author: JUSTICE WEBER JUSTICE GRAY

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. DANIEL RICHARD McCARTHY, Defendant and Appellant.
    No. 92-189.
    Submitted on Briefs October 22, 1992.
    Decided April 16, 1993.
    50 St.Rep. 420.
    852 P.2d 111.
    258 Mont. 51.

      See C.J.S. Motor Vehicle § 593(3).

      For Defendant and Appellant: Randi M. Hood, Public Defender, Helena.
    For Plaintiff and Respondent: Patricia J. Jordan, Assistant Attorney General, Marc Racicot, Attorney General, Mike McGrath, Lewis and Clark County Attorney, and Lisa Leckie, Deputy County Attorney, Helena.
   JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal from an order of the First Judicial District Court, Lewis and Clark County, denying appellant’s motion to suppress evidence seized in a warrantless search. We affirm.

The issues on appeal are:

1. Did the District Court err in denying McCarthy’s motion to suppress evidence due to an illegal warrantless search of a vehicle and a jacket in that vehicle?

2. Did the District Court err by refusing to suppress evidence found upon McCarthy’s person at the time of his booking because such evidence was fruit of the poisonous tree?

Daniel R. McCarthy (McCarthy), Shannon Hiatt (Hiatt), and Leslie Eddards (Eddards), were involved in a one-vehicle accident on July 5, 1991 on the Stemple Pass road in Lewis and Clark County. McCarthy and Hiatt were passengers in the car driven by Eddards. Montana Highway Patrol Officer Scott Swingley arrived at the scene and found the automobile in a ditch with its engine running and Hiatt severely injured.

Swingley suspected that the driver, Eddards, was intoxicated and administered a breathalizer test. The test results showed .175 blood alcohol content. Swingley arrested Eddards on a DUI charge, handcuffed him and placed him in the rear seat of the police car.

Swingley then read McCarthy his rights and asked McCarthy if there was anything illegal in the car, upon which McCarthy said ‘You know about the pot pipe?” Both McCarthy and Swingley then approached the car at which point McCarthy began searching from the passenger side for the pipe which he stated was located around the car’s gearshift. He could not find it.

Swingley went to the driver’s side and saw a crumpled jacket in the back seat with a clear plastic baggie protruding from the pocket. He reached into the jacket, pulled out the baggie and determined the green leafy substance might be marijuana. He replaced the baggie in the pocket and asked McCarthy who the jacket belonged to. McCarthy said it was his, upon which Swingley pulled the baggie from the pocket.

Swingley arrested McCarthy and transported him to the county jail in Helena where jail personnel discovered a small baggie in McCarthy’s right front pant’s pocket. The baggie contained LSD. McCarthy was charged with felony possession of dangerous drugs.

On August 22, 1991, McCarthy pled not guilty, and on September 10, 1991, filed a motion to suppress evidence. A hearing was held on October 24, 1991. The District Court denied McCarthy’s motion to suppress on December 10, 1991. McCarthy entered an Alford plea of guilty on February 6,1992, and received a two year deferred sentence on the felony count. McCarthy reserved his right to appeal the denial of his motion to suppress at the time he pled guilty. This appeal followed.

I

Did the District Court err in denying McCarthy’s motion to suppress evidence due to an illegal warrantless search of a vehicle and a jacket in that vehicle?

McCarthy argues that as a passenger in Eddards’ car he had a reasonable expectation of privacy in both the car and his jacket. McCarthy contends that he is protected against unreasonable searches by the Fourth Amendment of the United States Constitution and Article II, Section 11 of the Montana Constitution. McCarthy contends that warrantless searches are per se unreasonable and that the exception to the rule requires probable cause which did not exist here.

The State argues that Officer Swingley had probable cause to search McCarthy’s jacket and such search was valid under the “automobile exception” to the Fourth Amendment’s warrant requirement. The State further argues that it was permitted to search both the automobile and McCarthy’s jacket as a search incident to Eddards’ arrest for DUI.

An exception to the warrant requirement is the “automobile exception,” which requires the existence of probable cause to search and the presence of exigent circumstances, that is, that it was not practicable under the circumstances to obtain a warrant. State v. Allen (1992), [256 Mont. 47], 844 P.2d 105, 49 St.Rep. 1130, 1131. We first address McCarthy’s claim concerning the automobile itself.

McCarthy “bears the burden of proving not only that the search .... was illegal, but also that he had a legitimate expectation of privacy” in the automobile. Rawlings v. Kentucky (1980), 448 U.S. 98, 104, 100 S.Ct. 2556, 2561, 65 L.Ed.2d 633, 641. A person is protected from search and seizure only if it is reasonable to expect privacy under the surrounding circumstances. City of Billings v. Whalen (1990), 242 Mont. 293, 790 P.2d 471. McCarthy offered no reasons nor foundation for his claim of privacy in the auto. The car was on a public highway was involved in a DUI and belonged to the father of the driver. Under these circumstances, we conclude that it was not reasonable for McCarthy to have any expectation of privacy in the auto itself, nor has he offered proof of any.

However, under certain circumstances, McCarthy could have had a different expectation of privacy in his jacket which was found in the car. Since McCarthy has claimed ownership of the article seized, the jacket, we review the circumstances of this case to see if police had authority to make a warrantless search of McCarthy’s jacket. See, W. Ringel, Searches & Seizures, Arrests & Confessions, § 11.7, pp. 1156-57, (1992).

In its conclusions of law, the District Court determined that, under the automobile exception, Officer Swingley had probable cause to search the car including McCarthy’s jacket after being told that there was a pot pipe in the car. Because the District Cotut determined that Officer Swingley had probable cause, it denied McCarthy’s motion to suppress the evidence. We review conclusions of law by the District Court as to whether the court’s interpretation of law was correct. Steer Inc. v. Dept, of Revenue (1990), 245 Mont. 470, 803 P.2d 601.

Warrantless searches are per se unreasonable under the Fourth Amendment of the United States Constitution. Katz v. United States (1967), 389 U.S. 347,88 S.Ct. 507,19 L.Ed.2d 576. Both federal and state law acknowledge certain specific exceptions to the need for a warrant. California v. Acevedo (1991), _U.S._, 111 S.Ct. 1982, 114 L.Ed.2d 619; State v. Evjen (1988), 234 Mont. 516, 765 P.2d 708. One of those exceptions is known as the automobile exception. Carroll v. United States (1925), 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543. The automobile exception has been adopted by this Court in State v. Speilmann (1973), 163 Mont. 199, 516 P.2d 617.

The history of the automobile exception to the prohibition against warrantless searches has been long and varied. The exception was initially recognized as an attempt to enable authorities to stop the transport of illegal liquor during the Prohibition Era. E. Wedlock, Car 54 How Dare You!: Toward a Unified Theory of Warrantless Automobile Searches, 75 Marquette Law Review 79 (1991). Since that time the exception has been broadened but remains clearly delineated by specific parameters, particularly in Montana.

In the 1988 case of Evjen this Court concluded that an automobile may be searched by police without a warrant where there is probable cause to believe the automobile’s contents offend against the law. Evjen, 234 Mont. at 520, 765 P.2d at 710. In that case the Court pointed out that the resolution of the case did not depend upon whether the officers had made an actual arrest, but upon whether the officers had probable cause to search the motor vehicle without a warrant pursuant to the “probable cause exception.” Evjen, 234 Mont. at 519, 765 P.2d at 711. In Evjen the Court determined that the officer had specific information from a reliable informant that she had been in the pickup, saw drugs in the pickup and described three persons who had arrived in the truck. The information given by the informant was confirmed when three persons did approach the truck. The Evjen Court concluded there was probable cause to search the truck, stating:

There is no question that Officer Phillips had probable cause to search the truck at that time. The alternatives were to hold the truck until a magistrate or judge could issue a search warrant, or allow the three persons to get into their truck and drive away with the contraband evidence. Because the officer had probable cause to search the vehicle, the search was not unreasonable under the Fourth Amendment, even though an actual arrest of the defendant had not been made.

Evjen, 234 Mont. at 520, 765 P.2d at 711.

In the 1992 case of Allen, we quoted from the U.S. Supreme Court case of California v. Acevedo (1991), _U.S._, 111 S.Ct. 1982, 114 L.Ed.2d 619. In Allen, we agreed with the Acevedo analysis of closed containers found during an automobile search:

We conclude that it is better to adopt one clear-cut rule to govern automobile searches and eliminate the warrant requirement for closed containers set forth in [Arkansas v.] Sanders, [442 U.S. 753, 99 S.Ct. 2586, 61 L.Ed.2d 235],

Allen, [256 Mont. 47], 844 P.2d at 110; citing Acevedo, 111 S.Ct. at 1986. We concluded in Allen, as we do here, that the police may search without a warrant if their search is supported by probable cause. Allen, [256 Mont. 47], 844 P.2d at 110. That search includes any closed containers found in the automobile.

Here Officer Swingley had come to the scene of an automobile accident in which a passenger had been seriously injured. He arrested the driver of the vehicle on a charge of DUI. Officer Swingley was then informed by defendant that there was a pot pipe in the car and defendant helped Officer Swingley look for the pot pipe. In the course of that search, the officer observed a plainly visible baggie protruding from the jacket. Because the pot pipe was not found in the gear shift area in the car, it was reasonable to assume that it could be in the jacket; and in addition, the baggie suggested the possibility of the presence of marijuana. Applying the standards of Evjen and Allen, we conclude Officer Swingley had probable cause to search the vehicle without a warrant; therefore, Officer Swingley could search McCarthy’s jacket as well as any other container located within the vehicle.

