text:
    In re the MARRIAGE OF JANICE B. TOW, Petitioner and Respondent, and LINDLEY R. TOW, Respondent and Appellant.
    No. 87-325.
    Submitted on Briefs Oct. 22. 1987.
    Decided Dec. 24, 1987.
    Rehearing Denied Jan. 26, 1989.
    748 P.2d 440.

      Keller & German, Robert S. Keller, Kalispell, for respondent and appellant.
    Randy K. Schwickert, Whitefish, for petitioner and respondent.
   MR. JUSTICE HUNT

delivered the Opinion of the Court.

Lindley R. Tow appeals from an order of the District Court, Eleventh Judicial District, Flathead County, awarding'his ex-wife, Janice B. Tow maintenance payments and attorney fees. We remand.

The issues on appeal are:

1. Did the court err in its determination that the wife required maintenance and in awarding the amount it did?

2. Did the court err in awarding the wife attorney fees?

Lindley and Janice Tow were married in 1948 and divorced on May 29, 1987. They have three children all of whom are over eighteen. At the time of separation in 1983, both were in their late fifties. Janice is in good health. Lindley has suffered from depression and anxiety since 1984 and is currently under a psychiatrist’s care. His prognosis for recovery is good.

Until his retirement in January, 1983, Lindley owned a Marine Survey and Casualty Insurance Company in Minnesota. At the outset of this action, Janice was a certified medical technologist and had worked part-time and full-time throughout the marriage. She ceased working in that field twelve years ago and at present has let her certification lapse. She has been actively involved in real estate sales since summer, 1984, and shows considerable enthusiasm and promise.

The couple has considerable assets. The husband had inherited a farm located in Minnesota (known as the Brewster farm) which he had sold in 1981 and due to the depressed farm economy bought back and rented in 1985. This is his main source of income. It is valued at $128,000.00. Both parties owned 78 acres in Wisconsin with a value of $800.00 per acre. The family home in Minnesota was sold in 1981 from which each received $650.00 per month until February, 1987, when both received a $13,500.00 balloon payment. Both owned personal property and vehicles with combined value of over $30,000. In addition, just before the wife filed for dissolution, the couple bought property in Flathead County which is now listed for sale at $165,000.00. The property settlement which is not being contested divided the assets and cash in the following manner:

Petitioner [(Janice)] Respondent [(Lindley)]
Personal Property 13,565.00 15,585.00
Sale of Minnesota home 19,812.89 19,812.89
Brewster farm 128,000.00
Wisconsin acerage:
40 acres to Petitioner 32,000.00
38 acres to Respondent 30,400.00
Bank account 3,643.10
Projected net sale proceeds from Flathead Lake property 48,726.07 48,726.07
Petitioner’s inheritance 17,544.00
Respondent’s payments on Flathead property 20,000.00
Boat 2,750.00 2,750.00
TOTAL: 134,397.96 268,917.06

* It was agreed that the respondent Lindley would recover his payments on the Flathead property. Petitioner’s inheritance represents Janice’s net inherited contribution to the marital estate. Both these amounts are to be paid out of the Flathead sale proceeds when sold. The balance will then be divided equally. Each also owns a vehicle with a stipulated equal value.

After a hearing on the petition for dissolution, the trial court awarded the petitioner Janice maintenance of $275.00 per month for the period of January 10, 1986 through December, 1986 and $925.00 per month thereafter. The court also awarded petitioner attorney fees.

Lindley argues that the trial court abused its discretion in awarding Janice maintenance at all and certainly in awarding the amounts it did. First, the appellant maintains that his ex-wife’s property settlement is sufficient to provide for her reasonable needs and in the alternative if it is not it is because her needs are unreasonable and she has failed to obtain appropriate employment. He also contends that the court failed to consider the amount of assets available to Janice and the resources available to meet his own needs after the award of maintenance.

The appropriate standard of review has been stated by this court several times. Most recently in Re Marriage of Hall (Mont. 1987), [228 Mont. 36,] 740 P.2d 684, 686, 44 St.Rep. 1321, 1323, we stated:

“At the outset, we yet again repeat that this Court’s function on appeal is extremely limited. Section 40-4-202, MCA, is of necessity a flexible statute which vests a good deal of discretion in the district court. Given the infinite varieties of factual situations presented by parties to dissolution proceedings, trial judges must enjoy the latitude to address each case individually, with an eye to its unique circumstances.
“As stated by this Court, our functions are as limited as the District Court’s functions are broad. We have concluded that in a property distribution review in marriage dissolution, this Court will reverse a district court only upon a showing that the district court has acted arbitrarily or has committed a clear abuse of discretion, resulting in either instance in substantial injustice. See In Re Marriage of Hundtoft [(Mont. 1987) 225 Mont. 242, 732 P.2d 401, 402, 44 St. Rep. 204, 205] and cites therein. We choose not to use the phraseology ‘without employment of conscientious judgment or exceeded the bounds of reason’ from Hundtoft because it does not assist in reviewing the actions of the lower court.”

In Re Marriage of Hall, 740 P.2d at 686.

Under Section 40-4-203(1), MCA, maintenance may be awarded only if the spouse seeking it “lacks sufficient property to provide for his reasonable needs; and is unable to support himself through appropriate employment . . . .”

The term “sufficient property” has been interpreted to mean income-producing property rather than income-consuming property. In Bowman v. Bowman (Mont. 1981), [_Mont._,] 633 P.2d 1198, 1200, 38 St.Rep. 1515, 1518; In re Marriage of Herron (1980), 186 Mont. 396, 407-08, 608 P.2d 97, 103. The District Court did not specifically find what properties were income-producing or income-consuming. It is evident, however, that the trial court did consider the income-producing nature of Janice’s property in determining whether maintenance was proper. In evidence were projections of the petitioner’s income which clearly assume that wife’s properties will be sold thereby being converted into income-producing assets. While we do not condone the trial court’s lack of a specific finding here, we will not require it in this case. However, for future clarity and ease of appellate review, we will require a specific finding regarding the nature of the properties owned by the maintenance-seeking spouse.

Next appellant Lindley contends that his ex-wife’s needs are unreasonable. The District Court found that Janice’s monthly expenses totaled $2,383.32. This figure includes a new car payment, a new house payment and $410.00 worth of monthly business expenses. Her monthly income for 1985 was $1,838.47. Implicit in the trial court’s award of maintenance is a finding that these were reasonable expenses. Lack of a specific finding is not necessarily an abuse of discretion. Marriage of Madson (1978), 180 Mont. 220, 224, 590 P.2d 110, 112. This case is on all fours with our opinion in In re Marriage of Forney (Mont. 1986), [221 Mont. 63,] 716 P.2d 635, 43 St.Rep. 637, where we refused to overturn the trial court’s finding that purchase of a new car and house by the maintenance-seeking spouse after the separation of the parties was reasonable. Here, the appellant has provided little evidence to establish what would be reasonable. The wife’s house is small and was priced at $39,000.00 in 1985 and it is conceded by the appellant that her new business necessitates a newer car. These are not unreasonable.

Appellant additionally contends that the business expenses cited by the wife and her car expense because it is business-related are not proper expenses to be considered in determining her reasonable needs. We find no case law on this point and appellant cites none. We will not punish the wife’s efforts to become self-supporting by denying her reasonable business expenses. Her income as a real estate agent is completely commissions-based. This is to be differentiated from the traditional salary-based job which entails no expenses on the part of the employee.

Appellant next contends that the wife has purposely chosen inappropriate employment as a real estate agent rather than return to her past vocation as a medical technologist. Appellant is correct in noting that the term “appropriate employment” as used in Section 40-4-203(1)(b) contains a component connected to the standard of living enjoyed by the parties during the marriage. In re Marriage of Madson, 590 P.2d at 112. The husband testified that their standard of living had been “magnificent.” But he also testified that to maintain such a lifestyle he had to borrow money and sell family assets. It is clear that neither party can maintain their previous standard of1 living and there is little value in pursuing that question further.

Appellant argues that wife should have returned to her prior vocation as a medical technologist rather than engage in a new profession. The record shows that she did investigate the possibility of doing this type of work again but found no opportunities. She also chose not to return to this work because she had become “tired of it” and feared that her performance in a profession of such a life and death nature would suffer. The District Court found that Janice was “unable to support herself by employment in a manner which would meet her needs.” Although the wording differs from that of Section 40-4-203, MCA, when taken with the court’s recognition of Janice’s concerns about becoming a medical technologist again and her efforts in her current job, it does not show an abuse of discretion in awarding maintenance. We affirm the District Court’s decision to award maintenance.

The next issue concerns whether the amount and duration of the alimony was proper. The appellant takes issue with several of the District Court’s findings of fact, in large part arguing that the court simply ignored his lack of resources and subsequent inability to meet his needs while paying maintenance.

The District Court must consider all the following factors in making a maintenance determination:

“(a) the financial resources of the party seeking maintenance, including marital property apportioned to him, and his ability to meet his needs independently, including the extent to which a provision for support of a child living with the party includes a sum for that party as custodian;
“(b) the time necessary to acquire sufficient education or training to enable the party seeking maintenance to find appropriate employment;
“(c) the standard of living established during the marriage;
“(d) the duration of the marriage;
“(e) the age and the physical and emotional condition of the spouse seeking maintenance; and
“(f) the ability of the spouse from whom maintenance is sought to meet his needs while meeting those of the spouse seeking maintenance.”

Section 40-4-203(2), MCA.

The trial court made extensive findings concerning the financial condition of both parties. Certain of these findings do not conform to the statutory requirements or are incorrect. The record shows, and the court noted, that although Janice received less total assets from the property settlement she received substantially the same amount of assets as Lindley when inherited property is excluded. The District Court failed to consider this. The court found that the husband would receive $248,917.04 in cash and assets available for investment while the wife would receive $134,397.94, little of it in cash. The main difference between what the two parties received is the husband’s inherited farm in Minnesota. One look at the division of assets shows that the parties have substantially the same type of assets available to them for investment. Yet the court did not consider that the wife’s assets were available to her for investment as well. This Court recognizes that the maintenance-seeking spouse’s ability to invest his or her assets is a valid consideration when awarding maintenance. In re Marriage of Cannon (Mont. 1986), [223 Mont. 42,] 723 P.2d 951, 953, 43 St.Rep. 1517, 1519.

