author: JUSTICE LEAPHART JUSTICE TRIEWEILER

text:
    BERTRAM JAMES WISE, Plaintiff and Appellant v. FORD MOTOR COMPANY, a Delaware Corporation, Defendant and Respondent.
    No. 96-595.
    Submitted on Briefs May 29, 1997.
    Decided August 28, 1997.
    54 St.Rep. 909. 943 P.2d 1310.
    284 Mont. 336.

      For Appellant: Bernard J. “Ben” Everett; Knight, Dahood, McLean & Everett, Anaconda.
    For Respondent: John D. Stephenson; Jardine, Stephenson, Blewett & Weaver, Great Falls.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

Bertram James Wise (Wise) appeals from the judgment and jury verdict of the Fourth Judicial District Court, Missoula County, dismissing his complaint for damages against Ford Motor Company (Ford). We affirm.

We address the following issues on appeal:

1. Was there substantial evidence to support the jury’s verdict that the Wise Ford Escort was not defective?

2. Did the District Court err in failing to grant Wise’s motion for directed verdict on the issue of Ford’s failure to warn Wise that Ford Escort windows could break in a car wash?

3. Did the District Court err in failing to grant Wise’s motion for a new trial based upon insufficiency of the evidence?

Factual and Procedural Background

In 1992 Wise drove his daughter’s 1987 Ford Escort automobile through a mechanical car wash. As one of the pressurized water jets was spraying water at the driver’s side window, the window suddenly exploded into the car. Wise suffered injuries as a result of this incident.

Wise filed suit against Ford to recover damages and a jury trial was subsequently held. At the close of the evidence Wise moved the corut for a directed verdict on the basis that the “uncontradicted evidence” established that Ford had actual notice that Ford Escort driver’s door windows could explode when exposed to the temperature and pressure changes of a car wash and that, despite this actual notice, Ford did not warn Wise of the vehicle’s inherent danger. The court denied the motion. The jury returned a verdict for Ford specifically finding that Wise’s door window was not defective either in its design or by reason of Ford’s failure to warn of the inherent danger. Wise filed post-trial motions for a judgment notwithstanding the verdict or in the alternative for a new trial. The District Court denied Wise’s motions. Wise appeals the judgment and the denial of his post-trial motions.

Discussion

1. Was there substantial evidence to support the jury’s verdict that the Wise Ford Escort was not defective?

This Court’s standard of review of a jury’s verdict is to determine whether substantial evidence existed to support the verdict. Okland v. Wolf (1993), 258 Mont. 35, 39, 850 P.2d 302, 305. In our examination, we review the facts in the light most favorable to the prevailing party. If conflicting evidence exists, the credibility and weight given to the evidence is in the jury’s province and we will not disturb the jury’s findings unless they are inherently impossible to believe. Okland, 850 P.2d at 305 (citing Silvis v. Hobbs (1992), 251 Mont. 407, 411, 824 P.2d 1013, 1015-16).

Wise contends that all of the substantial credible evidence presented establishes that Ford Escorts were defectively designed and unreasonably dangerous. He points to evidence which established numerous instances in which side windows of the Escort series model years 1981 through 1990 broke in car washes; that the cause of the Escort exploding window problem was a misaligned window frame in conjunction with the sudden temperature or pressure change produced by a car wash; that persons were injured by the exploding windows; and that Ford had ample notice of the dangerous condition.

Wise’s complaint is based on a products liability theory. A person who sells a product in a defective condition unreasonably dangerous to a user or consumer is liable for the physical harm caused by the defective product. RESTATEMENT (SECOND) OF TORTS § 402A (1965) and § 27-1-719, MCA. This Court adopted § 402Ain the case of Brandenburger v. Toyota Motor Sales (1973), 162 Mont. 506, 512-15, 513 P.2d 268, 272-74. A product is in a defective condition when it is capable of causing injury to the user beyond that which would be expected by the ordinary user. Streich v. Hilton-Davis (1984), 214 Mont. 44, 57, 692 P.2d 440, 447. In McJunkin v. Kaufman & Broad Home Systems (1987), 229 Mont. 432, 445, 748 P.2d 910, 918, this Court set out the rule that “[t]he proper test of a defective product is whether the product was unreasonably unsuitable for its intended or foreseeable purpose. If a product fails this test, it will be deemed defective.”

Ford’s expert testified at trial to the following facts regarding the manufacture and characteristics of the driver’s side windows in Ford Escorts. The side windows in the Wise vehicle were made of tempered glass. Tempered glass, often described as “tempered safety glass,” is used by Ford for side windows on all of its car lines and is used worldwide by virtually all manufacturers of motor vehicles for side window applications. When tempered safety glass fractures it disintegrates into hundreds of small granular fragments which have rounded or blunt edges. Such small bluntly-edged pieces generally cause less injury than regular glass fragments. The tempering process creates a tough “skin” on the surface of the glass which is referred to as the “compressive surface.” If the compressive surface of the glass is penetrated for any reason the window will spontaneously fracture and disintegrate into hundreds of small pieces. All failures of tempered safety glass originate from penetration of one of the compressive surfaces on the glass. Ford has received reports of spontaneous breakage of side windows of vehicles parked in driveways, vehicles traveling on the road, vehicles passing each other, vehicles hitting potholes, vehicle doors slamming, vehicle windows breaking in car washes, and other situations.

Ford’s expert testified that the typical scenario for such spontaneous glass breakages is that a small scratch or chip is inflicted on one of the window surfaces from rock chips on the road, grit or sand lodged between the window and window seal, or sharp objects coming in contact with the glass surface. Typically such scratches or chips are not visible to the naked eye and, over time, the scratch or chip enlarges to the point that it penetrates the compressive surface, although it is still too small to be noticeable. Spontaneous glass breakage of tempered glass occurs on all models of vehicles regardless of manufacture and vehicle line. Ford’s expert testified that even today there is no technology available to avoid occasional breakages of this type.

Both Ford’s expert and Wise’s expert testified that Ford experienced higher than expected breakages of side windows on Ford Escorts produced between 1981 and 1987. In mid-1985, Ford engineers investigated the problem and concluded that on some Ford Escorts, the glass surface of the window could come into contact with the edge of a metal bracket in the door frame when the window was rolled up tightly (highly torqued) creating a scratch on the compressive surface of the window. Ford redesigned the window so that the glass would no longer contact the metal edge of the bracket in the door frame. The first shipments of the newly designed glass for use in drivers’ side windows to the assembly plants commenced the week of March 3, 1986 as evidenced by a Glass Division Engineering Change Bulletin. Based on this document and other evidence indicating that assembly plants were using the new style windows, Ford’s expert testified that the Wise vehicle, which was assembled on March 12, 1987, more than one year after the new type windows were shipped to the assembly plants, contained the new style window. After Wise filed suit, Ford’s expert examined the Wise vehicle in Missoula and again in Michigan where he conducted an examination in which he installed an “old style” window in the Wise door and cranked the window up and down. He confirmed his observations in Missoula that there was no binding condition causing metal-to-glass contact when the window was tightly torqued. The expert concluded that the Wise vehicle was not subject to the binding condition which was causing higher than normal breakage rates on older model Escorts equipped with the old style windows. Based on this conclusion, Ford’s expert gave his opinion that the most likely cause of the window breakage in the Wise Escort was a scratch or chip inflicted by road gravel or grit which augmented over time to the point that when the window was subjected to the pressure and temperature changes in the car wash the compressive surface of the window failed and the window disintegrated. Wise’s expert agreed that tempered glass always fails from a surface defect and that such a defect could be so small as to be unobservable.

Wise argues that because Ford disposed of the door to the Wise vehicle after performing tests on it, the door was not available to the parties at trial and thus Wise could satisfy his burden of proof that the door window was defective by circumstantial evidence. Brown v. North Am. Mfg. Co. (1978), 176 Mont. 98, 576 P.2d 711 and Brothers v. General Motors Corp. (1983), 202 Mont. 477, 658 P.2d 1108. Relying on Brown and Brothers, Wise argues that the “flexible” standard of circumstantial evidence can be met by proof of the circumstances of the accident, similar occurrences under similar circumstances and elimination of alternative causes. We agree. Wise contends that he met this burden through evidence of similar reported incidents and through Wise’s and Wise’s daughter’s testimony that there were no scratches or chips on the window when it was taken through the car wash. However, Ford’s expert testified that a small scratch or chip, invisible to the naked eye, could cause the spontaneous breakage. Alternative causes were therefore not necessarily eliminated and the jury could have found that Wise did not meet his burden of proof by way of circumstantial evidence.

Furthermore, the jury was presented with evidence suggesting that tempered glass was used by all car manufacturers and that all cars had problems with spontaneous breakage and that there was no better technology available to reduce the risk. Therefore, the jury had substantial evidence that the window glass was not “unreasonably” dangerous.

In sum, although Wise claims that Ford was aware that its Escorts manufactured between 1981 and 1987 had an especially high incidence of spontaneous breakage, the jury also heard evidence that Ford remedied the problem in its Escorts manufactured after 1986, which would include the Wise’s 1987 Escort. In other words, the jury had substantial evidence upon which to base its decision that the Wise Escort did not have an “unreasonably dangerous defective condition.” Wise’s contrary evidence that his daughter’s Escort may have been manufactured with the old style window was only one piece of the evidence considered by the jury. In reviewing a jury verdict, we do not decide whether a jury verdict was correct or whether a jury made the right decision. We only review whether substantial evidence supports the jury’s verdict and we determine that, in the instant case, it does. Therefore, viewing the evidence in a light most favorable to Ford, substantial evidence existed to support the jury verdict in favor of Ford.