McCarthy relies on a Supreme Court case to argue that the police could not search his jacket without a warrant. Contrary to McCarthy’s arguments, the U.S. Supreme Court has expressly overruled Robbins v. California (1981), 453 U.S. 420, 101 S.Ct. 2841, 69 L.Ed.2d 744, upon which he relies so heavily. See United States v. Ross (1982), 456 U.S. 798, 102 S.Ct. 2157, 72 L.Ed.2d 572. The Robbins reasoning states that a container in a vehicle must clearly announce its contents. Robbins, 453 U.S. at 427-28, 101 S.Ct. at 2846.

The second consideration concerning a warrantless search is exigent circumstances which are those circumstances where it is not practicable to secure a warrant. Allen, [256 Mont. 47], 844 P.2d at 109. When the automobile exception was first created, exigent circumstances meant that the vehicle was movable, as in Allen, thus endangering preservation of the fruits of a crime. Today, certain authorities suggest a “totality of the circumstances” approach to the appropriateness of a warrantless search. J. Hall, Search and Seizure, § 14:3 (1992). We therefore conclude that exigent circumstances should be considered on the “totality of circumstances.” We have stated that although still jealously limited in Montana, exigent circumstances are not absolutely limited. State v. Dess (1982), 201 Mont. 456, 655 P.2d 149. Police may need to consider not just the mobility of the vehicle, but the possible destruction of evidence, the safety of police officers, emergency situations, and the possible gravity of the crime committed. J. Hall, Search and Seizure, § 14:3 et seq. Also, see Allen.

In Allen, we found exigent circumstances to be the need to ensure the safety of police at the roadblock due to Allen’s dangerous reputation, the mobility of the vehicle, and the possible insufficient time to obtain a warrant.

Here, Officer Swingley had one intoxicated person in custody, another one had indicated a pot pipe was somewhere in the car and a third person had been seriously injured and life-flighted from the scene. Unlike in Allen, the car here was not moveable. But the alleged pot pipe certainly was; and not being in custody, McCarthy could easily have removed it as well as any other evidence associated with the pot pipe or the accident in general. We take judicial notice that it is approximately one hour from the scene of the accident to Helena. Therefore, both the jail and appropriate authority for obtaining a warrant were an hour away. Had Officer Swingley taken the intoxicated driver to jail and then gone to get a warrant, McCarthy would have been left at the scene; the evidence which Swingley suspected may be present could have been removed or destroyed by McCarthy unless the car had already been towed. We conclude it was impracticable for Swingley to stay at the scene until the car was towed. Therefore, the possibility existed that McCarthy, or the real owner of the automobile, could have removed evidence easily after officers left the scene. Further, the car was on a public road, anyone could have removed evidence from the car had officers left before it was towed.

We conclude that possible destruction of evidence and the emergency nature of the situation constitute exigent circumstances under the facts of this case.

Because the District Court correctly determined that the search performed by authorities in this case was appropriate under the automobile exception, we do not find it necessary to consider the appropriateness of a search incident to an arrest under the facts of this case as the State argues.

We finally conclude that taking all the facts of this case into consideration, both probable cause and exigent circumstances existed for a warrantless search under the automobile exception. We hold that the District Court did not err in denying defendant’s motion to suppress the evidence on the basis of an illegal warrantless search.

II

Did the District Court err by refusing to suppress evidence found upon McCarthy’s person at the time of his booking because such evidence was fruit of the poisonous tree?

McCarthy argues that because the marijuana found in his jacket was illegally seized, his arrest was illegal and anything removed from his person during booking is fruit of the poisonous tree. City of Billings v. Whalen (1990), 242 Mont. 293, 790 P.2d 471. Because we have determined that the search of the automobile and the jacket were appropriate under the automobile exception to prohibition against warrantless searches, there is no basis to apply the doctrine of the fruit of the poisonous tree. We hold that the District Court did not err in refusing to suppress such evidence.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON and McDonough concur.

JUSTICE GRAY

dissenting.

I respectfully dissent from the majority opinion.

In my dissent in State v. Allen (1992), [256 Mont. 47], 844 P.2d 105, 49 St.Rep. 1130, I expressed my concerns regarding this Court’s new interpretation of the “exigent circumstances” test; in addition, I questioned the Court’s record-based assertions. I reiterate those concerns and questions here. The majority’s purported reliance on the cardinal constitutional principle that warrantless searches are per se unreasonable rings hollow indeed in light of its continued broadening of the automobile exception. I cannot agree.

With regard to the majority’s analysis of the probable cause prong of the automobile exception to the warrant requirement, I disagree totally with the majority that it was “reasonable to assume” that the pipe was in the jacket because the pipe was not found where McCarthy thought he had seen it. This “reasonable assumption” is the creation of the majority and not of the officer at the scene. Indeed, Officer Swingley did not testify or even suggest that he removed the baggie from McCarthy’s jacket as part of a search for the pipe; he merely saw the baggie, assumed based on his training that it might contain marijuana, and removed it from the jacket.

I also disagree with the majority’s analysis of the “exigent circumstances” prong. Its construct that McCarthy could have removed or destroyed the evidence is belied by the record. Officer Swingley testified that McCarthy had access to the vehicle before the arrival of law enforcement personnel and, of course, during the time that he made a limited search for the pot pipe in Swingley’s presence. Officer Swingley also testified that, after the arrival of law enforcement personnel, he was allowing access to the vehicle only by them or emergency medical personnel. In addition, the majority’s conclusion that it was impracticable for Officer Swingley to remain at the scene is irrelevant, since the record reflects that a Lewis and Clark County deputy sheriff also was at the scene. In this regard, the majority’s statements that either McCarthy, the owner of the vehicle or “anyone” could have removed evidence from the car had officers left before it was towed constitute a speculative spinning out of potential problems which simply are not supported by the record before us, particularly given the presence of Deputy Sheriff Weisner. Under these facts, I do not believe the “exigent circumstances” test is met; therefore, it is my view that McCarthy’s constitutional right to be free from unreasonable searches and seizures was violated.

My most fundamental concern with the majority opinion, however, is this Court’s apparent intention to continue to broaden the automobile exception to the warrant requirement to cover any possible set of facts. It accomplishes this objective by (1) accepting and adopting the United States Supreme Court’s pronouncements of federal constitutional law in the context of a challenge brought under both the United States and Montana Constitutions; and (2) adopting the “suggestion” of “certain authorities” — here, a treatise by J. Hall — for the concept that it is appropriate under the Montana Constitution to overlay a “totality of circumstances” standard onto the “exigent circumstances” test. Such an approach is a far and, in my view, unwarranted cry from the constitutional standard enunciated by this Court in State v. Sawyer (1977), 174 Mont. 512, 571 P.2d 1131.

In considering challenges under the Montana Constitution to an inventory search of a vehicle in Sawyer, this Court stated that “[i]t is axiomatic that a search must comport with state and federal constitutional law.” Sawyer, 571 P.2d at 1133 (emphasis added). We went on to conclude that it was not necessary to consider the Fourth Amendment to the United States Constitution, “because we view the Montana Constitution to afford an individual greater protection in this instance than is found under the Fourth Amendment....” Sawyer, 571 P.2d at 1133. We continued by quoting both the individual right to privacy section and the search and seizure section of the Montana Constitution, stating that the inventory search at issue was a “significant invasion of individual privacy.” Sawyer, 571 P.2d at 1133. Interestingly, we noted that while an automobile and a home may differ for constitutional purposes, “ ‘[t]he word "automobile" is not a talisman in whose presence the Fourth Amendment fades away and disappears.’ ” Sawyer, 571 P.2d at 1133 (citations omitted). On the basis of the significant invasion of individual privacy inherent in the inventory search, we held the State to the “reasonableness” and “compelling state interest” standards of the Montana Constitution and affirmed the district court’s suppression of the evidence.

In the case now before us, the word “automobile” magically has become the talisman before which constitutional prohibitions against unreasonable searches fade away and disappear. While the majority is willing to walk away from this State’s constitution and its significant protections, I am not. In addition to my conclusion that the facts of this case constitute a violation of the constitutional guarantee against unreasonable searches on a stand-alone basis, I would apply the Montana Constitution’s combined privacy right and prohibition against unreasonable searches to McCarthy’s jacket under the facts of this case. To me, it is neither logical nor supportable that McCarthy’s privacy interest in his jacket, and the protection to which he and the jacket would have been entitled had he been wearing it, must give way to an automobile “exception” now so broad as to swallow the warrant requirement altogether, given Sections 10 and 11 of Article II of the 1972 Montana Constitution.

Like the majority, I am mindful of the pitfalls faced by law enforcement officers on the front line in attempting to meet constitutional requirements in this difficult area of searches. Those efforts are ■undertaken in good faith in the face of practical and often dangerous constraints. In addition, I understand the appeal of “bending” the constitution — particularly in these “law and order” days — when those involved are or may be offenders against the law. My view, however, apparently not shared by the majority, is that to undermine specific constitutional protections in one instance is to weaken and make vulnerable the full panoply of constitutional protections to which each of us is entitled in our daily lives.

JUSTICES TRIEWEILER and HUNT join in the foregoing dissent of JUSTICE GRAY.


source: Caselaw Access Project

author: JUSTICE WEBER

license: Public Domain

text:
    STEPHEN P. WEBER, Plaintiff, Appellant and Cross-Respondent, v. STATE OF MONTANA, Defendant, Respondent and Cross-Appellant.
    No. 92-417.
    Submitted on Briefs January 21, 1993.
    As changed May 25, 1993.
    Decided April 19, 1993.
    50 St.Rep. 425.
    852 P.2d 117.
    258 Mont. 62.
    See C.J.S. States § 328.

