (1991), 247 Mont. 317, 321, 806 P.2d 1029, 1032. The statute does not excuse criminal conduct unless the person asserting the defense reasonably believes that death or serious bodily injury will be inflicted upon him if he does not perform the criminal act.

The Defendants have not alleged that they reasonably believed that death or serious bodily injury would be inflicted upon them if they did not trespass on the Clinic’s property. Therefore, the defense of compulsion, which the Defendants characterize as the defense of necessity and/or justification, does not apply to this case. We conclude that the District Court did not err in concluding that the “necessity” defense was inappropriately raised by the Defendants.

The Defendants rely exclusively on a Kansas district court case, City of Wichita v. Tilson (Kan. Dist. Ct. 1992), No. 91 MC 108, to support their argument on appeal. This reliance is misplaced for several reasons. First, the result is based on the court’s analysis of the common law defense of “choice of evils,” which the court alternatively denominates as “justification by necessity.” As explained, these defenses are included in the statutory amalgamation of § 45-2-212, MCA, in Montana; the common law elements are not recognized here. In addition, the case is presently on appeal to the Kansas Supreme Court. Moreover, the Kansas Legislature recently amended its trespass statute to specifically include “remaining upon private land or structure in a manner that interferes with access to or from any health care facility.” (See Kansas H.B. 2646 Sec. 6(a)(2), which became effective July 1,1992, after the Tilson defendant’s criminal acts occurred). As conceded by Kansas trial court, the same facts may very well yield different results under the amended statute.

Finally, the great weight of authority is decidedly against the Kansas district court’s reasoning in City of Wichita. The following cases have rejected the choice of evils or necessity defense in similar factual situations: Allison v. City of Birmingham (Ala. Crim. App. 1991), 580 So.2d 1377; Cleveland v. Municipality of Anchorage (Alaska 1981), 631 P.2d 1073; Pursley v. State (Ark. App. 1987), 730 S.W.2d 250; People v. Garziano (Cal. App. 1991), 230 Cal.App.3d 241, 281 Cal.Rptr. 307; State v. Anthony (Conn. App. 1991), 588 A.2d 214; Gaetano v. United States (D.C. App. 1979), 406 A.2d 1291; Hoover v. State (Ga. App. 1991), 402 S.E.2d 92; People v. Krizka (Ill. App. 1980), 416 N.E.2d 36; Sigma Reproductive Health Center v. State (Md. App. 1983), 467 A.2d 483; City of St. Louis v. Klocker (Mo. App. 1982), 637 S.W.2d 174; State v. Thomas (N.C. App. 1991), 405 S.E.2d 214; State v. Sahr (N.D. 1991), 470 N.W.2d 185; City of Kettering v. Berry (Ohio App. 1990), 567 N.E.2d 316; State v. Clowes (Or. 1990), 801 P.2d 789; Commonwealth v. Wall (Pa. Super. 1988), 539 A.2d 1325; Crabb v. State (Tex. App. 1988), 754 S.W.2d 742; Buckley v. City of Falls Church (Va. App. 1988), 371 S.E.2d 827.

The Defendants also argue that the District Court erred in excluding evidence regarding “justifiable use of force.” In the District Court, Brisendine filed notice of her intent to assert this afiirmative defense, relying on § 45-3-102, MCA. On appeal, the Defendants mention the defense in passing but do not explain its applicability to their situation; nor do they cite any applicable authority.

Section 45-3-102, MCA, reads in pertinent part:

A person is justified in the use of force or threat to use force against another when and to the extent that he reasonably believes that such conduct is necessary to defend himself or another against such other’s imminent use of unlawful force. ...

The plain language of the statute clearly limits the applicability of the defense to situations in which the aggressor’s force is “unlawful.” As noted by the Criminal Law Commission Comments to § 45-3-102, MCA, unlawful includes either criminal or tortious force or threat of force. See also State v. Kills On Top (1990), 243 Mont. 56, 94, 793 P.2d 1273, 1299.

Even assuming the Defendants’ acts of criminal trespass properly could be characterized as the use of force against the Clinic and, similarly, that the Clinic’s activities could be characterized as the use of force, the Defendants have not proved or even alleged that any of the Clinic’s activities were “-unlawful” under § 45-3-102, MCA. Because all statutory elements must be satisfied to assert the defense of justifiable use of force, we need not analyze the remaining elements of the defense; justifiable use of force is simply not applicable to the facts of this case.

The Defendants also assert several “historical defenses” — comparing abortion to nazism, slavery, and euthanasia — and arguments concerning when life begins and the constitutionality of the criminality of their conduct. We concur with the City’s characterization of these arguments; all are based on the Defendants’belief thatNoe v. Wade was wrongly decided. The District Court’s conclusion that it could not overturn the United States Supreme Court’s decision in Roe v. Wade is equally applicable to this Court. That prerogative is left to the United States Supreme Court which, quite recently, reaffirmed the essential holding of Roe v. Wade in Planned Parenthood v. Casey (1992), 505 U.S. _, _, 112 S.Ct. 2791, 2804, 120 L.Ed.2d 674, 694.

Behind the Defendants’ appeal is their choice to pursue their personal beliefs in violation of the law. We repeat the language of the Superior Court of Pennsylvania, which stated:

We live in a society of laws and no individual is entitled to raise himself above the law. We are each bound by the law no matter its source. If we were free to pick and choose which laws we wished to obey, the result would be a society of strife and chaos ... Democracy allows the citizenry to protest laws of which they disapprove. But they must nonetheless obey such laws or face the legal consequences.

Commonwealth v. Markum (Pa. Super. 1988), 541 A.2d 347, 350. The Alaska Supreme Court also acknowledged the citizen’s right to protest a law if he or she believes the protest is necessary in pursuit of a moral cause, but emphasized that:

[t]hey [philosophers and religionists discussing civil disobedience] have been in general agreement that while in restricted circumstances a morally motivated act contrary to law may be ethically justified, the action must be non-violent and the actor must accept the penalty for his action. In other words, it is commonly conceded that the exercise of a moral judgment based upon individual standards does not carry with it legal justification or immunity from punishment for breach of the law.

Cleveland, 631 P.2d at 1084.

The same reasoning applies to the Defendants here. Lewis and Brisendine are entitled to hold and act upon their personal beliefs. Those personal beliefs, however, do not afford the Defendants immunity from the law. They must accept the legal consequences of their choice to trespass on the Clinic’s property.

Having concluded that none of the defenses asserted by the Defendants are applicable to this case, we hold that the District Courts did not abuse their discretion in granting the City’s motions in limine.

Did the District Court properly instruct the jury in Lewis’ case?

The Defendants argue that the District Court erred in refusing to instruct the jury on Lewis’ theory of the case. The Defendants do not, however, identify which instructions were wrongly given or wrongly refused. Therefore, we can only assume that this argument merely carries forward the Defendants’ earlier arguments concerning the defenses of necessity and justifiable use of force.

