author: JUSTICE NELSON

text:
    IN THE MATTER OF THE ESTATE OF EDNA MAE EGGEBRECHT, Deceased.
    No. 97-607.
    Submitted on Briefs March 19, 1998.
    Decided October 20, 1998.
    1998 MT 249.
    55 St.Rep. 1028.
    291 Mont. 174.
    967 P.2d 388.

      For Appellant: Gregory Paul Johnson, Billings (Co-Personal Representatives); Carla Bank, Brookfield, Wisconsin (pro se).
    For Respondent: Brent R. Cromley, Moulton, Bellingham, Longo & Mather, Billings (David Eggebrecht); Robert L. Stephens, Jr., Billings (minor heirs).
   JUSTICE NELSON

delivered the Opinion of the Court.

¶ 1 This is an appeal by the co-personal representatives of the estate of Edna Mae Eggebrecht from summary judgment entered by the Thirteenth Judicial District Court, Yellowstone County, declaring certain trust documents executed by the deceased, Edna Mae Eggebrecht, to be legally valid and effective. We affirm.

ISSUE

¶2 Did the District Court err in determining there was no genuine issue of material fact regarding whether amendments which the decedent Edna Mae Eggebrecht executed to certain trust documents were a result of undue influence by her grandson, David Eggebrecht?

BACKGROUND

¶3 Edna Mae Eggebrecht (hereinafter Edna or the decedent) died in Billings, Montana, on October 7,1995. A will and codicil dated February 3, 1993, were admitted for formal probate and two of the decedent’s adult children, Dorothy Suppes and Margery Hinman, were appointed co-personal representatives of the estate pursuant to the terms of the will. Additional documents were also submitted to the District Court, including a document identified as the Edna Mae Eggebrecht Family Trust dated February 3,1993, the Amendment to the Edna Mae Eggebrecht Family Trust executed November 3,1994, the Second Amendment to Trust Agreement dated July 10,1995, the Irrevocable Trust Agreement dated July 10, 1995, the Irrevocable Trust Agreement dated September 8,1995, and the Amended and Restated Trust Agreement of Edna Mae Eggebrecht dated September 12,1995 (collectively, the trust documents).

¶4 The will and codicil contain “pour over” provisions in which the assets of the decedent’s estate are transferred into the Edna Mae Eggebrecht Family Trust and distributed according to the terms set forth in the trust documents. The co-personal representatives contested the validity of the four trust documents executed in 1995. In an order dated April 29,1996, the District Court made an initial determination that the February 3, 1993 will and codicil constituted the last will and testament of the decedent but reserved jurisdiction to determine the validity and effect of the various trust documents at a later date.

¶5 At the close of discovery but before trial, David Eggebrecht (hereinafter David), the grandson of the decedent and one of the primary beneficiaries of the 1995 amendments to the Family Trust, filed a motion for summary judgment that the 1995 documents executed by the decedent to amend the terms of the Family Trust were valid and enforceable. The co-personal representatives opposed the motion on the grounds that issues of material fact existed regarding whether David exercised undue influence over his grandmother in the creation and execution of the 1995 trust amendments. The District Court granted David’s motion, holding that the four 1995 trust documents were valid and would control the disposition of the assets in the estate.

¶6 The evidence before the District Court showed that Edna was an unmarried widow living in Billings, Montana. Although she lived alone, Edna was visited daily by her grandson, David, on whom she relied for assistance and company. In November 1995, Edna moved to Scottsdale, Arizona, to live with her daughter, Dorothy, for the winter. She returned to her home in Billings, Montana, the following May and resumed her daily relationship with David.

¶7 Edna’s broker and long time financial advisor testified by affidavit that sometime after her return from Arizona in 1995, Edna discussed with him her desire to effect certain changes in the terms of the trust documents. The broker recommended the services of a local attorney specializing in the area of estate planning.

¶8 Sometime later David contacted this attorney to consult him regarding the handwritten changes Edna had been making to the trust documents and the possibility of having all of those changes memorialized into a single document. Copies of the marked-up trust documents were delivered to the attorney by David, and over the course of approximately three months, the four documents at issue were drafted, reviewed and executed. Although Edna never met in person with the attorney who was drafting the trust amendments, he testified in his deposition that they had spoken by telephone on several occasions to discuss the changes noted on the copies delivered by David.

STANDARD OF REVIEW

¶9 Our standard of review of the grant of summary judgment by the district court is the same as that used by the district court under Rule 56(c), M.R.Civ.R Estate of Lien (1995), 270 Mont. 295, 298, 892 P.2d 530, 532. Summary judgment may be granted where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.R In a motion for summary judgment the moving party has the initial burden of showing an absence of material fact, upon which the burden shifts to the opponent to affirmatively demonstrate that an issue of material fact exists. Owen v. Ostrum (1993), 259 Mont. 249, 255-56, 855 P.2d 1015, 1019. Mere denial or speculations will not suffice, the nonmovant must show facts sufficient to raise a genuine issue. Taylor v. Koslosky (1991), 249 Mont. 215, 217, 814 P.2d 985, 986. However, all reasonable inferences that may be drawn from any offered proof will be made in favor of the party opposing summary judgment. Lien, 270 Mont. at 299, 892 P.2d at 532.

DISCUSSION

¶10 This Court has recognized that the imposition of undue influence as defined by § 28-2-407, MCA, can negate the free consent necessary for the valid creation and enforcement of an express trust. Koslosky, 249 Mont. at 218, 814 P.2d at 986; Adams v. Allen (1983), 209 Mont. 149, 153, 679 P.2d 1232, 1235.

Undue influence consists in: (1) the use by one in whom a confidence is reposed by another or who holds a real or apparent authority over him of such confidence or authority for the purpose of obtaining an unfair advantage over him; (2) taking an unfair advantage over another’s weakness of mind; or (3) taking a grossly oppressive and unfair advantage of another’s necessities or distress.

Section 28-2-407, MCA.

¶ 11 The criteria for establishing undue influence are (1) a confidential relationship between the trustor and the person attempting to influence the trustor; (2) a physical or mental condition in the trustor that affects her ability to withstand the influence; (3) an unnatural disposition of property reflecting a mind which is unbalanced or susceptible to influence; and (4) demands or importunities made by the person seeking to influence the trustor that may affect the trustor, taking into consideration the time, place and all surrounding circumstances. Koslosky, 249 Mont. at 218, 814 P.2d at 987; Allen, 209 Mont. at 153-54, 679 P.2d at 1235. Each of these factors must be established in order to prove the existence of undue influence. Lien, 270 Mont. at 304, 892 P.2d at 535.

¶12 In its Memorandum and Order on Motion for Summary Judgment, the District Court concluded that there were no genuine issues of material fact regarding whether the decedent was under the undue influence of David at the time she executed the 1995 trust amendments. The co-personal representatives contend that material issues of fact exist with regard to all five of the requisite elements of undue influence. Our review of the record convinces us that the evidence presented to the District Court was not sufficient to give rise to a genuine issue of material fact regarding the imposition of undue influence upon the decedent and that David is therefore entitled to judgment as a matter of law.

¶13 David concedes that a confidential relationship existed between himself and his grandmother, and this issue is not in dispute.

¶ 14 With regard to whether the decedent suffered from a physical or mental condition affecting her ability to withstand undue influence, the co-personal representatives point to the paucity of evidence submitted by David regarding the decedent’s physical and mental well-being at the time the 1995 trust documents were signed. In particular, they argue, because neither David nor any of the affiants who testified as to Edna’s mental and physical health prior to her death were personally present at the very moment at which the documents were executed, there exists no evidence whatsoever which satisfies the movant’s burden on this issue.

¶ 15 We disagree. There is substantial evidence in the record that decedent’s physical health was exceedingly good for a woman of her age. In addition, each of the affidavits of Eunice Montgomery, who ran a boarding house in which decedent stayed at night during the three months immediately preceding her death, Rhoda Schlehuber, an administrative officer at decedent’s bank who handled the decedent’s accounts, and Phillip Boggio, decedent’s broker and financial advisor, as well as David’s own testimony before the District Court at a prior hearing, state that throughout the months of July, August and September 1995, the decedent was in full command of all her faculties, was not easily subjected to the influence of others, and was possessed of very strong opinions which she communicated freely to others. The time frame encompassed by this testimony includes the entire period in which the decedent would have been effecting changes in and executing the amended trust documents. The quality of this evidence is sufficient to place the evidentiary burden upon the co-personal representatives to rebut these statements with evidence to the contrary in order to raise a genuine issue of material fact.