      For Appellant: Eric B. Thueson, Thueson Law Office, Helena.
    For Respondent: Maxon R. Davis, Cure, Borer & Davis, Great Falls, and William Gianoulias, Risk Management and Tort Defense Division, Department of Administration, Helena.
   JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal from an Order issued by the First Judicial District Court, Lewis and Clark County amending a previous judgment issued by the court following a jury trial. We affirm.

We consider the following issues on appeal:

1. Did the District Court err as a matter of law in eliminating interest on the judgment award pursuant to § 2-9-317, MCA?

2. Did the District Court err in assessing half the cost of the trial transcript on appeal to the State?

This is the second appeal in this case. In the original action, Stephen R Weber (Weber) brought a wrongful discharge action against the State of Montana. On September 27, 1990, a jury found for Mr. Weber and awarded him $33,230 in damages. The original judgment in this case was entered on November 9, 1990 and did not provide for costs or for post-judgment interest. On November 13, 1990, Weber filed a motion pursuant to Rule 59(g), M.R.Civ.P., to have the court include “costs.”

On November 27, 1990, the District Court issued an Order granting Weber’s motion to amend the judgment. In that Order the District Court awarded costs of over $3,000 plus the judgment award and “interest thereon at 10% per annum until paid.” On December 4,1990, the State filed a Rule 59, M.R.Civ.P., Motion to Amend the Amended Judgment which had been entered on November 27, 1990. In that motion the State requested that the District Court enter a nunc pro tunc order striking the post-judgment interest from the order because of the State’s immunity to post-judgment interest pursuant to § 2-9-317, MCA.

Before the District Court had time to rule on the State’s motion, Weber filed the Notice of Appeal. The State then filed a cross-appeal. On January 2, 1991, the District Court granted the State’s motion, issued a nunc pro tunc order assessing costs but eliminating interest on the judgment award pursuant to § 2-9-317, MCA. Thereafter, both sides proceeded with the appeal of Weber I.

In its opinion this Court concluded that sufficient evidence existed to support the jury verdict, that the District Court properly admitted certain evidence, that the District Court properly instructed the jury, that the District Court properly denied plaintiff’s motion for a new trial, and that Weber was not entitled to attorney fees and costs. See Weber v. State (1992), 253 Mont. 148, 831 P.2d 1359. (Weber I).

On May 19, 1992, this Court issued Remittitur to the District Court. On May 20,1992, Weber filed a Motion to Tax Costs of Appeal, claiming successful party status in the Weber I appeal. The District Court granted that motion in part on June 11, 1992, and ordered the State to pay one-half of the $6,000 cost of transcribing the transcript on appeal.

On July 10, 1992, the State paid to Weber the judgment amount plus costs as prescribed by the nunc pro tunc amended judgment. That payment of the judgment was made within the two year period described in § 2-9-317, MCA, so that interest was not appropriate. The total included the jury award of damages of $33,230.00 and $3,827.53 for costs for a total of $37,057.53. On July 14, 1992, the State filed a Notice of Appeal from the Order granting motion to tax costs. On July 23,1992, Weber moved the District Court for an order compelling the State to pay interest on the judgment. Within his motion, Weber argued that the District Court was without jurisdiction to issue the nunc pro tunc order after both parties had filed a notice of appeal and that it was without effect. Thus, Weber argued that the State should be compelled to pay interest.

On July 28, 1992, Weber filed a Partial Satisfaction of Judgment admitting that he had been paid the $37,057.53 by the State but refused to file a total satisfaction because the State had not paid interest on that amount. Interest on the judgment would amount to approximately $6,000.

On August 28, 1992, the District Court denied Weber’s motion regarding post-judgment interest. The court stated that it lacked jurisdiction because Weber had already appealed to this Court from “all orders” of the District Court. Weber subsequently filed a Motion to Consolidate the various appeals, which was granted by this Court without opposition from the State.

The plaintiff is no relation to the author of this opinion.

I.

Did the District Court err as a matter of law in eliminating interest on the judgment award pursuant to § 2-9-317, MCA?

Weber argues that § 2-9-317, MCA, on which the District Court based its nunc pro tunc order is unconstitutional under our State Constitution, Art. II, § 18. According to Weber, § 2-9-317, MCA, is an immunity provision which must pass each house by a 2/3 vote, which it did not do. Weber claims that the amended judgment was correct before the court changed it in its nunc pro tunc order because interest attaches to a judgment, regardless of what is expressly said in the judgment. Weber contends that since the amended judgment containing interest has been affirmed by this Court, it is that judgment which governs all other proceedings in this case.

The State argues that Weber did not object in a timely manner to the State’s Motion to Amend the Judgment nunc pro tunc to delete an award of post-judgment interest which conflicted with the applicable statute. Thus, according to the State, Weber cannot now object to the State’s motion. Further, the State contends that Weber cannot challenge the constitutionality of § 2-9-317, MCA, because that statute has been in effect for 15 years and he only has two years from passage of a legislative bill to challenge it on technical irregularities in the way it was passed. The State also argues that § 2-9-317, MCA, is not a sovereign immunity statute, and interest can be suspended by the legislature because it is not an integral part of the action.

Weber appealed “all orders of the District Court”. One of those orders was the nunc pro tunc order in which the District Court did not assess interest against the State pursuant to § 2-9-317, MCA. We review a District Court’s legal analysis as to whether it is correct. Steer, Inc. v. Dept, of Revenue (1990), 245 Mont. 470,803 P.2d 601. On appeal, Weber argues that § 2-9-317, MCA, is not controlling for various reasons. We disagree.

Section 2-9-317, MCA, is not a sovereign immunity statute. As we stated in Jacques v. Montana Nat’l Guard (1982), 199 Mont. 493, 649 P.2d 1319, interest is a separate issue from the cause of action. Jacques, 199 Mont. at 508, 649 P.2d at 1327. And it is only the cause of action which is involved with sovereign immunity:

State subject to suit. The state, counties, cities, towns, and all other local governmental entities shall have no immunity from suit for injury to a person or property, except as may be specifically provided by law by a 2/3 vote of each house of the legislature. (Emphasis added.)

Montana Constitution, Art. II, § 18 (1972). Thus, whether this statute passed either house with a 2/3 majority vote is irrelevant.

Further, interest does not accrue automatically as Weber argues: The judgment is itself a creation of law. It bears no interest unless granted by legislative enactment ... A party is not entitled to interest merely because he has a judgment, but solely because the legislature, in its discretion has said he may charge interest.

Jacques, 199 Mont. at 507, 649 P.2d at 1327. In Jacques, we held that interest, not being a detriment arising from the wrongful act itself, can be suspended by statute. In the case before us, the statute which suspends interest assessed to the State was passed by the legislature. The 2/3 vote was not required because it was not a sovereign immunity statute. A majority vote was sufficient. We conclude that § 2-9-317, MCA, is constitutional as a limitation on interest assessed against the State and does not violate either the spirit or substance of Art. II, § 18 of the Montana State Constitution.

In addressing Weber’s argument concerning his first appeal in Weber I, we note that we there addressed certain issues which touched upon trial procedure, sufficiency of evidence to sustain a verdict, and Weber’s claim for attorney’s fees. We did not affirm any amended judgment entry which is now the central concern in this appeal.

We hold that the District Court did not err as a matter of law in eliminating interest to the State pursuant to § 2-9-317, MCA.

II

Did the District Court err in assessing half the cost of the trial transcript on appeal to the State?

Appellant Weber paid the $6,072.00 cost of the transcript. According to Weber, both parties used the transcript for their appeals and both parties should, therefore, share the cost of the transcript.

The State argues that § 25-10-104, MCA, upon which the District Court based its ruling that the State should pay for half of the cost of the transcript is only discretionary in two situations: 1) when a new trial is ordered, and 2) when a judgment is modified. According to the State, in all other cases, only the “successful party’ is entitled to recover his costs from the other party.

The applicable statute is § 25-10-104, MCA,

When costs of appeal are discretionary. (1) In the following cases, the costs of appeal are in the discretion of the court: (a) when a new trial is ordered; (b) when a judgment is modified.
(2) In all other cases the successful party shall recover from the other party his costs.

Here both parties appealed. In addition both parties were partially successful and partially unsuccessful. As pointed out in Nyquist v. Nyquist (1992), [255 Mont. 149] 841 P.2d 515, 520, 49 St.Rep. 927, 929, there are cases where both parties gain a victory but neither is the actual prevailing or successful party. That is the situation in the present case. Neither party can claim to be the totally successful party on appeal because both parties lost a portion of their appeal. In considering the transcript cost, the District Court stated: “For whatever reason, the State chose to file an appeal in this case. It benefitted, then, at Plaintiff’s expense in using the transcript.” We conclude that the District Court was correct in dividing the cost of the transcript.

We hold that the District Court did not err in assessing half the cost of the transcript to the State.

Affirmed.

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


author: JUSTICE TRIEWEILER JUSTICE WEBER

text:
    GLORIA CALIFATO, as Guardian ad litem for RYAN JOHNSON, Plaintiff and Respondent, v. RUSSELL GERKE and RUSTY GERKE, Defendants and Appellants.
    No. 91-563.
    Submitted on Briefs February 20, 1992.
    Decided April 20, 1993.
    50 St.Rep. 428.
    852 P.2d 121.
    258 Mont. 68.
    See C.J.S. Motor Vehicles § 254.