A district court need not instruct on an issue if the subject matter of the instruction is not applicable to the facts or not supported by the evidence introduced at trial. See Webcor Electronics v. Home Electronics (1988), 231 Mont. 377, 381, 754 P.2d 491, 493. Having determined that the defenses asserted by the Defendants are not applicable to the facts of this case, we conclude that the District Court did not err in instructing the jury.

Did the Defendants possess the requisite mental state for conviction under the criminal trespass and disorderly conduct statutes?

The Defendants assert that they did not possess the requisite intent under either § 45-6-203, MCA, or § 45-8-101, MCA. They claim that because they did not “intend to break the law,” they did not possess a criminal “mens rea” and their convictions should be set aside. This argument verges on the frivolous, as those concepts of criminal mental state were replaced long ago. See State v. Crabb (1988), 232 Mont. 170, 176, 756 P.2d 1120, 1124.

Under the criminal trespass statute, § 45-6-203, MCA, the City had to establish that the Defendants “knowingly” remained unlawfully upon the premises of another. Under § 45-8-101(f), MCA, the disorderly conduct statute, the City had to show that Brisendine “knowingly” disturbed the peace by blocking free ingress or egress to a private place. Testimony established that the Defendants remained on the Clinic’s property after they were told they were trespassing and were asked to leave. Brisendine stipulated that she knowingly blocked the free ingress to the Clinic. Therefore, we conclude that the City adequately proved the mental state required by the statutes at issue.

Did the prosecution wrongfully withhold exculpatory material from the Defendants in violation of Brady v. Maryland?

The Defendants assert that the District Court’s refusal to admit their proffered evidence regarding their asserted defenses amounted to an unconstitutional withholding of exculpatory evidence, citing Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215. The most minimal inquiry into the subject would have revealed that Brady is not remotely applicable to the Defendants’ situation. The United States Supreme Court in Brady held that suppression by the prosecution of evidence favorable to the accused after such evidence was requested in discovery violates due process where the evidence is material to either guilt or punishment. Brady, 373 U.S. at 87, 83 S.Ct. at 1196-7, 10 L.Ed.2d at 218.

Here, the Defendants at all times possessed the material they claim was “wrongfully withheld.” The City did not withhold exculpatory material in violation of Brady, nor have the Defendants argued that the City possessed the disputed information. The District Court’s refusal to admit the evidence is totally unrelated to the constitutional principles espoused in Brady. The Defendants’ argument is without merit.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HUNT, HARRISON, TRIEWEILER, WEBER and DISTRICT JUDGE MIZNER sitting for JUSTICE NELSON concur.


author: JUSTICE HARRISON JUSTICE GRAY

text:
    CHARLES DEES, Plaintiff, Respondent and Cross-Appellant, v. AMERICAN NATIONAL FIRE INSURANCE COMPANY, a New York corporation, Defendant, Appellant and Cross-Respondent.
    No. 92-339.
    Submitted on Briefs July 15, 1993.
    Decided September 14, 1993.
    50 St.Rep. 1068.
    260 Mont. 431.
    861 P.2d 141.

      For Appellant: Robert F. James, James, Gray & McCafferty, Great Falls.
    For Respondent: Mort Goldstein, Goldstein Law Firm, Havre.
   JUSTICE HARRISON

delivered the Opinion of the Court.

American National Fire Insurance Company (American National) appeals from a judgment entered on a jury verdict in the Twelfth Judicial District Court, Hill County, awarding respondent Charles Dees (Dees) compensatory and punitive damages. We affirm in part and reverse in part.

American National raises the following issues on appeal:

1. Whether the District Court erred in denying American National’s motions for summary judgment and directed verdict on the issue of its alleged violations of the Unfair Trade Practices Act.
2. Whether the District Court erred in denying American National’s motion for mistrial based on Dees’ testimony about his costs and attorney’s fees.
3. Whether the District Court erred in not striking the jury award of punitive damages.
4. Whether the District Court erred in awarding pre-judgment interest on the punitive damages award.

Dees’ cross-appeal raises the following issue:

5. Whether the District Court erred in reducing the jury award of punitive damages.

This case originated as an action on a promissory note, filed by the Solem Insurance Agency (Solem) of Havre, Montana, in March 1990. Dees was the defendant. The note represented the $5,772 premium for “companion plan” hail insurance, issued to Dees by American National and covering 1,310.8 acres planted in wheat and barley. The insurer’s liability was limited to $50 per acre, but an endorsement on the policy included a multiplier that would triple Dees’ recovery in the event of loss. Dees purchased the policy on June 26,1989, to cover the 1989 crop year.

On July 10,1989, a hail storm passed over Dees’ wheat fields near Kremlin, Montana. Dees was working with his father at the farm shop, about four miles from the fields for which he eventually filed a claim for hail damage. After the storm he and his father inspected his fields and noticed that numerous plants had been knocked over in two adjoining fields, each about 160 acres in size. He testified that it “looked like a third of my crop was knocked over.” For purposes of litigation, the two fields are designated by their location in Township 31 North, Range 13 East, Section 3, and Township 32 North, Range 13 East, Section 34 (Sections 3 and 34).

Evidence of hail damage in these fields was provided at trial through the testimony of Arnold Berg, a neighbor, who said that he had observed hail in Dees’ fields immediately after the storm, and Marty Ritterhouse, the custom cutter who harvested Dees’ wheat during the first week of August 1989.

Ritterhouse testified that he had been harvesting wheat in the Hi-Line area since the early sixties; that he had often observed the effects of hail on spring wheat in the area; and that in August 1989 the effects of hail were “plumb obvious” in Dees’ fields in Sections 3 and 34. In particular, he mentioned broken plants, heads of wheat lying on the ground, and the typical hail storm pattern of downed plants in a relatively narrow strip, curving from southeast to northwest. He agreed that one-third of the crop was a reasonable estimate of Dees’ loss in the two fields.

Photographs taken by Dees on August 7,1989, which were entered in evidence at the trial, showed rows of standing wheat with numerous stems lying on the ground between the rows.

Dees’ wheat was a special type called “Newana.” According to Donald Baldridge, a Montana State University agronomist who testified for Dees, Newana wheat was developed as a short-stemmed, semi-dwarf variety of spring wheat. It has very strong stems that resist “lodging” or falling over, and shatter-resistant heads. Looking at the fallen wheat in Dees’ photographs, Baldridge testified that he had never observed that kind of breakage in Newana spring wheat from wind alone, and that it “looks like hail damage to me.”

On the evening of July 10, the day of the storm, Dees telephoned his insurance agent and reported that his spring wheat had been damaged by hail. He expected representatives of the insurance company to inspect his wheat soon afterward, but no one came until August 1,1989. By that time the field in Section 3 had been cut, with patches left uncut for inspection, but the field in Section 34 had not been cut because the custom cutter considered it too green.