¶16 The co-personal representatives have failed to carry this burden. Evidence that the decedent “undoubtedly suffered from some physical ailments from time to time,” that she failed to pick up the eye-glasses prescribed for her by an eye doctor in Arizona, that she had been unhappy residing in Arizona over the previous winter, that she was 90 years old and had friends and family checking up on her, and that on one occasion she was not immediately clear-headed upon waking are not sufficient to raise a genuine issue of material fact on this point. Even if all reasonable inferences which may be drawn from this evidence are considered, the cumulative effect of this testimony is mere speculation as to the possibility of any mental or physical infirmity which could have affected Edna’s ability to withstand attempted influence by another.

¶17 Likewise, there was insufficient evidence submitted to the District Court to raise a genuine issue of material fact regarding the naturalness of the disposition of Edna’s property. Although the changes to the trust documents increase the amount of property being left to David and his sons to the detriment of the decedent’s daughters and other descendants, this is not, by itself, sufficient to demonstrate an unnatural disposition. See Lien, 270 Mont. at 305, 892 P.2d at 536 (“Even the fact that a parent might leave the majority of his or her assets to only one child, while excluding others, is not in and of itself unnatural.”)(citing Flikkema v. Kimm (1992), 255 Mont. 34, 41, 839 P.2d 1293, 1298). This is especially so in light of the decedent’s comments to Eunice Montgomery, Rhoda Schlehuber and Phillip Boggio that her reasons for amending the trust were that she was generally unhappy with her daughters as a result of her visit to Arizona in the winter of 1994/1995 and that she felt she had already adequately provided for them during her lifetime.

¶ 18 Although the amendments increase the amount of property left to David and his sons, they do not wholly eliminate all other recipients of property under the prior trust documents as the co-personal representatives seem to imply. That David would be the object of the larger part of Edna’s largesse appears natural in light of the fact that it was upon David that Edna primarily relied to assist her with her routine chores, errands and appointments. As we discussed in Lien, none of these actions are unusual between relatives and are not, by themselves, cause for suspicion. 270 Mont. at 305, 892 P.2d at 536.

¶19 The co-personal representatives argue that the amendments reflect a “radical change” from the terms of the earlier documents, demonstrating the unnaturalness of the disposition. This argument is not persuasive because the change in beneficiaries under the 1995 amendments is adequately explained by Edna’s comments to third parties about her feelings toward the co-personal representatives and their receipt of lifetime gifts from Edna’s estate. Edna’s close personal relationship with her grandson, David, had existed for some time prior to her execution of the amendments, and if she felt that other possible recipients were adequately provided for, it would be natural to bestow a greater portion other property on a relative with whom she was especially close. None of the evidence presented demonstrates a disposition so unnatural as to reflect a mind which was unbalanced or susceptible to influence.

¶20 Likewise, there is no evidence in the record suggesting that David made demands or importunities upon Edna, seeking to influence her in the disposition of her property. The co-personal representatives repeatedly argue that it was David who chose the attorney who prepared the trust documents in 1995, that this attorney never met with Edna, and that therefore the changes in the documents were made at David’s direction according to his instructions. This argument is not supported by the evidence. Although David testified that he did initiate contact with the attorney who drafted the trust amendments, Edna’s broker testified that he had been the one to recommend this particular attorney. That David couriered the documents between Edna and the attorney does not establish that the attorney was acting under David’s direction. To the contrary, the attorney testified that in addition to following the handwritten notations on the trust documents themselves, he had also spoken several times with Edna by telephone to confirm the nature of the changes she wanted drafted. The attorney also testified that it is not uncommon in an estate planning practice to have trust documents sent to a client for signature without requiring the client to appear in person and have her signature witnessed. The evidence presented to the District Court on this issue was not sufficient to raise an issue of material fact precluding summary judgment.

¶21 We affirm the judgment of the District Court that the four 1995 trust documents carry out the testamentary and estate planning intentions of the decedent and are therefore effective to control the disposition of her real and personal property.

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


source: Caselaw Access Project

author: JUSTICE LEAPHART

license: Public Domain

text:
    WILLIAM R. MacPHEAT, Plaintiff and Appellant, v. PEGGY LEE SCHAUF, Defendant and Respondent.
    No. 98-221.
    Submitted on Briefs September 10, 1998.
    As Amended on Denial of Rehearing December 30, 1998.
    Decided October 20, 1998.
    1998 MT 250.
    55 St.Rep. 1032.
    291 Mont. 182.
    969 P.2d 265.

      For Appellant: William R. MacPheat, Pro se, Deer Lodge.
    For Respondent: I. James Heckathorn; Crowley, Haughey, Hanson, Toole & Dietrich, Kalispell.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

¶1 William R. MacPheat (MacPheat) appeals from the decision of the Eleventh Judicial District, Flathead County, dismissing his case pursuant to Rule 41(e), M.R.Civ.P.

¶2 We reverse.

¶3 In determining whether the District Court erred, we restate the issues as follows:

¶4 1. Whether Peggy Lee Schauf (Schauf) waived issuance of summons and service of process.

¶5 2. Whether a case must be dismissed under Rule 41(e), M.R.Civ.P, when a summons has issued but is not served within one year of the commencement of the action.

Standard of Review

¶6 In reviewing a district court’s conclusions of law, we determine whether the district court’s interpretation of law is correct. Sinclair v. Big Bud Mfg. Co. (1993), 262 Mont. 363, 366, 865 P.2d 264, 266; Steer, Inc. v. Dept. of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d 601, 603.

Factual and Procedural Background

¶7 MacPheat filed a complaint in District Court on April 8,1996, alleging that Schauf had slandered him. On April 26,1996 MacPheat caused summons to be issued; the Sheriff of Flathead County returned the summons on May 2,1996, finding that Schauf could not be located. On May 8,1996 MacPheat caused a second summons to be issued. The Sheriff of Hill County returned the summons on May 28, 1996, finding that Schauf could not be located. MacPheat then attempted service by publication of summons. Schauf moved to quash service of process. MacPheat demanded proof that Schauf’s counsel, I. James Heckathorn, had authority to represent her. In response, Schauf filed a statement with the District Court stating that Mr. Heckathorn had authority to represent her. The District Court subsequently granted her motion to quash service of process. Schauf then moved to dismiss MacPheat’s case. MacPheat moved to deny Schauf’s motion for dismissal and to amend his summons. The District Court dismissed the action with prejudice pursuant to Rule 41(e), M.R.Civ.P.

Discussion

¶8 1. Whether Schauf waived issuance of summons and service of process.

¶9 MacPheat contends that in moving for sanctions, filing a statement authorizing her attorney to act on her behalf, and moving to dismiss the case, Schauf made voluntary general appearances in District Court that waived issuance of summons and service of process. He argues that her actions were voluntary general appearances under Haggerty v. Sherburne Mercantile Co. because they were detrimental to him or beneficial to her and because in none of her appearances did Schauf contest only the jurisdiction of the District Court. Haggerty v. Sherburne Mercantile Co. (1947), 120 Mont. 386, 186 P.2d 884. MacPheat argues further that under this Court’s decision in Spencer v. Ukra, a voluntary general appearance waives issuance or service of summons. Spencer v. Ukra (1991), 246 Mont. 430, 804 P.2d 380. Schauf responds that she properly raised the issue of lack of personal jurisdiction in her first appearance before the District Court and that she therefore did not waive issuance of summons and service of process.

¶10 In Knoepke v. Southwestern Ry. Co., this Court considered whether a party who raises the issue of lack of personal jurisdiction in an initial appearance thereby recognizes the general power of the court. Knoepke v. Southwestern Ry. Co. (1980), 190 Mont. 238, 620 P.2d 1185. The Court concluded that Rule 12, M.R.Civ.P., had eliminated the distinction between special and general appearances. Knoepke, 190 Mont. at 243, 620 P.2d at 1187. The Knoepke Court then held:

Following service of process a party can attack the court’s personal jurisdiction simply by raising the jurisdiction issue in an initial response to plaintiff’s claim by motion before answering the claim or in answer to the claim. If the party’s initial response to the opponent’s claim raises a personal jurisdiction issue, then the party is not subject to the general power of the court solely because of the response.

Knoepke, 190 Mont. at 243, 620 P.2d at 1187-88 (emphasis added).

¶ 11 We conclude that MacPheat has misconstrued the significance of the record and this Court’s decisions in Haggerty and Spencer. The record establishes that Schauf raised the defense of lack of personal jurisdiction in her initial appearance. She expressly moved the District Court for “an Order quashing service of process.”