The payor spouse’s ability to meet his needs while paying maintenance must also be considered by the trial court. Section 40-4-203(2) (f), MCA. At the time of hearing Lindley was living off rental monies from his Brewster farm. He was also receiving payments of $650.00 per month from the sale of his home in Minnesota. This gave him an annual income of $20,422.50 for 1985 and 1986. The court found his expenses to be $1,680.25 per month or $20,163.00 annually. This leaves him with a surplus of $259.50 a year. It is impossible under the facts of this case for appellant to pay the maintenance required by the court.

The District Court noted that certain large expense items will eventually diminish, particularly doctor bills and property taxes, leaving Lindley with an even larger surplus. Appellant argues that this is pure speculation and cannot be the basis for the court’s finding but his own testimony is that his depression would eventually “clear up” given time. This is not so speculative that the court cannot consider it and is similar to income projections. See Gall v. Gall (1980), 187 Mont. 17, 20, 608 P.2d 496, 498.

One item that is perfectly concrete is the end of the $650.00 monthly payments for the sale of the parties’ Minnesota home. Each party was to receive a balloon payment in 1987 of $13,500.00. The District Court noted that both parties’ incomes would decrease after 1987 but recognized that Lindley would receive extra income from the balloon payment with which he could meet his expenses and provide maintenance. The record does not show that the court considered that Janice would also receive such a payment with which she could meet some of her expenses. The court simply increased the maintenance payments by $650.00 to a total of $925.00 per month. After 1987 the husband’s only income will be from his Brewster farm for the few years until he begins receiving social security or until the Flathead property is sold at which time both parties would receive increased income.

It appears to this Court that the petitioner-wife Janice would have Lindley sell his only current source of steady income in order to support her. We will not require him to do this.

Appellant Lindley also contends that the court erred in awarding Janice attorney fees. The standard adopted by this Court with regard to attorney fees is one of abuse of discretion. In re Marriage of Gallinger (Mont. 1986), [221 Mont. 463,] 719 P.2d 777, 783, 43 St.Rep. 976, 984. Due to the errors previously discussed we cannot say that the District Court’s finding of an award of attorney fees is supported by sufficient evidence.

We remand this case to the District Court for a redetermination of the amount of maintenance the husband must pay and for reconsideration of the award of attorney fees.

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


source: Caselaw Access Project

author: MR. JUSTICE SHEEHY MR. JUSTICE McDONOUGH,

license: Public Domain

text:
    MONTANA TALC COMPANY, a joint venture; Meridian Minerals Company, a corporation; and Westmont Mining, Inc., a corporation, formerly Nicor Mineral Ventures, Inc., Plaintiffs and Appellants, v. CYPRUS MINES CORPORATION, a Delaware Corp.; Cyprus Industrial Mineral Corporation, a Delaware corp.; and Unknown Others, Defendants and Respondents.
    No. 87-186.
    Submitted Oct. 27, 1987.
    Decided Dec. 28, 1987.
    748 P.2d 444.

      Holland & Hart; Stephen H. Foster argued, Billings, Davis, Graham & Stubbs; Brian T. Dolan, Joseph P. McMahon, Jr., argued, Denver, Colo., for plaintiffs and appellants.
    Poore, Roth & Robinson; Urban L. Roth, Thomas M. Welsch argued, Butte, for defendants and respondents.
    Gough, Shanahan, Johnson & Waterman; William H. Coldiron, Montana Mining Association, Helena, for amicus curiae.
   MR. JUSTICE SHEEHY

delivered the Opinion of the Court.

A summary judgment was entered by the District Court, Fifth Judicial District, Madison County, against Montana Talc Company in its effort to obtain by eminent domain open-pit mining excavation rights on real property owned by Cyprus Mines Corporation.

The District Court ruled in essence that an open-pit excavation on the land of another for the purpose of mining an ore body on adjacent land is not an authorized public use under Montana condemnation law; that in this case, Montana Talc Company could not prove that the proposed open-pit excavation was a more necessary public use under Section 70-30-111(3), MCA; and that in any event, Montana’s Landowner Notification Act gave Cyprus Mines Corporation a right to veto Montana Talc Company’s condemnation action.

On consideration, we determine that an open-pit excavation necessary to “backslope” the mining of an ore body is an authorized public use for which condemnation may be had, that the Landowner Notification Act is ineffectual in this case to prevent the condemnation, and we remand this cause to the District Court for further proceedings in accordance with this Opinion.

Montana Talc Company is a joint venture of Meridian Minerals Company and Nicor Mineral Ventures, Inc. (the latter now Westmont Mining, Inc.). Montana Talc Company opened an open-pit talc mine in the Northwest Quarter of Section 9, Township 9 South, Range 1 West, MPM (Section 9) in Madison County.

Cyprus Mines Corporation, Cyprus Industrial Minerals Corporation and Cyprus Minerals Company (collectively Cyprus) are a competing talc company, well established in the business. Cyprus operates an open-pit talc mine on Section 4 in the same township and range, which section abuts and is immediately north of Section 9. Cyprus owns the surface rights and the mineral rights to Section 4. In addition, it owns the surface rights to Section 9. Cyprus has mined and produced talc from an open-pit mine elsewhere in Section 4 for several decades.

In Section 9, there is a large body of commercial quality talc ore situated just south of the joint boundary of Sections 4 and 9. Montana Talc Company, as a joint venture, has acquired the right to mine the talc ore body in Section 9 by mining lease or like instruments from the owner of the mineral ore body.

The Montana Talc ore body contains 1,535,000 tons of high grade talc ore. It appears from the record that the most efficient, economical and productive method of mining this talc ore deposit is by construction of an open-pit mine. Montana Talc has already excavated 11 acres on Section 9 for that purpose. Montana Talc’s engineers have determined that to mine completely the large ore body of talc ore, 35 acres of surface area will be required. Since the ore body is located immediately south of the boundary of Sections 4 and 9, of the 35 necessary surface acres, Montana Talc must obtain 14 adjacent acres in Section 4 owned by Cyprus, and an additional 5 acres in Section 4 to provide the necessary buffer and safety zone around its open-pit.

The perimeter of the surface of an open-pit mine operation is necessarily larger than the perimeter of the ore body that is mined. The sides of the open-pit descend from the perimeter in somewhat conical fashion (depending on land contour and the efficient removal of ore), to the underlying ore body. The angle of the slope of the sides of the pit is determined principally by two considerations, the width of roads necessary for vehicles to transport the mined ore from the bottom of the pit along the sides of the pit to the surface, and an angle of repose sufficient to support the roads and to keep the sides of the pit (backslope) from sloughing or subsiding into and upon those working in it.

In this case, as the proposed open-pit would be widened and deepened, the roads along the sides of the pit (backslope) would provide access to the ore body and a means of removing ore and overburden and safely transporting men and equipment to and from the ore body.

Montana Talc has attempted to obtain from Cyprus by purchase or otherwise, such real estate interest as may be necessary for the construction of its open-pit mine, extending into Section 4. Cyprus has refused to negotiate, and has indicated it would never freely consent.

A further complicating factor is that Cyprus has found a talc ore body in Section 4 which is near the south boundary of the section. It contends that the open-pit excavation proposed by Montana Talc would expose its newly-found ore body on Section 4. Cyprus contends that it has begun plans to mine that ore body and that its right to do so, where it owns both the surface and the underlying minerals cannot be usurped. through condemnation for Montana Talc’s open-pit. In its attempt at negotiation with Cyprus, Montana Talc has offered to stockpile, jointly mine or otherwise protect Cyprus’ rights to such talc ore as its open-pit might encounter.

Montana Talc began mining its ore body in 1984. After negotiations with Cyprus failed, it began this action in the Madison County District Court for the purpose of condemning so much of the Section 4 surface, above described, as would be necessary for its open-pit operation to mine the ore body in Section 9. The District Court, by summary judgment, denied condemnation to Montana Talc on the grounds we have earlier stated and so the cause comes to us now on Montana Talc’s appeal.

For the purposes of our discussion, we will assume that Montana Talc Company as a joint venture stands in the shoes of the owner of the talc ore body in Section 9. To maintain clarity, we will refer to Montana Talc as the owner of that ore body.

Is the Construction of a Backslope for an Open-Pit Mine an Authorized Public Use Under Montana Condemnation Law?

The District Court concluded that the rim of Montana Talc’s existing open-pit mine on Section 9 could not be expanded over and upon the surface of Section 4 under Section 70-30-102(15), MCA, unless the condemnor owned the minerals in Section 4. It further concluded that the roads along the backslope of an open-pit mine could not be considered “roads” essential to the operation of the condemnor’s open-pit mine as a public use under Section 70-30-102(5), MCA.

In support of the District Court, Cyprus contends: that in order to obtain condemnation, Montana Talc must find the authority in the clear language of the eminent domain statutes; that the condemnation statutes must be strictly construed, Kipp v. Davis-Daly Copper Company (1910), 41 Mont. 509, 110 P. 237; that there is no implied authority given to Montana Talc in either Subsections (5) or (15) to condemn the subject property; that a “backslope” is not a “road” under subsection (5) and that eminent domain authority under subsection (15) is limited to the surface under which Montana Talc is the owner of the minerals.

We take it as given that private individuals and corporations have no inherent power of eminent domain. For them as for state agencies, the authority to condemn, if any, must derivé from a legislative grant. State Highway Commission v. Crossen-Nissen Company (1965), 145 Mont. 251, 400 P.2d 83. As with all statutes, when we construe those granting the power of condemnation, the intention of the legislature is to be pursued, if possible. Section 1-2-102, MCA.

Public uses for which the power of eminent domain is granted under Montana law are enumerated in Section 70-30-102, MCA. So far as pertinent to this case, it provides:

“[T]he right of eminent domain may be exercised in behalf of the following public uses:
“(5) roads, tunnels, ditches, flumes, pipes, and dumping places for working mines, mills, and smelters for the reduction of ores; . . . also an occupancy in common by the owners or the possessors of different mines of any place with a flow, deposit or conduct of tailings or refuse matter from their several mines, mills or smelters for reduction of ores . . .
“(15) to mine and extract ores, metals, or minerals owned by the plaintiff located beneath or upon the surface of property where the title to said surface vests in others . . .”