Victor Velk, the agent who had sold Dees the companion hail policy, arrived at Dees’ farm late on August 1 with James Schaible, an American National adjuster. Schaible had not intended to “adjust” Dees’ claim that day, because he had already worked a full day on another claim and was tired. To accommodate Dees, however, he made some informal observations in Section 3. According to his testimony at the trial, he told Dees that he had probably lost twenty to twenty-five percent of his crop, but not because of hail. He observed that the wheat stems were bent over, not broken, and were all bent over at one point; therefore, Schaible testified, the damage appeared to be due to wind, not hail.

Dees testified that he had seen Schaible counting wheat stems in an uncut portion of Section 3 and that Schaible had told him that his loss was approximately twenty-three percent. While they were still in the field, Dees testified, he asked Velk, the agent, what he would recover under his companion hail policy. Velk told him that under his particular policy the “pay out” would be roughly sixty to eighty percent. According to Dees, “that’s when Mr. Schaible changed [his] mind about finishing an adjustment.”

Two days later, Velk returned with a second adjuster, Sam McCormick. McCormick had been adjusting hail insurance since 1975; he estimated at the trial that he had made over one thousand hail adjustments during his career. On August 3, McCormick inspected uncut patches of wheat in Section 3 as well as the uncut wheat in Section 34. He testified that he observed some crop damage, but “I just could not find the type of thing that indicated that we had had a hail loss.” He said that he had explained to Dees that if it were hail damage, the stems of the wheat would be broken in a variety of places, not uniformly bent over near the ground; he also said that at the time, Dees did not disagree with this explanation. Dees testified, however, that McCormick told him the wheat had been damaged by wind, and that he “couldn’t believe it. ... I was in shock ....”

After McCormick inspected the fields, he asked Dees to sign a “withdrawal of claim” form acknowledging that he had not sustained a loss that would entitle him to payment under his American National hail insurance policy. Dees refused to sign this form.

On November 28, 1989, Dees’ attorney, Mort Goldstein, wrote to American National, stating that Dees had lost 25 percent of his crop, due to hail, and that the loss payable by American National under its companion hail policy exceeded the amount of the unpaid premium. Goldstein’s letter demanded payment of the cash balance or, in the alternative, joint appraisal of Dees’ loss using the procedures outlined in the policy, and included the name and telephone number of the custom cutter who had observed the damage to Dees’ crop in August. American National did not respond to this letter. In March 1990, the insurance agency initiated its collection action against Dees.

Dees asserted in his answer that the promissory note was “contingent,” not intended to be enforced until after American National had paid his claim for hail damage, which Dees then estimated at $9,462. He relied on Solem’s representation, he said, that Solem and American National:

would at all times pay for hail damage, and that Charles Dees would not be required to pay the face value on the alleged “promissory note”, if there was an amount due to Charles Dees for hail damage ... that equaled ... or was greater than the face value of the contingent note.

Dees’ answer included a counterclaim against American National for the damage to his crop, plus interest, costs, attorney’s fees, and exemplary damages.

After hearing oral argument on March 5, 1991, the court granted Solem’s motion for summary judgment, on the grounds that Dees was precluded from admitting oral evidence “to prove that the Promissory Note had terms and conditions other than those set forth in the written document.” Dees subsequently paid the full amount due on the promissory note. At a second hearing on March 7,1991, the court denied American National’s motion for partial summary judgment on Dees’ counterclaim.

Ajury trial on Dees’ counterclaim began on April 1,1991, and ended on April 5, 1991, with a verdict for Dees. The special verdict form is reproduced below, with the jury’s response to each question.

QUESTION NO. 1: Did any of the Plaintiff’s acres, insured under the companion hail insurance policy in evidence in this case, suffer a reduction in crop yield directly caused by hail in excess of five percent (5%)?
ANSWER: Yes
QUESTION NO. 2: If so, how many of the acres ...?
ANSWER: 315.4
QUESTION NO. 3: What is the percent overall reduction in crop yield directly caused by hail to the acres identified in your answer to Question No. 2?
ANSWER: 31.8%
QUESTION NO. 4: Did defendant, under the instructions given to you, violate the Montana Unfair Claims Settlement Practices Act?
ANSWER: Yes
QUESTION NO. 5: Did defendant have a reasonable basis either under the law as given to you in the instructions or in fact for denying payment on the hail claim?
ANSWER: No
QUESTION NO. 6: Do you find by clear and convincing evidence that defendant was guilty of actual malice, as defined by the Court’s instructions?
ANSWER: Yes
QUESTION NO. 7: Do you find by clear and convincing evidence that punitive damages should be assessed against the defendant?
ANSWER: Yes

Based on these responses, the court calculated Dees’ actual damages as $12,679. The jury retired a second time to determine the amount of punitive damages, having first been given, as a new exhibit, a copy of American National’s 1990 Annual Statement. This statement had been filed with the Montana Insurance Commissioner, pursuant to law. It showed that in 1990 American National had assets of $79 million and a surplus of $14 million.

The jury deliberated for approximately one hour before delivering the following verdict:

QUESTION NO. 1: What amount of punitive damages do you assess against the defendant American National Fire Insurance Company?
ANSWER: $575,000

On April 24, 1991, American National moved for judgment notwithstanding the verdict, pointing out that three insurance adjusters and American National’s expert witness, an agronomist consultant from Fairfield, Montana, all testified that Dees had not sustained a compensable hail loss. Therefore, American National argued, it had a reasonable basis for denying Dees’ claim and could not be held liable for unfair claims practices.

The District Court denied this motion in an order entered on April 22,1992. On the same day it filed its findings of fact and conclusions of law relating to punitive damages, as required by § 27-1-221(7), MCA, approving the jury verdict but concluding that the punitive damages award was excessive. The accompanying order required American National to pay Dees the sum of $12,679 in actual damages, plus $300,000 in punitive damages, “together with interest on said sums at the rate of 10 percent per annum from April 5,1991 to April 21,1992,...” or $32,643.90. The total judgment, including $499.20 in costs, was $345,822.10, to bear interest from April 21, 1992, at the rate of ten percent per annum.

American National filed a supersedeas bond and moved for a stay of execution pending appeal; the court approved the bond and stayed execution. Dees cross-appealed the court’s reduction of the jury’s punitive damages award.

I

Did the District Court err in denying American National’s motions for summary judgment and directed verdict on the issue of its alleged Unfair Trade Practices Act violations?

Summary Judgment

In his counterclaim, Dees asserted that American National had violated the Montana Unfair Trade Practices Act, § 33-18-101 et seq., MCA, by misrepresenting his coverage under the companion hail policy; by failing to conduct a reasonable investigation of his claim; and by making no attempt to settle the claim after its liability had become reasonably clear. The relevant subsections of the Act follow.

No person may, with such frequency as to indicate a general business practice, do any of the following:
(1) misrepresent pertinent facts or insurance policy provisions relating to coverages at issue;
(4) refuse to pay claims without conducting a reasonable investigation based upon all available information;
(6) neglect to attempt in good faith to effectuate prompt, fair, and equitable settlements of claims in which liability has become reasonably clear;

Section 33-18-201, MCA.