2. Did the District Court err in failing to grant Wise’s motion for directed verdict on the issue of Ford’s failure to warn Wise that Ford Escort windows could break in a car wash?

Our standard of review of an order denying a motion for a directed verdict is the same as from denial of a motion for judgment notwithstanding the verdict. This Court reviews an order denying a motion for judgment notwithstanding the verdict in a light most favorable to the non-moving party. Okland, 850 P.2d at 304. The courts will exercise the greatest self-restraint in interfering with the constitutionally mandated processes of jury decision. Unless there is a complete absence of any credible evidence in support of the verdict, a motion for judgment notwithstanding the verdict is not properly granted. Barmeyer v. Montana Power Co. (1983), 202 Mont. 185, 191, 657 P.2d 594, 597 (overruled on other grounds).

Wise contends that because Ford admittedly had knowledge that windows in the 1981-1990 model Escort series could explode when exposed to sudden temperature or pressure changes specifically in car washes, and deliberately decided not to warn consumers of this danger, that Ford should be found hable under a duty to warn theory.

Montana law recognizes a manufacturer’s liability for its failure to warn of a danger in its product as a separate and distinct theory of products liability. Brown, 576 P.2d at 718. Although a product may be technically sound, if a manufacturer fails to warn of an injury causing risk associated with the use of the product, the product is thereby rendered unreasonably dangerous. Brown, 576 P.2d at 718-19; Krueger v. General Motors (1989), 240 Mont. 266, 278, 783 P.2d 1340, 1348.

Wise contends that the existence of a Ford “inter-office memorandum” dated October 21, 1991, recognizing the occurrence of window breakages in the 1981-1990 model Escort series, and indicating Ford’s decision not to warn consumers of the problem, proves Ford knew of the dangerous condition and, despite this knowledge, failed to properly warn consumers. The memorandum provided, in relevant part, the following:

The Escort window concern has existed on the 1981 Escort forward, with each model year up to 1991, the rate of incidents has lessened. No TSB article was published because of the sensitivity of the issue. Repair instructions were conveyed to the Districts by word-of-mouth. ...
The most likely cause is the window frame being misaligned causing a stress on the door glass. A sudden temperature or pressure change (e.g. from a car wash) could cause the glass to shatter. Our experience to date indicates that once a new door glass is installed the concern does not reoccur.
Import Service Engineering has no reports for this concern on the new style Escort. No TSB action is planned on the old style Escort due to the sensitivity of the concern.

In addition to recognition of the binding condition in the older style windows, Ford had found that Escorts containing the new style window did not experience the breakage problem. Given that the jury was presented with substantial evidence that the Wise Escort was manufactured with the new style window, and that the binding condition did not occur when Ford’s expert installed an older style window in the Wise Escort, the jury had substantial evidence upon which to base its verdict that the Wise vehicle was not in a defective condition unreasonably dangerous despite the existence of the Ford memorandum.

Although Wise presented evidence that Ford knew that its Escort windows occasionally broke in car washes, both experts testified that a warning was inappropriate for this type of risk. The tempered glass which was used in Ford Escort windows was the same type glass used in most vehicles and was subject only to the incidence of breakage inherent in tempered glass. Ford’s expert testified that he could not think of any appropriate warning to caution drivers that the side windows occasionally break from a variety of reasons. Wise’s expert testified that he did not think a warning “would have done an awful lot of good.” Viewing the evidence in a light most favorable to Ford, we hold that there was credible evidence to support the jury’s verdict. Accordingly, the District Court’s denial of Wise’s motion for a directed verdict on the failure to warn issue was proper.

3. Did the District Court err in failing to grant Wise’s motion for a new trial based upon insufficiency of the evidence?

Our review of a district court’s denial of a motion for new trial is whether the court abused its discretion. Hando v. PPG Industries, Inc. (1995), 272 Mont. 146, 149, 900 P.2d 281, 282. Our review of an appeal based upon insufficiency of the evidence to support the jury’s verdict is whether there is substantial evidence in the record to support the verdict. Cartwright v. Equitable Life Assur. (1996), 276 Mont. 1, 23, 914 P.2d 976, 990.

Wise contends that the jury’s factual determination that the Wise Escort was neither defective in design nor defective because it lacked a warning of the inherent danger that Ford Escort side windows break in car washes is without any support in the evidence let alone substantial evidence.

Consistent with our holding in Issue 1, we hold that substantial evidence existed for the jury to find that the Wise Ford Escort window was not defective. Therefore, the District Court did not abuse its discretion in denying Wise’s motion for new trial based upon insufficiency of the evidence to support the verdict that the Wise Escort was not defective by design.

Likewise, consistent with our holding in Issue 2, we hold that credible evidence existed for the jury to find for Ford on the issue of its failure to warn Wise in regard to the spontaneous breakage of the Escort window. Therefore, the District Court did not abuse its discretion in denying Wise’s motion for a new trial based upon insufficiency of the evidence to support the verdict that the Wise Escort was unreasonably dangerous due to Ford’s failure to warn.

In summary, we hold that substantial evidence existed to support the jury’s verdict that the Wise Ford Escort was not defectively designed, nor defective for Ford’s failure to warn Wise that the side windows could break in car washes. Because substantial evidence supports the jury’s verdict, the District Court did not err in denying Wise’s motion for directed verdict, or his post-trial motions. Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES NELSON and GRAY concur.

JUSTICE TRIEWEILER

dissenting.

I dissent from the majority opinion.

In Montana, manufacturers are strictly hable for defective products which are unreasonably dangerous to the user when the product causes damage or injury to the user. Section 21-1-719, MCA (1987). We have previously held that a product is in a defective condition and is unreasonably dangerous to the user when it has a propensity for causing damage to the user or his property beyond that which would be contemplated by the ordinary user or consumer who purchases the product. Stretch v. Hilton-Davis Div. of Sterling Drug, Inc. (1984), 214 Mont. 44, 57, 692 P.2d 440, 447. We have also held that a product is defective if, when used in a manner reasonably foreseeable by the manufacturer, an unreasonable danger is presented which would not be recognized by the ordinary user without a warning. Stretch, 214 Mont. at 57, 692 P.2d at 447.

Based on the undisputed facts in this case, the Escort being operated by Bertram James Wise presented a hazard beyond what would be contemplated by the ordinary consumer and the hazard presented an unreasonable danger which could only be eliminated by an adequate warning. No one that I know believes that when they drive their car into a car wash there is a significant possibility that the driver’s side window could shatter and seriously injure them. If Ford knew that its vehicle created a significant risk of that type, it had a duty to warn its customers of that fact.

The majority concludes that the following testimony from Ford’s factory representative created issues of fact which were properly resolved by the jury:

1. The same type of glass used in this vehicle was used by all manufacturers;

2. All manufacturers of motor vehicles have similar problems with shattered glass;

3. The design feature which led to a high incidence of shattered glass in Ford Escorts was not present in 1987 models; and

4. It was the opinion of Ford’s expert/representative that the window in the Wise vehicle shattered because of a preexisting scratch or chip.

The problem with the evidence relied on by the majority is that it was either disproved by documents found in Ford’s possession, or was opinion evidence given without factual foundation. Furthermore, the plaintiff was denied the opportunity to refute the unfounded opinion evidence by Ford’s loss of the vehicle part in question.

The following documents were discovered from the defendant during the course of this litigation:

1. A bulletin from the International Car Wash Association to car wash operators dated July 1991 which stated the following:

SPECIAL ALERT TO CAR WASH OPERATORS

RE: FORD MOTOR COMPANY LYNX AND ESCORT MODELS

Car wash operators from the across the nation are reporting problems with Ford Motor Company’s Lynx and Escort model cars of various years’ vintage with the side windows virtually exploding in the car wash or after the customer leaves the car wash.
For no specific action or reason, car wash operators are reporting that side front windows on these automobiles are virtually exploding either in the car wash itself, the finishing area of the car wash, or while customers are driving on the streets. In most cases, the window pops and completely disintegrates for no apparent reason. Early investigation shows no apparent reason for these mishaps and they are being observed under a variety of different circumstances. The Ford Motor Company has been contacted on this problem, and at the present has no answers for the occurrences. ICA therefore advises car wash operators to in turn advise their customers that if they have this problem to return the car to their Ford Motor Company dealer for appropriate action.

2. A proposed letter from Bill Dana, President, Mike’s Carwashes, Inc. (presumably to other car wash operators):

THE MYSTERIOUS POPPING WINDOW

Dear Ford Escort and Mercury Lynx Owners,

In the past few years, we have had several instances of Escort and Lynx cars in which the side windows have disintegrated either in the car wash or even after leaving.

This is NOT a problem unique to Mike’s Carwashes. Please see the Special Bulletin from the International Carwash Association posted on this bulletin board.

At Mike’s we wash over a million cars a year and in 1990 we had 12 such incidents; so far in 1991 we have had 6. Also, we have not experienced “popping windows” on any other make or model of car in our 43 year history.

However, because of increased insurance claims on these vehicles, which in turn can increase prices for all Mike’s car wash customers, we feel it only fair to institute the following policy:

As of July 1,1991, we can no longer be responsible for breakage of side windows on Ford Escort and Mercury Lynx automobiles. You will be using our car wash at your own risk.