      For Defendants and Appellants: Mark L. Stermitz, Warden, Christiansen, Johnson & Berg, Kalispell.
    For Plaintiff and Respondent: James A. Manley, Manley Law Office, Poison.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Plaintiff Gloria Califato filed her complaint in the District Court of the Twentieth Judicial District, Lake County, as guardian ad litem on behalf of her son, Ryan Johnson. She alleged that he was injured while operating a vehicle owned by Russell Gerke because the seat-belts had been rendered inoperable by Russell’s son, Rusty Gerke. Pursuant to Rule 12(c), M.R.Civ.P., defendants moved for judgment on the pleadings. Plaintiff moved the court to order, by summary judgment, that § 61-9-409, MCA, established a standard of care applicable to defendants, and that its violation was negligence as a matter of law. The District Court denied defendants’ motion, granted plaintiff’s motion, and pursuant to stipulation of the parties, certified its judgment as final for purposes of appeal, pursuant to Rule 54(b), M.R.Civ.P. From that judgment, defendants appeal. We affirm.

The issue on appeal is:

Can an alleged failure to comply with § 61-9-409, MCA, form the basis for plaintiff’s cause of action, or is such claim barred by the terms of § 61-13-106, MCA, and by our decision in. Kopischke v. First Continental Corporation (1980), 187 Mont. 471, 610 P.2d 668?

For purposes of this appeal, the allegations in plaintiff’s complaint are assumed to be true. Those facts are as follows:

On November 19, 1989, Ryan Johnson and Rusty Gerke drove in Russell Gerke’s pickup from Poison to Kalispell. On the return trip, Rusty was tired. He asked Ryan to drive, and Ryan agreed to do so.

Sometime prior to November 19,1989, Rusty had taken the seat-belt from the driver’s side of his father’s vehicle and used it to permanently fasten a stereo speaker behind the seat. For that reason, even though Ryan normally used a seatbelt, he was prevented from doing so on the return trip from Kalispell to Poison.

While Ryan was proceeding in a southerly direction on Highway 93, an oncoming vehicle crossed over the center line and into the southbound lane. Ryan took evasive action to avoid a head-on collision, lost control of the vehicle, hit an embankment, and crashed into a barrow pit on the opposite side of the road. He was thrown through the windshield and out of the vehicle. After flying through the air a considerable distance, he landed on some boulders where he sustained a serious closed head injury, as well as injuries to other parts of his body.

Plaintiff alleged that Ryan’s injuries were caused by the negligence of the oncoming vehicle, but also from the concurrent negligence of the Gerkes. She alleged that Rusty was negligent by rendering the driver’s side seatbelt inoperable, and that Russell was negligent by allowing the seatbelt to be used in that fashion. She alleged that this conduct by both defendants violated § 61-9-409, MCA, and was, therefore, negligence per se.

In support of their motion for judgment based on the pleadings, defendants contended that:

1. Use or nonuse of seatbelts is inadmissible pursuant to our decision in Kopischke and § 61-13-106, MCA;

2. Section 61-9-409, MCA, did not impose a duty on the owner of a vehicle to maintain seatbelts in an operable condition; and

3. The unavailability of seatbelts in defendants’ vehicle could not, as a matter of law, have been the proximate cause of Ryan’s injury.

The District Court concluded that § 61-9-409, MCA, imposed a legal duty on defendants, and that its violation was negligence as a matter of law. Because these conclusions are interrelated with the District Court’s denial of defendants’ motion for judgment on the pleadings, we will limit our discussion to those issues raised by defendants in support of their motion.

ADMISSIBILITY OF SEATBELT USE

In Kopischke we held that since there was no statutory duty to wear a seatbelt, failure to use one which was available was not admissible to prove that an injured driver was contributorily negligent. We held that § 61-9-409, MCA, which required that vehicles manufactured after 1966 be equipped with seatbelts, and furthermore, that those vehicles not be operated unless the belts remained installed, did not require the driver of a vehicle to use the seatbelt. In 1987, the Montana Legislature created a statutory duty to use seatbelts when it enacted the “Montana Seatbelt Use Act.” See §§ 61-13-101 to -106, MCA. Section 61-13-103, MCA, of that Act, requires that no driver may operate a motor vehicle unless each occupant of a designated seating position is wearing a seatbelt. However, § 61-13-106, MCA, provides that:

Evidence of compliance or failure to comply with 61-13-103 is not admissible in any civil action for personal injury or property damage resulting from the use or operation of a motor vehicle, and failure to comply with 61-13-103 does not constitute negligence.

Defendants contend that if failure to use a seatbelt is inadmissible to establish Ryan’s contributory negligence, then plaintiff cannot offer evidence that Ryan had no seatbelt on at the time of this accident and there is no basis for plaintiff’s claim.

However, defendants confuse the duty discussed in Kopischke with the duty provided for in § 61-9-409, MCA.

In Kopischke, the issue was whether the defendant could offer evidence that the plaintiff failed to use a seatbelt which was available for her use, and thereby, contributed to her own injuries and the damages which she sought to recover. In reviewing the common law from other jurisdictions, we discussed the basis on which such evidence had been held inadmissible elsewhere. The recurrent reasoning from other jurisdictions was that since the legislature had not mandated the use of seatbelts as a standard of conduct, the court should not impose that standard on all persons riding in vehicles. Significant to the rationale for these decisions were studies which established that the vast majority of drivers and occupants of vehicles did not use seatbelts, even though they were available. See Amend v. Bell (Wash. 1977), 570 P.2d 138; Fischer v. Moore (Colo. 1973), 517 P.2d 458; Britton v. Doehring (Ala. 1970), 242 So. 2d 666; Miller v. Miller (N.C. 1968), 160 S.E.2d 65; McCord v. Green (D.C. App. 1976), 362 A.2d 720; Fields v. Volkswagen of America, Inc. (Okla. 1976), 555 P.2d 48. Based on this lack of statutory duty, we held that:

In light of the history and the numerous legislative problems that must be considered to effectively extend the seatbelt rule of law, we have concluded that the well-reasoned position of the Washington court in Amend v. Bell, supra, produces the better rule and reach the conclusion that to adopt a seatbelt defense when the legislature has failed to do so would be ill-advised. The trial court properly refused to allow defendant to introduce a seatbelt defense into this case.

Kopischke, 610 P.2d at 683.

In other words, our reason for refusing to admit evidence that plaintiff had failed to use a seatbelt in Kopischke was that there was no statutorily created duty and we chose not to create one. That holding was not based on a lack of causation.

As noted above, in 1987, the Legislature did create a statutory duty for drivers and occupants of vehicles to use seatbelts. However, at the same time, the Legislature provided that where seatbelts are available and a driver or occupant chooses not to use one, that choice is not admissible as evidence of negligence. Section 61-13-106, MCA.

However, neither Kopischke nor § 61-13-106, MCA, apply to the facts in this case. In this case, there was not a seatbelt available for Ryan’s use. The duty which forms the basis of plaintiff’s complaint is defendants’ duty to maintain their vehicle in such a way that seat-belts are available for the driver’s and passenger’s use in the event that they choose to use them. If that duty exists, it exists pursuant to § 61-9-409, MCA, and there is no comparable provision in that statute which would exclude evidence that seatbelts were unavailable and for that reason, were not used at the time of the accident.

We hold that neither Kopischke nor the Montana Seatbelt Use Act, §§ 61-13-101 to -106, MCA, preclude evidence that in this case Ryan Johnson did not have a seatbelt on at the time of his accident because the seatbelt had been rendered inoperable and was unavailable for his use.

STATUTORY DUTY TO MAINTAIN SEATBELTS

Defendants next contend that there is no statutory duty to maintain seatbelts in a operable condition, and that just as we have refused to create a common law duty to use seatbelts in Kopischke, we should decline to create a common law duty to maintain seatbelts in this case.

Section 61-9-409, MCA, provides that:

It is unlawful for any person to buy, sell, lease, trade, or transfer from or to Montana residents at retail an automobile which is manufactured or assembled commencing with the 1966 models unless such vehicle is equipped with safety belts installed for use in the left front and right front seats thereof, and no such vehicle shall be operated in this state unless such belts remain installed. [Emphasis added.]

Defendants contend that the statute pertains only to sellers of vehicles. However, the plain language of the statute clearly imposes more than one duty. It prohibits sellers from transferring vehicles which are not equipped with safety belts, but also prohibits owners of vehicles from operating the vehicle unless the seatbelts remain installed. To hold that the statute has been complied with if the seatbelts are present in the vehicle, even though rendered inoperable by the owner of the vehicle, would clearly frustrate the Legislature’s purpose for enacting the statute. We agree with the District Court when it held that:

It is the opinion of the Court that it would not be necessary that seatbelts be cut out or unbolted and physically removed in order to constitute a violation of the foregoing statute. The phrase “unless such belts remain installed” of necessity means “and reasonably available for use.”

In the past, we have held that statutory provisions relating to motor vehicle equipment imposed a duty and that the violation of that duty constituted negligence per se.