Dees also requested exemplary or punitive damages pursuant to § 33-18-242, MCA, which provides an independent cause of action for damages caused by a violation of certain subsections of § 33-18-201, MCA, including those cited in Dees’ counterclaim. Section 33-18-242, MCA, also provides for exemplary damages assessed in accordance with § 27-1-221, MCA. In an action under § 33-18-242, MCA, a plaintiff is not required to prove that the violations were of such frequency as to indicate a general business practice. Section 33-18-242(2), MCA. An insurer, however, may not be held liable under § 33-18-242, MCA, if it had “a reasonable basis in law or in fact” for contesting the plaintiff’s claim. Section 33-18-242(5), MCA.

In February 1991, American National moved for partial summary judgment on the issue of unfair trade practices only. Summary judgment on that issue was appropriate, American National argued, because Dees’ deposition indicated “at worst” a difference of opinion between the hail adjusters and himself concerning the amount of hail damage to his crop, and because Dees had presented no evidence of fraudulent, unfair, or bad faith acts or omissions on the part of American National. The District Court, however, found that Dees had raised factual issues. In particular, it found a jury question as to whether American National’s three-week delay in adjusting Dees’ claim was to Dees’ advantage, as American National claimed, or whether it indicated negligent handling of Dees’ claim.

American National argues on appeal that the District Court should have granted partial summary judgment because it had a reasonable basis for denying Dees’ claim. It relies on Britton v. Farmers Ins. Group (1986), 221 Mont. 67, 71-72, 721 P.2d 303, 306, for the proposition that “an insurance contract must include a broad freedom in the insurer to evaluate claims under the policy and to reject nonmeritorious claims.” Our primary holding in Britton, however, was that an insurer does not act reasonably if it declines to pay an insured’s claim merely upon inadmissible evidence or testimony. Here, conflicting evidence was presented as to whether American National reasonably denied Dees’ claim.

Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.R The initial burden of demonstrating the absence of a genuine issue of material fact lies with the moving party; once the moving party has met that burden, the party opposing summary judgment must establish that genuine issues of material fact exist. Peschel v. Jones (1988), 232 Mont. 516, 521, 760 P.2d 51, 54. Conclusory or speculative statements are insufficient to raise a genuine issue of material fact. Simmons v. Jenkins (1988), 230 Mont. 429, 432, 750 P.2d 1067, 1069.

Here, Dees submitted an affidavit stating that he had agreed to pay an unusually high premium for American National’s companion hail policy because he had been led to believe by its agent, Velk, that he would not be subjected to delay and inequitable denial of his claim, and stating further that he had notified American National that the custom cutter, Marty Ritterhouse, was available as a witness who had observed the effects of the hail storm before the wheat was cut. Ritterhouse submitted a supporting affidavit, stating that he had observed hail damage greater than 23 percent in Dees’ fields and that no American National representative had ever contacted him concerning his observations. American National admittedly limited its investigation to a routine visit by its adjuster.

We hold that Dees met his burden of establishing a genuine issue of material fact as to whether American National had denied his claim without reasonable investigation, and that American National was not entitled to summary judgment on the issue of unfair trade practices. See Walker v. St. Paul Fire & Marine Ins. Co. (1990), 241 Mont. 256, 786 P.2d 1157, in which we reversed summary judgment for the insurance company because the plaintiff had set forth sufficient facts to establish an issue as to whether a reasonable investigation had been made, as required by § 33-18-201(4), MCA.

Directed Verdict

On the fourth day of the trial, after the adjuster McCormick testified that he had found no evidence of hail damage in Dees’ wheat fields, American National moved for a directed verdict on all claims. The court heard oral argument in chambers and denied the motion without comment.

“A motion for directed verdict is properly granted only in the complete absence of any evidence to warrant submission to the jury, and all inferences of fact must be considered in the light most favorable to the opposing party.” Britton, 721 P.2d at 317. If the evidence, viewed in a light most favorable to the opposing party, indicates that reasonable people could differ as to conclusions drawn from the evidence, a directed verdict is not proper. Weber v. Blue Cross of Montana (1982), 196 Mont. 454, 462-463, 643 P.2d 198, 202.

Here, Dees presented evidence in the form of documents, expert and lay testimony, and photographs to support his contention that American National had denied his claim without conducting a reasonable investigation. This evidence was sufficient to warrant submitting the issue of unfair trade practices to the jury. The District Court properly denied American National’s motion for directed verdict.

II

Did the District Court err in denying American National’s motion for mistrial based on Dees’ testimony about his costs and attorneys fees?

During direct examination at the trial, Dees stated, in response to a question asking him to state the amount of damages he was requesting, that “I have got way more money stuck in this thing than I will ever recover ....” Goldstein responded, “By stuck in this thing, what do you mean stuck in this thing?” Counsel for American National objected on grounds of relevance, and the judge said to Gold-stein, “Ask a question. I am used to sustaining or refusing objections.” Goldstein asked:

Have you incurred fees for bringing witnesses to this case and attorney fees in order to try and collect [the] hail proceeds?

Dees answered, ‘Yes. I have. Quite substantial.” Goldstein continued, “Approximately how much?” Counsel for American National objected again. The court sustained the objection and recessed for a discussion in chambers. American National then moved for a mistrial, on the grounds that the jury had been influenced before counsel had a chance to object. After extended discussion with counsel, the court denied this motion.

American National argues that evidence of the costs Dees incurred in pursuing his claim was irrelevant to the issues of whether Dees should recover for hail damage and whether American National had acted in bad faith. American National infers from the unusually large punitive damage award that this evidence was prejudicial.

Our standard of review in determining whether a mistrial was appropriately denied is whether the district court abused its discretion. Kuhnke v. Fisher (1987), 227 Mont. 62, 68, 740 P.2d 625, 628. As we observed in Kuhnke, the district court judge hears the entire trial and is in the best position to determine the prejudicial effect of attorney misconduct on the jury.

Here, Judge Langen denied American National’s motion for a mistrial on the grounds that he already had sustained its objection to Goldstein’s questions. Later, in his findings of fact and conclusions of law, he attributed the jurys punitive damages award to American National’s “dogmatic stand that there was no hail damage” and to the “arrogance and haughtiness” of its witnesses during the trial. As the jury was exposed to American National’s witnesses and their testimony repeatedly throughout the five-day trial, it is reasonable to infer, as Judge Langen presumably did, that Dees’ single brief reference to costs was comparatively insignificant. We conclude that the court did not abuse its discretion in denying American National’s motion for a mistrial.

Ill

Did the District Court err in not striking the jury award of punitive damages?

In an action brought under the Montana Unfair Trade Practices Act, punitive damages may be assessed, pursuant to § 27-1-221, MCA, for a violation of subsections (1), (4), (5), (6), (9), or (13) of § 33-18-201, MCA. Section 33-18-242(4), MCA. Here, the jury found that American National had violated subsections (1), (4), and (6).