We apologize for any inconvenience this may cause you.

Sincerely,

(signature) Bill Dana, President,

Mike’s Carwashes, Inc.

(Underlining added.)

3. On October 21, 1991, Ford Motor Company generated the following interoffice memorandum in response to the previous two documents:

BACKCtROUND

The Escort window concern has existed on the 1981 Escort forward with each model year up to 1991: the rate of incidence has lessened. No TSB article was published because of the sensitivity of the issue. Repair instructions were conveyed to the districts by word-of-mouth ....

POSSIBLE CAUSE ESCORT WINDOW

The most likely cause is the window frame being misaligned, causing a stress on the door glass. A sudden temperature or pressure change (e.g. from a car wash) could cause the. glass to shatter. Our experience to date indicates that once anew door glass is installed, the concern does not reoccur.

CONCLUSION

Import service engineering has no reports for this concern on the new style Escort. No TSB action is planned on the old style Escort due to the sensitivity of the concern.

(Underlining added.)

4. Ford interoffice memorandum dated April 6,1992:

Subject: Escort “Popping” Window

Current Status:

Door glass breakage at car washes was a major problem on the 19851/286 MY Escort/Lynx due to the over-torquing of the window mechanism. The letter from the International Car Wash Association dated 1991 refers to problems on the Escort and Lynx. Although no model year is mentioned, the Lynx was last produced for the 1987 MY. Due to the “non-emergency” designation by body and direction to use the old parts, the model years containing old design parts are 19851/2 1986, and much of 1987.

Due to the sensitive nature of the problem and the visibility in the press, it is not recommended to contact either the International Car Wash Association or Mike’s Carwashes.

(Underlining added.)

In other words, we know from documents in Ford’s possession that whether or not other manufacturers used the same type of glass, car washes were not experiencing the same type of problems from cars other than the Ford Escort and Mercury Lynx. We also know that even though the window assembly had been redesigned prior to 1987, the change was treated on a “non-emergency” basis so that most of the cars manufactured in 1987 still had old design parts, and Wise’s vehicle was manufactured in the early part of 1987. We also know from Ford’s interoffice memorandum that the problem of popping windows started with the 1981 Escort and was present on models manufactured up to 1991. Furthermore, although Ford’s expert/representative testified that in his opinion the shattered glass in Wise’s vehicle was most likely the result of a scratch or chip, he admitted that he had never inspected the window and therefore had no basis for that opinion, and the door of the vehicle which was purchased by Ford specifically for testing was lost so that no one other than Ford could test it. Finally, the owner’s uncontradicted testimony was that no scratch or chip was present prior to the time the window shattered. We have stated the test for a directed verdict as follows:

The test commonly employed to determine if the evidence is legally sufficient to withdraw cases and issues from the jury is whether reasonable men could draw different conclusions from the evidence. If only one conclusion is reasonably proper, then the directed verdict is proper.

Semensa v. Leitzke (1988), 232 Mont. 15, 18, 754 P.2d 509, 511 (citation omitted).

In this case, based on Ford’s own documents, reasonable persons could not disagree that Ford Escorts manufactured from 1981 through the 1990 model year had a propensity for causing damage to the user beyond that which would be contemplated by the ordinary motor vehicle operator, and that Ford, because of the issue’s “sensitivity,” failed to warn users of the potential danger or even respond when car wash operators asked for guidance because of the frequency with which the windows were shattering.

For these reasons, the vehicle in which Bertram James Wise was injured, was, by our prior definitions, a defective product which caused his injury. The issues were simple factually and legally. Car windows are not designed to shatter from the pressure of a car wash. If they are, they are dangerous and the owners of the vehicle should be warned. This window did shatter. The owner was not forewarned, even though Ford knew of the risk. No warning was given because of the Company’s determination that it would not be in the Company’s best interest to do so. Ford’s discredited testimony notwithstanding, Wise was entitled to a directed verdict.

For these reasons, I dissent from the majority opinion.

JUSTICE HUNT joins in the foregoing dissenting opinion.


source: Caselaw Access Project

author: JUSTICE REGNIER

license: Public Domain

text:
    ROBERT J. BLACKWELL, Plaintiff and Respondent, v. RONALD U. LURIE, Defendant and Appellant.
    No. 97-206.
    Submitted on Briefs June 26, 1997.
    Rehearing Denied October 2, 1997.
    Decided September 4, 1997.
    54 St.Rep. 916. 943 P.2d 1318.
    284 Mont. 351.

      For Appellant: Ronald U. Lurie, Pro Se, Bozeman.
    For Respondent: Phillip F. Walsh, Walsh & McKenna, Bozeman.
   JUSTICE REGNIER

delivered the Opinion of the Court.

This is an appeal by Ronald U. Lurie from the Gallatin County District Court’s March 3, 1997, memorandum and order denying his motions to compel the release of a foreign judgment against him filed by Robert J. Blackwell. We affirm and remand.

The issues on appeal are:

1. Did the District Corut err in upholding the Bankruptcy Court’s determination that Lurie was unable to close as a matter of law and that the release filed by Lurie on October 22, 1996, did not comply with § 25-9-311, MCA, and therefore was unenforceable?

2. Did the District Court err in holding that Blackwell had conformed with the requirements of § 25-9-504, MCA?

FACTUAL BACKGROUND

On November 9,1994, Robert J. Blackwell filed a foreign judgment and affidavit in support of filing foreign judgment in the Eighteenth Judicial District Court, Gallatin County. The judgment originated from a Chapter 11 bankruptcy proceeding in the United States Bankruptcy Court, Eastern District of Missouri (the Bankruptcy Court), Case No. 92-42218-293. Blackwell, as the liquidating trustee for the Popkin & Stern Liquidating Trust, filed an adversary action against Ronald U. Lurie in the Chapter 11 proceeding. On October 20, 1996, the Bankruptcy Court entered a judgment in favor of Blackwell and against Lurie in the amount of $1,121,743. The judgment was entitled “judgment in favor of plaintiff, liquidating trustee, and against defendant Ronald U. Lurie on complaint to recover deficiency pursuant to 11 U.S.C. § 723.”

Also, on November 9, 1994, an execution was issued and property was seized from the Lurie home by the Gallatin County Sheriff pursuant to the writ of execution.

Blackwell, the Luries, and other interested parties entered into negotiations to settle all claims and disputes arising from the Chapter 11 proceeding. These negotiations resulted in three Global Settlement Agreements (agreements): one involving Ronald Lurie, one involving Nancy Lurie, and one involving their sons, Michael and Ryan. The Bankruptcy Court approved the agreements on October 19, 1995. On October 21, 1995, the Bankruptcy Court entered an order extending the closing date of the agreements from November 18, 1995, to December 13, 1995.

On December 15, 1995, the Bankruptcy Court held a show cause hearing to determine whether the Luries were capable of closing in accordance with the terms and conditions of the agreements. On January 18, 1996, the Bankruptcy Court issued its findings of fact, conclusions of law, and order on show cause order. The Bankruptcy Court found, as a matter of law, that the Luries were unable to close the agreements on November 18,1995, and December 13,1995. The Luries did not appeal the Bankruptcy Court’s findings, conclusions, and order.

In the Bankruptcy Court, two adversary proceedings involving the fraudulent transfer of assets proceeded to trial against the Luries. In these proceedings, the Luries moved to dismiss Blackwell’s claims based on the release language in the agreements. On April 16, 1996, the Bankruptcy Court ruled against the Luries on their motion, stating that the agreements are unenforceable as releases.

On October 22,1996, Lurie filed a “release” in the Gallatin County District Court. Attached to the filed “release” were the three agreements dated August 30, 1995, August 31, 1995, and September 13, 1995, and designated Release A, Release B, and Release C, respectively. As stated above, the sole purpose of the agreements was to compromise and settle all claims arising in the bankruptcy proceeding between Blackwell and the Luries. The agreements were signed by Blackwell in his capacity as Liquidating Trustee of the Popkin & Stern Liquidating Trust. The clerk of court who filed the “release” did not release the foreign judgment because the agreements were not signed by Lurie, nor was there any documentation from Blackwell satisfying the judgment, nor was there an order from the court.

On November 18,1996, Lurie filed the first of multiple motions to compel, requesting that the District Court of Gallatin County order that the foreign judgment be fully released as in compliance with § 25-9-311, MCA. Since Lurie only appeals the District Court’s determinations on the motions filed on November 18,1996, and December 3, 1996, we set forth the background of these motions as they are relevant to this Court’s discussion.

The essence of Lime’s first motion is that he executed the three agreements, all of which became effective on November 18,1995, the date first set for closing by the Bankruptcy Court. Lurie claimed that the agreements did not require that a closing actually take place for them to be effective. Blackwell argued that because there was no closing, as contemplated by the agreements, the agreements do not release the filed foreign judgment.

Another motion filed by Lurie on December 3, 1996, claimed that the foreign judgment was defective because it did not state the name of the judgment creditor, as required by § 25-9-504, MCA. He argued that Blackwell incorrectly identified himself in his individual capacity, rather than as the liquidating trustee of the trust.