In Ashley v. Safeway Stores, Inc. (1935), 100 Mont. 312, 47 P.2d 53, we held that failure to comply with the statute, § 1753, RCM (1921) (now § 61-9-214, MCA), which requires a display of lights on parked vehicles during certain hours of the night, established negligence as a matter of law. In Lindberg v. Leatham Brothers, Inc. (1985), 215 Mont. 11, 693 P.2d 1234, we held that where there was evidence that defendant failed to comply with § 61-9-221, MCA, which sets forth requirements for the use of multiple beam lighting equipment on vehicles, it would have been appropriate for the trial court to instruct the jury that failure to comply with that statute was negligence as a matter of law. Finally, in Smith v. Rorvik (1988), 231 Mont. 85, 751 P.2d 1053, we held that § 61-9-412, MCA, (1) requires the use of warning device equipment when a vehicle is disabled upon the traveled portion of a highway, and (2) establishes the proper standard of care for the owner and operator of a disabled vehicle. We held that it was proper to instruct the jury on the requirements of that statute.

Likewise, in this case we hold that § 61-9-409, MCA, prohibited defendants from rendering the seatbelts in their vehicle inoperable and unavailable for use, and that breach of that duty constituted negligence as a matter of law.

CAUSATION

Finally, defendants contend that to establish causation, plaintiff must establish both cause in fact and proximate cause. Defendants rely on our decision in Kitchen Krafters v. Eastside Bank (1990), 242 Mont. 155, 789 P.2d 567. They contend that because Ryan’s accident was precipitated by another vehicle swerving into his lane of travel, the lack of seatbelts could not have been the cause in fact of his accident, and therefore, the Kitchen Krafters’ test for causation is not satisfied. However, defendants’ reasoning is faulty. Plaintiff need not prove that the unavailability of seatbelts caused Ryan’s accident. Plaintiff need only prove that the lack of seatbelts was the cause, or one of several concurring causes, for Ryan’s injuries and the resulting damages. For example, in Brandenburger v. Toyota Motor Sales, U.S.A., Inc. (1973), 162 Mont. 506, 513 P.2d 268, we stated that:

While the construction of the vehicle is not the cause of the accident, it is most often the contributing factor in the case of “second collision” injuries. In the recent years courts have held that where the manufacturer’s negligence in design causes an unreasonable risk to be imposed upon the user of its products, the manufacturer should be liable for the injury caused by its failure to use reasonable care in design. These injuries are readily foreseeable as an incident to the normal and expected use of the car. While automobiles are not made for the purpose of colliding with each other, a frequent and inevitable contingency of normal automobile use will result in collisions and injury producing impacts.

Brandenburger, 513 P.2d at 274. For the above reason, we held that where the driver overturned his vehicle, the top of the vehicle came off, and the plaintiff, who was a passenger, was thrown out of the car through the opening created through the top of the vehicle, “the duty of Toyota to provide a safe roof is not eliminated simply because the defective roof did not cause the accident.” Brandenburger, 513 P.2d at 274.

Likewise, seatbelts are clearly for the purpose of restraining occupants of motor vehicles and it is foreseeable that in the event of a motor vehicle accident the occupant is more likely to be thrown from the vehicle if he has no seatbelt, than if he is wearing one. The fact that the unavailability of a seatbelt did not cause the original accident does not relieve defendants of their duty to comply with § 61-9-409, MCA. Whether or not the lack of a seatbelt was, in fact, the cause of Ryan’s injuries, or whether his injuries were worse than they would have been had he been wearing a seatbelt is a question of fact to be resolved based on evidence which has not yet been produced.

For these reasons, we affirm the District Court’s denial of defendants’ motion to dismiss, and its order granting plaintiff’s motion for summary judgment. We hold that rendering the driver’s side seatbelt inoperable was negligence as a matter of law, and we remand to the District Court for farther proceedings consistent with this opinion.

JUSTICES HARRISON, HUNT, and McDONOUGH concur.

JUSTICE WEBER

dissents as follows:

As pointed out in the majority opinion, plaintiff moved the court to order, by summary judgment, that § 61-9-409, MCA, established a standard of care applicable to defendants, and that its violation was negligence as a matter of law. The District Court denied the defendants’ motion for a judgment on the pleadings and granted the plaintiffs’ motion for summary judgment.

The majority opinion states that for the purposes of this appeal, “the allegations in plaintiffs’ complaint are assumed to be true.” The majority then sets forth extensive facts from the plaintiffs’ complaint with regard to the various aspects, pointing out that Rusty Gerke had taken the seat belt from the driver’s side of his father’s vehicle and used it to permanently fasten a stereo speaker behind the seat, and for that reason, even though plaintiff normally used a seat belt, he was prevented from doing so. In addition the various facts alleged with regard to the accident and the manner of injury are all set forth.

Procedurally the foregoing was incorrect. The essential allegations in the plaintiffs’ amended complaint which set forth the facts forming the basis for the opinion are denied by the answer of the defendants. There are no other pleadings, depositions, answers to interrogatories or admissions on file, or affidavits to prove the material facts upon which summary judgment could be based. I therefore conclude there is a total absence of proof of material facts essential to the making of the decision by the District Court on summary judgment. I conclude that under Rule 56(c), M.R.Civ.R, and the cases interpreting the same, there is no established factual basis upon which a summary judgment of law may be rendered. The majority has rendered an advisory opinion on a significant issue of law without any established factual basis. I therefore dissent.

I will now discuss the majority holding. The majority concludes that § 61-9-409, MCA, establishes a statutory duty to maintain seat belts, and quotes that section as follows:

61-9-409. Seatbelts required in new vehicles. It is unlawful for any person to buy, sell, lease, trade, or transfer from or to Montana residents at retail an automobile which is manufactured or assembled commencing with the 1966 models unless such vehicle is equipped with safety belts installed for use in the left front and right front seats thereof, and no such vehicle shall be operated in this state unless such belts remain installed.

I have left the emphasis as inserted in the majority opinion. The foregoing statute must also be compared with § 61-13-103, MCA, which provides in pertinent part:

61-13-103. Seatbelt use required — exceptions. (1) No driver may operate a motor vehicle upon a highway of the state of Montana unless each occupant of a designated seating position is wearing a properly adjusted and fastened seatbelt. ... (Emphasis added.)

We must also consider § 61-13-106, MCA, which in pertinent part provides:

61-13-106. Evidence not admissible. Evidence of compliance or failure to comply with 61-13-103 is not admissible in any civil action for personal injury or property damage resulting from the use or operation of a motor vehicle, and failure to comply with 61-13-103 does not constitute negligence. (Emphasis added.)

The majority opinion holds that neither Kopischke nor the Montana Seatbelt Use Act, § 61-13-101 through -106, MCA, preclude evidence that in this case Ryan Johnson did not have a seat belt on at the time of his accident because the seat belt had been rendered inoperable and was unavailable for his use. That holding is not appropriate when all three statutes are considered.

When referring to the three quoted sections, I will use the last three numbers only. Section 103 provides that no driver may “operate a motor vehicle” unless each occupant, which includes the driver, is wearing a properly adjusted and fastened seat belt. Clearly that section required Ryan Johnson to wear a seat belt. However, under the express provisions of § 106, evidence of Ryan Johnson’s failure to comply with § 103 “is not admissible in any civil action for personal injury... resulting from the use or operation of a motor vehicle.” As a result, § 106 expressly prohibits proof that Johnson was not wearing a properly adjusted and fastened seat belt.

Having reached the foregoing conclusion, we next consider the majority analysis of § 409. The majority concludes that § 409 “prohibits owners of vehicles from operating the vehicle unless the belt remains installed.” As above quoted, § 409 provides that no vehicle shall be “operated in this state unless such belts remain installed.” No reference is made to ownership. The only specific reference is to the operation of the vehicle.

The majority then takes the additional step to add the word “owners” to operators and affirms the conclusion of the District Court which held:

It is the opinion of the court that it would not be necessary that seatbelts be cut out or unbolted and physically removed in order to constitute a violation of the foregoing statute. The phrase “unless such belts remain installed” of necessity means “and reasonably available for use.”

The majority then concludes that § 409 prohibited the defendants from rendering the seat belts inoperable and unavailable for use, and such breach of duty constituted negligence as a matter of law.

I suggest the majority has not considered the full impact of § 409. That section provides that no such vehicle shall be operated unless the belts remained installed. Clearly that restriction applies to the operator. As a result, if there is a duty which applies to the owner, even more clearly there is a duty which must be applied to the operator, Ryan Johnson. If it is correct that § 409 prohibited the owners from rendering the seat belts inoperable and that breach of duty constituted negligence as a matter of law — then the same rule must apply to the operator who is expressly designated in the statute — the holding requires that Ryan Johnson’s operation of the vehicle with seat belts inoperable constituted a breach of his duty as an operator under § 409 and constituted negligence as a matter of law on the part of Ryan Johnson. At that point, the logic of the majority opinion requires a conclusion that Ryan Johnson’s actions constituted negligence as a matter of law and Gerkes’ actions also constituted negligence as a matter of law.

The dilemma then presented is that § 106 states that evidence of compliance or failure to comply with wearing the seat belt is not admissible in any civil action. I suggest this section properly should be held applicable to both the owners and operators of motor vehicles. That seems consistent with the intent of the legislature which has established duties regarding seat belts but nonetheless has refused to allow failure to use seat belts as proof of negligence. I would hold that § 106 bars proof of the usage and non-usage of seat belts as to both operators and owners.

I would therefore reverse the holding of the District Court.