This Court will not overturn a jury verdict as long as the verdict is supported by substantial, credible evidence, viewed in a light most favorable to the prevailing party. Thayer v. Hicks (1990), 243 Mont. 138, 156, 793 P.2d 784, 795. We cannot reweigh the evidence or disturb the findings of the jury unless the evidence is so inherently improbable as not to be entitled to belief. Sizemore v. Montana Power Co. (1990), 246 Mont. 37, 48, 803 P.2d 629, 636.

Here, Dees presented expert and eyewitness testimony, photographs, and documents supporting his contention that he had sustained a substantial loss as a result of the hail storm of July 10,1989, and that he was entitled to compensation for that loss. Even though experienced adjusters and another expert witness offered credible evidence and expert testimony indicating that Dees’ loss was not a result of the hail storm and therefore was not compensable, Dees’ evidence was sufficient to support the jury verdict in his favor.

The remaining question is whether Dees met the statutory standard for a punitive damages award. Under § 27-1-221, MCA, reasonable punitive damages may be awarded when a defendant has been found guilty of actual malice. Section 27-1-221(2), MCA, provides:

A defendant is guilty of actual malice if he has knowledge of facts or intentionally disregards facts that create a high probability of injury to the plaintiff and:
(a) deliberately proceeds to act in conscious or intentional disregard of the high probability of injury to the plaintiff; or
(b) deliberately proceeds to act with indifference to the high probability of injury to the plaintiff.

“All elements of the claim for punitive damages must be proved by clear and convincing evidence, ... [which] is more than a preponderance of evidence but less than beyond a reasonable doubt.” Section 27-1-221(5), MCA.

A jury award of punitive damages must be reviewed by the district court judge. Section 27-l-221(7)(c), MCA. Accordingly, Judge Langen reviewed the award and concluded that the jury correctly assessed punitive damages against American National, based on clear and convincing evidence that American National had been guilty of actual malice toward Dees and had violated the Montana Unfair Trade Practices Act.

Among the twenty-three findings of fact listed by the judge, the following best support his conclusion that American National intentionally disregarded facts that created a high probability of injury to Dees and deliberately acted with indifference to the high probability of injury to Dees:

1. Had the adjuster taken the time to examine adjoining fields, where no damage had occurred, he would have determined that the damage in Dees’ fields could not have been caused by wind, because wind typically has a more generalized effect than had does.
2. Had the adjuster taken the time to consult knowledgeable sources, he would have learned that Newana wheat had been developed as a short-stemmed, anti-lodging strain and that hail damage to Newana wheat differs from hail damage to ordinary long-stemmed wheat.

The court’s statement that hail damage to Newana wheat differs from hail damage to other wheat should be characterized as inference rather than fact, but it is consistent with the testimony of Donald Baldridge, the Montana State University agronomist who testified for Dees.

Goldstein asked Baldridge whether hail would necessarily cause breakage at random points on the stems of Newana wheat, as the adjusters had testified, and then changed his question without waiting for an answer. He asked whether anything in Dees’ August 1989 photographs indicated to Baldridge that the Newana spring wheat in the photographs was not knocked over by hail. The photographs show that the fallen wheat was bent over or broken off uniformly, near the ground, and not at random points on the stems. Baldridge replied, “Well, this looks like hail damage to me.”

It was evident from the adjusters’ testimony that they had not considered the specific characteristics of Newana wheat, nor had they looked for wind damage in the adjoining fields. In these omissions, and considering Baldridge’s testimony about the characteristics of Newana wheat and other testimony comparing wind damage with hail damage, the jury could have found clear and convincing evidence that American National was guilty of actual malice as defined in § 27-1-221(2), MCA.

In his conclusions of law, Judge Langen addressed each of the nine factors that § 27-1-221(7), MCA, requires him to consider in reviewing a jury award of punitive damages. American National takes exception to the judge’s conclusion regarding the first factor, which is “the nature and reprehensibility of the defendant’s wrongdoing.” Judge Langen stated that he was shocked by the “arrogance and haughtiness” displayed by the adjusters during the trial, and by American National executive James Damron’s responses to the following questions, asked by Goldstein during the punitive damages hearing:

Q: Do you think your company did anything wrong in the matter of handling the claim that is involved in this case regarding Charles Dees?
A: No.
Q: Would you do it the same way again, all over again? If it happened again, let’s say in 1991?
A: No.
Q: What do you do differently?
A: Respond to the letter of arbitration [referring to Goldstein’s November 1989 letter requesting arbitration],

American National argues that Damron could not have answered the first question affirmatively without admitting guilt, but Judge Langen took Damron’s responses as evidence that something must be done to “get the attention of these people” and convey to them that “some changes in their investigative procedures are in order.”

A district court judge, having heard the evidence and observed the witnesses, is in the best position to determine whether the requirements of proof of punitive damages have been met. Maddux v. Bunch (1990), 241 Mont. 61, 65, 784 P.2d 936, 939. Judge Langen’s interpretation of Damron’s testimony is consistent with the primary purpose of punitive damages, which is to punish a wrongdoer and deter further unlawful conduct, and we will not overrule it absent an abuse of discretion. Safeco Ins. Co. v. Ellinghouse (1986), 223 Mont. 239, 254, 725 P.2d 217, 227.

We conclude that the District Court did not err in not striking the jury award of punitive damages.

IV

Did the District Court err in awarding prejudgment interest on the punitive damages award?

In its final judgment, signed on April 21, 1992, the District Court ordered American National to pay interest at the rate of ten percent per annum on the compensatory and punitive damages assessed against it, from April 5, 1991 — the date of the jury verdict — to the date of the final judgment.

Prejudgment interest on damages is controlled by § 27-1-211, MCA, which provides that:

Every person who is entitled to recover damages certain or capable of being made certain by calculation and the right to recover which is vested in him upon a particular day is entitled also to recover interest thereon from that day ....

Because punitive damages must be reviewed by the trial court, they neither vest nor are capable of being made certain until the trial court completes its review and issues a final judgment. Prejudgment interest, therefore, is not available on a punitive damages award. See Maddux, 784 P.2d at 940, in which we upheld the district court’s reduction of the jury award of damages and concluded that because the amount of damages was not clearly ascertainable until determined by the district court, prejudgment interest was not appropriate.

We reverse the District Court’s award of prejudgment interest on $300,000 in punitive damages, at ten percent per annum from April 5,1991 to April 21,1992.

V

Did the District Court err in reducing the jury award of punitive damages?

On cross-appeal, Dees urges this Court to reinstate the jury’s punitive damages award of $575,000, which the District Court reduced to $300,000.

We have described punitive damages as “an extraordinary remedy, ... [which] should be applied with caution, lest gendered by passion and prejudice because of the defendant’s wrongdoing, the award becomes unrealistic or unreasonable.” Ellinghouse, 725 P.2d at 226-227. Here, Judge Langen observed that “[t]he passion and prejudice can be particularly strong when the wrong is committed by a company with considerable financial power against a small farmer trying to make ends meet.” He reduced the jury’s punitive damages award from $575,000 to $300,000 because “[t]he wrong committed by the Defendant in this case certainly does not justify that [Dees] should receive a half million dollar windfall,” though he said that the award should be “large enough to get the company’s attention.”