The District Court held a hearing on February 13,1997, to consider all four of Lurie’s motions. On March 3, 1997, the District Court issued a memorandum and order denying all of Lurie’s motions. The District Court ruled that because the closing never took place, the agreements were never completed and, thus, were unenforceable. The District Court also concluded that Blackwell properly identified himself in his filing of the foreign judgment because § 25-9-504, MCA, only requires that the notice identify the plaintiff/judgment creditor, and does not require that their representative capacity be identified. Lurie appeals from the memorandum and order of the District Court.

ISSUE 1

Did the District Court err in upholding the Bankruptcy Court’s determination that Lurie was unable to close as a matter of law and that the release filed by Lurie on October 22, 1996, did not comply with § 25-9-311, MCA, and therefore was unenforceable?

Our standard of review for findings of fact is whether a finding is “clearly erroneous.” Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 603. “[A] finding is ‘clearly erroneous’ when, although there is evidence to support it, a review of the record leaves the court with the definite and firm conviction that a mistake has been committed.” Steer, 245 Mont. at 474, 803 P.2d at 603.

When we review a district court’s conclusions of law, our standard of review is plenary and we must determine whether the court’s conclusions are correct as a matter of law. In re Matter of Kovatch (1995), 271 Mont. 323, 326, 896 P.2d 444, 446; Steer, 245 Mont, at 474-75, 803 P.2d at 603.

Lurie argues that the District Court erred in failing to release the foreign judgment obtained by Blackwell and filed with the District Court when Lurie filed his release along with copies of the three agreements. Lurie contends that the three agreements filed with his release on October 22, 1996, comply with the provisions of § 25-9-311, MCA, and thus, satisfy the judgment. Section 25-9-311, MCA, provides:

Entry of satisfaction of judgment in docket. Satisfaction of a judgment may be entered in the clerk’s docket upon an execution returned satisfied or upon an acknowledgment of satisfaction filed with the clerk, made in the manner of an acknowledgment of a conveyance of real property by the judgment creditor or by his endorsement on the face or on the margin of the record of the judgment or by his attorney unless a revocation of his authority is filed. Whenever a judgment is satisfied in fact otherwise than upon an execution, the party or attorney must give such acknowledgment or make such endorsement, and upon motion, the court may compel it or may order the entry of satisfaction to be made without it.

Lurie claims that it is undisputed that the three agreements have been executed by Blackwell, that the agreements were executed by Blackwell in the manner of an acknowledgment of a conveyance of real property according to the provisions of § 25-9-311, MCA, and that the three agreements were appropriately filed with the District Court on October 22, 1996. Lurie asserts that the District Court’s finding that there exists no documentation executed by Blackwell satisfying the foreign judgment is clearly erroneous. Accordingly, Lurie argues that the District Court’s failure to release the foreign judgment based on that finding is erroneous and asks this Court to reverse the District Court’s memorandum and order and direct it to release the foreign judgmént filed against him.

Blackwell counters that the District Court did not err in relying on the Bankruptcy Court’s determination that Lurie was unable to close as a matter of law and that the release language contained in the agreements between Lurie and himself was unenforceable. Blackwell argues that the Bankruptcy Court’s findings of fact, conclusions of law, and order on show cause order were binding on the District Court under § 26-3-201, MCA, and by the language of the agreements themselves. Thus, the agreements do not operate to satisfy the judgment under the provisions of § 25-9-311, MCA, because they are unenforceable.

Section 26-3-201, MCA, provides:

Effect of judgment or final order — when conclusive. The effect of a judgment or final order in an action or special proceeding before a court or judge of this state or of the United States having jurisdiction to pronounce the judgment or order is as follows:
(1) In case of a judgment or order against a specific thing, or in respect to the probate of a will or the administration of the estate of a decedent, or in respect to the personal, political, or legal condition or relation of a particular person, the judgment or order is conclusive upon the title to the thing, the will or administration, or the condition or relation of the person.
(2) In other cases, the judgment or order is, in respect to the matter directly adjudged, conclusive between the parties and their successors in interest by title subsequent to the commencement of the action or special proceeding, litigating for the same thing under the same title and in the same capacity, provided they have notice, actual or constructive, of the pendency of the action or proceeding. This Court determines that the District Court was correct in

relying upon the Bankruptcy Court’s findings, conclusions, and order dated January 18, 1996. The Bankruptcy Court’s findings, conclusions, and order are final. Lurie did not appeal the Bankruptcy Court’s finding that the closing, as contemplated by the agreements, could not take place “because Ronald and Nancy Lurie are not ready and able to close.” Under § 26-3-201(2), MCA, the findings of the Bankruptcy Court regarding the agreements and their enforcement are conclusive between Lurie and Blackwell. Neither, the District Comt nor this Court can alter or amend the findings or conclusions contained in the Bankruptcy Court’s January 18, 1996, order.

Furthermore, as Blackwell points out, the language of the agreements precludes any litigation in the courts of Montana concerning the agreements. Each agreement includes the following provision:

IX. Governing Law and Forum. This agreement shall by governed and construed in accordance with the laws of the State of Missouri. All disputes or legal proceedings arising out of or relating to the binding effect of this Agreement upon claimants under the Popkin & Stem Liquidating Trust Agreement or relating to the scope, binding effect, duration or interpretation of the injunction issued by the Bankruptcy Court shall be submitted to and heard by the United States Bankruptcy Court for the Eastern District of Missouri, Eastern Division, pursuant to its original jurisdiction. If any party hereto files a Motion to Withdraw the reference of P& S’s Bankruptcy Case with respect to an adversary proceeding among the parties hereto relating to a breach or interpretation of this Agreement then the other parties hereto shall be deemed to consent to the Motion to Withdraw the Reference.

Under this forum selection clause, the Gallatin County District Court is not the appropriate forum for Lurie to litigate any issue relating to the enforcement of the agreements because it lacks jurisdiction. Both parties agreed that any legal proceedings involving any aspect of the agreements and their enforcement would be heard only by the Bankruptcy Court.

Thus, this Court concludes that the District Court did not err in finding that the agreements were unenforceable and did not, by Lurie’s filing with his “release,” operate to satisfy the foreign judgment filed by Blackwell. Pursuant to § 26-3-201(2), MCA, the District Court correctly relied upon the Bankruptcy Court’s determination that the closing never took place and that the agreements were never completed. The issues relating to the agreements or to whether Lurie had closed cannot be litigated in the District Court or by this Cotut.

Because this Court concludes that the District Court was correct in finding that the agreements were unenforceable and do not operate to release the foreign judgment, we decline to address Lurie’s arguments regarding whether the agreements were effective without there being a closing, and whether he has standing to assert the release provisions in the agreements regarding his wife, Nancy, and his sons, Michael and Ryan.

ISSUE 2

Did the District Court err in holding that Blackwell had conformed with the requirements of § 25-9-504, MCA?

We review a district court’s conclusions of law to determine whether they are correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459, 469, 898 P.2d 680, 686.

Lurie claims that the foreign judgment is defective because the notice of filing does not state the name of the judgment creditor as required by § 25-9-504, MCA. Section 25-9-504(1), MCA, provides:

At the time of the filing of the foreign judgment, the judgment creditor or his attorney shall file with the clerk of the court an affidavit setting forth the name and last-known post-office address of the judgment debtor and the judgment creditor. The affidavit must also include a statement that the foreign judgment is valid and enforceable, and the extent of which it has been satisfied. Lurie argues that the notice of filing incorrectly names “Robert J.

Blackwell” as the plaintiff and judgment creditor instead of “Robert J. Blackwell, Liquidating Trustee of the Popkin & Stern Liquidating Trust” as the true plaintiff and judgment creditor.

Blackwell counters that there is no requirement that the judgment creditor must acknowledge his representative capacity or provide any information other than his name and address. Thus, he contends he has fully complied with the statutory provision.

As stated above, the statute provides that the notice sent by the judgment creditor to the judgment debtor “must include the name and post office address of the judgment creditor.” Section 25-9-504( 1), MCA. The plain language of the statute requires only that the person preparing the notice identify the judgment creditor; there is no requirement that the judgment creditor must acknowledge his representative capacity or provide any information other than his name and address. In addition, Rule 17(a), M.R.Civ.P, states in relevant part that:

A personal representative, guardian, bailee, trustee of an express trust, a party with whom or in whose name a contract has been made for the benefit of another, or a party authorized by statute may sue in that person’s own name without joining the party for whose benefit the action is brought....

In his capacity as the liquidating trustee for the Popkin & Stem Liquidating Trust, Blackwell is allowed to file suit in his own name. Thus, Blackwell has complied with both the statutory requirements of § 25-9-504, MCA, and Rule 17(a), M.R.Civ.P.

This Court notes that the caption of the present action was styled after the caption of the judgment from the Bankruptcy Court. The caption only identifies Blackwell as the plaintiff and makes no mention of his capacity as the liquidating trustee for the Popkin & Stern Liquidating Trust. However, Blackwell is clearly identified as the liquidating trastee in the title of the judgment, as well as in the first paragraph of the judgment.

Furthermore, from the Bankruptcy Court proceedings, Lurie must have known or should have known that Blackwell was suing him, not in an individual capacity, but as the liquidating trustee of the Popkin & Stern Liquidating Trust. The foreign judgment that Blackwell filed with the Gallatin County District Court resulted from the Bankruptcy Court proceedings. Also, with the notice of filing of foreign judgment, Lurie received a copy of the foreign judgment and an affidavit of Blackwell’s attorney, both of which identify Blackwell as the liquidating trustee for the Popkin & Stem Liquidating Trust. Therefore, if Lurie could not determine Blackwell’s status from the notice itself, he could have reasonably concluded Blackwell’s status from the attached copy of the foreign judgment and the affidavit.