¶12 Moreover, MacPheat’s reliance on Spencer and Haggerty is misplaced. While recognizing the rule in Haggerty that “[t]he voluntary general appearance by the defendant is a waiver of the issuance or service of the summons,” the Spencer Court distinguished Haggerty, concluding that Haggerty was decided before the adoption of the “Rules of Civil Procedure modeled on the federal Rules.” Spencer, 246 Mont. at 433, 804 P.2d at 382. MacPheat argues that Schauf waived her defense of lack of personal jurisdiction, which she raised in her first appearance, because she combined it with other defenses. Rule 12(b), M.R.Civ.P, however, provides that “[n]o defense or objection is waived by being joined with one or more other defenses or objections in a responsive pleading or motion.” In Spencer the Court held that “[an] objection to lack of personal jurisdiction must be made at the time of the initial appearance in the District Court.” Spencer, 246 Mont. at 433, 804 P.2d at 382. As the record establishes, however, Schauf objected to lack of personal jurisdiction in her first appearance. Our decisions in Spencer and Haggerty do not support MacPheat’s argument. We affirm the District Court’s ruling that Schauf did not waive issuance of summons and service of process. ¶13 2. Whether a case must be dismissed under Rule 41(e), M.R.Civ.P, when a summons has issued but is not served within one year of the commencement of the action.

¶14 MacPheat argues that the District Court erred in dismissing his case pursuant to Rule 41(e), M.R.Civ.P. He argues that his summons did not cease to exist legally because he could not obtain service within one year of the commencement of the action. MacPheat further asserts that the District Court erred in denying his motion to amend his summons pursuant to this Court’s decision in Larango v. Lovely (1981), 196 Mont. 43, 637 P.2d 517. In Larango, the plaintiff obtained service of a summons but altered it without leave of court before service was obtained. The defendant moved to quash the summons because of plaintiff’s alterations, and plaintiff then moved to amend the summons. The district court granted defendant’s motion to quash and dismissed the case. The Court in Larango held that the district court abused its discretion in refusing to allow amendment of the summons and remanded the case for amendment of the summons and proof of service. Larango, 196 Mont. at 48, 637 P.2d at 520. The Court held that “[ijssuance and service of the summons shall relate back to the original dates of issuance and service, to insure that [the] case is not dismissed for failure to comply with the time requirements of Rule 41(e), M. R. Civ. P.” Larango, 196 Mont. at 48, 637 P.2d at 520. ¶15 Schauf contends that the two summons that MacPheat caused to be issued and that the Sheriffs of Hill and Flathead counties returned were functus officio. Schauf argues in essence that because the two summons issued were returned without having been served, they were without legal effect under Rule 41(e), M.R.Civ.P. Schauf further argues that the District Court correctly denied MacPheat’s motion to amend his summons because no summons then existed that could be amended. Schauf attempts to distinguish this Court’s decision in Larango on the ground that in Larango there was a viable summons but that there is no summons in existence in the present case.

¶16 In dismissing MacPheat’s case under Rule 41(e), M.R.Civ.P, the District Court found that Schauf “has never been served with summons and there is no viable summons in existence which could be served upon her.” The District Court concluded that compliance with Rule 41(e) was “impossible.” Rule 41(e) provides in pertinent part:

Failure to serve summons. No action heretofore or hereafter commenced shall be further prosecuted as to any defendant who has not appeared in the action or been served in the action as herein provided within 3 years after the action has been commenced, and no further proceedings shall be had therein, and all actions heretofore or hereafter commenced shall be dismissed by the court in which the same shall have been commenced, on its own motion, or on the motion of any party interested therein... unless summons shall have been issued within 1 year, or unless summons issued within one year shall have been served and filed with the clerk of the court within 3 years after the commencement of said action.

Rule 41(e), M.R.Civ.P. (emphasis added).

¶17 We conclude that the District Court erred in dismissing MacPheat’s case. The parties do not dispute and the record clearly establishes that MacPheat caused two summons to issue against Schauf within one year of the commencement of the action. Thus, although MacPheat was unable to obtain service of the summons within one year, he complied with the requirement of Rule 41(e), M.R.Civ.R, that a summons be issued within one year of the commencement of an action. Schauf has misunderstood the meaning of functus officio. Functus Officio means means “having fulfilled the function, discharged the office, or accomplished the purpose, and therefore of no further force or authority,” Black’s Law Dictionary 673 (6th ed. 1990); it does not mean void ad initio. The timely issuance of MacPheat’s summons did not become void ab initio because they were filed with returns indicating that service had not been obtained. Rule 41(e) does not require that a plaintiff even attempt service within one year of the commencement of an action; thus, MacPheat’s attempt to obtain service is of no consequence under the one-year requirement of Rule 41(e). We conclude that the District Court’s dismissal of MacPheat’s case is inconsistent with the overall scheme and purposes of Rule 41(e), M.R.Civ.P., and that it is incorrect as a matter of law.

¶18 We also conclude, however, that the District Court correctly denied MacPheat’s motion to amend his original summons. When MacPheat’s original summons was filed together with a return indicating that service had been attempted but not obtained, the summons became functus officio not with regard to its issuance but with regard to its further service. As such, the summons can no longer be amended. Thus, rather than seek amendment of such summons, MacPheat should have requested an additional summons pursuant to Rule 4C(1), M.R.Civ.P. Compare Montgomery Ward & Co. v. District Court (1944), 115 Mont. 521, 527, 146 P.2d 1012, 1015 (concluding that original summons returned after partial or defective service is functus officio) and Schmitz v. Vasquez, 1998 MT 314,_Mont._, _P.2d_(decided December 23,1998) (recognizing amended summons issued after original summons surrendered without a proof or return of service.)

¶19 We hold that when a party has caused a summons to issue within one year of the commencement of an action, he has complied with Rule 41(e). The fact that he or she is not successful is serving the summons within one year of the commencement of the action is of no consequence. A party may cause additional summons to issue pursuant to Rule 4C(1), M.R.Civ.P, and have three years from the commencement of the action to obtain service.

¶20 Reversed.

JUSTICES TRIEWEILER, HUNT, NELSON and REGNIER concur.


author: JUSTICE REGNIER

text:
    COUNTERPOINT, INC., a Montana non-profit corporation, Plaintiff and Appellant, v. ESSEX INSURANCE COMPANY, Defendant and Respondent.
    No. 98-155.
    Submitted on Briefs June 25, 1998.
    Decided October 20, 1998.
    1998 MT 251.
    55 St.Rep. 1035.
    291 Mont. 189.
    967 P.2d 393.

      For Appellant: Robert L. Jovick, Attorney at Law, Livingston.
    For Respondent: Peter F. Habein; Crowley, Haughey, Hanson, Toole & Dietrich, P.L.L.P.; Billings.
   JUSTICE REGNIER

delivered the opinion of the Court.

¶1 Appellant, Counterpoint, Inc., filed an action against respondent, Essex Insurance Company, in the Sixth Judicial District Court, Park County, after Essex refused to defend and indemnify Counterpoint in a wrongful discharge action under a liability insurance policy. Pursuant to the parties’ cross-motions for summary judgement regarding the terms of insurance coverage, the District Court granted judgment in Essex’s favor. Counterpoint appeals, and we affirm.

¶2 The dispositive issue before us is whether Essex was bound by the liability insurance policy to defend and indemnify Counterpoint in a wrongful discharge suit.

FACTUAL BACKGROUND

¶3 The parties do not dispute the following material facts. Counterpoint is a nonprofit organization operating group homes for developmentally disabled adults. After Counterpoint’s executive director terminated an employee for alleged misconduct, the employee filed a complaint against Counterpoint pursuant to Montana’s Wrongful Discharge From Employment Act, §§ 39-2-901 to -915, MCA, in the Sixth Judicial District Court, Park County. The employee alleged only one cause of action — wrongful discharge.

¶4 During all the pertinent events of this case, Essex provided Counterpoint with liability insurance. Per the professional liability portion of the insurance policy, Counterpoint requested that Essex defend and indemnify it in the wrongful discharge suit. Essex refused, contending that the terms of the policy do not cover employee terminations. The sections of the policy subject to their dispute are the professional liability provision and the combined provision endorsement. The professional liability provision covers injuries caused by Counterpoint “arising out of any negligent act, error or omission in rendering or failure to render professional services.” However, the combined provisions endorsement states that the policy “does not cover any claims arising out of... [Germination of employment.”

¶5 The parties introduced their dispute first in Federal District Court. Essex commenced a declaratory judgment action in the United States District Court, and the parties filed cross-motions for summary judgement. On August 3, 1995, the Federal District Court granted summary judgment in Essex’s favor. On April 1, 1996, the Ninth Circuit Court of Appeals reversed the Federal District Court’s decision and remanded the case with instructions to dismiss for lack of proper jurisdiction.

¶6 Thereafter, on October 16,1996, Counterpoint filed this action against Essex in the Sixth Judicial District Comb, Park County, under Montana’s Declaratory Judgment Act. In response to the parties’ cross-motions for summary judgment, the District Court granted summary judgement in favor of Essex on December 19,1997. Counterpoint appeals.