We established a standard for punitive damages in Ellinghouse, 725 P.2d at 227 (citation omitted), holding that “[p]unitive damages cannot be ‘in excess of the amount necessary adequately to punish the defendant and serve as an example to it and others.’ ” We also imposed on the district court a duty to act when the award appears excessive or “ ‘the recovery is so grossly disproportionate as to raise a presumption that it is the result of passion or prejudice.’ ” Ellinghouse, 725 P.2d at 227 (citation omitted). Here, the District Court performed its duty: finding evidence of passion and prejudice, it reduced the jury’s award.

Dees asks us to consider seven criteria set forth by the United States Supreme Court, in Pacific Mut. Life Ins. Co. v. Haslip (1991), 499 U.S. 1, 21, 111 S.Ct. 1032, 1045, 113 L.Ed.2d 1, 22, for determining whether a punitive damages award is reasonably related to the policy goals of deterrence and retribution. These criteria actually were established by the Alabama Supreme Court, whose ruling was upheld by the United States Supreme Court in Haslip because the seven criteria impose a “sufficiently definite and meaningful constraint on the discretion of Alabama fact finders in awarding punitive damages.” Haslip, 499 U.S. at _, 111 S.Ct. at 1045.

Although the Haslip criteria correspond in many respects to the nine factors a Montana court must consider in reviewing a jury award of punitive damages under § 27-1-221(7), MCA, they are not identical. Dees urges us to adopt the Haslip criteria because they require the fact finder to consider the costs of litigation, a factor not included in § 27-1-221(7), MCA. Recalling that the District Court sustained American National’s objection to evidence on Dees’ costs and attorney’s fees, Dees argues on appeal that:

if the jury and the Trial Judge would have considered the fact of the cost of litigation not for the number of dollars, per se, involved, but for the showing of intent, malice and bullying by American National of its insured, then the amount of the jury award for punitive damages could very well have been reasonably higher ....

We are not persuaded by this argument. Montana’s statutory criteria meet the due process requirements set forth in Haslip: they impose a definite and meaningful constraint on the fact finder’s discretion in awarding punitive damages. Moreover, § 27-l-221(7)(b), MCA, permits the jury, or the court, to consider “any other circumstances that may operate to increase or reduce, without wholly defeating, punitive damages.”

We hold that the District Court met the standard imposed by § 27-1-22l(7)(c), MCA, by clearly stating its reasons for decreasing the jury award of punitive damages and demonstrating its consideration of each of the factors listed in § 27-l-221(7)(b), MCA.

We reverse the District Court’s award of prejudgment interest on punitive damages and remand for an order consistent with this opinion. The District Court’s order is affirmed in all other respects.

JUSTICE TRIEWEILER concurs.

JUSTICE GRAY

specially concurring.

I concur in the Court’s opinion, but feel compelled to address certain arguments advanced by American National (AN) in hopes of offering guidance or additional clarity in these difficult cases involving both a coverage question and questions of violations of § 33-18-242, MCA, of Montana’s Unfair Trade Practices Act (the Act).

I begin by stating my view that Dees presented sufficient evidence in the form of documents, other witnesses not interviewed by AN and photographs to establish a violation of § 33-18-201(4), MCA, which forms the basis for this independent action brought pursuant to § 33-18-242, MCA. Such a violation must be established by proof that an insurer refused to pay a claim “without conducting a reasonable investigation based upon all available information.” “Reasonableness” generally is a question of fact in Montana, and a jury could conclude, on the basis of Dees’ evidence, that AN’s investigation was not reasonable based upon all available information.

AN argues that no violation of the investigation requirement was established because Dees did not present any expert testimony that general adjustment procedures and practices were not followed and/or that industry standards relating to claims investigation and adjustment were not met. At least implicitly, it urges us to adopt a requirement that a plaintiff offer expert testimony in these regards to establish a violation. We have not done so previously, and AN’s arguments do not persuade us to do so here. This is not to say, however, that an insurer cannot introduce appropriate testimony or other evidence in attempting to negate proof of a violation of the Act based on denial of a claim without a “reasonable investigation based on all available information.” Particularly where, as here, an insurer is faced with the possibility of punitive damages, it might well wish to do so.

I note, in this regard, that any such testimony or evidence would necessarily have to be relevant to the statutory language at issue. For example, if the industry standard required only that an adjuster consult a reference manual of some kind in order to determine whether hail damage occurred to a particular field, such an industry standard likely would be irrelevant under the “reasonable investigation based on all available information” standard required by § 33-18-201(4), MCA.

In addition to its arguments surrounding the “reasonable investigation” issue, AN presents arguments and cases seeking a more objective standard for the “reasonable basis in law or in fact” defense to liability under the Act. To clarify an initial point, I note that AN states several times that if it had a reasonable basis for contesting the claim, it cannot be found to have violated the Act. I disagree with this interpretation. As I read § 33-18-242, MCA, a jury could find violations of the Act and still determine that an insurer was not liable under the Act (for actual or punitive damages) on the basis that the insurer had established the “reasonable basis” defense. This distinction, which may seem hypertechnical, is important to the following discussion.

AN urges us to adopt a more objective standard of “reasonableness” than currently exists. Specifically, it urges a return to the Britton standard of “unwarranted, unreasonable, and without justification.” See Britton v. Farmers Ins. Group (1986), 221 Mont. 67, 721 P.2d 303. As AN concedes, however, Britton was a pre-§ 33-18-242, MCA, case. The case before us is a statutory claim. Furthermore, Britton was a “bad faith” case and § 33-18-242(3), MCA, explicitly prohibits bringing an action for bad faith in connection with the handling of an insurance claim. Thus, Britton has no application here.

Similarly, AN urges us to apply the “Dutton” or “Anderson” rule to the “reasonable basis” language contained in § 33-18-242(5), MCA. In National Sav. Life Ins. Co. v. Dutton (Ala. 1982), 419 So.2d 357, the Alabama Supreme Court required that a plaintiff bringing a “bad faith refusal” claim must prove a company had no legal or factual defense. The Wisconsin Supreme Court applies a similar standard to bad faith refusal to pay claims: among other things, a plaintiff must show the absence of a reasonable basis for denying benefits of a policy. See Anderson v. Continental Ins. Co. (Wis. 1978), 271 N.W.2d 368.

The first problem in adopting the “Dutton” or “Anderson” rule is the same as that noted above regarding Britton: Dutton and Anderson were bad faith cases. The case before us is a statutory claim which does not necessarily correspond in all respects to bad faith cases.