This Court concludes that the District Court did not err in ruling that Blackwell’s notice of filing of foreign judgment conformed with the requirements of § 25-9-504, MCA. Blackwell fulfilled all statutory requirements regarding the notice and filing of the foreign judgment and Lurie suffered no prejudice from the procedure involved.

Affirmed and remanded for further proceedings consistent with this opinion.

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


author: JUSTICE LEAPHART

text:
    IN RE THE MARRIAGE OF CHRISTINA L. WALLACE, Petitioner and Respondent, and LARAMIE W. WALLACE, JR., Respondent and Appellant.
    No. 96-477.
    Submitted on Briefs August 21, 1997.
    Decided September 8, 1997.
    54 St.Rep. 920. 944 P.2d 227.
    284 Mont. 360.

      For Appellant: Eric Rasmusson, Attorney at Law, Boulder.
    For Respondent: Joan Meyer Nye; Nye & Meyer, Billings.
   JUSTICE LEAPHART

delivered the Opinion of the Court.

This is an appeal by Laramie W. Wallace, Jr. (Laramie) from the Findings, Conclusions and Decree of Dissolution of Marriage entered by the Thirteenth Judicial District Court, Judge Barz presiding. We affirm.

Issue Presented

Did the District Court err in denying Laramie’s motion for relief under Rule 60(b), M.R.Civ.P., when his attorney withdrew from the case and the matter proceeded to trial in Laramie’s absence?

Background

Christina L. Wallace (Christina) filed a petition for dissolution of marriage. Laramie, acting through his counsel, filed a response. The District Court issued a scheduling order setting the matter for trial on February 9, 1996. The scheduling order was issued by the court on December 19,1995 and was mailed to counsel for both parties on December 20, 1995.

On the same day the court issued the scheduling order, counsel for Laramie filed a motion to withdraw as counsel, stating that Laramie had had no contact with counsel since May 1994. In his Notice of Withdrawal of Counsel, Laramie’s counsel, Kevin Sweeny, provided Christina’s counsel with Laramie’s last known address. On January 3, 1996, the court granted counsel’s motion to withdraw.

On January 16,1996, counsel for Christina served and filed a “Rule 10 Notice” advising Laramie that:

1. He must appoint another attorney to represent him or appear in person;

2. trial without jury was scheduled for February 9, 1996, to begin at 9:30 a.m.; and

3. if he failed to appoint an attorney or appear in person by February 5, 1996, this action would proceed and might result in a judgment or other order being entered against him, by default or otherwise.

The “Rule 10 Notice” was sent to Laramie’s last known address as provided by his former counsel. The Notice was returned to the sender by the post office since Laramie apparently was no longer at that address.

Trial proceeded as scheduled on February 9,1996 and the District Court issued Findings of Fact and Conclusions of Law and a Decree of Dissolution. On February 9, 1996, after obtaining Laramie’s new address from Laramie’s mother, counsel for Christina sent a Notice of Entry of Judgment to Laramie in Clancy, Montana. Some fifty-six days later, on April 9, 1996, Laramie’s new counsel filed a motion under Rule 60(b), M.R.Civ.R, to set aside the decree. Christina opposed the motion and, when the motion was not ruled upon within the 60-day time limit of Rule 60(c), M.R.Civ.R, it was deemed denied as of June 10, 1996. Laramie, through his new counsel, timely filed an appeal from the denial of that motion.

Discussion

Laramie relies on Rule 60(b)’s statement that the Rule does not limit the power of the court to “grant relief to a defendant not actually personally notified as may be required by law. ...” He also invokes § 25-3-401, MCA, for the proposition that, “[a]fter appearance, a defendant or his attorney is entitled to notice of all subsequent proceedings of which notice is required to be given.” Relying upon these two provisions, Laramie contends that Christina’s counsel did not exercise due diligence in obtaining his correct mailing address and, as a consequence, Laramie did not receive notice of the February 9, 1996 trial date. We reject Laramie’s contentions. The language upon which Laramie relies from Rule 60(b) and § 25-3-401, MCA, only applies to persons who have not been personally served “as required by law” or who do not receive notice of proceedings “of which notice is required to be given.” The question presented in this appeal is whether the law required that Laramie receive any more notice of the trial setting than what was provided in the court’s scheduling order and the Rule 10 Notice mailed by opposing counsel.

We recently discussed the notice requirements that are triggered when a party’s counsel withdraws or ceases to act as counsel. Stanley v. Holms (1997), [281 Mont. 329], 934 P.2d 196,200-201. The requirements are set forth in § 37-61-405, MCA, and Rule 10(b), U.Dist.Ct.R. Section 37-61-405, MCA, provides:

When an attorney dies or is removed or suspended or ceases to act as such, a party to an action for whom he was acting as attorney must, before any further proceedings are had against him, be required by the adverse party, by written notice, to appoint another attorney or appear in person.

Rule 10(b), U.Dist.Ct.R., provides:

When the attorney representing a party to an action or proceeding dies, is removed, withdraws, or ceases to act as such, that party, before any further proceedings are had against him must be given notice by any adverse party:
(1) That such party must appoint another attorney or appear in person, and
(2) The date of the trial or of the next hearing or action required in the case, and
(3) That if he fails to appoint an attorney or appear in person by a date certain, which may not be less than twenty days from the date of the notice, the action or other proceeding will proceed and may result in a judgment or other order being entered against him, by default or otherwise.

We have interpreted these provisions to mean that “ ‘no proceeding may be had against a party, no judgment or order or other step be taken, until he appoints an attorney, unless the prescribed notice is first given.’ ” Stanley, 934 R2d at 200 (quoting Montana Bank of Roundup, N.A. v. Benson (1986), 220 Mont. 410, 717 P.2d 6, 7). The opposing party with notice of withdrawal has a duty to provide adequate notice to the unrepresented party. McPartlin v. Fransen (1978), 178 Mont. 178, 185, 582 P.2d 1255, 1259. The represented party must satisfy § 37-61-405, MCA, by showing that he made “a good faith effort to notify the unrepresented party and advise him he should substitute counsel or appear in person, and the notice also sets forth the date of the next hearing or action in the matter pending....” McPartlin, 582 P.2d at 1259.

When Laramie’s counsel withdrew from the case, he provided opposing counsel with the last known address of his client, Laramie Wallace. Christina’s counsel then attempted to serve a Rule 10 Notice upon Laramie at that last known address. Although Laramie had apparently since moved and did not, in fact, receive the Notice, we hold that Christina’s counsel satisfied the requirement that he make a good faith effort to notify the unrepresented party. The only one to blame for the fact that Laramie did not actually receive the Rule 10 Notice is Laramie himself. He failed to keep counsel (including his own counsel) apprised of his whereabouts.

Laramie points to the fact that opposing counsel was able to contact him, through his mother, for purposes of serving a notice of entry of judgment after trial. He infers that counsel could just as easily have made that same contact prior to trial. This argument assumes, however, that counsel has an obligation to “track down” the unrepresented party. We hold that there is no obligation to “track down” the unrepresented party. Rather, the obligation on counsel is to make a good faith effort to notify the unrepresented party. When counsel has been provided with the party’s last known address, counsel is entitled to rely on that address in satisfying his/her obligation of good faith notification. Although counsel here was able to locate Laramie after the trial, and arguably could have made the same inquiry earlier on, that does not mean that he had a legal obligation to ferret him out before trial.

Given that the court’s original scheduling order was, pursuant to Rule 5(b), M.R.Civ.P., served upon Laramie’s counsel of record on December 20, 1995, and that a Rule 10 Notice was sent to Laramie’s last known address, Laramie received notice “as required by law.” We affirm the decision of the District Court denying the motion for relief under Rule 60(b), M.R.Civ.P.

Affirmed.

JUSTICES NELSON, GRAY, REGNIER and HUNT concur.


author: JUSTICE TRIEWEILER

text:
    STATE OF MONTANA, Plaintiff and Appellant, v. BARBARA E. McELDERRY, Defendant and Respondent.
    No. 96-674.
    Submitted on Briefs August 7, 1997.
    Decided September 8, 1997.
    54 St.Rep. 922. 944 P.2d 230.
    284 Mont. 365.

      For Appellant: Hon. Joseph P. Mazurek, Attorney General; Patricia J. Jordan, Assistant Attorney General; Helena; Kim Christopher, Lake County Attorney; Robert J. Long, Deputy County Attorney; Poison.
    For Respondent: Lawrence J. Nistler, Attorney at Law, Poison.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

On October 16, 1996, the State of Montana charged Barbara McElderry, by complaint filed in the Lake County Justice Court, with driving under the influence of alcohol, fifth offense, a felony, in violation of § 61-8-401(l)(a), MCA, and with reckless driving and driving while her license was suspended or revoked, in violation of §§ 61-8-301(l)(b) and 61-5-212, MCA, respectively. On October 25, 1996, the State filed a motion and affidavit for leave to file an information in District Court. That motion was granted on October 28, 1996, and the information was filed that same day. The information, however, was later dismissed for the State’s failure to file an information within a reasonable time from the date of the defendant’s imprisonment. The State appeals from the District Court’s order dismissing the information. We vacate the District Court’s judgment and remand this case for further consideration consistent with this opinion.