Under the plain language of Subsection (15) above, the proposal to mine its talc ore body by Montana Talc is completely within the definition of a public use. Montana Talc proposes “to mine and extract ores” from “minerals owned by the plaintiff located beneath or upon the surface of property where the title of said surface vests in others.” Cyprus is the surface owner of Section 9. Montana Talc is the mineral owner of the talc ore body under Section 9. There is a clear legislative enumeration in Subsection (15) under the facts here, that Montana Talc’s proposed mine is a public use. For the purpose of mining that ore body, Montana Talc therefore has the power of eminent domain.

Cyprus argues that the surface to be condemned must be directly over the ore body, and, apparently, that the right of surface condemnation cannot go beyond the surface ownership directly overlying the ore body. Cyprus strongly argues on appeal that in order to uphold Montana Talc’s position, there must be a resort to speculation and inference to find in the statutes the power of eminent domain for Montana Talc. Yet, the opposite here is true: it would be speculation and inference for this Court to insert “surface ownership directly overlying the ore body” in Subsection (15) or “up to but not exceeding, the surface ownership overlying the ore body.” We may not, in ascertaining the meaning of statutes “insert what has been omitted or omit what has been inserted.” Section 1-2-101, MCA.

Further, Cyprus’ argument that only the surface ownership overlying the ore body can be condemned is refuted by Section 70-30-103, MCA. Once a public use is determined under Section 70-30-102, MCA, the private property which may be taken therefor includes “all real property belonging to any person.” Section 70-30-103(a), MCA. The right of condemnation, once a public use is determined, cannot be delimited by section lines, fences or different ownerships. All real property belonging to any person can be taken to satisfy the public use.

Cyprus has also argued in brief that the nature of the estate that Montana Talc seeks to condemn is unclear, that is whether it seeks from Cyprus a fee simple or something less. That, however, is no obstacle. Section 70-30-104, MCA, provides that the estates subject to be taken for public use include “such estate or rights as may be necessary up to and including a fee simple when taken for . . . the mining and extracting of ores, metals or minerals when the same are owned by the plaintiff but located beneath or upon the surface of property where the title to said surface vests in others . . .”

We find in Subsection (15) above, and related statutes the intention of the Montana legislature to encourage the development of the mining industry. Understandably so, because the mineral wealth of this Treasure State, so named for its huge store of minerals taken and yet to be taken, is a prime springhead of past and future economic increase for Montanans. In keeping with this outlook, the legislature has given to mining concerns the awesome power to condemn private property for public use in return for just compensation where the ownership of the minerals and of the surface do not coincide. So it is that in addition to the power of condemnation for the mine itself under Subsection (15), there is further power for the construction of roads, tunnels, ditches and other appurtenances necessary to the mining effort in Subsection (5). Expansion, and not restriction, appears to be the legislative watchword. This approach is historic as witness the statement of this Court in Butte Anaconda and Pacific Railway Company v. Montana Union Railway Company (1895), 16 Mont. 504, 536-37, 41 P. 232, 243:

“It is well to bear in mind, in the application of the principles underlying the law of eminent domain, that the state has an inherent political right, pertaining to sovereignty and founded on what has been expressed to be a ‘common necessity and interest,’ to appropriate the property of individuals to the great necessities of the whole community where suitable provision is made for compensation .... The public welfare is therefore the particular base upon which must be laid the correct application of the doctrine itself. The right of eminent domain may be of the greatest value to the respondent, or to any other corporation which may exercise its privileges, but that is an incident which must be subordinated by the courts to the question of public use, and to the consideration of the benefits to accrue to the public by the construction of the contemplated project. There is, however, a rule of construction, sustained by the great weight of well-considered authority, to the effect that this power to take the property of private citizens or other corporations for public use must be exercised and can be exercised only so far as the authority extends, either in terms expressed by the law itself, or by implication clear and satisfactory. (Citing authority.)”

No Montana judicial decision that we are aware of declares that the public uses described in Section 70-30-102, MCA, must be strictly construed. In State ex rel. McLeod v. District Court (1923), 67 Mont. 164, 215 P. 240, we held that the power of a city to condemn land for a public highway outside of its city limits must have express authorization or be necessarily implied in the statutes. We have, however, held that vigorous compliance with procedures required for eminent domain is commanded. Helena v. Rogan (1902), 26 Mont. 452, 68 P. 798 (failure to describe property to be condemned); Glass v. Basin Mng. and Concentrating Co. (1899), 22 Mont. 151, 55 P. 1047 (no pre-action attempt at negotiation). If strict construction of public uses for which eminent domain may be had were required by the common law, where the law is declared by statute, common law may be applied only if not in conflict with the statutes. Section T-l-108, MCA. By law the statutes establish the law of this state respecting the subjects to which they relate and their provisions and all proceedings under them are to be liberally construed with a view to effect their objects and to promote justice. Section 1-2-103, MCA. Statutes may not be interpreted to defeat their object or purpose, and the object sought to be achieved by the legislature is of prime consideration in interpreting them. Dover Ranch v. Yellowstone County (1980), 187 Mont. 276, 609 P.2d 711. No interpretation is required when the plain meaning can be derived from the words of the statute. Tongue River Electric Co-op, Inc. v. Montana Power Co. (1981), 195 Mont. 511, 636 P.2d 862.

The authority for condemnation in this case is clearly expressed in Subsection 15 of Section 70-30-102, MCA.

Montana Talc has argued before the District Court and now here that the construction of an open-pit for mining purposes is really the establishment of a road for access from the surface to the ore body. The purpose of the “backslope,” Montana Talc contends, is simply to accommodate the necessary roads. Accordingly, Montana Talc contends that a further enumeration of public use is found in Subdivision (5) of Section 70-30-102, MCA, which provides for “roads ... for working mines . . . .” The District Court rejected this contention, saying that the roads for which condemnation is authorized under Subsection (5) can only be those commonly referred to as surface roads, not “subsurface” roads located at elevations as much as 250 feet below the existing land surface.

Had we not already determined that the mining and extraction of ores owned by the plaintiff located beneath or upon the surface of property where the title of the surface is vested in others is an enumerated public use under Subsection (15), it had then been necessary for us to determine whether under Subsection (5) the roads on an open-pit backslope are the roads contemplated for working mines as a public use. There is no need for us to now consider this contention in view of our determination under Subsection (15). The effect of our opinion here is to regard the whole of the open-pit operation, including its backsloping, as a mine. It should be remembered, however, that Subsection (5) in its exact present language has been a part of the statutes of this state from the beginning of our statehood, and was, until 1961, the only provision of the eminent domain statutes pertaining to the mining industry. Yet, the courts regarded Subsection (5) as granting a broad power to the mining industry, broad enough to prompt the late Chief Justice Brantly to comment in Kip v. Davis-Daly Copper Company (1910), 41 Mont. at 518-19, 110 P.2d at 241:

“Hence, from the beginning, it has been the policy of the state, indicated by its constitutional and statute law, as interpreted by this Court, to foster and encourage the development of the state’s mineral resources in every reasonable way. It has favored the industry of mining in the matter of taxation of mining property (citing authority); and has included among the public uses for which private property may be taken by the exercise of the right of eminent domain, roads, tunnels, ditches, flumes, pipes and dumping places for working mines, mills, or smelters for the reduction of ores . . .”

In 1961, the legislature broadened the eminent domain authority given to the mining industry by adding to the eminent domain statutes what is now the first sentence of Subsection (15). (Ch. 216, Laws of Montana (1961).) It is that broadened power that benefits Montana Talc today.

What is the Effect in this Case of the Landowner Notification Act!

In 1961, the legislature adopted the Landowner Notification Act. Sections 82-2-301 through -306, inclusive, MCA.

As applied to this case, the Landowner Notification Act (LONA) requires prospective open-pit mine operators who do not own the surface of the land in fee not to disturb in any manner the surface until the owner of the surface is notified in writing, accompanied by maps and plans of work and operations. Section 82-2-303(1), MCA. Before the commencement of any open-pit mining operation, the mine operator must first obtain from the surface owner of private lands specific written approval of the proposed work or operations. Section 82-2-303(2).

Cyprus contended before the District Court and now here that because it will never give Montana Talc written approval for any surface disturbance on the subject property, Montana Talc’s condemnation efforts must fail as a matter of law.

The District Court held that it must follow the plain language of Section 82-2-303(2) even if it was in conflict with Section 70-30-102, MCA; that because Montana Talc is not seeking a fee ownership of the surface of the subject property in the condemnation proceeding, but rather a right to jointly use the subject property with Cyprus, its ownership would not rise to the fee ownership required by Subsection (2) or the surface ownership required by Subsection (3) of Section 82-2-303; and, that the only ownership which could exempt Montana Talc from the operation of LONA was the condemnation of a fee ownership in the subject property which Montana Talc does not seek.

Montana Talc contends that where two statutory provisions are in conflict, such as LONA and the eminent domain statute in this case, LONA, which provides for a consent from the surface landowner cannot impliedly repeal the eminent domain statutes which are directed to a non-consenting landowner.

Montana Talc relies on WYMO Fuels, Inc. v. Edwards (Wyo. 1986), 723 P.2d 1230. WYMO, however, was distinguished by the District Court because of different statutes and the nature of the interest there being sought, a right of way across the defendant’s property. We agree that WYMO is not quite on point for this case.

The District Court did indicate in a memorandum on this case that it thought LONA was unconstitutional but left that for this Supreme Court to decide. Montana Talc points to our decision in Western Energy v. Genie Land Company and Montana Depar tment of State Lands (Mont. 1987), [227 Mont. 74,] 737 P.2d 478, 44 St.Rep. 904, where this Court held that Section 82-4-224, MCA, a similar statute requiring the consent of the surface owner for strip mining operations to commence, was unconstitutional. Section 82-4-224, MCA, applied only to the mining of coal and uranium. Section 82-4-203(20), MCA.