Even more important, however, to adopt the “Dutton” or “Anderson” rule would require this Court to ignore the structure and language of § 33-18-242, MCA, in its entirety, and subsection (5) thereof in particular. The “reasonable basis” for denying a claim is a defense to liability under § 33-18-242, MCA. Therefore, the “reasonable basis” defense contains no burden of proof to be met by a plaintiff; as is the case with defenses generally, the party asserting the defense has the burden of establishing it by a preponderance of the evidence. Application of the “Dutton” or “Anderson” rule would impose an affirmative duty on the plaintiff to disprove the existence of a “reasonable basis” to deny the claim. We cannot insert such a nonexistent burden into the statute; nor should we, given that the “reasonable basis” position is a defense to liability. The positions advanced by AN are legislative matters, not matters appropriate for judicial grafting onto existing statutes.

Aplaintiff who brings an action under § 33-18-242, MCA, may seek actual and punitive damages; both kinds of damages available in such an action are different from damages which may be awarded in a breach of contract claim for policy coverage. Actual damages may be awarded to the extent they “were proximately caused by the violation of subsection (1), (4), (5), (6), (9), or (13) of § 33-18-201.” Section 33-18-242(4), MCA.

A plaintiff can recover punitive damages under § 33-18-242, MCA, only upon several proofs: (1) a plaintiff must establish by a preponderance of the evidence that the insurer violated one or more specified subsections of § 33-18-201, MCA; and (2) a plaintiff must establish by clear and convincing evidence that the insurer acted with actual malice or actual fraud as defined in § 27-1-221, MCA. If a plaintiff meets these burdens, she or he may be awarded punitive damages.

An insurer can avoid an award of actual, or proximately caused, damages under § 33-18-242, MCA, by establishing that its conduct did not violate any of the specified subsections of § 33-18-201, MCA. Because imposition of punitive damages requires the two proofs set forth above, an insurer may avoid the imposition of punitive damages by establishing either that it did not violate the specified subsections or that it did not act with actual fraud or malice.

Finally, even if violations and actual fraud or malice are established, an insurer still may assert that it had a reasonable basis for contesting the claim made under the insurance policy. If an insurer can establish such a reasonable basis, it may not be held liable under § 33-18-242, MCA, at all. In other words, provided an insurer can prove to the satisfaction of the finder of fact that it had a reasonable basis for denying the claim, § 33-18-242(5), MCA, provides a complete defense to both actual and punitive damages under the Act.

Because reasonableness is a question of fact, it is for the trier of fact to weigh the evidence and judge the credibility of the witnesses in determining whether the insurer had a “reasonable basis” for denying a claim. Thus, such determinations generally must be based on the facts and circumstances of each case.

CHIEF JUSTICE TURNAGE and JUSTICE NELSON join in the foregoing special concurrence of JUSTICE GRAY.


author: JUSTICE TRIEWEILER

text:
    KENNETH and JENNIFER RITLAND, Plaintiffs and Appellants, v. ALFRED ROWE and MERLE HEITZMAN Defendants and Respondents.
    No. 93-136.
    Submitted on Briefs September 2, 1993.
    Decided October 6, 1993.
    50 St.Rep. 1183.
    260 Mont. 453.
    861 P.2d 175.

      For Plaintiffs and Appellants: Kevin C. Meek, Alexander, Baucus & Linnell, Great Falls.
    For Respondents: John D. Alexander and Neil E. Ugrin, Ugrin, Alexander, Zadick & Slovak, Great Falls, (Rowe); Thomas E. Boland, Great Falls (Heitzman).
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Plaintiffs Kenneth and Jennifer Ritland commenced this action to recover for damages to their cattle and their ranching operation which they allege were caused by the negligence of defendants Alfred Rowe and Merle Heitzman. The District Court for the Twelfth Judicial District in Chouteau County, granted defendants’ motion for summary judgment, on the basis that plaintiffs’ claim was barred by the statute of limitations, and dismissed plaintiffs’ complaint with prejudice. From that judgment, plaintiffs appeal. We reverse the judgment of the District Court.

The issue is whether the three-year statute of limitations for complaints based on negligence, or the two-year statute of limitations for complaints based on damage to property, applies in this case.

FACTUAL BACKGROUND

Plaintiffs’ complaint was filed on April 10, 1992, in the Twelfth Judicial District Court in Chouteau County. For their complaint, plaintiffs alleged that in June 1989 defendants received permission to graze cattle on plaintiffs’ land and intermingle those cattle with cattle belonging to plaintiffs. They allege that at the time defendants delivered their cattle to plaintiffs’ property, they knew, or by the exercise of reasonable care should have known, that their cattle were infected with trichomoniasis. Trichomoniasis is a venereal disease which causes cattle to abort.

Plaintiffs allege that as a result of commingling defendants’ cattle with plaintiffs’ cattle, plaintiffs’ cattle became infected with trichomoniasis, and as a result, plaintiffs sustained damage to their cattle and their ranching operation.

In response to plaintiffs’ complaint, defendants affirmatively alleged that plaintiffs’ claim was barred by the statute of limitations found at § 27-2-207, MCA.

Both defendants moved for summary judgment based on the bar of the statute of limitations. For purposes of the District Court’s consideration of that issue, the parties conceded that plaintiffs’ cause of action accrued no later than December 8, 1989, but was not filed until April 10, 1992. Since more than two years passed from the date of accrual until the date of filing, defendants argued that plaintiffs’ claim was barred.

In response, plaintiffs asserted that the applicable statute of limitations was found at § 27-2-204, MCA, which provides that tort claims, including negligence, must be filed within three years from the date of accrual.

On February 9, 1993, the District Court issued its order and judgment in which it concluded that § 27-2-207, MCA, was a more specific statute of limitations pertaining to injuries to property, and that § 27-2-204, MCA, was a general statute of limitations pertaining to tort claims. Therefore, the District Court concluded that the specific statute applied, and that plaintiffs’ claim was barred by the two-year statute of limitations. On that basis, the defendants’ motion for summary judgment was granted and judgment was entered for defendants.

STANDARD OF REVIEW

This Court reviews an order of summary judgment by utilizing the same criteria used by a district court initially under Rule 56, M.R.Civ.P. Minnie v. City of Roundup (1993), [257 Mont. 429], 849 P.2d 212, 50 St. Rep. 342. Pursuant to Rule 56(c), 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.

DISCUSSION

Does the three-year statute of limitations for complaints based on negligence, or the two-year statute of limitations for complaints based on damage to property, apply in this case?

Section 27-2-204, MCA, provides in relevant part as follows:

Tort actions — general and personal injury. (1) Except as provided in 27-2-216 and 27-2-217, the period prescribed for the commencement of an action upon a liability not founded upon an instrument in writing is within 3 years.

Subsection (2) of the above statute provides that actions for wrongful death caused by the wrongful act or neglect of another must also be brought within three years. Subsection (3) provides for a shorter two-year statute of limitations for certain specified torts. Referring to 27-2-204, MCA, we have previously held that:

[T]he intent appears to have been to establish a general three year statute of limitations for tort actions, with a shorter two year period for certain particular tort actions such as assault and battery.