The issues on appeal are:

1. Did the District Court err when it calculated the time period referred to in § 46-10-105, MCA, from the time of the defendant’s arrest, rather than from her initial appearance?

2. Did the District Court err when it concluded that in State v. Higley (1980), 190 Mont. 412, 621 P.2d 1043, this Court adopted a ten-day time limitation for charging a person in custody, consistent with Rule 5(c) of the Federal Rules of Criminal Procedure?

3. Did the District Court err when it found the period of time which elapsed prior to the filing of the information unreasonable in this case?

FACTUAL BACKGROUND

On October 14, 1996, Barbara McElderry was arrested in Lake County for allegedly committing the offenses of driving under the influence of alcohol, reckless driving, and driving while her license was suspended. In its complaint and affidavit, the State alleged that the arresting officer noticed McElderry’s vehicle weaving in her lane and speeding along highway 93 near Pablo, Montana. Following her detention and refusal to perform any of the standard field sobriety tests, McElderry was placed into custody in the Lake Comity jail.

Two days later, on October 16, 1996, McElderry made her initial appearance in the Lake County Justice Court and the State charged her by filing its complaint. The charges brought against McElderry were driving under the influence of alcohol, her fifth offense, a felony pursuant to § 61-8-401(l)(a), MCA, and the misdemeanors of reckless driving in violation of § 61-8-301(l)(b), MCA, and driving while her license was suspended or revoked in violation of § 61-5-212, MCA.

On Friday, October 25,1996, the State filed a motion for leave to file an information in the District Court for the Twentieth Judicial District in Lake County. The District Court granted leave to file the information on Monday, October 28, 1996. On that same day, fourteen days after McElderry’s arrest and imprisonment, and twelve days after her initial appearance in the Justice Court, the State filed its information.

On October 29, 1996, McElderry filed a motion to dismiss the charges based on her contention that the reasonable time requirement in § 46-10-105, MCA, as interpreted by this Court in Higley, 190 Mont. 412, 621 P.2d 1043, requires a determination of probable cause within ten days following a defendant’s initial appearance. The State responded that this Court, in Higley, found that a ten-day delay prior to a determination of probable cause is not unreasonable, but that ten days is not considered an outer limit for what is reasonable. The District Court granted McElderry’s motion and dismissed the State’s information with prejudice.

In its order dismissing the State’s information, the District Court adopted by reference McElderry’s arguments as set out in her briefs, and stated that, pursuant to Higley, the State failed to hold a preliminary examination in Justice Court or obtain leave from the District Court to file the information within a reasonable time. The arguments presented by McElderry in support of her motion to dismiss, and which were later adopted by the District Court in its order, focused on our interpretation of § 46-10-105, MCA, in Higley.

Section 46-10-105, MCA, provides as follows:

After the initial appearance, in all cases in which the charge is triable in district court, the justice’s court shall, within a reasonable time, hold a preliminary examination unless:

(1) the defendant waives a preliminary examination;
(2) the district court has granted leave to file an information;
(3) an indictment has been returned; or
(4) the case is triable in justice’s court.

Because McElderry was charged with a felony which is triable in district court, § 46-10-105, MCA, requires that, unless an exception applies, a preliminary examination must be held within a reasonable time after McElderry’s initial appearance. Of the four enumerated exceptions to the reasonable time requirement in the statute, only subsection (2) “the district court has granted leave to file an information,” applies to this case. McElderry, however, contends, and we agree, that the exception does not apply if a “reasonable time” expired before leave was granted.

The Federal statute referred to by McElderry, as set out in Higley, states in relevant part:

“Such examination shall be held within a reasonable time but in any event no later than 10 days following the initial appearance if the defendant is in custody ... provided, however, that the preliminary examination shall not be held if the defendant is indicted or if an information against the defendant is filed in district court....”

Higley, 190 Mont. at 419, 621 P.2d at 1048 (quoting 18 U.S.C. Fed. R. Crim. P. 5(c)).

On November 18, 1996, the District Court granted McElderry’s motion to dismiss and adopted by reference the arguments presented by McElderry as a basis for finding the time lapse unreasonable. However, contrary to the assertions of both McElderry and the State, the District Court calculated the delay from October 14, 1996, the day McElderry was arrested and placed into custody, rather than October 16, 1996, the day she made her first appearance. The total delay assumed by the court was, therefore, fourteen days, rather than twelve.

ISSUE 1

Did the District Court err when it calculated the time period referred to in § 46-10-105, MCA, from the time of the defendant’s arrest, rather than from her initial appearance?

The standard of review of a district court’s conclusions of law is whether the court’s interpretation of the law is correct. See Kreger v. Francis (1995), 271 Mont. 444, 447, 898 P.2d 672, 674. In Kreger, we held that “ ‘where the language of the statute is plain, unambiguous, direct, and certain, the statute speaks for itself.’ ” Kreger, 271 Mont. at 447, 898 P.2d at 674 (quoting State ex rel. Palmer v. Hart (1982), 201 Mont. 526, 530, 655 P.2d 965, 967).

The District Court dismissed the State’s information based in part on its conclusion that the time period at issue began at the moment McElderry was arrested and placed into custody. The plain language of the governing statute, however, clearly requires a preliminary examination to be held, or other determination of probable cause to be made, within a reasonable time after the initial appearance. Section 46-10-105, MCA, provides in relevant part that:

After the initial appearance, in all cases in which the charge is triable in district court, the justice’s court shall, within a reasonable time, hold a preliminary examination unless:

(Emphasis added.) Therefore, we conclude that the District Court erred in its calculation of the delay.

ISSUE 2

Did the District Court err when it concluded that in State v. Higley (1980), 190 Mont. 412, 621 P.2d 1043, this Court adopted a ten-day time limitation for charging a person in custody, consistent with Rule 5(c) of the Federal Rules of Criminal Procedure?

In its order dismissing the State’s information, the District Court concluded that, pursuant to our decision in Higley, the reasonable time requirement set forth in § 46-10-105, MCA, for holding a preliminary examination or otherwise making a determination of probable cause, has an outer limit of ten days. Based on this conclusion, the District Court found the fourteen day delay between McElderry’s incarceration and the filing of the State’s information unreasonable.

Section 46-10-105, MCA, itself, does not set a ten-day time limit, but merely states the preliminary hearing must be held within a reasonable time unless, inter alia, the court grants leave to file an information or unless another statutory exception applies. Contrary to the arguments set forth by McElderry, we did not adopt the ten-day time period established in Rule 5(c) of the Federal Rules of Criminal Procedure in our decision in Higley. We merely held that a ten-day delay in determining probable cause was not unreasonable. Our discussion in Higley of the current federal ten-day rule serves only as an example of jurisdictions using precise time limits, and to distinguish it from Montana’s “reasonable time” rule which is similar to the previous federal rule.

Our intent in Higley was to demonstrate that even a ten-day delay, as proscribed by the federal statute, may not be unreasonable in Montana. This is evident in our discussion of James v. Lawrence (D.C. Cir. 1949), 176 F.2d 18, a case decided pursuant to the previous federal rule which merely required a hearing in a reasonable time. There, we noted that eighteen days was not an unreasonable delay. See James, 176 F.2d at 20. In another example of a standard similar to that used in Montana, we also noted in Higley the Alaska case of Martinez v. State (Alaska 1967), 423 P.2d 700, 710-11, in which the Alaska Supreme Court concluded that what constitutes a reasonable time must be determined by the facts of the case. In Martinez, a sixteen-day delay was found reasonable. See Martinez, 423 P.2d at 710. We therefore concluded in Higley that “a 10-day delay in determining probable cause was not unreasonable.” Higley, 190 Mont at 420, 621 P.2d at 1048.

Therefore, we conclude that the District Court erred by holding that in Higley this Court adopted the ten-day time limitation for charging a person in custody as established by Rule 5(c) of the Federal Rules of Criminal Procedure.

ISSUE 3

Did the District Court err when it found the period of time which elapsed prior to the filing of the information unreasonable in this case?

We have held that a determination of a “reasonable time” pursuant to § 46-10-105, MCA, is within the discretion of the district court. Higley, 190 Mont. 412, 621 P.2d 1043. The standard of review of discretionary trial court rulings in criminal cases is whether the trial court abused its discretion. See State v. Sullivan (1994), 266 Mont. 313, 324, 880 P.2d 829, 836. See also State v. Mergenthaler (1993), 263 Mont. 198, 204, 868 P.2d 560, 563; State v. Later (1993), 260 Mont. 363, 364, 860 P.2d 135, 136.

However, because the District Court erred in its calculation of the period of delay, we are not able to determine how the court would, in fact, exercise its discretion based on the actual delay which was twelve days.

Therefore, we conclude that the District Court erred in its calculation of the actual delay, and when it concluded that Higley established a ten-day time limit for granting leave to file an information. Since the reasonableness of the delay is a discretionary decision which is factually driven, we do not know how the District Court would exercise its discretion, absent these erroneous assumptions and, therefore, vacate the prior judgment of the District Court and remand this case for further consideration consistent with this opinion.

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


author: JUSTICE REGNIER JUSTICE LEAPHART,

text:
    THERESA TURCOTTE STUTZMAN, Plaintiff and Appellant, v. SAFECO INSURANCE COMPANY OF AMERICA, Defendant and Respondent.
    No. 96-699.
    Heard June 24, 1997.
    Submitted July 22, 1997.
    Decided September 8, 1997.
    54 St.Rep. 925. 945 P.2d 32.
    284 Mont. 372.