We hesitate to pass on the constitutionality of LONA where the District Court has not specifically ruled thereon. Instead we determine that there is a good force of reasoning why the provisions of LONA in this case must give way to the condemnation statutes. The reasons stem from the source of each act, and the purpose of enacting each act. LONA is obviously calculated to require notice to the surface landowner of proposed strip or open-pit mining operations which would disturb the surface of his land. One of the purposes of the notice is so that the landowner may evaluate the extent of disturbance contemplated and the sufficiency of the restoration and rehabilitation measures planned. Section 82-2-303(1), MCA. The object of LONA is therefore not difficult to descry. Under LONA, the surface landowner is entitled to notice and full revelation. The surface landowner may withhold his consent to the strip mine operation unless or until the strip mine operator becomes the owner in fee simple of the subject property. The legislation is aimed at the protection of private persons.

Eminent domain, however, derives from the power of sovereignty. Eminent domain is the right of the state to take private property for public use. Section 70-30-101, MCA. It is a power constitutionally grounded. Article II, Section 29, 1972 Mont. Const. When a private person or a corporation exercises eminent domain for the purpose of taking private property for public use, that person or corporation does so through the power of the state for the perceived common good of the public as a whole. The due process rights of the party whose property is taken for public use are protected by the statutes providing the procedures for eminent domain and by the constitutional provision for just compensation.

It is inconceivable therefore that the legislature intended the provisions of LONA, enacted for the benefit of private persons, to overcome and supersede the provisions of the eminent domain statutes, enacted for the preservation and protection of the public good. Moreover, we do not favor the repeal of statutes by implication. State v. Gafford (1977), 172 Mont. 380, 388, 563 P.2d 1129, 1134.

We therefore hold in this case that the provisions of LONA do not affect adversely the right of Montana Talc to utilize eminent domain against a nonconsenting landowner in pursuance of its prospective mining operation.

The fact that Section 70-30-104, MCA, permits persons seeking eminent domain to take such estate or rights as may be necessary up to and including a fee simple overcomes the District Court’s apprehension respecting the nature of the interest sought by Montana Talc in this case.

Is the Proposed Public Use by Montana Talc More Necessary than that of Cyprus'?

Section 70-30-111(3), MCA, provides that if the property proposed to be taken is already appropriated to some public use, the plaintiff must show by a preponderance of the evidence that the public use to which the property is to be applied is a more necessary public use.

Cyprus has obtained an operating mining permit on Section 4, which encompasses all of the subject property. The District Court held that as a matter of law, since an operating permit had been issued to Cyprus, Cyprus held the subject property as already committed to a public use, that is, mining. The District Court determined that Montana Talc desired to put the subject property to the same public use to which it had already been committed by Cyprus and that Montana Talc could not, as a matter of law, characterize its proposal as a “more necessary public use.” Therefore, the District Court held that Montana Talc could not satisfy the provisions of Section 70-30-111(3), MCA.

Without further findings, the issue cannot be easily decided. In Butte Anaconda and Pacific Railway Company the plaintiff BA&P sought by eminent domain the right to utilize part of the right of way of the Montana Union Railway Company. The objection was made that since Montana Union Railway Company had already put the property to public use, as a railroad, a like use by BA&P could not be considered “more necessary.” This Court disagreed for cogent reasons:

“Now, however, having advanced to this point of the case, we are met with this argument by the appellant’s counsel, namely, that this right of way was already appropriated, and that there was no delegation of power to any corporation under the eminent domain laws of the state to take property already appropriated to a public use unless, as provided by (citing a statute) ‘the public use to which it is to be applied is a more necessary public use.’ We have already concluded that this land was necessary to respondent’s use, and the question therefore is, is respondent precluded from condemning these necessary lands because they have already been condemned for public use by the appellants? If the question were limited merely to this single inquiry (unless some other statute authorized a taking), doubtless, under rules of construction, we should hold that the respondent could not invade the right of way of the appellants. But our legislature has imposed upon the court the additional responsibility of judicially determining whether the use to which the appellants did or would put the particular lands is a more necessary one to the public than that to which they have already been appropriated by the Montana Union Railway . . .
“We have used the word ‘necessary’ advisedly throughout this opinion, although when we say that the route chosen by the Butte, Anaconda & Pacific requires the taking of the lands in question as necessary for public use, we do not mean that there is an absolute necessity of a particular location they seek. But, under the statute, such an absolute necessity is not a prerequisite to the exercise of the law of eminent domain. (Emphasis in original.)
“It was never contemplated by the constitution that competition between railroads should not be sanctioned. On the contrary, our construction of the law is that it is the policy of this state, voiced in its constitution and statutes, to build up competing roads, rather than to deter them. If this were not so, why did the legislature expressly include the right to take lands already appropriated by one corporation and devote them to public use where the latter use was a more beneficial use than the former? The mere fact that the easement is held by a corporation, and that another corporation takes it to subserve public use, cannot affect the principle so long as a second taking is for the greater public good (citing authority). Nor can the claim of a superior equity of respondent be urged as a sound argument, based upon the fact that the appellants already have appropriated the property for public use. (Citing a case.)
“We cannot agree that the statute which authorizes lands to be appropriated for a more necessary public use means a different public use in all cases. If the legislature had intended that construction to be put upon the statute, instead of carefully restricting the right to a more necessary public use, they could easily have said a different public use . . . .”

16 Mont. at 537, 538, 543, 546, 41 P.2d at 243, 244, 245, 247-48.

The property owned by Montana Union Railway was not actually being used by Montana Union at the time that BA&P sought eminent domain of the property for similar use. That appears to be the case here with respect to Cyprus’ use of this specific property which Montana Talc seeks to condemn. It is necessary, therefore, that this case be remanded for the purpose of a determination by the District Court of a consideration of all factors involving the public use of the subject property by Cyprus, and as proposed by Montana Talc. Included, but not limited to those factors, are the reasonableness of the proposed use by Montana Talc, the present and actual use by Cyprus and the reasonableness of its proposed use, the possibility of joint operation to safeguard the rights of each party, the public good to be accommodated by the public uses so proposed and all other factors which may reasonably lead to a determination whether the proposed use by Montana Talc is within the contemplation of Section 70-30-111, MCA, as interpreted by the courts.

In Cocanougher v. Zeigler (1941), 112 Mont. 76, 83-84, 112 P.2d 1058, 1061, we find an extensive discussion of the provision in Section 70-30-111(3) for a “more necessary” public use. The proposed use must be “more necessary” where the effect of granting the succeeding public use condemnation will deprive the first owner of his use altogether. If the first owner will be completely deprived of his public use of appropriated property, such that his use will be defeated or seriously interfered with by the proposed condemnor’s right if granted, the statute requiring a “more necessary” public use comes into play. The requirement of a more necessary public use “does not preclude condemnation for a joint use which will not interfere with the use thereof by the owner.” Cocanougher, 112 P.2d at 1061.

Accordingly, the summary judgment entered by the District Court is reversed and this cause is remanded to the District Court for further proceedings in accordance with this Opinion.

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

MR. JUSTICE McDONOUGH,

dissenting:

The order of the District Court granting the motion for summary judgment of the respondent should be affirmed.

A grant by a sovereign government of the power of eminent domain to a private person to take another person’s property without the owner’s consent should be given very careful scrutiny.

Historically, statutes in derogation of the common law and common or natural rights have been strictly construed. However, in Montana by Section 1-2-103, MCA, statutes in derogation of the common law are to be liberally construed. Nevertheless, Section 1-2-103, MCA, does not apply here because Section 1-2-104, MCA, preserves the historical rule that statutes in derogation of common or natural rights are to be strictly construed. Section 1-2-104, MCA, reads as follows:

“Preference to construction favoring natural right. When a statute is equally susceptible of two interpretations, one in favor of natural right and the other against it, the former is to be adopted.”

See also 73 Am. Jur. 2d Statutes Section 284 (1970). Private and individual ownership of property is a natural and fundamental right. Section 3 of Article II of the Montana Constitution, 1972, provides;

“All persons are born free and have certain inalienable rights. They include the right to a clean and healthful environment and the rights of pursuing life’s basic necessities, enjoying and defending their lives and liberties, acquiring, possessing and protecting property, and seeking their safety, health and happiness in all lawful ways. In enjoying these rights, all persons recognize corresponding responsibilities. (Emphasis added.)”

See also 82 C.J.S. Statutes Section 393, page 93 (1953); 73 Am. Jur. 2d Statutes Section 285 (1970). Thus, the majority mistakenly abrogates the law of strict construction in interpreting our eminent domain statutes.

It has long been the law in Montana that statutes granting the power of eminent domain must be strictly construed. This Court in State v. Aitchison (1934), 96 Mont. 335, 30 P.2d 805, interpreting substantially the same statute we interpret today, stated as follows:

“This court in the case of State ex rel. McLeod v. District Court, supra, quoted with approval from Lewis on Eminent Domain (3d Ed.) Section 371, as follows: ‘The authority to condemn must be expressly given or necessarily implied. The exercise of the power being against common right, it cannot be implied or inferred from vague or doubtful language, but must be given in express terms or by necessary implication. When the right to exercise the power can only be made out by argument and inference, it does not exist.’ All of our decisions have been in accord with the foregoing quotation. State ex rel. McMaster v. District Court, 80 Mont. 228, 260 P. 134; Helena Power Transmission Co. v. Spratt, 35 Mont. 108, 88 P. 773, 8 L.R.A. (N.S.) 567, 10 Ann.Cas. 1055.”

Aitchison, 30 P.2d at 807.

Again in State ex rel. McMasters v. District Court (1927), 80 Mont. 228, 231, 260 P. 134, 135, this Court stated:

“The right to take private property from its owner against his will can only be invoked pursuant to law, and there must always be a rigorous compliance with its provisions when this right is sought to be exercised (Glass v. Basin Mining and Concentrating Co., 22 Mont. 151, 55 P. 1045; City of Helena v. Rogan, 26 Mont. 452, 68 P. 798), and authority for the exercise of such right must be clearly expressed in the law before it will be allowed (State ex rel McLeod v. District Court, supra; 1 Elliot on Roads and Streets, 4th ed., Section 218, p. 263.)”