STANDARD OF REVIEW

¶7 On appeal from a summary judgment, this Court reviews a case de novo based on the same criteria applied by the district court. See Stutzman v. Safeco Ins. Co. (1997), 284 Mont. 372, 376, 945 P.2d 32, 34 (citing Treichel v. State Farm Mut. Auto. Ins. Co. (1997), 280 Mont. 443, 446, 930 P.2d 661, 663). Thus,

[t]he movant must demonstrate that no genuine issues of material fact exist. Once this has been accomplished, the burden then shifts to the non-moving party to prove by more than mere denial and speculation that a genuine issue does exist. Having determined that genuine issues of material fact do not exist, the court must then determine whether the moving party is entitled to judgment as a matter of law. [This Court] reviews the legal determination made by a district court as to whether the court erred.

Stutzman, 284 Mont. at 376, 945 P.2d at 34 (quoting Bruner v. Yellowstone County (1995), 272 Mont. 261, 264-65, 900 P.2d 901, 903). Our review of a summary judgment is much broader than other appeals. See District No. 55 v. Musselshell County (1990), 245 Mont. 525, 527, 802 P.2d 1252, 1253 (quoting McCain v. Batson (1988), 233 Mont. 288, 298, 760 P.2d 725, 731). Ifwe agree with the conclusions of the district court, we can affirm the district court’s decision, if correct, regardless of its reasons. See Norman v. City of Whitefish (1993), 258 Mont. 26, 30, 852 P.2d 533, 535; Musselshell, 245 Mont. at 527, 802 P.2d at 1253; Jerome v. Pardis (1989), 240 Mont. 187, 192, 783 P.2d 919, 922.

DISCUSSION

¶8 Was Essex Insurance Company bound by the liability insurance policy to defend and indemnify Counterpoint in a wrongful discharge suit?

¶9 The District Court held that Essex was not bound to defend and indemnify Counterpoint because the professional liability provision of the insurance policy covers only Counterpoint’s professional services. The District Court defined professional services as services rendered to a patient or client, and expressly excluded acts of terminating employees.

¶10 We affirm the District Court’s decision; however, we affirm on separate grounds. We conclude that the combined provisions endorsement of the insurance policy, which states that the policy “does not cover any claims arising out of... [germination of employment,” extends to the entire policy, including the professional liability provision. Thus, we do not consider the scope of the professional liability coverage or the meaning of professional services.

¶11 As Essex argues, and we agree, the endorsements and provisions of the insurance policy must be read as parts of one policy, not separate policies. Essex contends that the purpose of the combined provisions endorsement is, just as the title suggests, to combine provisions of the entire policy. Considering similar policies, Essex also asserts that professional liability coverage is a standard option under a general liability policy and should be construed as such in this case. ¶12 Counterpoint argues that since the professional liability provision and the combined provisions endorsement are written separately, they should be read separately. Counterpoint identifies nine exclusions listed in the professional liability provision and contends that only these exclusions should apply to professional liability coverage, and none of these exclusions pertain to employee terminations. Considering similar policies, Counterpoint also argues that general liability coverage, which in this case includes the combined provisions endorsement, commonly extends only to occurrence-based coverage such as bodily injury or property damage claims.

¶13 On our review, we must interpret Counterpoint’s insurance policy as a question of law. See Stutzman, 284 Mont. at 376, 945 P.2d at 34. When we review an insurance policy, we are bound to interpret its terms according to their usual, common sense meaning as viewed from the perspective of a reasonable consumer of insurance products. See Stutzman, 284 Mont. at 376, 945 P.2d at 34; Duensing v. Traveler’s Companies (1993), 257 Mont. 376, 381, 849 P.2d 203, 206. While our general rule is to interpret any doubts as to coverage in favor of the insured, we do not do this where the terms of the policy are not ambiguous. See Daly Ditches Irr. Dist. v. National Sur. Corp. (1988), 234 Mont. 537, 538-39, 764 P.2d 1276, 1277. If the language of the policy is clear and explicit, we do not rewrite it, but enforce it as written. See Stutzman, 284 Mont. at 376, 945 P.2d at 34; Hurtt v. School Dist. No. 29, Big Horn County (1986), 222 Mont. 415, 418-19, 723 P.2d 205, 207.

¶14 We first conclude that the terms of Counterpoint’s liability insurance policy are not ambiguous. Both the combined provisions endorsement and the professional liability provision are clearly identified as attachments under the same policy number. Also, the language of these two provisions clearly relates one to the other. The professional liability provision specifically limits its coverage to the “exclusions, conditions and other terms of this policy.” Similarly, the combined provisions endorsement states that “insurance afforded by this policy applies only to the hazards described in the coverage part attached to this policy.” The professional liability provision is titled a “coverage part.” The combined provisions endorsement also states that “this policy does not cover any claim as a result of rendering of or failure to render any professional service, unless specifically endorsed onto the policy.” The professional liability provision does just this — it endorses coverage onto the policy.

¶15 Counterpoint argues that the combined provisions endorsement and the professional liability provision should be read separately and that exclusions from professional liability coverage should be limited to the terms of the professional liability provision. Counterpoint refers to a sentence in the professional liability provision which states that “[liability provided by any other coverage part under this policy shall not apply to the rendering of or failure to render professional services,” and suggests that since professional liability coverage is expressly limited to the terms of the professional liability provision, exclusions to coverage also should be limited to the terms of the provision. We do not agree with Counterpoint’s argument. Just because coverage is limited to a certain provision does not necessarily limit exclusions to that provision.

¶ 16 Counterpoint further argues that if we read both the nine exclusions listed in the professional liability provision together with the exclusions from the combined provisions endorsement, we would cause an unnecessary duplication of some exclusions. Again, we do not agree. We will not read different parts of an insurance policy separately just because they contain similar exclusions.

¶17 Counterpoint also incorrectly characterizes the combined provisions endorsement found in the general liability policy by arguing that it should extend only to occurrence-based coverage for bodily injury or property damage. Our common-sense interpretation of the combined provisions endorsement requires us to allow coverage to extend beyond bodily injury or property damage claims. In this policy, the combined provisions endorsement must be read along with the professional liability provision.

¶ 18 Because we conclude that Counterpoint’s liability insurance policy is unambiguous, we enforce it as written. Despite Counterpoint’s request that we apply the reasonable expectation doctrine and rules for interpreting an adhesion contract against the insurer, we do not apply these principles here. This Court has said that “[expectations which are contrary to a clear exclusion from coverage are not ‘objectively reasonable.’ ” Wellcome v. Home Ins. Co. (1993), 257 Mont. 354, 356, 849 P.2d 190, 194; see also Stutzman, 284 Mont. at 381, 945 P.2d at 37. Furthermore, we consider special rules of interpreting contracts only when a contract is ambiguous. See, e.g., Stutzman, 284 Mont. at 381, 945 P.2d at 37. Even though we have previously recognized an exception to enforcing an unambiguous insurance contract term when the term violates public policy, this exception is not before us. See, e.g., Augustine v. Simonson (1997), 283 Mont. 259, 263, 940 P.2d 116, 119.

¶ 19 Other courts that have interpreted general policy exclusions in a professional liability insurance contract have come to the same conclusion that we do here. See, e.g., Essex Ins. Co. v. Vincent (10th Cir. 1995), 52 F.3d 894 (holding that liability coverage can be limited by exclusions found in a different part of the insurance policy).

¶20 In accordance with case law and a common sense interpretation of Counterpoint’s liability insurance policy, we conclude that the employee termination exclusion found in the combined provisions exclusion applies to the professional liability provision and, therefore, Essex is not bound by the liability insurance policy to defend and indemnify Counterpoint in a wrongful discharge suit.

¶21 We affirm the District Court’s order for summary judgment granted in favor of Essex.

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


author: JUSTICE HUNT

text:
    BALYEAT LAW, PC, as Trustee, Plaintiff and Appellant, v. GEORGINA BEVERLY PETTIT, Defendant and Respondent.
    No. 97-647.
    Submitted on Briefs February 18, 1998.
    Decided October 20, 1998.
    1998 MT 252.
    55 St.Rep. 1038.
    291 Mont. 196.
    967 P.2d 398.

      For Appellant: Regan Whitworth, Balyeat Law Offices, Missoula.
    For Respondent: Andrea J. Olsen, Confederated Salish and Kootenai Tribes Tribal Legal Services, Pablo.
   JUSTICE HUNT

delivered the Opinion of the Court.

¶1 Balyeat Law, P.C., as Trustee, (Balyeat) appeals from an order of the Twentieth Judicial District Court, Lake County, granting Georgina Beverly Pettit’s (Beverly) motion to dismiss for lack of jurisdiction. We affirm.

¶2 The following issues were raised on appeal:

¶3 1. Did the District Court err when it addressed whether the Justice Court properly entered the default judgment and whether the state court had jurisdiction over this case?

¶4 2. Do the state courts of Montana have subject matter jurisdiction over an action to collect a debt for medical bills arising out of transactions on the Flathead Reservation, brought by a non-Indian creditor against an enrolled member of the Confederated Salish and Kootenai Tribes who resides on the reservation and whose spouse incurred the debt?