      For Appellant: Kenneth E. O’Brien (argued); Hash, O’Brien & Bartlett; Kalispell.
    For Respondent: Robert J. Phillips (argued); Phillips & Bohyer; Missoula.
   JUSTICE REGNIER

delivered the Opinion of the Court.

On October 11, 1995, plaintiff and appellant, Theresa Turcotte Stutzman, formerly Theresa Turcotte, filed an action in the District Court for the Eleventh Judicial District in Flathead County against Safeco Insurance Company of America to recover underinsured motorist benefits pursuant to an automobile insurance policy issued by Safeco in hers and her husband’s names. Safeco subsequently moved for summary judgment, and Stutzman filed a cross motion for partial summary judgment. On October 29, 1996, following review of the record, the District Court issued an order granting Safeco’s motion, and denying Stutzman’s. Stutzman appeals the District Court’s order. For the reasons stated below, we affirm.

This Court finds the following two issues dispositive on appeal:

1. Did the District Court err in concluding that the exclusionary language contained in the Safeco policy’s definition of an underinsured motor vehicle effectively precludes appellant from recovering underinsured motorist benefits?

2. Did the District Court err in determining that the definition of underinsured motor vehicle contained in the Safeco insurance policy does not violate public policy or the reasonable expectations of the insured?

FACTUAL BACKGROUND

The parties do not dispute the material facts in this case, as indicated by their respective motions for summary judgment. On November 5,1992, Stutzman was injured in a single-vehicle automobile accident near Marion, Montana. At the time of the accident, Stutzman’s husband, John Turcotte, was driving and Stutzman was a passenger. Due to Turcotte’s negligence, the vehicle went off the road and overturned. Stutzman was injured as a result of the accident and claims damages in excess of $200,000. Turcotte was the sole owner of the vehicle involved in the accident, and Stutzman had never driven it herself.

At the time of the accident, Stutzman and Turcotte were the named insureds on an automobile insurance policy issued by Safeco. The Safeco policy had a liability coverage limit of $100,000 and an under-insured motorist benefit limit of $100,000. In June 1993, Safeco paid Stutzman the $100,000 liability limits provided for in the policy. Stutzman claims damages in excess of the $100,000 in liability coverage available, however, and is therefore seeking recovery of underinsured motorist benefits pursuant to the Safeco policy’s under-insured motorist provision.

In October 1995, Stutzman filed the present action to recover underinsured motorist benefits. On May 3, 1996, Safeco moved for summary judgment on the basis that the policy’s definition of under-insured motor vehicle precludes Stutzman from recovering underinsured benefits in this case. On May 20, 1996, Stutzman, in turn, moved for partial summary judgment on a number of grounds, maintaining primarily that the policy’s definition of underinsured vehicle is unclear and ambiguous and stands in violation of public policy, as well as the reasonable expectations of the insured. Following review of the record, the District Court granted Safeco’s motion and denied plaintiff’s, concluding that the policy’s exclusionary clause effectively prohibited Stutzman from recovering underinsured motorist benefits.

DISCUSSION

This Court’s standard of review in appeals from summary judgment rulings is de novo. Treichel v. State Farm Mut. Auto. Ins. Co. (1997), 280 Mont. 443, 930 P.2d 661, 663 (citing Motarle v. Northern Montana Joint Refuse Disposal Dist. (1995), 274 Mont. 239, 242, 907 P.2d 154, 156; Mead v. M.S.B., Inc. (1994), 264 Mont. 465, 470, 872 P.2d 782, 785). This Court reviews a summary judgment order entered pursuant to Rule 56, M.R.Civ.P., based on the same criteria applied by the district court. Treichel, 930 P.2d at 663, (citing Bruner v. Yellowstone County (1995), 272 Mont. 261, 264, 900 P2d 901, 903). See also Bartlett v. Allstate Ins. Co. (1996), 280 Mont. 63, 929 P.2d 227, 230.

Moreover, in proving that summary judgment is appropriate: The 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 determinations made by a district court as to whether the court erred.

Bruner, 272 Mont, at 264-65, 900 P.2d at 903.

This Court has previously recognized that the “construction and interpretation of written agreements, including contracts” such as the one here, “is a question of law for the court to decide.” Klawitter v. Dettmann (1994), 268 Mont. 275, 281, 886 P.2d 416, 420 (citing First Security Bank of Anaconda v. Vander Pas (1991), 250 Mont. 148, 152-53, 818 P.2d 384, 387); see also Wellcome v. Home Ins. Co. (1993), 257 Mont. 354, 356, 849 P.2d 190, 192. This Court is bound to interpret the terms of this insurance policy according to their usual, common sense meaning as viewed from the perspective of a reasonable consumer of insurance products. See Duensing v. Traveler’s Companies (1993), 257 Mont. 376, 381, 849 P.2d 203, 206 (holding that “ [i]n interpreting insurance contracts, the words of the policy are to be understood in their usual meaning; common sense controls.”) Further, this Court may not rewrite the contract at issue, but must enforce it as written if its language is clear and explicit. Hurtt v. School Dist. No. 29, Big Horn County (1986), 222 Mont. 415, 418-19, 723 P.2d 205, 207. This Court has previously held that the interpretation of an insurance policy presents a question of law. Wellcome, 257 Mont. at 356, 849 P.2d at 192.

As noted above, the parties in the instant case do not dispute the relevant facts. Accordingly, this Court’s review is limited to whether the District Court was correct in its interpretation of the terms of the Safeco insurance policy at issue and its ruling upon the parties’ respective motions for summary judgment.

ISSUE 1

Did the District Court err in concluding that the exclusionary language contained in the Safeco policy’s definition of an underinsured motor vehicle effectively precludes appellant from recovering underinsured motorist benefits?

Stutzman seeks a determination from this Court that she is entitled to recover underinsured motorist benefits pursuant to the Safeco policy in effect at the time of the accident. With respect to underinsured motorist coverage, the policy provides that Safeco will

pay all sums which the insured or his legal representative shall be legally entitled to recover as damages from the owner or operator of an uninsured or underinsured motor vehicle because of bodily injury, sickness or disease, including death resulting therefrom, hereinafter called bodily injury, sustained by the insured, caused by accident and arising out of the ownership, maintenance or use of such uninsured or underinsured motor vehicle ....

In other words, the policy provides underinsured motorist benefits if an insured sustains bodily injury caused by an underinsured motor vehicle. Here, Stutzman is an insured who claims she sustained bodily injury in a single vehicle automobile accident caused by her husband, Turcotte’s, negligent driving. Turcotte owned the vehicle involved in the accident and insured it with Safeco. Accordingly, in evaluating Stutzman’s entitlement to underinsured motorist benefits in this case, this Court must next determine whether the vehicle involved in the accident qualifies as an underinsured motor vehicle pursuant to the terms of the policy.

The policy defines an underinsured motor vehicle as a motor vehicle of any type to which a bodily injury liability bond or policy applies at the time of the accident but the amount paid for bodily injury under the bond or policy to an insured is not enough to pay the full amount the insured is legally entitled to recover as damages.
But underinsured motor vehicle does not include any motor vehicle: ... (3) owned by or famished for the regular use of the named insured or any relative ....

This third exclusion, which removes from the definition of an underinsured vehicle any vehicle “owned by or furnished for the regular use of the named insured or any relative” proves critical to this Court’s analysis. Indeed, the parties vigorously dispute the validity and applicability of this exclusionary provision.

Safeco contends that this exclusion clearly removes the vehicle involved in the accident from the definition of underinsured motor vehicle on two grounds. First, Safeco argues the vehicle was “owned by the named insured” because it was owned by Turcotte-a named insured on the declarations page of the policy-and is thus excluded from the definition of an underinsured motor vehicle. Second, Safeco argues that because Stutzman and Turcotte, the vehicle’s owner, were married at the time of the accident, the vehicle was owned by a relative of the named insured and is accordingly excluded from the definition of an underinsured motor vehicle. Because we find Safeco’s second and alternative argument dispositive, we need not address the question of whether the vehicle was owned by the named insured as contemplated by the policy’s exclusionary clause.

We conclude, as did the District Court below, that the vehicle involved in the accident was owned by a relative of the named insured and therefore cannot be considered an underinsured motor vehicle pursuant to the terms of the policy. As noted above, the exclusion at issue provides that an underinsured motor vehicle does not include any motor vehicle owned by any relative of the named insured.

Safeco asserts that married persons are relatives within the clear and unambiguous terms of the Safeco policy, and that because the vehicle involved in the accident was owned by Stutzman’s husband, it was therefore owned by a relative of the named insured. In response, Stutzman argues that the Safeco policy fails to clearly define a spouse as a relative, and that the policy’s definition of the term “relative” is ambiguous.

The policy defines a relative as follows: “ ‘Relative’ means a relative of the named insured who is a resident of the same household.” As Stutzman correctly notes, nowhere does the policy specifically state whether Safeco intended the term “relative” to include blood relatives, relatives by marriage, or both. Stutzman argues that, had Safeco intended to include married persons within its definition of “relative,” it could have easily done so with explicit language to that effect. Safeco’s failure to do so, Stutzman continues, creates an ambiguity which must be construed by this Court in her favor and against the insurer.