And in 3 Sutherland Statutory Construction Section 64.06 (4th ed. 1986), it is stated:

“The power to condemn property for public use upon just compensation is an inherent attribute of sovereignty. Grants of the power of eminent domain must be found expressly or by necessary implication in legislation, and the policy has become well established that such grants are to be strictly interpreted against the condemning party and in favor of the owners of property sought to be condemned.”

Simply put, words granting power to take another man’s property without his consent must be given their plain meaning, and be strictly construed.

The applicable statute is Section 70-30-102, MCA, and the pertinent parts are as follows:

“Subject to the provisions of this chapter, the right of eminent domain may be exercised in behalf of the following public uses:
“(5) roads, tunnels, ditches, flumes, pipes, and dumping places for working mines, mills or smelters for the reduction of ores.
“(15) to mine and extract ores, metals, or minerals owned by the plaintiff located beneath or upon the surface of property where the title to said surface vests in others.

In this case, appellant attempts to condemn for an open pit mine and the backsloping thereof. Appellant stated in answer to an interrogatory that the use to which they will put the subject property is

“required in order to remove overburden from the Section 9 ore deposit; such removal must be made to permit side slopes at acceptable and safe angles. Roads are necessary on the [Subject Property] in order to have access to and remove overburden, and to remove ore. Such roads or ramps will continue to be necessary for access to the mine and the ore. An additional 100 foot boundary is necessary around the edge of the pit in order to monitor stability, provide survey control, provide a safety buffer, and to permit the diversion away from the open pit as tributary water.”

It is clear that the right to condemn for an open pit mine and backsloping is not covered by the above Subsection (5) under the rule of an express grant and those necessarily implied therefrom. One cannot say because the roads for a mine are a public use that this ancillary use to the main destruction of a surface by an open pit mine permits as a public use the open pit mine and the backslopes thereof. This is like the tail wagging the dog. Roads are part of the backslope but the backslope is not part of the road in this instance.

As to Subsection (15), it plainly limits the right to condemn the surface of property to that particular surface beneath or upon which the proposed condemnor owns the minerals. Under Subsection (15), the right of eminent domain may be exercised as follows: (1) to mine and extract ores, metals, or minerals owned by the plaintiff; (2) which ores, metals, or minerals are located beneath or upon the surface of property; (3) which title to said surface (i.e. overlying the ores, metals or minerals owned by the plaintiff) vests in others. The statute plainly requires the existence of these three conditions. The majority opinion takes the word beneath and runs with it in all directions but up. It says in essence that instead of being limited to ores, metals or minerals located beneath the surface of the property where the title to such surface is owned by others; that “beneath” means if the elevation of the ore body owned by the condemnor is lower or closer to the center of the earth than the surface owned by others, then the surface owned by others can be condemned. Under this interpretation, the ore body could be a mile or more away in any horizontal direction. This expansion of the meaning of the word “beneath” is not in the plain language of the statute and is not strict construction. Even if one assumes that the word beneath is capable of two meanings, as applied here under the rules of strict construetion, the more restricted meaning is to be applied. Section 1-2-104, MCA.

In essence what the majority has done is to expand the meaning of Subsection (15) to put a comma after the words “upon the surface of property,” and add the words “and especially,” making the balance of the sentence expansive even though it is qualifying as originally written. This interpretation also eliminates the need for the specific purposes incident to working mines allowed by Subsection 5 of the applicable statute quoted above.

To further support its opinion the majority quotes general statements of the intention of the legislature to encourage the development of the mining industry and that expansion and not restriction appears to be the legislative watchword. Such statements have no meaning here because the words fly in the face of the rules of statutory construction of eminent domain. Statutes, constitutions, and opinions are replete with general policy statements favoring a variety of man’s endeavors, for example agriculture, environment and conservation, and these statements can also be used to support opposing positions.

The effect of this opinion is to give the owner of minerals lying at an elevation lower than lands owned by others the right to condemn such others’ land for open pit mining (excepting the strip mining of coal), even though the owner of the condemned property owns all the incidents of ownership thereof including the minerals and even though he is using that land for agricultural, commercial or residential purposes. To say it another way, the majority opinion gives the power to condemn private land for an open pit mine, (or for any other mining purpose) to a private corporation that owns no interest in the property sought to be condemned. If the legislature wanted to do this it could have said so in plain language. The responsibility of this Court is not to insert what has been omitted or omit what has been inserted. Section 1-2-101, MCA.

      . Cyprus argues in brief that it could take away Montana Talc’s power of condemnation by simply deeding to Montana Talc the surface that overlies the ore body. (However that may be, we do not accept the argument.) Under the facts of this case, Montana Talc’s proposed mine is clearly a public use.

      . The legislature has, however, restricted the strip mining or open-pit mining of coal. Section 70-30-102(15), MCA; Section 70-30-106, MCA.

        FOOTNOTES


author: MR. JUSTICE WEBER MR. JUSTICE SHEEHY,

text:
    JOYCE GROSS, Plaintiff and Appellant, v. BARBARA MYERS, Defendant and Respondent.
    No. 87-107.
    Submitted Oct. 6, 1987.
    Decided Dec. 30, 1987.
    748 P.2d 459.

      Don Vernay argued, Big Fork, for plaintiff and appellant.
    Warden, Christiansen, Johnson & Berg, Thomas R. Bostock argued, Kalispell, for defendant and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal from an order of the Eleventh Judicial District, Flathead County, granting the defendant’s motion for summary judgment in a civil action alleging professional negligence, invasion of privacy, violation of a statutory duty of confidentiality, and intentional infliction of emotional distress, all arising from defendant’s reporting of alleged child abuse. We affirm.

The issues are:

1. Did the District Court err in concluding that the defendant, a clinical social worker running a therapy group, was subject to the reporting mandate of Section 41-3-201(1), MCA (1985), under the circumstances of this case?

2. Did the District Court err in granting defendant’s motion for summary judgment on the issue of her statutory immunity from civil liability?

In January 1986, the defendant, Ms. Myers, began a therapy group for non-offending members of families that had experienced some form of child sexual abuse. Ms. Myers is a licensed clinical social worker with an independent practice in Kalispell, Montana.

The plaintiff, Mrs. Gross, enrolled in the therapy group. Both parties agree that Mrs. Gross was adequately assured of strict confidentiality concerning matters raised during the group sessions. During one of these sessions, Mrs. Gross told the group about some incidents of sexual abuse which occurred between her husband and her daughters approximately 16 years earlier. When Mrs. Gross had originally learned of these incidents, she and her husband went for counseling to a mental health clinic, but state authorities were not notified.

After the third group session in 1986, Ms. Myers told Mrs. Gross that she was required by Montana law to report the incidents to state authorities. The parties agreed that Mrs. Gross was given an opportunity to make the report herself but chose not to do so. At the time of this conversation, all of the Gross’ children were over nineteen years of age, and none of them were living with Mr. and Mrs. Gross.

Ms. Myers made the report by telephone to Mary Schulze of the Department of Human Services. Due to the remoteness of the incident, Mary Schulze made no further report or investigation of the matter.

Mrs. Gross brought this action in district court to recover damages allegedly caused by the report of child abuse made by Ms. Myers. Ms. Myers filed an answer, and during discovery, took Mrs. Gross’ deposition. The parties also exchanged interrogatories. Ms. Myers then moved for summary judgment which was granted. From this order Mrs. Gross appeals.

I

Did the District Court err in concluding that the defendant, a clinical social worker running a therapy group, was subject to the reporting mandate of Section 41-3-201(1), MCA (1985), under the circumstances of this case?

Sections 41-3-201(1) and (2), MCA (1985), provide as follows:

“When the professionals and officials listed in Subsection (2) know or have reasonable cause to suspect that a child known to them in their professional or official capacity is an abused or neglected child, they shall report the matter promptly to the department of social and rehabilitation services or its local affiliate . . . (Emphasis added.)
“(2) Professionals and officials required to report are:
“(a) physician, resident, intern, or member of a hospital’s staff engaged in the admission, examination, care, or treatment of persons;
“(b) a nurse, osteopath, chiropractor, podiatrist, medical examiner, coroner, dentist, optometrist, or any other health or mental health professional;
“(c) Christian Science practitioner and religious healers;
“(d) school teachers, other school officials, and employees who work during regular school hours;
“(e) a social worker, operator or employee of any registered or licensed day care or substitute care facility, or any other operator or employee of a child care facility;
“(f) foster care, residential, or institutional worker; or
“(g) a peace officer or other law enforcement official.”

This part of the MCA is primarily civil in nature although criminal charges may be brought by a county attorney if the investigation reveals criminal violations. In substance the statutes provide a definite procedure following a child abuse report by any of the professionals listed. An investigation is to be made by the Department of Social and Rehabilitation Services (SRS), the county attorney, or a peace officer with access given to medical records and also to the child in question. If an investigation indicates that the child may have been abused, provisions are set forth under which SRS shall request and provide protective services for the child. In addition the SRS is required to advise the county attorney of the investigation. Within 60 days, a social worker is to report in writing to the SRS. At that point in time a child may be removed by the SRS, peace officer, or county attorney if immediate or apparent danger is present. The county attorney, attorney general, or peace officer may file a petition alleging abuse, neglect and dependency which is a civil action, and the procedure thereafter is set forth under the statutes. None of the civil proceedings are a bar to criminal prosecution.

Ms. Myers, as a licensed social worker and mental health professional, is included in the list of professionals under Section 41-3-201(2), MCA, and is subject to the mandatory reporting requirements if she had reasonable cause to suspect that a child known to her in her professional capacity was abused or neglected. Section 41-3-102(2), MCA, contains the following definition of “abused or neglected child”:

“An ‘abused or neglected child’ means a child whose normal physical or mental health or welfare is harmed or threatened with harm by the acts or omissions of his parent or other person responsible for his welfare.”

Mrs. Gross argues that the statutory mandate to report exists only when the professional suspects current child abuse. In one sense she is correct. Section 41-3-102(6), MCA, defines threatened harm as “imminent risk of harm”. Ms. Myers’ cause for suspicion must be based upon a perceived present real harm or a perceived present imminent risk of harm. This perception need not always be based entirely upon current, culpable acts of those responsible for the child. The primary purpose of the statute is the protection of the child. If Ms. Myers, in her professional opinion had reasonable cause to suspect that a child presently is threatened with harm, she must report, whether her suspicion is based upon past acts, present acts, or both.