¶5 3. Do the state courts of Montana have subject matter jurisdiction over an action to collect a debt for medical bills arising out of transactions that occurred off the Flathead Reservation hut within the State of Montana, brought by a non-Indian creditor against an enrolled member of the Confederated Salish and Kootenai Tribes who resides on the reservation and whose spouse incurred the debt?

FACTUAL AND PROCEDURAL BACKGROUND

¶6 Beverly Pettit is an enrolled member of the Confederated Salish & Kootenai Tribes (Tribes). She has resided within the exterior boundaries of the Flathead Reservation her entire life. The record reveals that she works for Mission Valley Power, a business entity owned by the Tribes, and that all her assets are located on the reservation. On August 10, 1991, she married Lyle Pettit. Lyle is not a member of the Tribes, although he also lives within the exterior boundaries of the Flathead Reservation.

¶7 Lyle incurred medical debts at three medical institutions: St. Luke Community Hospital (St. Luke’s), Rittenour Medical Clinic, and Community Medical Center. St. Luke’s is located in Lake County, within the exterior boundaries of the Flathead Reservation. Rittenour Medical Clinic is located in Sanders County, outside the exterior boundaries of the Flathead Reservation. The Community Medical Center is located in Missoula County, also outside the exterior boundaries of the reservation. Although the District Court made no findings of fact as to when the medical debts were incurred, it appears from the record that Lyle incurred some of his debts at St. Luke’s in July 1989 and February 1991, prior to his marriage to Beverly. The remainder of the debts were incurred after his marriage. None of the medical debts were incurred by Beverly.

¶8 All three medical institutions appointed Balyeat as trustee for Lyle’s debts. On May 1, 1995, Balyeat filed a complaint in Lake County Justice Court alleging that Beverly was indebted to it for $1843.60 for goods and services provided to Lyle by the three medical institutions. Balyeat did not name Lyle as a defendant. On June 14, 1995, the Justice of the Peace entered a default judgment against Beverly for the requested sum plus interests and costs.

¶9 On January 17,1996, Beverly filed a motion to set aside the default judgment, contending in part that the Lake County Justice Court had neither personal nor subject matter jurisdiction over her because she was a member of the Tribes residing within the exterior boundaries of the Flathead Reservation and because the debts were incurred by her husband Lyle both before and during their marriage. On February 27, 1996, the Justice of the Peace denied her motion without any opinion or rationale stated.

¶10 Beverly appealed to the District Court on March 7,1996, and on July 17, 1996, the District Court entered an order granting her motion to dismiss for lack of jurisdiction. The court did not support its order with any memorandum of opinion or rationale. Balyeat appealed to this Court. The record on appeal, however, was devoid of any affidavits, hearing testimony or discovery establishing what the facts actually were. Moreover, there was no memorandum of opinion or rationale of the court whose decision we were requested to affirm, modify or reverse. In light of the complexity and sensitivity of the issues involving state court jurisdiction over reservation Indians in civil matters, we thus remanded the case to the District Court with instructions to develop a factual record and render findings of fact, conclusions of law and a memorandum of opinion. We also instructed the parties on any further appeal of this case to this Court to cite and argue legal authorities that pertain to the specific factual record. See Balyeat Law, PC v. Pettit (1997), 281 Mont. 95, 931 P.2d 50.

¶11 On August 27,1997, the District Court entered its findings of fact, conclusions of law and order, granting Beverly’s motion to dismiss for lack of subject matter jurisdiction. The court held that the issue of the state court’s jurisdiction was properly before it, because the issue of the court’s subject matter jurisdiction could be raised at any time. It applied the three-part test articulated in State ex rel. Iron Bear v. District Court (1973), 162 Mont. 335, 512 P.2d 1292 and held that the court did not have jurisdiction over the action because Beverly was a member of the Tribes and under Montana precedent, the exercise of state jurisdiction would interfere with reservation self-government. The court further held that the Tribes and the state of Montana had not agreed to concurrent jurisdiction over debt collection actions pursuant to Public Law 280. Finally, it held that § 40-2-106, MCA, did not subject Beverly to liability for Lyle’s debts, because that statute did not confer jurisdiction which was otherwise precluded, and Beverly had not engaged in significant off-reservation contacts so as to render her subject to the jurisdiction of the state court in this matter. This appeal followed. The case is now ready for review.

STANDARD OF REVIEW

¶12 Whether to dismiss a claim based on lack of jurisdiction presents a question of law. We review a district court’s conclusions of law to determine whether they are correct. In re Marriage of Skillen (1998), 1998 MT 43, ¶ 9, [287 Mont. 399], 956 P.2d 1, ¶ 9 (citing Poteat v. St. Paul Mercury Ins. Co. (1996), 277 Mont. 117, 119, 918 P.2d 677, 679).

ISSUE ONE

¶13 Did the District Court err when it addressed whether the Justice Court properly entered the default judgment and whether the state court had jurisdiction over this case?

¶ 14 Balyeat contends that the District Court had no authority to review whether the Justice Court properly entered a default judgment. It points to § 25-33-303, MCA, which provides that a party may not appeal a judgment by default rendered injustice court “except on questions of law which appear on the face of the papers or proceedings and except in cases when the justice’s or city court has abused its discretion in... refusing to set aside a default or judgment.” In this case, Balyeat argues that although Beverly raised the jurisdictional issue in her motion to set aside the default judgment, she identified nothing on the face of the complaint that indicates subject matter jurisdiction may be lacking. It further contends that she never actually argued that the Justice Court abused its discretion nor did she establish any evidence supporting such a claim. Balyeat maintains that the court therefore had no authority either to address the jurisdictional issue or set aside the default judgment. We disagree.

¶15 It is well-settled that the issue of a court’s subject matter jurisdiction may be presented at any time. See Rule 12(h)(3), M.R.Civ.P. (“ Whenever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action.”)(emphasis added). See also In re Marriage of Skillen, ¶ 10 (“A motion to dismiss based on lack of subject matter jurisdiction may be raised at any time and by either party, or by the court itself.”); Geiger v. Pierce (1988), 233 Mont. 18, 21, 758 P.2d 279, 281 (“It is a fundamental axiom of our legal system that the issue of subject matter jurisdiction may be invoked at any time in the course of a proceeding.”)(citing In re Marriage of Lance (1984), 213 Mont. 182, 186, 690 P.2d 979, 981). This is true even if subject matter jurisdiction is not attacked until after the entry of default. See, e.g., Larrivee v. Morigeau (1979), 184 Mont. 187,192,602 P.2d 563,566, cert. den., 445 U.S. 964, 100 S.Ct. 1653, 64 L.Ed.2d 240. In short, a party can never waive or consent to subject matter jurisdiction where there is no basis for the court to exercise jurisdiction. In re Marriage ofSkillen, ¶ 10 (citing In re Marriage of Miller (1993), 259 Mont. 424, 427, 856 P.2d 1378, 1380). Therefore, notwithstanding Balyeat’s arguments that Beverly did not present the issue in the proper fashion or identify any legal issues on the face of the complaint, the issue of subject matter jurisdiction is not waived and the court cannot refuse to entertain the motion to dismiss. We hold that the District Court did not err when it considered the issue of the state court’s jurisdiction and did not err in determining whether the Justice Court had properly entered the default judgment.

ISSUE TWO

¶16 Do the state courts of Montana have subject matter jurisdiction over an action to collect a debt for medical hills arising out of transactions on the Flathead Reservation, brought by a non-Indian creditor against an enrolled member of the Confederated Salish and Kootenai Tribes who resides on the reservation and whose spouse incurred the debt?

¶17 [5] Balyeat maintains that the state court has jurisdiction over that portion of the action that relates to the debts Lyle incurred at St. Luke’s, which is located within the exterior boundaries of the reservation. In presenting this argument, Balyeat does not distinguish between those debts incurred by Lyle prior to his marriage to Beverly and those debts incurred after his marriage. It makes no difference in any event, because we hold that the state court lacks subject matter jurisdiction to resolve the dispute over all debts incurred at St. Luke’s.

¶18 [6] It has long been recognized that tribes are presumed to maintain their inherent tribal sovereignty and jurisdiction over the activities of both Indians and non-Indians on reservation lands. Geiger v. Pierce (1988), 233 Mont. 18, 20, 758 P.2d 279, 280 (“Generally civil jurisdiction over commercial activities presumptively lies in the tribal courts unless affirmatively limited by a specific treaty, provision or federal statute.”)(citing Iowa Mutual Ins. Co. v. LaPlante (1987), 480 U.S. 9, 18, 107 S.Ct. 971, 978, 94 L.Ed.2d 10, 16);In re Marriage ofSkillen, ¶ 56 (“As a matter of sovereignty, tribes are presumed to have jurisdiction over the activity of members and non-members alike within the exterior boundaries of the reservation.”)