CHIEF JUSTICE TURNAGE and JUSTICE GRAY concur in the foregoing dissent.


author: JUSTICE McDONOUGH JUSTICE TRIEWEILER

text:
    SIMMONS OIL CORPORATION and SIMMONS REFINING CORPORATION, Plaintiffs and Appellants, v. HOLLY CORPORATION; NAVAJO REFINING COMPANY; NAVAJO NORTHERN, INC.; WELLS FARGO BANK, N.A., Defendants and Respondents.
    No. 91-589.
    Submitted September 24, 1992.
    Decided April 28, 1993.
    50 St.Rep. 433.
    852 P.2d 523.
    258 Mont. 79.

      See C.J.S. Banks and Banking § 189.

      For Plaintiffs and Appellants: H. Charles Stahmer; James Goetz, Goetz, Madden & Dunn, Bozeman; and Charles J. Wisch, Weissburg and Aronson, Inc., San Francisco, California;
    For Respondents: Steven M. Perry, Munger, Tolies & Olson, Los Angeles, California; and John D. Stephenson, Jr., Jardine, Stephenson, Blewett & Weaver, Great Falls for Wells Fargo Bank, N.A.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

This is an appeal from an order of the Eighth Judicial District, Cascade County, granting respondent’s motion for summary judgment. We affirm in part and reverse in part.

Appellant Simmons Oil Corporation (SOC) and Simmons Refining Corporation (SRC) (collectively referred to as “Simmons”) alleged claims against Wells Fargo Bank for breach of fiduciary duty, tortious breach of the implied covenant of good faith and fair dealing, and civil conspiracy with Holly Corporation, resulting in Holly’s breach of partnership fiduciary duty owed to Simmons.

The central question on appeal is whether respondent established the complete absence of any genuine issues of material fact to justify a summary judgment ruling as a matter of law. Appellant requests this Court to reverse summary judgment on the grounds that the District Court erred in granting this ruling in light of the material factual controversy that exists.

ISSUES

1. Did the District Court err in granting summary judgment as to the claims brought against respondent Wells Fargo by appellant Simmons for breach of a fiduciary duty?

2. Did the District Court err in granting summary judgment as to the claims brought against Wells Fargo for breach of the implied covenant of good faith and fair dealing?

a. Did Wells Fargo merely exercise its contractual rights or did its actions constitute a breach of the covenant of good faith and fair dealing implied in every contract?
b. Did a “special relationship” exist between Simmons and Wells Fargo to support a tort claim for bad faith?

3. Did the District Court err in granting summary judgment as to the claims against Wells Fargo alleging civil conspiracy with Holly to breach Holly’s fiduciary duty to Simmons?

On December 22,1988, Simmons filed this action in District Court to recover damages from Wells Fargo Bank for breach of fiduciary duty, breach of the implied covenant of good faith and fair dealing, and conspiracy. Simmons also sued Holly Corporation and two of its wholly owned subsidiaries, Navajo Refining Corporation and Navajo Northern, Inc. (collectively “Holly”), on similar allegations. In February 1989, both Wells Fargo and Holly moved to dismiss for lack of personal jurisdiction and the court granted these motions on May 1,1989. Simmons appealed this dismissal, and in July 1990 this Court reversed and remanded for further proceedings in a published opinion, Simmons Oil Corp. v. Holly Corp. (1990), 244 Mont. 75, 796 P.2d 189.

Upon remand to the District Court, Wells Fargo and Holly filed motions for summary judgment which were argued. On October 17, 1991, the District Court filed its orders granting summary judgment for all defendants, and Simmons appealed.

Prior to the filing of opening briefs, Simmons settled its dispute with Holly, and in February 1992, appellants and Holly filed in this Court a joint stipulation for voluntary dismissal of the appeal from the order granting summary judgment to Holly. The only remaining respondent is Wells Fargo.

Simmons’ allegations against Wells Fargo focus on the occurrence and interpretation of certain events during the eight year period of the loan relationship. The following basic chronology is not disputed by the parties:

Beginning in 1980, Wells Fargo provided SOC a line of credit, which was increased to $18 million in 1981 when SOC’s wholly owned subsidiary, SRC, purchased the Black Eagle Oil Refinery in Great Falls. The credit was to be used for working capital and acquisition of inventory and SOC and SRC (“Simmons”) agreed the line of credit would be reduced to $10 million by May 1982.

Simmons began experiencing financial difficulties in early 1982, was unable to reduce the debt as agreed upon, and thereafter Wells Fargo closely monitored the refinery’s operating performance. Although Wells Fargo held off exercising its undisputed foreclosure rights, throughout 1983 and 1984 the bank urged Simmons to initiate voluntary bankruptcy proceedings. During this time, Simmons attempted to sell assets and find equity partners or additional financing.

In 1984, Simmons, Wells Fargo, and Holly entered into an agreement which authorized the formation of Montana Refining Company (MRC), a partnership, to run the refinery. MRC assumed some of Simmons’ debt and a Holly subsidiary, Navajo Northern, Inc., became the sole general partner and took control of the refinery. Simmons’ subsidiary, SRC, the sole limited partner assumed a passive role in the refinery’s operation.

The remaining Simmons debt was restructured in January 1985, and Simmons executed two new notes totalling approximately $12.6 million. Mutual general releases were executed between Wells Fargo and all of Simmons’ entities, except SRC. This included releasing Mr. and Mrs. Simmons from their personal guarantees of the preexisting corporate debt. (Mr. Simmons is president of both SRC and SOC.)

Contacts between Wells Fargo and Simmons decreased substantially by late 1985, and Jerry Simmons had no conversations with any Wells Fargo officer or employee during the subsequent two years.

The 1985 restructuring agreement allowed an assignment by Wells Fargo of its rights and duties under the agreement. On April 25,1988, after several years of unfavorable refinery operations and minimal debt service, Wells Fargo sold Simmons’ and the MRC notes to Holly. This sale resulted from Holly’s assertions that the sale of the notes was Holly’s “stated price for continuing to support the refiner/’ and that it might tender its inventory to Wells Fargo and “walk awa/’ if the sale was not forthcoming.

Simmons had been negotiating with Wells Fargo directly regarding a purchase of the notes, but negotiations had broken down earlier in the month and prior to culmination of the sale between Holly and Wells Fargo, Wells Fargo rejected a proposal from Simmons for Simmons’ purchase of the notes on exactly the same terms and conditions as offered to Holly.

Simmons then filed this suit alleging that Holly and Wells Fargo wrongfully refused to allow it to purchase the debt on the same terms given to Holly and that the sale constituted a breach of fiduciary duty and bad faith.

While the foregoing chronology is not in contention, both parties, in their briefs, provide specific details surrounding these events which vary significantly. Simmons argues, and substantiates with documentation, that Wells Fargo exercised considerable control over the refinery’s operation between 1982 and 1984; that it forced Simmons into the partnership with Holly on terms and conditions specified by the bank; that it secretly negotiated with Holly when it assigned the debt; and that it knew that Holly planned to use the debt to force Simmons out of the partnership and avoid Holly’s partnership fiduciary duty to Simmons. Simmons’ allegations of breach of duty and bad faith are premised on these purported facts.

Wells Fargo maintains that the control exercised over Simmons was an attempt to work with Simmons to regulate costs and seek additional funding sources rather than exercising foreclosure rights on the assets. Wells Fargo notes that Simmons was free to reject Wells Fargo’s advice, and did, such as advice concerning filing for bankruptcy. Furthermore, Wells Fargo asserts that the sale constituted an exercise of an express and unrestricted contractual right; that Simmons was aware of Holly’s negotiations to purchase the debt from Wells Fargo and chose not to contact the bank with an offer to purchase the debt until after a Holly/Wells Fargo letter of intent was signed; and finally, that since the assignment right was unrestricted, a covenant of good faith and fair dealing should not be implied to vary the express, unambiguous terms of the contract.

BREACH OF FIDUCIARY DUTY

In Montana, “[t]he relationship between a bank and its customer is generally described as that of debtor and creditor ... and as such does not give rise to fiduciary responsibilities.” (Citation omitted.) Diest v. Wachholz (1984), 208 Mont. 207, 216, 678 P.2d 188, 193. However, in certain circumstances, a fiduciary duty may result from the development of a special relationship akin to an “advisor/advisee.” This “special” relationship must exist before a fiduciary duty arises. Deist, 678 P.2d at 193.

Appellant contends that respondent had a fiduciary duty to Simmons because it exercised substantial control over the operations of the corporation, thus providing the special relationship necessary to create a fiduciary duty. Respondent counters that Simmons’ rejection of the bank’s advice and subsequent retention of independent legal counsel terminated any fiduciary relationship there may have been.

Also, respondent states that Wells Fargo made their decision to sell the Simmons’ debts for “solid business reasons.” Furthermore, Wells Fargo had a right to assign the notes per the 1985 Restructuring Agreement.

“This Court has recognized that no fiduciary duty arises between a bank and its borrower where the bank did not offer financial advice, its advice was not always heeded, or where the borrower was advised by others, such as legal counsel.” Lachenmaier v. First Bank Systems, Inc. (1990), 246 Mont. 26, 33, 803 P.2d 614,619. Although Wells Fargo exerted considerable control over the business until 1984, appellants retained independent legal counsel in 1984 and 1985. Legal counsel advised Simmons concerning the 1984 Master Agreement and the 1985 Restructuring Agreement.

This Court, however, concludes that the Master Agreement definitively terminated any fiduciary duty that Wells Fargo may have had to Simmons. In the master agreement, SRC transferred all rights and assets of every kind and description, (with minor exceptions) to MRC, creating the Montana Refining Company limited partnership. SRC and Navajo Northern, Inc. filed a certificate of limited partnership with the Secretary of the State of Montana for the purpose of acquiring the assets of SRC. Navajo Northern was the general partner of the MRC and SRC was the limited partner.