The question is whether Ms. Myers’ suspicion was a reasonable one. In her affidavit in support of summary judgment she stated her concerns:

“My primary purpose in making the report was a concern for Joyce Gross’s grandchildren. My training and experience leads me to the opinion that child sexual abuse is a chronic behavior which, without therapeutic intervention, is subject to repetition, even after long lapses of time.”

Reasonable cause as anticipated by Section 41-3-201(1), MCA, clearly must be a subjective standard. While Section 41-3-201, MCA, contains the reporting requirement for a professional such as Ms. Myers, it is essential that such professionals also be aware of their potential liability under Section 41-3-207, MCA, in the event of a failure to report. Section 41-3-207, MCA, provides for both civil and criminal liability on the part of a professional who fails to report known or suspected child abuse. In the present case, Ms. Myers, as a professional, was required to exercise her own reasonable judgment within the circumstances presented. The purpose of the statutory requirement for the report of child abuse is to allow qualified persons in SRS, the county attorney, or peace officers to make the necessary investigation. The statutes do not require that the named professionals investigate to determine whether or not child abuse in fact has occurred. Ms. Myers submitted the affidavit of another therapist which supported her own professional opinion that sexual abuse toward children is chronic behavior which may reoccur even after a substantial lapse of time. Mrs. Gross submitted no evidence that Ms. Myers’ suspicions were not reasonable. We conclude that the facts establish that the defendant had reasonable cause to suspect that a child may have been the subject of abuse or neglect. We hold the District Court did not commit error under these circumstances when it concluded that Ms. Myers was subject to the reporting mandate of Section 41-3-201(1), MCA (1985).

II

Did the District Court err in granting defendant’s motion for summary judgment on the issue of her statutory immunity from civil liability?

The District Court granted summary judgment under Section 41-3-203, MCA, which provides immunity from liability. That statute reads:

“Anyone investigating or reporting any incident of child abuse or neglect ... is immune from any liability, civil or criminal, that might otherwise be incurred or imposed, unless the person acted in bad faith or with malicious purpose.”

Unless Ms. Myers acted in bad faith or with malicious purpose, she is immune from civil liability and summary judgment would be proper. Mrs. Gross in her deposition admitted that Ms. Myers did not intend to harm or embarrass her. She concedes that the defendant had no malice toward her. As a result we need consider only the issue of bad faith.

The standard to be applied for summary judgment is described in Mayer Bros. v. Daniel Richard Jewelers, Inc. (Mont. 1986), [223 Mont. 397,] 726 P.2d 815, 43 St.Rep. 1821. The initial burden is on the moving party to show that the evidence raises no genuine issues of material fact. Then, if the moving party is successful, the burden shifts to the party opposing summary judgment to establish that the record contains issues of material fact. Mayer, 726 P.2d at 816.

Ms. Myers, as noted earlier, submitted an affidavit in support of her motion for summary judgment. In this affidavit she stated that her purposes for reporting were her concern for the grandchildren of Mrs. Gross and her desire to protect those children. She also said that she had no intent to harm or embarrass Mrs. Gross or the family.

Mrs. Gross filed no affidavit alleging facts which might support her allegation of bad faith. She contends that the record raises a number of issues of fact regarding bad faith. Specifically, Mrs. Gross stated in her deposition that she believed she was being used in a “campaign” by the defendant against child abuse. No facts are set forth to indicate the nature of such a campaign. The statute contemplates action against child abuse on the part of all professionals. Mere conclusory or speculative statements are not sufficient to raise an issue of material fact. See Mayer, 726 P.2d at 816.

Additionally, Mrs. Gross states that issues exist regarding whether Ms. Myers came from an abusive family situation herself and whether she has made other “questionable reports” in the past. These issues were evidently the subject of interrogatories to Ms. Myers, some of which the court eventually ruled must be answered and then inspected in camera by the District Court prior to ruling upon summary judgment. Mrs. Gross complains that she had no opportunity to see these answers to interrogatories. We have viewed these interrogatories and conclude that they raise no issues of material fact with regard to bad faith.

As observed by the District Court, Ms. Myers’ affidavit of good faith remains uncontroverted. Mrs. Gross argues that her pleadings have raised a genuine issue for trial as to bad faith. On the contrary, the rule in Montana was stated in B.M. By Berger v. State (Mont. 1985), [215 Mont. 175,] 698 P.2d 399, 42 St.Rep. 272:

“[The party opposing summary judgment] may not rest upon the mere allegations of her pleadings but has an affirmative duty to respond by affidavits or reference to sworn testimony with specific facts that show there is a genuine issue for trial.”

B.M. 698 P.2d at 401. Mrs. Gross has failed to meet this burden and summary judgment was proper. As a result, Ms. Myers is immune from civil liability for reporting in this instance. We affirm.

MR. JUSTICES HARRISON, GULBRANDSON, HUNT and Mc-DONOUGH concur.

MR. JUSTICE SHEEHY,

dissenting:

I dissent to the over-broad and unwarranted interpretation of the reporting mandate of Section 41-3-201(1), MCA, (1985) as applied to this case.

Section 41-3-201(1), provides:

“When the professionals and officials listed in Subsection (2) know or have reasonable cause to suspect that a child known to them in their professional or official capacity is an abused or neglected child, they shall report the matter promptly to the department of social and rehabilitation services or its local affiliate . . . (Emphasis added.)

Where, under the statute, is the child that was known to Barbara Myers in this case to be an abused or neglected child which required her report? There is none. There is no abused child here under 18 years of age.

The “child” must be a person under 18 years of age. Section 41-3-102(1), MCA.

“An ‘abused . . . child’ means a child whose normal, physical, or mental health or welfare is harmed or threatened with harm by the acts or omissions of his parent or other person who is responsible for his welfare.” (Emphasis supplied.)

Section 41-3-102(2).

The alleged abuser must be either the parent of any abused child under the statute, or he must be responsible for the child’s welfare. This alleged abuser does not fit the statute.

Where is the “abused child” in this case? Barbara Myers had no knowledge that the alleged abuser was the parent of any child who was so harmed and threatened as described to constitute an abused child, and certainly knew of no child for whom the alleged abuser was responsible for the child’s welfare.

Where is the harm or threatened harm to the child’s health and welfare in this case? The statute states that it means the harm that occurs whenever the parent or other person responsible for the child’s welfare “commits or allows to be committed a sexual assault against the child or expose the child or allows the child to be exploited for sexual purposes or commits or allows to be committed the act of sexually abusing the children.” Section 41-3-102(3)(b).

In this case therefore, there is absolutely nothing within Section 41-3-201, MCA, which required a report by Barbara Myers so damaging to the husband of Joyce Gross. There was no “child known” to Barbara Myers; there was no “abused child”; there was no “harm to a child’s health or welfare” threatened or present against a child based on sexual assault or one exploited for sexual purposes or otherwise sexually abused, and there was no child for whose welfare the alleged abuser was responsible. We have only a professional busybody.

The “threatened harm” required under the statute must be an “imminent risk of harm.” Section 41-3-102(6). The majority opinion has transformed “imminent” into barely possible; perhaps; maybe; well, it could happen.

We are statutorily directed in the construction of statutes that our office is “simply to ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been inserted.” Section 1-2-101, MCA.

As to the second portion of the majority opinion, whether Barbara Myers acted maliciously so as to avoid immunity is a question of fact for a trier of fact and not for the District Court or this Court simply on affidavits. The content of the affidavits is disputed, and summary judgment was improper. However, in my view, the immunity statute does not apply, because in this case Barbara Myers was not acting within Section 41-3-201(1), MCA, when she violated the confidence reposed in her by Joyce Gross.

MR. CHIEF JUSTICE TURNAGE concurs in the above dissent.


author: MR. JUSTICE WEBER MR. JUSTICE GULBRANDSON, MR. JUSTICE SHEEHY,

text:
    MICHAEL RILEY, Plaintiff and Respondent, v. WARM SPRINGS STATE HOSPITAL, DEPARTMENT OF INSTITUTIONS, STATE OF MONTANA, and the Independent Union of the Warm Springs State Hospital, Defendants and Appellants.
    No. 86-380.
    Submitted Nov. 10, 1987.
    Decided Dec. 30, 1987.
    Rehearing Denied Feb. 4, 1988.
    748 P.2d 455.

      Karl Nagel argued, Sp. Asst. Atty. Gen. for Dept, of Institutions, Helena, for defendants and appellants.
    Johnson, Skakles & Kebe, Greg J. Skakles argued, Anaconda, for plaintiff and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

In July 1979, Mr. Riley was fired from his position as a psychiatric aide at Warm Springs State Hospital (Hospital). He brought this suit against the Hospital, and against his union for failure to adequately represent him. His primary contention against the Hospital at trial was that the Hospital had violated the covenant of good faith and fair dealing in employment. The jury in the District Court for the Third Judicial District, Deer Lodge County, awarded Mr. Riley a judgment of $18,343 against the defendants. The Hospital appeals and Mr. Riley cross-appeals. We vacate the judgment against the Hospital and remand to the District Court.

One issue decides this appeal: Did the District Court err in determining that an implied covenant of good faith and fair dealing existed in the employment contract between the Hospital and its union employee Mr. Riley?

Mr. Riley worked at the Hospital during several summers and one Christmas vacation while he was in high school and college. In May 1979, he again took an aide position there. He was on 6-month probationary status, in a pool of temporary employees with no permanent assignment. He normally worked graveyard shift in the forensic unit, but on the night of July 14, 1979, he was assigned to the children’s unit. He was not happy with his assignment and sat in a chair in a darkened room most of the night. He said his allergies were bothering him. His co-workers say he was sleeping on the job.

Mr. Riley worked the four following nights, then was off two nights. He did not return to work after his two nights off because he received a phone message through his sister that his employment had been terminated. Following the phone call, he received a registered letter advising him of the termination.