¶19 In Williams v. Lee (1959), 358 U.S. 217, 223, 79 S.Ct. 269, 272, 3 L.Ed. 2d 251, 255-56, the United States Supreme Court expressly held that in light of the tribes’ inherent sovereignty, absent Congressional Acts, state courts do not have jurisdiction over debt actions brought by a non-Indian creditor, where the transaction at issue arose on the reservation. The Supreme Court stated:

Essentially, absent governing Acts of Congress, the question has always been whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them.

Williams, 358 U.S. at 220, 79 S.Ct. at 271, 3 L.Ed.2d at 254. The Supreme Court concluded that “[tjhere can be no doubt that to allow the exercise of state jurisdiction [in the debt action] would undermine the authority of the tribal courts over Reservation affairs and hence would infringe on the right of the Indians to govern themselves.” Williams, 358 U.S. at 223, 79 S.Ct. at 272, 3 L.Ed.2d at 255. See also Kennerly v. District Court of the Ninth Judicial District of Montana (1971), 400 U.S. 423, 429, 91 S.Ct. 480, 483, 27 L.Ed.2d 507, 511 (holding that absent the consent of the tribe in accordance with Public Law 280 and affirmative legislative action by the state, the tribe has exclusive jurisdiction over a debt collection action arising out of a transaction on the reservation between a non-Indian creditor and an Indian defendant).

¶20 The Montana Supreme Court has consistently applied and confirmed the holdings in Williams and Kennerly. Based in part upon the test articulated in Williams, this Court has outlined a three-part test for determining whether the state courts of Montana have jurisdiction over transactions occurring on the reservation. In State ex rel. Iron Bear v. District Court (1973), 162 Mont. 335, 346, 512 P.2d 1292, 1299, we stated:

Before a district court can assume jurisdiction in any matter submitted to it, it must find subject matter jurisdiction by determining: (1) whether the federal treaties and statutes applicable have preempted state jurisdiction; (2) whether the exercise of state jurisdiction would interfere with reservation self-government; and (3) whether the Tribal Court is currently exercising jurisdiction or has exercised jurisdiction in such a manner as to preempt state jurisdiction.

See also Marriage of Skillen, ¶ 46 (holding that in jurisdictional disputes between tribal and state courts, the Iron Bear test and a traditional sovereignty analysis apply in the adjudicatory context).

¶21 In accordance with Williams and Kennerly and the three-part test outlined in Iron Bear, this Court has held that the Montana courts have no subject matter jurisdiction over a debt collection action such as the one in this case, which arises on an Indian reservation and is brought by a non-Indian creditor against an enrolled member of the tribe residing on the reservation. See Geiger, 233 Mont. at 21, 758 P.2d at 281; Security State Bank v. Pierre (1973), 162 Mont. 298, 305, 511 P.2d 325, 329-30. In both Geiger and Pierre, this Court held that state court jurisdiction over such an action would interfere with tribal sovereignty and tribal self-government. Geiger, 233 Mont. at 21, 758 P.2d at 281; Pierre, 162 Mont. at 305, 511 P.2d at 329-30.

¶22 Balyeat contends that even though Beverly is a member of the Tribes and resides on the reservation and even though the transaction arose on the reservation, state court jurisdiction will not interfere with tribal self-government, because the Tribes consented to share concurrent jurisdiction with the state courts in this area of law pursuant to Public Law No. 280, 18 U.S.C. §§ 1161-62, 25 U.S.C. §§ 1321-1326,28 U.S.C. § 1360. Enacted in 1953, Public Law 280 provides a procedure whereby states may assume concurrent jurisdiction over civil causes of action to which a tribal member is a party and which arise within the boundaries of an Indian reservation. Pub.L. 280, 28 U.S.C. § 1360. While six states assumed jurisdiction under the statute’s express terms, other states, including Montana, were entitled to unilaterally “assume jurisdiction at such time and in such manner as the people of the State shall, by affirmative legislative action, obligate and bind the State to assumption thereof.” Pub.L. 280, § 7,67 Stat. 588,590 (1953). Pursuant to the 1968 Indian Civil Rights Act, Congress subsequently repealed the provision which authorized the states to unilaterally assume jurisdiction, and thereafter required the consent of the majority of the adult tribal members before the state could assume jurisdiction. 25 U.S.C. §§ 1322, 1326. See also In re Marriage of Wellman (1993), 258 Mont. 131, 136-37, 852 P.2d 559, 562 (briefly outlining history of Public Law 280); State ex rel. McDonald v. Dist. Court (1972), 159 Mont. 156, 159-160, 496 P.2d 78, 80-81 (same).

¶23 Although consent of the tribal members was thus not required by Public Law 280 prior to the enactment of the 1968 Indian Civil Rights Act, Montana nevertheless established a consent procedure in 1963 for extending its civil adjudicatory powers onto the reservation. See Mont.Sess.Laws, Ch. 81,1963, now codified at §§ 2-1-301 through 2-1-306, MCA. Subsequently, in 1965, the Confederated Salish and Kootenai Tribes enacted Tribal Ordinance 40-A (Revised) pursuant to which the Tribes consented to the assumption of enumerated areas of civil jurisdiction by the state courts of Montana onto the Flathead Reservation. In accordance with § 2-1-302, MCA, the governor of Montana thereafter issued the required proclamation dated October 8,1965. Pursuant to Public Law 280 and Tribal Ordinance 40-A (Revised), the laws and jurisdiction of the state of Montana were thereby extended onto the Flathead Reservation in the following areas:

(a) Compulsory School Attendance
(b) Public Welfare
(c) Domestic Relations (except adoptions)
(d) Mental Health, Insanity, Care of the Infirm, Aged and Afflicted
(e) Juvenile Delinquency and Youth Rehabilitation
(f) Adoption Proceedings (With consent of the Tribal Court)
(g) Abandoned, Dependent, Neglected, Orphaned or Abused Children
(h) Operation of Motor Vehicles upon the Public Streets, Alleys, Roads and Highways
(i) All Criminal Laws of the State of Montana; and all Criminal Ordinances of Cities and Towns within the Flathead Indian Reservation.

¶24 In determining whether Tribal Ordinance 40-A (Revised) extends jurisdiction over this case, we keep in mind several rules of statutory construction. In general, the role of this Court has always been “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. Statutory language must be construed according to its plain meaning and if the language is clear and unambiguous, no further interpretation is required. Lovell v. State Comp. Mut. Ins. Fund (1993), 260 Mont. 279, 285, 860 P.2d 95, 99. Only when the language is ambiguous does the Court apply rules and principles of statutory interpretation. When construing Indian law, the canon of construction applied by the courts for over a century and a half has been to resolve all doubtful expressions in favor of Native Americans. Worcester v. Georgia (1832), 31 U.S. (6 Pet.) 515, 8 L.Ed. 483; Antoine v. Washington (1975), 420 U.S. 194, 199, 95 S.Ct. 944, 949, 43 L.Ed.2d 129, 134. See also In re Marriage of Skillen, ¶ 106 (Nelson, J., concurring in part and dissenting in part).

¶25 In this case, however, this Court is not asked to simply interpret a state or federal statute that applies to Native Americans, but we are asked to interpret an ordinance that was promulgated by the Tribes themselves. Hence, it is even more imperative that we afford every deference to the Tribes and resolve all ambiguities in its favor. This is particularly so in this case. The ordinance we are asked to construe is one whereby the Confederated Salish and Kootenai Tribes voluntarily consented to the extension of jurisdiction to the Montana courts in very limited areas. Absent the clearest evidence of the Tribes’ intent to consent to the assertion of authority by state courts onto their sovereign land, the Tribes retain their exclusive jurisdiction.

¶26 For that very reason, this Court has thus held Tribal Ordinance 40-A (Revised) must be strictly construed so as not to extend state court jurisdiction beyond that expressly directed by the Tribes. Liberty v. Jones (1989), 240 Mont. 16, 19, 782 P.2d 369, 371. In Liberty, the Court declined to construe the term “public welfare” in the ordinance so broadly as to include state court jurisdiction in cases that affected the general happiness, well-being and welfare of the citizens of Montana. Instead we strictly limited it to the “practical issues of economic assistance to the needy.” Liberty, 240 Mont. at 19, 782 P.2d at 371. We stated that “[i]n the absence of an express directive giving the State jurisdiction over disputes between tribal members, which arise on the reservation, Montana cannot extend its authority over such controversies.” Liberty, 240 Mont. at 19, 782 P.2d at 371 (emphasis added). Similarly, in this case, the state court does not have jurisdiction over the debt collection action absent an express Tribal directive. ¶27 A review of Tribal Ordinance 40-A (Revised) reveals that the Tribes have not consented to concurrent jurisdiction over debt collection actions or indeed any commercial activities. In none of the enumerated areas, did the Tribe expressly agree to such an extension. Moreover, on this point, our holdings in Pierre and in Geiger are dispositive. As in this case, in both Pierre and Geiger, the debtors were members of the Confederated Salish and Kootenai Tribes and in both cases the commercial transaction occurred on the Flathead Reservation. Tribal Ordinance 40-A (Revised) thus required interpretation. In Pierre, we examined Tribal Ordinance 40-A (Revised) and implicitly held that the ordinance did not extend jurisdiction over the debt action to the Montana courts. Pierre, 162 Mont. at 304, 511 P.2d at 329. See also Larrivee, 184 Mont. at 201, 602 P.2d at 570-71 (examining Pierre and noting that “a commercial transaction is not one of the subjects over which the state assumes jurisdiction through Tribal Ordinance 40-A (Revised)”). Similarly, in Geiger, we noted that the Tribes had not consented to the assumption by the state of jurisdiction over commercial debt transactions occurring on the Flathead Reservation. Geiger, 233 Mont. at 20, 758 P.2d at 280. In both cases, the Court thus held that the state court lacked subject matter jurisdiction because the exercise of such jurisdiction would interfere with tribal sovereignty and the Tribes’ right of self-government. Pierre, 162 Mont. at 305, 511 P.2d at 329-30; Geiger, 233 Mont. at 21, 758 P.2d at 281.