Any ambiguity contained in an insurance policy will be strictly construed by this Court against the insurer. Leibrand v. National Farmers Union (1995), 272 Mont. 1, 6, 898 P.2d 1220, 1223. However, this Court will not create an ambiguity in an insurance contract where none exists. Canal Ins. Co. v. Bunday (1991), 249 Mont. 100, 106, 813 P.2d 974, 977-78; Farmers Alliance Mut. Ins. Co. v. Miller (9th Cir. 1989), 869 F.2d 509, 512. Rather, this Court will interpret the terms of an insurance policy, such as the one here, according to their usual, common sense meaning as viewed from the perspective of a reasonable consumer of insurance products. See Leibrand, 272 Mont, at 7, 898 P.2d at 1224 (holding this Court will examine language in an insurance policy from the viewpoint of a consumer of average intelligence and not trained in the law or in the insurance business).

Other courts which have interpreted insurance policies which similarly define the term “relative,” or do not define it all, have concluded that a “relative,” construed in its ordinary sense, includes a spouse. See, e.g., Allstate Insurance v. Shelton (9th Cir. 1997), 105 F.3d 514, 517 (holding term “ ‘relative’ requires a connection by blood or affinity,” of which marriage is one); Groves v. State Farm Life and Casualty Co. (Ariz. Ct. App. 1992), 829 P.2d 1237, 1238 (holding, in insurance cases, one not a relative by blood or marriage is not covered as a relative); Allstate Ins. Co. v. Hilsenrad (Fla. Dist. Ct. App. 1985), 462 So.2d 1202, 1204 (holding resident in insured’s home not a relative where no connection to the insured by way of blood, marriage, or adoption); Liprie v. Michigan Millers Mutual Ins. Co. (La. App. 1962), 143 So.2d 597, 601 (defining relative as “a person connected with another by blood or affinity” and finding daughter-in-law a relative of her husband’s parents).

In accordance with prevailing case law, and applying a common sense interpretation of the terms at issue, we conclude that the average consumer of insurance would, in reading the Safeco policy, conclude that the term “relative” includes reference to his or her spouse.

Based on the foregoing, we conclude that the term “relative,” construed in its ordinary sense and from the perspective of the average consumer of insurance, clearly and unambiguously includes one’s spouse. A person of average intelligence could determine from a reading of the insurance policy that the term “relative” includes one to whom the insured is married.

Regardless of any ambiguity, this Court will strictly construe exclusionary language against the insurer. See Liehrand, 272 Mont, at 6, 898 P.2d at 1223. Because we have determined that the term “relative,” as employed in the policy at issue in this case, is not ambiguous and clearly encompasses the spousal relationship, even when strictly construed against the insurer, this unambiguous exclusionary language clearly removes the Turcotte vehicle from the definition of an underinsured motor vehicle.

Based on the foregoing discussion, we hold the District Court did not err in concluding that the exclusionary language contained in the Safeco policy’s definition of an underinsured motor vehicle effectively precludes appellant from recovering underinsured motorist benefits in this case.

ISSUE 2

Did the District Court err in determining that the definition of underinsured motor vehicle contained in the Safeco insurance policy does not violate public policy or the reasonable expectations of the insured?

A. Public Policy

Stutzman argues this Court should void the exclusionary language contained in the Safeco policy’s definition of an underinsured motor vehicle on public policy grounds. Specifically, Stutzman argues that, pursuant to Transamerica v. Doyle (1983), 202 Mont. 173, 656 P.2d 820, household exclusion clauses in bodily injury liability policies are void. Although this Court may indeed invalidate a household exclusion clause which violates Montana’s mandatory insurance law, there is no statutory mandate for underinsured motorist coverage in Montana. Pursuant tp § 61-6-103(8), MCA, optional underinsured motorist coverage is not subject to the provisions of Montana’s Motor Vehicle Safety Responsibility Act. Therefore, the parties may freely contract to produce exclusions or limitations on underinsured motorist coverage.

Stutzman also argues that a policy provision which effectively prohibits her from recovering underinsured motorist benefits simply because she was injured by the negligence of her husband rather than the negligence of a third party is unconscionable. She maintains that the Safeco policy is a contract of adhesion which unconscionably prohibits her from receiving full coverage for her damages.

That the Safeco policy excludes “a vehicle owned by the insured or a relative” is not unconscionable. Stutzman was not without meaningful choice at the time the parties entered the insurance contract at issue. Rather, Stutzman and her husband were free to purchase liability coverage in excess of $100,000 but chose not to do so.

Further, as did the District Court below, we find the reasoning of the court in Kim v. State Farm Mutual Automobile Ins. Co. (9th Cir. 1991), 952 F.2d 314, persuasive and conclude that public policy in fact supports the enforcement of the exclusionary clause at issue here. To invalidate an exclusion which prohibits recovery of underinsured motorist benefits where the vehicle in question is “owned by or furnished for the regular use of the named insured or any relative,” would, in effect, convert underinsured motorist coverage into liability coverage and “permit policyholders to substitute inexpensive under-insured motorist coverage for more expensive liability coverage.” Kim, 952 F.2d at 316.

B. Reasonable Expectations Doctrine

Stutzman argues that the exclusionary language at issue in this case is void because it violated her reasonable expectations as an insured. However, the reasonable expectations doctrine is inapplicable where, as we have found here, the terms of the insurance policy clearly demonstrate an intent to exclude coverage. Wellcome, 257 Mont. at 359, 849 P.2d at 194. Rather, “[expectations which are contrary to a clear exclusion from coverage are not ‘objectively reasonable’.” Wellcome, 257 Mont. at 359, 849 P.2d at 194.

As we have determined that the disputed exclusionary language appropriately excluded vehicles from the definition of an underinsured motor vehicle if owned by a relative, including a spouse, of the insured, any expectation by the insured to the contrary in this case would not be objectively reasonable.

In conclusion, we hold that the District Court properly concluded that the vehicle in question was excluded from the definition of an underinsured motor vehicle because it was owned by a relative of the insured. We additionally hold that the District Court properly concluded the exclusionary clause did not violate public policy or the reasonable expectations of the insured.

On these bases we affirm the order of the District Court granting Safeco’s motion for summary judgment and denying Stutzman’s motion for partial summary judgment.

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

JUSTICE LEAPHART,

dissenting.

I concur in the Court’s resolution of issue number two and dissent on issue number one.

Resolution of the question of whether the language of the policy excludes Stutzman from recovering underinsurance hinges upon an interpretation of the following exclusionary language in the policy’s definition of an underinsured motor vehicle:

But underinsured motor vehicle does not include any motor vehicle: ... (3) owned by or furnished for the regular use of the named insured or any relative ....

The Court holds that the term “relative,” when construed in its ordinary sense by an average consumer, is not ambiguous and that it clearly encompasses the spousal relationship. Thus, since the vehicle involved was owned by a “relative,” Stutzman’s husband, the Court concludes that the vehicle was not an “underinsured motor vehicle” within the terms of the policy.

I disagree. Although no expert in the theory of relativity, I am of the opinion that ambiguity exists as to whether the term “relative” denotes consanguinity only or whether it also includes relationship by affinity. I daresay that I am not alone in my understanding that a spouse is not a “relative.” I note that A Dictionary of Modern Legal Usage (2nd ed. 1995), defines “relative” as “a person who is kin.” Kindred is then defined as “relationship by consanguinity.” Black’s Law Dictionary (6th ed. 1990), defines “relative” as follows: ‘When used generically, includes persons connected by ties of affinity as well as consanguinity, and, when used with a restrictive meaning, refers to those only who are connected by blood.”

We have held that we will strictly construe exclusionary language against the insurer. See Aetna Ins. Co. v. Cameron (1981), 194 Mont. 219, 221-22, 633 P.2d 1212, 1214. Likewise, an ambiguity contained in an insurance policy will be strictly construed against the insurer. Leibrand v. Nat. Farmers Union (1995), 272 Mont. 1, 6, 898P.2d 1220, 1223. Accordingly, we should employ the restrictive meaning (consanguinity only) rather than the more liberal or generic meaning. I would resolve the ambiguity in favor of Stutzman and hold that her spouse is not a “relative.” Thus, the spouse’s ownership of the vehicle does not disqualify the vehicle as an underinsured motor vehicle.

The exclusionary language not only excludes vehicles owned by a “relative” but also vehicles owned by “the named insured.” Safeco argues that Stutzman’s husband, who owns the vehicle, is not only a relative, but also a named insured under the policy. Although both he and appellant are “named insureds” under the policy, the exclusionary language in question refers to “the” named insured. In the context of a claim for underinsurance benefits, “the named insured” logically refers to “the” named insured making the claim for benefits, i.e., the appellant Stutzman. The reference to “the named insured” does not reference a person, such as Stutzman’s husband, who, although named as an insured in the policy, is not making a claim for benefits. The husband’s ownership of the vehicle does not come within either prong of the exclusionary provision. I would reverse the decision of the District Court and hold that Stutzman is entitled to recover underinsurance benefits.

JUSTICE HUNT joins in the foregoing dissent of JUSTICE LEAPHART.

      . Stutzman argues the exclusionary provision is inapplicable, or in the alternative, ambiguous and thus unenforceable. Stutzman argues the exclusion is inapplicable because the named insured under the policy specifically includes both herself and her husband. She contends that, since she was not the owner of the vehicle in which she was injured, the named insured did not own the motor vehicle in which the accident occurred and the exclusion is thus inapplicable.