Weston v. Cole (1988), 233 Mont. 61, 63, 758 P.2d 289, 291.

Section 27-2-207, MCA, provides as follows:

Injuries involving property. Within 2 years is the period prescribed for the commencement of an action for:
(1) injury to ... real or personal property ....

It is defendants’ position, with which the District Court agreed, that § 27-2-204, MCA, is a general statute of limitations pertaining to all torts, whereas § 27-2-207, MCA, is a specific statute applying to those torts which result in property damage, and that pursuant to § 1-2-102, MCA, and various authorities cited by defendants, the particular statute controls when in conflict with the general statute.

We have considered the authorities cited by defendants and find, for the most part, that they are not on point. In Weston, we held that where the plaintiff’s complaint alleged assault and battery, the specific statute of limitations found at § 27-2-204(3), MCA, controlled over the more general provision found at § 27-2-204(1), MCA. However, in that case, we simply recognized that where the legislature saw fit to provide for a distinction between different types of tort actions within the same statute, the clear language of the statute controlled.

In Knight v. City of Missoula (1992), 252 Mont. 232, 827 P.2d 1270, we held that when 27 years passed from the date on which plaintiff’s claim accrued until the date on which it was filed, plaintiff’s claim, based on 42 U.S.C. § 1983 (1871, amended 1979) for unconstitutional taking of her property, was barred by § 27-2-207, MCA. We were not asked to reconcile inconsistent statutes of limitations in Knight.

In Heckaman v. Northern Pacific Railroad Company (1933), 93 Mont. 363, 20 P.2d 258, we decided that the plaintiffs’ cause of action for damage to their property accrued when the damage was sustained, and not when the negligent act which caused it was performed. Neither did this case have anything to do with reconciling inconsistent statutes of limitations. Likewise, in Engine Rebuilders, Inc. v. Seven Seas Import-Export Merc., Inc. (1980), 189 Mont. 236, 615 P.2d 871, we were asked to decide when the time for filing the plaintiff’s complaint began to run, rather than what statute of limitations applied.

In Trustees, Carbon County School District No. 28 v. Spivey (1991), 247 Mont. 33, 805 P.2d 61, we were asked to reconcile statutes of limitations other than those involved in this case.

Neither is Rierson v. State (1981), 191 Mont. 66, 622 P.2d 195, applicable. That claim was based on an allegation of two constitutional violations and a request for invocation of the doctrine of promissory estoppel. We held that whether a two or three-year statute of limitations applied, the claim was barred as untimely.

In Lahman v. Rocky Mountain Phosphate Company (1972), 161 Mont. 28, 504 P.2d 271, we were asked to decide in a claim based on nuisance whether the statute of limitations pertaining to property damage applied, or whether a general statute which allowed five years for causes of action not otherwise specified, controlled. We held that the property damage statute specifically pertained to the damages claimed in that case, and the longer statute had no specific relevance to either the type of damage claimed or the nature of the claim. We were not asked to reconcile two conflicting statutes which applied directly to the type of claim presented.

The case cited by defendants which is most directly on point is Quitmeyer v. Theroux (1964), 144 Mont. 302, 395 P.2d 965. In that case, the plaintiffs alleged that the defendants had orally agreed to manage their apartment building, but that while doing so, the defendants negligently allowed the water pipes in the building to freeze and burst. The plaintiffs filed their complaint more than two years, but less than three years, after the damage was sustained. After a trial, a jury awarded the plaintiffs $9000 in damages. On appeal, the defendants asserted that the suit was barred by the statute of limitations. The plaintiffs apparently did not argue that the three-year statute controlled. Instead, they argued that the complaint sounded in contract rather than in tort, and therefore, was governed by the five-year statute of limitations. We held that the gravamen of the case was in tort and that since the damage claimed was to property, § 93-2607, R.C.M. 1947 (the predecessor of § 27-2-207, MCA), applied and barred the plaintiffs’ claim for relief. It does not, however, appear that the specific issue raised in this case was argued by the parties in that case, nor squarely addressed by this Court.

Furthermore, since the Quitmeyer decision, we decided Thiel v. Taurus Drilling Ltd. 1980-11 (1985), 218 Mont. 201, 710 P.2d 33. In Thiel, we were asked to decide what statute of limitations applies to civil actions for violations of the Securities Act of Montana. By legislative deletion, Montana’s Act included no specific period of limitation. The plaintiffs contended that the eight-year statute of limitations found at § 27-2-202(1), MCA, which pertained to written contracts applied. The defendants contended that the two-year statute of limitations found at § 27-2-211(1), MCA, which pertained to ‘liabilities created by statute” applied.

We concluded that the plaintiffs’ complaint sounded in contract, tort, and statutory violation. We then held that:

Where there is a substantial question as to which of two or more statutes of limitations should apply, the general rule is that the doubt should be resolved in favor of the statute containing the longest limitations. Akada v. Park 12-01 Corp. (1985), 103 Wash.2d 717, 695 P.2d 994, 995. Where doubt exists as to the nature of the action, courts lean toward application of the longer period of limitations. Shew v. Coon Bay Loafers, Inc. (Wash. 1969), 455 P.2d 359, 366, citing Hughes v. Reed (10th Cir. 1931), 46 F.2d 435, 440.
“This [general rule] serves the legislative intent of protecting defendants from stale claims, yet provides an approach of liberality which affords a plaintiff party-litigant maximum free access to our court system. Although statutes of limitation[s] are primarily designed to assure fairness to defendants because they prevent claims from being brought when the relevant evidence is so old that it is unreliable, the policy of repose is outweighed when the interests of justice require otherwise.” [Citation omitted.]

Thiel, 218 Mont, at 212-13, 710 P.2d at 40.

For these reasons, we held that the eight-year statute of limitations applied. Thiel, 218 Mont, at 212, 710 P.2d at 40.

We conclude that our decision in Thiel controls the outcome in this case. This is not a case where a general statute of limitations is in conflict with a more specific statute of limitations. Section 27-2-204(1), MCA, is a specific statute of limitations which is based on the type of obligation which gives rise to plaintiffs’ claim. Section 27-2-207, MCA, on the other hand, is a specific statute of limitations based upon the nature of damage incurred by plaintiffs. However, in a situation such as this, where the basis for plaintiffs’ claim is defendants’ negligence, and the damages alleged are to plaintiffs’ property, the statutes are in conflict. We hold that in these circumstances where there is a substantial question regarding which of two statutes of limitations should apply, the District Court should have applied the general rule that any doubt should be resolved in favor of the statute containing the longer limitation. This conclusion best furthers the public policy recognized in Thiel which affords “a plaintiff party-litigant maximum free access to our court system.” 218 Mont. at 212, 710 P.2d at 40.

For these reasons, we hold that the statute of limitations applicable to plaintiffs’ claim is § 27-2-204(1), MCA, which pertains to claims based on allegations of negligence. 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 HARRISON, HUNT, NELSON, GRAY and WEBER concur.