¶28 Although the Tribes did not expressly consent to the extension of jurisdiction in debt actions, Balyeat nevertheless contends that the action relating to the debts incurred at St. Luke’s can be litigated in state court pursuant to sections (d) and (c) of Tribal Ordinance 40-A (Revised). Again, we disagree.

¶29 First, Balyeat cites Liberty, 240 Mont, at 18, 782 P.2d at 371, and argues that section (d) of the ordinance extends jurisdiction to the Montana courts in the area of “Medical Health.” It contends that because this action involves debts incurred at a medical institution, the state court thus has jurisdiction. Balyeat’s position is wholly without merit.

¶30 As Beverly has pointed out in her papers and as the District Court pointed out in its decision, Balyeat relies on a typographical error in the Liberty opinion. That opinion misquotes section (d) as extending jurisdiction to the state in the area of “Medical Health,” whereas section (d) actually extends jurisdiction in the area of “Mental Health.” See also Pierre, 162 Mont. at 304, 511 P.2d at 329 (correctly quoting Tribal Ordinance 40-A (Revised)). Thus, the very premise upon which Balyeat’s argument is based is flawed.

¶31 Balyeat also argues that the matter may be litigated in state court pursuant to section (c), which extends concurrent jurisdiction to the state in the area of “Domestic Relations (except adoptions).” Tribal Ordinance 40-A (Revised). Balyeat points to §§ 40-2-106, -205 through -207, and -210, MCA, and argues that under Montana law a person is liable for the necessary expenses of her spouse, including medical expenses. Specifically, § 40-2-106, MCA, provides:

Liability for acts or debts of spouse. Neither husband nor wife, as such, is answerable for the acts of the other or liable for the debts contracted by the other; provided, however, that the expenses for necessaries of the family and of the education of the children are chargeable upon the property of both husband and wife, or either of them, and in relation thereto they be sued jointly or separately.

Section 40-2-210, MCA, defines “necessary articles” to include services that are “reasonably required to provide for the health... of the married person____” Balyeat reasons that these statutory sections fall within Montana’s “domestic relations” law. It concludes that the Tribes therefore consented to extend jurisdiction to the Montana courts to litigate actions pursuant to those statutory sections. Hence, the state court has jurisdiction over its claim that Beverly is liable to it for the debts incurred by Lyle. We reject Balyeat’s contention.

¶32 The sole argument advanced by Balyeat in support of its position rests with its contention that § 40-2-106, MCA, falls within Montana’s “domestic relations” law. That statute in fact falls within Title 40, entitled “Family Law,” chapter 2, entitled “Husband and Wife.” However, what is at issue is not whether that statute is contained within Montana’s conception of what constitutes “domestic relations,” but rather whether that statute falls within the Tribes’ definition of “domestic relations.” We conclude that it does not.

¶33 Regardless of whether or not Montana considers § 40-2-106, MCA, to be part of its so-called “domestic relations” body of law, Balyeat offers no evidence of what the Tribes themselves intended by the term. It is evident that the Tribes certainly did not intend the term to be co-extensive with Chapter 2 of Title 40, “Husband and Wife,” because that would exclude the areas of marriage and termination of marriage, which are embodied in chapters 1 and 4 of Title 40 but yet are certainly within the common definition and plain meaning of “domestic relations.” Additionally, Balyeat offers no evidence that the Tribes intended the term “domestic relations” to be co-extensive with Montana’s entire “Family Law” title. If the Tribes had so intended, they should have expressly so stated.

¶34 Furthermore, it makes no sense that the Tribes intended to extend jurisdiction to the State in a case such as this. Such an interpretation would render all Tribal members subject to state court jurisdiction in actions to collect the debts for necessaries incurred by the spouse on the reservation, even in cases where a tribal-member spouse who actually incurred the debt is beyond the reach of state court jurisdiction.

¶35 This case at heart remains a debt collection action. Even though Montana has codified § 40-2-106, MCA in its family law title, we decline to interpret “domestic relations” in Tribal Ordinance 40-A (Revised) so broadly as to include a debt collection action against a spouse. Absent an express directive giving the State jurisdiction over such a dispute, we strictly limit the term “domestic relations” to its plain and ordinary meaning.

¶36 Because the Tribes have not agreed to extend jurisdiction over this matter to the state courts pursuant to Public Law 280 and Tribal Ordinance 40-A (Revised), we conclude that state court jurisdiction would interfere with tribal sovereignty. We hold that the Montana courts do not have jurisdiction over this action against Beverly to collect on the debt Lyle incurred on the reservation at St. Luke’s.

ISSUE THREE

¶37 Do the state courts of Montana have subject matter jurisdiction over an action to collect a debt for medical bills arising out of transactions that occurred off the Flathead Reservation but within the State of Montana, brought by a non-Indian creditor against an enrolled member of the Confederated Salish and Kootenai Tribes who resides on the reservation and whose spouse incurred the debt?

¶38 As elaborated earlier, the state courts have no authority to exercise jurisdiction over commercial activities arising on the reservation involving a tribal-member defendant, because to do so would infringe on the right of the tribe to govern itself. See, e.g., Williams, 358 U.S. at 223, 79 S.Ct. at 272, 3 L.Ed.2d at 255; Geiger, 233 Mont. at 21, 758 P.2d at 281. In general, however, when tribal members reach beyond the confines of reservation boundaries to engage in commercial activities, they are deemed to have submitted themselves to the laws of the state and are thus subject to state court jurisdiction. Mescalero Apache Tribe v. Jones (1973), 411 U.S. 145,148-49, 93 S.Ct. 1267, 1270, 36 L.Ed.2d 114, 119 (“Absent express federal law to the contrary, Indians going beyond reservation boundaries have generally been held subject to nondiscriminatory state law otherwise applicable to all citizens of the state.”); Little Horn State Bank v. Stops (1976), 170 Mont. 510, 515-16, 555 P.2d 211, 214 (noting that when “tribal members elect[] to leave the reservation and conduct their affairs within the jurisdiction of the state courts,” subject matter jurisdiction “lies with the state court, not the tribal court.”), cert. denied, 431 U.S. 924, 97 S.Ct. 2198, 53 L.Ed.2d 238 (1977). This Court has thus held that the Montana state courts have jurisdiction over transactions involving a tribal member, when that transaction involved “ ‘significant contacts’ with the state outside reservation boundaries.” Crawford v. Roy (1978), 176 Mont. 227, 230, 577 P.2d 392, 393. In State ex rel. Flammond (1980), 190 Mont. 350, 352, 621 P.2d 471, 472, we again stated that “Montana may not exercise subject matter jurisdiction over transactions arising on Indian reservations unless the transaction entails ‘significant’ or ‘substantial’ contacts with the state outside of reservation boundaries.” (internal citations omitted).

¶39 In this case, Balyeat contends that the state court has jurisdiction over that portion of the action that relates to debts Lyle incurred at Rittenour Medical Clinic and at Community Medical Center, because those institutions are located outside the exterior boundaries of the reservation and all medical care was thus provided outside the reservation boundaries. In short, it argues that the transactions at those institutions entailed “significant” or “substantial contacts” with the state.

¶40 There is no doubt that if this were an action against Lyle, Lyle would be subject to state court jurisdiction. By going beyond the confines of the reservation to receive such medical care he established substantial contacts with the state and is thus deemed to have submitted himself to the laws and jurisdiction of the state of Montana. However, this is an action against Beverly, not Lyle. What is at issue is thus whether Beverly herself has established “significant” or “substantial” contacts with the state. We examine the transactions at each institution individually.