Mr. Riley’s union had negotiated a collective bargaining agreement which provided at Article 3, Section 3 that:

“At any time during the probationary period, the employee may be terminated. Should the Union believe the dismissal was in fact discriminatory or capricious, a hearing shall be held with the Hospital Administrator and he/she shall render a decision thereon. The decision of the Hospital Administrator may be a subject for grievance in accordance with the grievance proceedings provided in this Agreement.”

The extensive grievance procedure as described at Article 13 culminates in a decision by an arbiter which “shall be final and binding”.

Mr. Riley contacted his union representative, who at first told Mr. Riley that his time for filing a grievance had expired. Mr. Riley then asked for and was granted a meeting of his union, himself, and Hospital management. The union’s president and one of its directors attended the meeting. At the meeting, the Hospital justified the four day delay in the notice to Mr. Riley of his termination as time necessary to get signed statements from Mr. Riley’s co-workers. The severe penalty of termination of employment was explained as a result of the combination of Mr. Riley’s prior record of excessive absenteeism and his sleeping on the job. The union officers who were present at the meeting testified at trial that they concluded the termination was justified. After the meeting, Mr. Riley was advised that his termination was final.

Mr. Riley filed this suit in March 1980, and trial was finally held in February 1986. In separate verdicts, the jury awarded Mr. Riley damages of $18,343 from the Hospital and from the union. The union did not appeal.

Did the District Court err in determining that an implied covenant of good faith and fair dealing existed in the employment contract between the Hospital and its union employee Mr. Riley?

Mr. Riley argues that the Hospital has waived this argument by proposing jury instructions on the covenant of good faith and fair dealing at the time instructions were settled. However, the record shows that the Hospital raised the issue of whether the covenant was applicable prior to trial, in a motion for summary judgment. The court denied that motion while jury instructions were being settled, when it accepted Mr. Riley’s first proposed instruction on the covenant. At that point, the Hospital was entitled to present its own proposed instructions on the covenant, having made its objection to the covenant’s application in this case.

The implied covenant of good faith and fair dealing in employment was first recognized in Montana in Gates v. Life of Montana Ins. Co. (1982), 196 Mont. 178, 638 P.2d 1063, rev’d on other grounds after remand, 205 Mont. 304, 668 P.2d 213. Mr. Riley’s claim against the Hospital is based on the law articulated in that case and those cases founded on Gates. The Hospital objects to application of the covenant to a termination which occurred three years before the Gates decision. It asserts that Gates should not be retroactively applied to this case.

In December 1986 this Court ruled that a claim for violation of the implied covenant of good faith and fair dealing was barred where the plaintiff was covered by a collective bargaining agreement. Brinkman v. State (Mont. 1986), [224 Mont. 238,] 729 P.2d 1301, 43 St.Rep. 2163. Mr. Riley argues that Brinkman should not be retroactively applied.

Three factors are considered before adopting a rule of nonretroactive application of a judicial decision. Jensen v. State, Dept. of Labor and Industry (Mont. 1984), [213 Mont. 84,] 689 P.2d 1231, 1233, 41 St.Rep. 1971, 1973, aff’d after remand, 718 P.2d 1335, 43 St.Rep. 621. First, the ruling to be applied nonretroactively must establish a new principle of law either by overruling precedent or by deciding an issue of first impression whose result was not clearly foreshadowed. Next, the new rule must be examined to determine whether retroactive application will further or retard its operation. Third, the equity of retroactive application must be considered.

Although it can be argued that both Gates and Brinkman established new principles of law, it can also be argued that both principles were clearly foreshadowed. We conclude this factor does not weigh heavily toward either side in this case. The second factor to be weighed is whether retroactive application will further the operation of the rules. The purpose of the covenant of good faith and fair dealing is to protect the employee’s interest in job security. The purpose of nonapplication of the covenant to employees covered by collective bargaining agreements is to lend judicial support to the collective bargaining process. We conclude that retroactive application will further the operation and purpose of the rules set out in both Gates and Brinkman. Third, we consider whether retroactive application of these rules to this case is equitable. Both Ms. Gates and Mr. Brinkman were terminated before the rules of law which governed the disposition of their claims were enunciated. Mr. Riley’s employment was terminated in July 1979, Ms. Gates’ in October 1979, and Mr. Brinkman’s in 1983. We conclude that to have retroactively applied the rules in the two previous cases and not to apply them in this case would be clearly inequitable.

We hold that the covenant of good faith and fair dealing would be applicable in this case, except that Mr. Riley’s cause of action against the Hospital was barred because it posed a significant threat to the collective bargaining process, as discussed in Brinkman. We noted in Brinkman that some claims invoke state interests in protecting the general public which outweigh the interest in supporting the collective bargaining process and justify application of the covenant. Brinkman, 729 P.2d at 1305-09. Mr. Riley’s employment was terminated for unsatisfactory work performance. His claim does not invoke a state interest which outweighs the interest in supporting collective bargaining.

We therefore vacate the judgment against the Hospital and remand with instructions that the District Court dismiss the claim against the Hospital.

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

MR. JUSTICE GULBRANDSON,

specially concurring.

I specially concur with the result expressed in the majority opinion, but I do not agree that Gates, supra, should be applied to a termination that occurred three years prior to that decision.

MR. JUSTICE SHEEHY,

dissenting:

It is important to this case that Michael Riley was fired from his position at Warm Springs State Hospital and that he brought suit against his employer, and also against his union, on the grounds that the union and the hospital had each failed to protect his interests properly under the collective bargaining agreement.

The jury in this case agreed with Mr. Riley. It awarded a judgment of $18,343 against the employer hospital, but also awarded a separate judgment of $18,343 against the union for inadequate representation. The hospital appealed the judgment to this Court. The union has not appealed, apparently because the judgment against the union is uncollectible.

It is the duty of an appellate court to view the testimony in the light most favorable to the prevailing party at the trial level and to deem every fact proved which the evidence tends to prove. Hannigan v. Northern Pacific Railway Company (1963), 142 Mont. 335, 384 P.2d 493. On appeal, the facts as stated by the witnesses and believed by the jury and claimed by the prevailing party must be assumed. Holland v. Konda (1963), 142 Mont. 536, 385 P.2d 272, 6 A.L.R.3d 824. The statement of facts in the majority opinion overlook this elementary appellate rule.

The verdicts of the jury against his employer, and against the union, require us to accept as proven that under the collective bargaining agreement Riley was entitled to certain procedures before his employment could be suspended or terminated. The collective bargaining agreement required that Riley, if he were suspended, should be immediately “verbally” so advised and within three days notified in writing of the specific causes for his suspension. This was not done. The collective bargaining agreement required both union and management to make every effort to advise the employee of his rights. This was not done. The collective bargaining agreement required that if the union believed the dismissal was discriminatory or capricious, that a hearing be held before the hospital administrator. He was not given this hearing. His union representative failed to carry out the grievance procedures provided in the collective bargaining agreement. It was the duty of the union and the hospital to follow the grievance procedures which required (1) that the grievance be first taken up with his immediate supervisor within five days of the grievance; (2) that if not then resolved, then the grievance be presented to the hospital superintendent or his designee in writing within four days of the first step; (3) if settlement was not reached in step two, that it be presented in writing to the Director of the Department of Institutions within five days of step two; and if settlement then failed that procedures be instituted for arbitration. None of these were granted to Riley.

There are two rules of law that should proceed from this case that are completely lacking in the majority opinion. The first rule of law should be that if the employer arbitrarily and capriciously fails to accord the employee his rights under a collective bargaining agreement, that in itself is a breach of the covenant of good faith and fair dealing. This Court has held that a collective bargaining agreement supplants the implied covenant of good faith and fair dealing between employer and employee. If however the collective bargaining agreement is arbitrarily disregarded by the employer, the implied covenant should come back into play.

The second rule of law that should issue from this case is that the Brinkman rule is inapplicable in any wrongful discharge case where the collective bargaining agreement has proved to be ineffectual.

It is demonstrably unfair that the Brinkman rule should be utilized by the majority to bar Riley’s cause of action because of the collective bargaining agreement, when the collective bargaining agreement, as observed by both his union and the employer deprived him of his employment rights.

It was on that state of facts that the jury found its verdicts against both the Hospital and the union and in this case the verdict against the employer/hospital should be upheld.


author: MR. JUSTICE McDONOUGH

text:
    SUSAN M. HUNNEWELL, Plaintiff and Appellant, v. RICK SYME, Defendant and Respondent.
    No. 86-508.
    Submitted on Briefs Sept. 10, 1987.
    Decided Dec. 31, 1987.
    747 P.2d 875.
    H. Charles Stahmer, Bozeman, for plaintiff and appellant.
    Robert T. Cummins, Helena, for defendant and respondent.
   MR. JUSTICE McDONOUGH

delivered the Opinion of the Court.

The plaintiff appeals the District Court’s order granting the defendant’s motion for summary judgment. The issue raised on appeal is whether an employee can recover bodily injury damages when the only negligence alleged by the employee in the court below was the employer’s failure to carry workers’ compensation insurance. We affirm.

In May 1981, Susan Hunnewell started working for Mr. Syme. In July 1981, Ms. Hunnewell attended a roping clinic in Conrad, Montana at the direction of Mr. Syme. Mr. Syme was paying her and she was in Conrad for his benefit. While there, the horse she was roping on was undercut by a steer. Ms. Hunnewell and the horse both tumbled, injuring Ms. Hunnewell. After the accident Mr. Syme notified Ms. Hunnewell that he did not carry workers’ compensation insurance. There is a question of fact as to whether the parties were involved in an employment relationship. For the purposes of reviewing the motion for summary judgment Ms. Hunnewell’s allegations that it was an employment relationship will be presumed true.

In June 1984, Ms. Hunnewell filed a complaint alleging:

I.
“That the Defendant, RICK SYME, employed the Plaintiff, SUSAN M. HUNNEWELL, as a horse trainer.
II.
“Plaintiff was employed for the Defendant from May 1, 1981 to July 17, 1981.
III.
“On the 17th of July, 1981, the Plaintiff, while engaged in the course of her employment, received severe bodily injuries.
IV.
“The Plaintiff was uninsured as provided by the Workman’s Compensation Act of the State of Montana, MCA 39-71-509, said Plaintiff was electing to pursue damage action against the Defendant as her employer.”