Although Wells Fargo was involved in day-to-day operations of the refinery before 1984 exercising control over nearly every facet of the business, that close relationship was not evident thereafter. After the master agreement forming the limited partnership of MRC, Navajo Northern took over the management and control of MRC. There is no evidence that Wells Fargo continued to exercise daily control over the refinery once it became a limited partnership.

Wells Fargo’s direct contact with Simmons also decreased after the master agreement. The following excerpt from Jerry Simmons’ transcript reveals a drastic decline in communication between the plaintiff and the defendant in 1985 through 1987.

Q. Subsequent to August of 1985, through the end of 1987, how frequently did executives of Simmons entities have contact with personnel at Wells Fargo Bank?
A. Would you give me the time frame again?
Q. August of 1985 through the end of 1987.
MR. WISCH: Well, he’s already testified about the contact in November of ‘85.
MS. HYMANSON: In November ‘85.
MR. WISCH: So you want to start in August?
Q. BY MS. HYMANSON: Other than the contacts about buying the Simmons debt in November of 1985.
A. Until the end of 1987. There was probably communication between Wells Fargo and the Simmons Oil and Refining — Simmons Oil Corporation and Simmons Refining offices that would pertain to just the normal filing of tax returns and the submittal of financial information. But I believe that the only communication that I personally had with Wells Fargo was a conversation with Hardy Watford in November of 1987.

Simmons simply have not proved a fiduciary relationship between Simmons’ entities and the Wells Fargo Bank existed after the creation of MRC. See Pulse v. North American Land Title Co. (1985), 218 Mont. 275, 283, 707 P.2d 1105, 1110; Diest v. Wachholz (1984), 208 Mont. 207, 678 P.2d 188; First Bank (N.A.) - Billings v. Clark (1989), 236 Mont. 195, 208, 771 P.2d 84, 92. We conclude that Wells Fargo did not breach a fiduciary duty to Simmons because there was no fiduciary relationship between Wells Fargo and Simmons, after the 1984 Master Agreement.

BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING

a. Did Wells Fargo merely exercise its contractual rights or did its actions constitute a breach of the covenant of good faith and fair dealing implied in every contract?

Both parties agree that California law applies to the promissory notes at issue although the analysis would be the same under Montana law.

Simmons concedes that the 1985 restructuring agreement gave Wells Fargo the right to assign the Simmons debt, but argues that Wells Fargo’s decision to assign it to Simmons’ partner Holly, was subject to the implied covenant of good faith and fair dealing. Simmons contends that the sale of the notes to Holly was intentionally designed to give Holly leverage over Simmons and was not within the expectations of Simmons with respect to the 1984 master agreement or the 1985 restructuring agreement.

Although Wells Fargo agrees that the implied covenant of good faith and fair dealing applies to every contract, the bank states it cannot be used to override explicit contractual terms. Carma Developers v. Marathon Dev. Cal. (1992), 2 Cal. 4th 342, 374, 6 Cal.Rptr.2d 467, 826 P.2d 710, 728. The 1985 restructuring agreement contained language which stated: ‘WFB may assign this Agreement and its rights and duties hereunder.” Wells Fargo contends this language gave them the right to assign Simmons’ notes to anyone, including Holly. “Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement. ... The covenant of good faith finds particular application in situations where one party is invested with a discretionary power affecting the rights of another. Such power must be exercised in good faith.” Carma, 826 P.2d at 726. However, “[a]s to acts and conduct authorized by the express provisions of the contract, no covenant of good faith and fair dealing can be implied which forbids such acts and conduct. And if defendants were given the right to do what they did by the express provisions of the contract there can be no breach.” Carma, 826 P.2d at 728. These are the principles by which we analyze whether Wells Fargo breached the implied covenant of good faith and fair dealing.

The acts and conduct authorized by express provisions of the contract at issue in Carma, above, are distinguishable from the provision at issue in the present case. Carma concerned a commercial lease which specifically provided that the landlord had the right to terminate the lease of the tenant at a fixed date after written notice from the tenant that tenant was going to assign the lease or sublease the rental premises. The lease also specifically provided the landlord may enter into a new lease for the premises with the intended assignee or sublessee or enter into a new lease with that person, and the tenant would not be entitled to any profit from the landlord due to termination of the lease and the reletting of the premises. The California Supreme Court concluded that the landlord’s use of this recapture clause was not a breach of the covenant of good faith since it was “expressly” permitted in the lease and was within the reasonable expectations of parties under the lease.

In the present case, the provision at issue is a general right to assign Wells Fargo’s rights and duties under the 1985 restructuring agreement. (See Farris v. Hutchinson (1992), 254 Mont. 334, 838 P.2d 374, for a case interpreting a specific express contract similar to the contract at issue in Carma.) Simmons does not dispute Wells Fargo’s right to assign its rights and duties as expressly provided for in the lease. Simmons, however, believes that it was not within their reasonable expectations that Wells Fargo’s discretionary right to assign would be used to assign the notes to Simmons’ partner, Holly Corporation.

This general right to assign Simmons’ notes provided in the restructuring agreement must be read with another clause from the agreement. Clause 13.7 states that “[t]he parties intend and agree that each of their respective rights, duties ... shall be performed ... and exercised reasonably and in good faith.” This clause, specifically placed in the contract at issue, provides that all rights under the contract, such as the right to assign the notes, will be conducted in good faith. This clause further supports Simmons’ argument that Wells Fargo breached the covenant of good faith and fair dealing.

Simmons contends that there is still further evidence that Wells Fargo breached the covenant of good faith and fair dealing. An interoffice memorandum requesting approval to sell the Simmons’ notes to Holly casts doubt on Wells Fargo’s intent in the sale. The applicable portion of the memorandum discusses the alternative to selling the notes to Holly and it states:

The alternative to the above, based upon comments from Holly Corporation, would be the cessation of MRC’s operation. Rather than continue funding 100% of both operating losses and required capital improvements, while receiving only 50% of any future profits, Holly Corporation has stated that it would tender its inventory guarantee to WFB and walk away. Depending upon the market value of the inventory at such time, it is questionable whether WFB would recover enough to pay off the non-accrual loan.
From a legal standpoint, this restructuring would take the form of WFB selling its entire creditor position in all the Simmons entities to Holly Corporation. Selling this position eliminates any need to approach Jerry Simmons or any of the Simmons entities for approval to modify the partnership agreement with respect to distributions, etc.

Approval of this restructuring is recommended.

A second memo reads in part:

I spoke with Ivy Parsons of Holly Corporation this morning to get an update on Holly’s progress in purchasing the Simmons’s entities notes .... Ivy plans to meet personally with Jerry Simmons next week and ask Mr. Simmons to sign an agreement that would waive any right of participation as a limited partner. In return for giving up any interest in the limited partnership, Mr. Simmons have (sic) his notes canceled and returned to him. This would would (sic) eliminate the risk that Holly could have a fiduciary responsibility to Jerry Simmons, and would also avoid the tax problems associated with original issue discounts.

Simmons insists that the meetings concerning the sale of the notes between Holly and Wells Fargo Bank were “secret” and that ‘Wells Fargo’s secret negotiations with Holly, Simmons’ partner, as well as its desire to change the profit distribution from the refinery without Simmons’ consent and to facilitate Holly’s squeeze play against Simmons, all demonstrated a complete lack of honesty or commercial reasonableness.” “Each party to a contract has a justified expectation that the other will act in a reasonable manner in its performance or efficient breach. When one party uses discretion conferred by the contract to act dishonestly or to act outside of accepted commercial practices to deprive the other party of the benefit of the contract, the contract is breached.” Marshall v. State (1992) 253 Mont. 23, 830 P.2d 1250, 1251; Story v. City of Bozeman (1990), 242 Mont. 436, 450, 791 P.2d 767, 775.

The foregoing information leads the Court to believe that a genuine issue of material fact exists — whether Wells Fargo breached the covenant of good faith and fair dealing. We conclude that summary judgment on this issue was inappropriate and we reverse the District Court and remand for a proper determination.

b. Did a “special relationship” exist between Simmons and Wells Fargo to support a tort claim for bad faith?

Simmons appeals the court’s decision to grant summary judgment to the defendant on the issue of tortious breach of the implied covenant, claiming that Wells Fargo and Simmons have the “special relationship” necessary to support a tort claim. The essential elements of such a relationship are:

(1) the contract must be such that the parties are in inherently unequal bargaining positions;
(2) the motivation for entering the contract must be a non-profit motivation, i.e., to secure peace of mind, security, future protection;
(3) ordinary contract damages are not adequate because;
(a) they do not require the party in the superior position to account for its actions, and
(b) they do not make the inferior party “whole”;
(4) one party is especially vulnerable because of the type of harm it may suffer and of necessity places trust in the other party to perform; and
(5) the other party is aware of this vulnerability.

Wallis v. Superior Court (Kroehler Mfg. Co.) (1984), 160 Cal.App.3d 1109, 207 Cal.Rptr. 123, 129.

“If substantial evidence is not presented in support of each and all of the above essential elements, the court shall direct there is no special relationship.” Story, 791 P.2d at 776.

In the instant case, there is at least one element which is not supported by substantial evidence and therefore, there is no “special relationship.” The second element provides that the motive for entering the contract must be non-profit. The purpose for entering into this contract is business. It is a contract between two business entities whose goals are to make money. This is nothing like the “peace of mind” which motivates insureds in insurance contracts. The appellant has not presented any substantial evidence in support of the second element necessary to establish a “special relationship,” therefore, the trial court is affirmed on this issue.