A. Rittenour Medical Clinic

¶41 With regard to the transaction at Rittenour Medical Clinic, Beverly herself engaged in absolutely no off-reservation acts that would vest the state court with jurisdiction over that portion of the debt action. Lyle alone received medical care and Lyle alone incurred the debts. Balyeat fails to identify any contacts, let alone “substantial” contacts, engaged in by Beverly which would subject her to the state court’s jurisdiction.

¶42 Instead of identifying any off-reservation contacts, Balyeat once again contends that Beverly is liable for Lyle’s debts pursuant to § 40-2-106, MCA. The record is not clear as to whether Beverly and Lyle were married on the reservation or off the reservation, but Balyeat does not base its argument upon the location of the marriage ceremony. Instead, Balyeat argues that the mere fact that Beverly is married to Lyle is enough to subject her to the jurisdiction of the Montana courts. It cites McQuay v. McQuay (1930), 86 Mont. 535, 539, 284 P. 532, 533, and argues that § 40-2-106, MCA, creates an agency between spouses. According to Balyeat, when Lyle incurred debts for medical care he received off-reservation, his off-reservation contacts constituted “substantial contacts” with the state courts, which in turn were immediately imputed to Beverly as his agent. She thus became obligated to pay for them at the moment Lyle incurred them. Once again, we reject Balyeat’s contention.

¶43 The logic behind Balyeat’s argument is missing an important step. Assuming § 40-2-106, MCA, does indeed apply to members of the Confederated Salish and Kootenai Tribes who reside on the reservation, then Balyeat may be correct in arguing that Lyle’s off-reservation transactions (which would then be imputed to Beverly) constitute “substantial contacts” with the State so as to subject Beverly to the jurisdiction of the state court. However, Balyeat fails to cite any legal authority or provide any analysis to explain how or why § 40-2-106, MCA, applies to a tribal member living on the reservation in the first instance or whether § 40-2-106, MCA, somehow independently confers jurisdiction with the state court. It is our view that the off-reservation contacts engaged in by Lyle, cannot also be used to bootstrap Beverly into state court when she herself has done nothing to submit herself to state court jurisdiction. Rather, we must first determine whether § 40-2-106, MCA, independently applies to members of the Tribes residing on the reservation. Only then do Lyle’s contacts outside the reservation boundaries become relevant.

¶44 We conclude that § 40-2-106, MCA, neither applies to Tribal members residing on the reservation nor somehow independently confers the state court with jurisdiction. A contrary holding would interfere with tribal sovereignty. As we elaborated previously, the courts have repeatedly recognized “the Federal Government’s longstanding policy of encouraging tribal self-government.” Iowa Mutual Insurance Company v. LaPlante (1987), 480 U.S. 9, 14, 107 S.Ct. 971, 975, 94 L.Ed.2d 10, 18 (citations omitted). Aspects of sovereignty include the tribe’s right to exercise authority over not only its land but also its members. Iowa Mut. Ins. Co., 480 U.S. at 14, 107 S.Ct. at 975, 94 L.Ed.2d at 18 (The policy of encouraging tribal self-government reflects the fact that Indian tribes retain “ ‘attributes of sovereignty over both their members and their territory....’ ”) (citation omitted).

¶45 This Court has also emphasized the sovereign right of tribes to govern members who reside on the reservation, most recently in In re Marriage of Skillen. In that case, we declined to jeopardize a tribe’s political integrity and its authority to exercise exclusive jurisdiction over a resident Indian child in a domestic case, even though the child may have significant off-reservation contacts through a non-Indian parent. We stated that “sovereignty must include at least the right to exercise authority over members within tribal boundaries.” In re Marriage of Skillen, ¶ 61. Furthermore, it is well-settled that tribes retain this sovereign right over tribal members and their land where the Congress has failed to its assert its authority. As we pointed out earlier in this opinion, the state courts may take no action that undermines the authority of a tribe to govern itself. Williams, 358 U.S. at 220, 79 S.Ct. at 271, 3 L.Ed.2d at 254; State ex.rel. Iron Bear, 162 Mont. at 346, 512 P.2d at 1299.

¶46 In this case, there is no doubt but that forcing Beverly to defend herself in state court pursuant to § 40-2-106, MCA, would inflinge on the Tribes’ sovereignty over its members and undermine its authority to govern its own affairs. Beverly is a tribal member who has resided within the exterior boundaries of the Flathead Indian Reservation her entire life. She works on the reservation for an entity owned by the Tribes, and all her assets are located on the reservation. She has done nothing personally to avail herself of state law and state court jurisdiction; she has taken no action by which she could have reasonably expected to be haled into state court. Subjecting Beverly to a forum other than the one the Tribes established for themselves risks the potential for conflicting judgments as to whether there is a spousal agency between her and Lyle so as to render her hable for Lyle’s medical debts. This in turn will result in a corresponding decline both in the authority of the Tribes to enact their own laws governing the relationship between spouses for purposes of liability and debt actions and in the authority of the Tribes to adjudicate disputes involving their members residing on their land.

¶47 Furthermore, as we pointed out earlier, pursuant to the 1968 Indian Civil Rights Act, and §§ 2-1-301 through 2-1-306, MCA, the Montana courts have jurisdiction only over those areas of law to which the tribal members expressly consent. As we held earlier, the Tribes did not agree to extend jurisdiction to the state courts over debt collection actions against a spouse who is a member of the Tribes residing on the reservation pursuant to Public Law 280 or Tribal Ordinance 40-A (Revised). Asserting state court jurisdiction over Beverly pursuant to an area of law to which the Tribes did not consent, when Beverly herself took no steps to subject herself to the state court’s jurisdiction, would essentially amount to an unlawful, unilateral assumption of jurisdiction in violation of both state and federal law.

¶48 In smn, we hold that the state court does not have jurisdiction over the action against Beverly to collect the debts incurred by Lyle at Rittenour Medical Clinic, because § 40-2-106, MCA, does not apply to members of the Tribes residing within the external boundaries of the reservation or independently confer the state courts with jurisdiction, and because Beverly did not engage in significant or substantial contacts with the state outside the boundaries of the reservation.

B. Community Medical Center

¶49 With regard to the transactions at Community Medical Center, Balyeat argues that Beverly engaged in substantial off-reservation contacts so as to vest the state court with jurisdiction over that portion of the debt collection action. Specifically, it identifies a document signed by both Lyle and Beverly on February 7, 1992, which pertains to at least some of Lyle’s medical bills at that institution. The document is labeled “Community Hospital Inpatient Account Policies.” The top portion of the document contains the heading “payment plans” and requests that the patient choose from one of the payment plans listed. In this case, Lyle requested an extended time payment plan. The document then outlines the finance charge applied after 60 days from the date the patient is discharged, along with other terms. The middle of the document contains a box labeled “Release of Information - Financial Agreement - Assignment of Insurance and Medicare Benefits.” Among the terms printed in this box, the document provides that “I also understand that I am responsible for all charges incurred regardless of insurance or third party liability. ...” and “Should I not pay this account as due, I will be liable for any court, attorney or collection fees incurred by Community Medical Center in collection of any balance due on the account for services rendered.”

¶50 Balyeat characterizes this document as a contract, and argues that by signing it along with Lyle, Beverly engaged in a commercial transaction which constitutes a significant contact with the state. Beverly, on the other hand, states that it is not a contract, and alternatively characterizes it as an “admission document” or an “account stated.” Although each party characterizes itíh á light most favorable to the argument it advances, neither party actually briefs the issue as to whether or not it is a legal contract that obligates Beverly to pay for Lyle’s debts, and the record contains no evidence explaining the document or describing the circumstances under which it was signed.

¶51 Similarly, the District Court simply referred to the document as a “financial agreement for the payment of medical services provided to her husband,” and stated it was a “minimal off-reservation contact.” However, it made no findings of fact regarding the circumstances under which it was signed, and no conclusions of law as to whether it was a binding contract subjecting Beverly to liability.

¶52 Whether or not this document constitutes a binding off-reservation commercial transaction entered into by Beverly is crucial to a determination as to whether her signature on this document constitutes a significant contact. However, the Court is unable to determine whether or not this document is indeed such a contract as Balyeat suggests.

¶53 As the plaintiff in this debt collection action, it is Balyeat who bears the burden of proving that Beverly entered into a binding off-reservation contract to pay for Lyle’s debts and that she thereby engaged in a significant contact with the state. It failed to carry this burden. It failed to develop a factual record below to explain the document and the circumstances under which Beverly signed it, and it failed to cite and argue legal authorities which would establish that the document on its face constitutes a binding contract.

¶54 Accordingly, this Court holds that Balyeat failed to prove that Beverly engaged in significant off-reservation contacts so as to subject her to the state court’s jurisdiction. We hold that the state court does not have jurisdiction over the action against Beverly to collect the debts incurred by Lyle at Community Medical Center.

¶55 Affirmed.

JUSTICES LEAPHART, NELSON, TRIEWEILER and GRAY concur.