The District Court granted Mr. Syme’s motion for summary judgment holding that Ms. Hunnewell failed to present a prima facie case of negligence. Employees electing to sue employers under Section 39-71-509, MCA (1981), rather than initiate proceedings against the uninsured employers’ fund, Section 39-71-502, MCA, must present a prima facie case of negligence to maintain an action for damages against an employer. The District Court cited Chancellor v. Hines Motor Supply (1937), 104 Mont. 603, 69 P.2d 764, as authority.

Ms. Hunnewell argues that she did allege negligence on the defendant’s part, even though he had no part in causing her physical injuries. Ms. Hunnewell contends: 1) that Section 39-71-401(1), MCA, requiring employers to carry workers’ compensation insurance, establishes a standard of care owed to employees to carry workers’ compensation insurance, 2) that Mr. Syme failed to carry workers’ compensation insurance; 3) that a violation of this statutory duty constitutes negligence per se; and 4) that she suffered financial damage because she was deprived of the compensation she would have received had Mr. Syme been covered by workers’ compensation insurance. Mr. Syme asserts that a damage action under Section 39-71-509, MCA, requires proof of negligence that results in physical injury only.

In Boehm v. Alanon Club (Mont. 1986), [222 Mont. 373,] 722 P.2d 1160, 43 St.Rep. 1341, this Court reaffirmed the holding in Chancellor that an action for damages against an employer requires the employee to present a prima facie case of negligence. Chancellor stated “An injured employee, who avails himself of the right given to him by the statute in question, is nevertheless bound to prove that the injury for which he sues was caused by the employer’s negligence.” Chancellor, 69 P.2d at 767. Although Ms. Hunnewell admits that Mr. Syme had no part in causing her physical injuries, she asserts she has alleged the negligence necessary to pursue a damage claim pursuant to Section 39-71-509, MCA, by simply asserting that Mr. Syme did not have workers’ compensation insurance.

This contention is incorrect for several reasons. First, even if Mr. Syme was negligent by not carrying workers’ compensation insurance, his negligence was not the proximate cause of Ms. Hunnewell’s injuries. The Workers’ Compensation Act defines injury as:

“(a) internal or external physical harm to the body;
“(b) damage to prosthetic devices or appliances, except for damage to eyeglasses, contact lenses, dentures, or hearing aids; or
“(c) death.”

Section 39-71-119, MCA. Financial injury, such as Ms. Hunnewell alleges, is not the sort of injury contemplated as compensable by way of a tort claim under Section 39-71-509, MCA. Although Ms. Hunnewell suffered physical injury, Mr. Syme’s failure to carry insurance was in no way the proximate cause of her physical injuries.

Second, Mr. Syme’s failure to comply with Section 39-71-401, MCA, does not constitute negligence per se. Workers’ compensation statutes were enacted as social insurance rather than to provide for damages in tort-connected liability cases. Mahlum v. Broeder (1966), 147 Mont. 386, 394, 412 P.2d 572, 576. Mr. Syme’s failure to comply with Section 39-71-401 is not the proximate cause of Ms. Hunnewell’s injuries because: “To constitute negligence per se, a statutory violation must also be the proximate cause of the injuries sustained.” Kudrna v. Comet Corp. (1977), 175 Mont. 29, 39, 572 P.2d 183, 189.

Finally, the Workers’ Compensation Act has been amended since Ms. Hunnewell’s accident. Section 39-71-515, MCA, gives employees an independent cause of action against uninsured employers by imposing liability simply on the basis of the employer’s failure to be enrolled in a workers’ compensation plan. This does not help the appellant in this case. The cause of action Ms. Hunnewell alleges, imposing liability on an employer based solely upon failure to enroll in a workers’ compensation plan, did not exist at the time of her injury. The law at the time of her injury governs recovery. Iverson v. Argonaut Insurance Company (Mont. 1982), 198 Mont. 340, 645 P.2d 1366, 1367, 39 St.Rep. 1040, 1041.

Ms. Hunnewell also raises the argument that if she is not allowed to recover in a damage action she will be denied her constitutional right of full redress pursuant to Article II, Section 16 of the Montana Constitution. This argument has no application in this case. A “speedy remedy afforded for every injury” does not equate to damages without first establishing liability. Thus, the District Court did not err when it granted summary judgment in favor of respondent.

Affirmed.

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


author: MR. JUSTICE WEBER

text:
    TIM I. MARTIN, Claimant and Appellant, v. PHILLIPS PETROLEUM CO., Employer, and the Hartford Insurance Company, Defendants and Respondents.
    No. 87-129.
    Submitted on Briefs Oct. 22, 1987.
    Decided Dec. 31, 1987.
    747 P.2d 1363.
    Lawrence A. Anderson, Great Falls, for claimant and appellant.
    Marra, Wenz, Johnson & Hopkins, Thomas A. Marra, Ugrin, Alexander, Zadick & Slovak, J. David Slovak, Great Falls, for defendants and respondents.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

Mr. Martin appeals from a judgment of the Workers’ Compensation Court denying his petition for medical benefits. We affirm.

One issue resolves this appeal: Did the Workers’ Compensation Court err in finding that Mr. Martin failed to prove causation?

Mr. Martin has a history of injury to his left shoulder. In 1972, he bruised the shoulder and collarbone in a motorcycle accident. In 1977 or 1978, he missed work for a week after injuring the shoulder during off-work hours while lifting a pool table at a bar.

In September 1978, Mr. Martin injured his left shoulder while lifting a 100 pound sack of salt. The injury occurred in the course of his employment with Phillips Petroleum Co. (Phillips). Phillips was insured by the Hartford Insurance Co. (Hartford) at that time. Mr. Martin filed a claim for compensation, and Hartford paid medical benefits and wage compensation. Mr. Martin’s physicians eventually released him to return to employment without restrictions. While Hartford is a party to this action, no claim that it bears continuing liability remains.

In February 1981, Mr. Martin injured his left shoulder while lifting an oil barrel in the course of his employment with Phillips. At that time, Phillips was self-insured, and Mr. Martin properly filed a claim under the Workers’ Compensation laws. Mr. Martin did not lose any work time, but was placed on light duty and obtained treatment from a physical therapist and physicians. Although Mr. Martin was released to return to full duty at work, he continued to suffer discomfort in his shoulder.

Mr. Martin was transferred to a Phillips facility in Texas in November 1981. After he worked one day operating a jackhammer and one day on a job out in the rain and snow, his shoulder began to bother him enough that he reported the condition to his supervisor. He saw another doctor, who prescribed a muscle relaxant and an analgesic. Shortly thereafter, Mr. Martin returned to Montana and quit his job with Phillips, for reasons unrelated to his shoulder problem.

Since he quit Phillips, Mr. Martin has had periods of unemployment and has worked as a bartender and bar manager. He continues to suffer from left shoulder pain and has consulted physicians who have suggested a course of testing and possible surgery on the shoulder. Mr. Martin asked the Workers’ Compensation Court to rule that these current medical expenses are compensable.

The court ruled that Mr. Martin has not proven by a preponderance of the credible medical evidence that his February 1981 injury is the cause of his present condition. It ruled Phillips is not liable for current medical benefits to Mr. Martin.

Did the Workers’ Compensation Court err in finding that Mr. Martin failed to prove causation?

The lower court concluded that “[claimant has failed to carry his burden of proof to show that his present condition is a result of any injury he may have suffered on February 22, 1981 at Phillips Petroleum.” Mr. Martin argues that the medical testimony he submitted, especially that of Dr. Nelson, supports the claim that his present condition is related to his February 1981 work injury.

Dr. Nelson testified by deposition that he saw Mr. Martin on March 19, 1985. Mr. Martin related to Dr. Nelson that he injured his shoulder in 1970 while he was lifting a salt sack at work. Mr. Martin also described his February 1981 work-related injury. Dr. Nelson did not have in his notes any reference to the 1972 motorcycle accident injury, the pool table injury, or the 1981 injury in Texas. Based on the information he had, Dr. Nelson opined that the 1978 and February 1981 injuries and Mr. Martin’s current condition “are, indeed, related.”

The record also contains depositions of several other doctors. Dr. Johnson first saw Mr. Martin on October 30, 1985. He diagnosed Mr. Martin as suffering from a suprascapular notch stretch injury since 1977. The history Dr. Johnson was given included the pool table injury, the 1978 work-related injury, and the February 1981 work-related injury. Dr. Johnson’s opinion was that “[a]ny one of those [injuries] could have caused [Mr. Martin’s present condition] or aggravated it.”

Dr. McGregor testified by deposition that he first saw Mr. Martin after the February 1981 work injury. Mr. Martin did not mention to Dr. McGregor the motorcycle or pool table injuries. Dr. McGregor testified that he released Mr. Martin to return to work April 20, 1981, without restrictions.

Dr. Popnoe testified that he first saw Mr. Martin in 1978, after the salt sack injury. The last time he treated Mr. Martin was April 1981.

A claimant under the Workers’Compensation Act must prove his case by a preponderance of the probative credible evidence. Dumont v. Wickens Bros. Const. Co. (1979), 183 Mont. 190, 201, 598 P.2d 1099, 1106. Unless they are clearly erroneous, this Court will not reverse the findings and conclusions of the Workers’ Compensation Court on causation. Tenderholt v. Travel Lodge Intern. (Mont. 1985), [218 Mont. 523,] 709 P.2d 1011, 1012, 42 St.Rep. 1792, 1794. While Mr. Martin has presented some evidence in support of his claim, his evidence is essentially incomplete because it is based on inadequate knowledge of Mr. Martin’s prior medical history. Dr. Nelson, who stated that Mr. Martin’s current condition and his 1978 and February 1981 work injuries are related, did not have the benefit of information on several of Mr. Martin’s previous injuries to his shoulder.

We hold that substantial evidence supports the lower court’s conclusion that Mr. Martin failed to prove by a preponderance of the credible medical evidence that his February 1981 injury is the cause of his present condition. Given the absence of proof of causation, we need not address the other two issues on maximum healing.

Affirmed.

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