CIVIL CONSPIRACY

The final issue is whether the trial court erred in granting summary judgment as to the claims against Wells Fargo alleging civil conspiracy with Holly to breach Holly’s fiduciary duty to Simmons. It is appellant’s contention that during the bank’s secret meetings with Holly, Wells Fargo purposefully agreed to structure the transaction in a way that “eliminates any need to approach Jerry Simmons or any of the Simmons entities for approval to modify the partnership agreement with respect to distributions, etc.” Moreover, Wells Fargo and Holly specifically discussed Holly’s intent to use the notes to force Simmons to surrender their 50% interest in the refinery. Finally, Simmons contends that the sale of the notes to Holly promoted breaches of Holly’s partnership fiduciary duty to Simmons and of Holly’s obligations under the implied covenant of good faith and fair dealing.

Respondent counters that the lower court ruled that “the Holly/Navajo defendants have not committed any wrongful act”, therefore, “there can be no civil action for conspiracy.” If Holly committed no wrong, then there can be no conspiracy between Wells Fargo and Holly because no conspiracy claim can exist if there is not an underlying unlawful act. Duffy v. Butte Teachers’ Union, Number 332, AFL-CIO (1975), 168 Mont. 246, 251, 541 P.2d 1199,1202.

We find respondent’s argument persuasive. After the lower court granted summary judgment to all defendants on all issues, Simmons appealed these decisions to the Supreme Court. Shortly thereafter, Simmons and Holly entered into a settlement agreement. Then Simmons filed a motion for voluntary dismissal of the appeal from the order of the District Court granting summary judgment for defendants Holly/Navajo. In the motion, Simmons stipulated that the judgment of the District Court, granting summary judgment to Holly, (including the civil conspiracy claim), was final and non-appealable. In a Supreme Court order dated February 25,1992, Simmons’ appeal was dismissed with prejudice as to any and all further appeals of Simmons’ claims against Holly, including the final judgment concerning the summary judgment motion.

The final judgment at issue (between Holly and Simmons) states that Holly committed no wrongful act. However, the necessary elements of a conspiracy include: (1) Two or more persons, and for this purpose, a corporation is a person; (2) an object to be accomplished; (3) a meeting of the minds on the object or course of action; (4) one or more unlawful overt acts; and (5) damages as the proximate result thereof. Grenz v. Medical Management Northwest (1991), 250 Mont. 58, 62, 817 P.2d 1151, 1154. “[I]f the object of an alleged ‘conspiracy’ is lawful, and the means used to attain that object Eire lawful, there can be no civil action for conspiracy. The foregoing is true even though damage may result to the plaintiffs and even though defendants may have acted with a malicious motive.” Duffy, 541 P.2d at 1202. If Holly was not involved in any unlawful acts, there can be no conspiracy involving Wells Fargo either. Accordingly, the trial court did not err on the issue of Wells Fargo’s involvement in a civil conspiracy with Holly/Navajo when it granted Wells Fargo’s summary judgment motion.

Affirmed in part and reversed in part.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, GRAY and WEBER concur.

JUSTICE TRIEWEILER

specially concurring in part and dissenting in part.

I concur with the conclusion in the majority opinion that there was an issue of fact which precluded summary judgment dismissing Simmons’ contract claim for breach of the covenant of good faith and fair dealing. I dissent from that part of the majority’s opinion dismissing Simmons’ tort claim for breach of the covenant of good faith for the reasons set forth in my dissenting opinion in McNeil v. Currie (1992), 253 Mont. 9, 830 P.2d 1241. The right to tort damages arose because of activity in Montana — not California, therefore, Wallis v. Superior Court (1984), 160 Cal.App.3d 1109, 207 Cal. Rptr. 123, is not controlling, and as I have previously stated, I would not follow Story v. City of Bozeman (1990), 242 Mont. 436, 791 P.2d 767.

I also dissent from that part of the majority opinion which affirms the District Court’s order dismissing Simmons’ claim for breach of fiduciary duty. Summary judgment is an extreme remedy which should not be granted when there is any genuine issue of material fact; the procedure should never be substituted for trial if a material factual controversy exists. Beaverhead Bar Supply, Inc. v. Harrington (1991), 247 Mont. 117, 120, 805 P.2d 560, 562. Furthermore, all reasonable inferences that might be drawn from the offered evidence should be drawn in favor of Simmons, as the party opposing summary judgment in this case. Cereck v. Albertson’s, Inc. (1981), 195 Mont. 409, 411, 637 P.2d 509, 511.

When our previous decisions which discuss the circumstances under which a fiduciary duty is established are applied to the facts in this case, I conclude that whether there was a fiduciary duty and a breach by the defendant were issues of fact to be decided by the jury. The majority opinion cites Deist v. Wachholz (1984), 208 Mont. 207, 678 P.2d 188, and Lachenmaier v. First Bank Systems, Inc. (1990), 246 Mont. 26, 803 P.2d 614, for the proposition that a fiduciary duty can only arise between a bank and its creditor when the bank fills the role of advisor to its creditor. However, it is clear from those opinions that a fiduciary duty arises when there is a special relationship between the bank and its creditor and the relationship of advisor/advisee is only one of the relationships which can create a fiduciary duty on the part of the bank.

The only thing consistent about this Court’s prior decisions on this subject has been its holding that the existence of “special circumstances” may result in an exception to the general rule that a bank’s relationship with its customers is not a fiduciary one. Whether or not there were special circumstances which should give rise to a fiduciary duty is a classic question of fact. In this case, Simmons contends that the degree of control exerted by Wells Fargo Bank amounts to “special circumstances.” A fiduciary relationship may arise if a creditor gains substantial control over the debtor’s business affairs. Blue Line Coal Co., Inc. v. Equibank (E.D. Pa. 1988), 683 F. Supp. 493, 496. In NCNB National Bank of North Carolina v. Tiller (4th Cir. 1987), 814 F.2d 931, 936, the kind of activity which establishes a lending institution’s control over a borrower was defined as “actual day-to-day involvement in management and operations of the borrower or the ability to compel the borrower to engage in unusual transactions.”

The majority has concluded as a matter of law that there are no special circumstances, and therefore, no fiduciary obligation due to the fact that once the 1984 master agreement and the 1985 restructuring agreement were entered into, the bank no longer exerted daily control over Simmons’ operations and direct communications between the two entities declined significantly. The majority concedes that before 1984 the bank exercised day-to-day control over nearly every facet of the refinery’s operations, but seizes upon the fact that this close relationship was not evidenced thereafter. However, the following facts, which were in evidence, establish that even after the restructuring agreement and formation of the Montana Refining Company, the bank retained the ability to compel Simmons to engage in unusual transactions and continued to exert unusual control over Simmons by virtue of the terms of the agreements:

1. The 1984 master agreement (which formed the Montana Refining Company) required the bank’s approval of the refinery’s annual budget, and express written approval before any capital expenditures greater than $200,000 could be made. Simmons Refining Corporation remained a limited partner in the new company.

2. Even though Simmons was a partner in the new refining company pursuant to the 1984 master agreement, and was a party to the agreement establishing the distribution of refinery cash flow, the bank could change that distribution without Simmons’ consent.

3. The 1985 agreement restructured Simmons’ debt through a new “carry-back promissory note” for $10 million from Simmons Refining Company to the bank, and a new “SOC promissory note” for $2.5 million from Simmons Oil Company to the bank. The new SOC note had an interest rate of 20 percent per year, almost double the prime rate. Furthermore, Simmons Refining Company was prohibited from obtaining credit from any other lender without the bank’s approval. Simmons was locked into the notes and could not prepay, and was powerless to get other financing.

4. Under the terms of the 1985 agreement, the bank took complete control of Simmons Refining Company’s business by prohibiting Simmons from incurring any indebtedness, liabilities, lease payments, guarantees, security interests, or any other obligations without the bank’s prior written consent.

5. Also instructive is this Court’s previous observation in Simmons Oil Corporation v. Holly Corporation (1990), 244 Mont. 75, 796 P.2d 189, to the effect that Wells Fargo’s affiliation with Simmons

extended far beyond that of the simple creditor-debtor relationship. Wells Fargo loaned Simmons large sums of money, knowing these sums were destined for Montana. It protected its interests by exercising financial control over the refinery, retaining the authority to approve expenditures of the refinery and becoming the outright owner of Simmons’ profits from the refinery.
... The sale of debt, the act that constituted Wells Fargo’s alleged breach of duty, was merely the final act in the chain.

Simmons, 796 P.2d at 196.

These examples demonstrate that the bank actively assumed a relationship far beyond the usual debtor-creditor relationship. During the period of time that the majority states there were no “direct contacts” between Simmons and bank personnel, the evidence establishes that the bank still exerted control over Simmons. Simmons was powerless to get other financing without the bank’s approval; it was locked into a note that could not be prepaid; and the bank continued to control the annual budget and expenditures for the refining company in which Simmons was a limited partner. A jury could properly find a type of “special relationship” which gave rise to a fiduciary obligation from the bank to Simmons. Based on these facts, this issue cannot be resolved by summary judgment.

For the same reasons that the majority concluded there was evidence sufficient to support a claim for breach of the covenant of good faith, I conclude there was also evidence to support a claim that the bank breached its fiduciary duty to Simmons. I would remand to the District Court for a jury trial on Simmons’ claim that the bank breached its fiduciary duty.

I also dissent from the majority’s conclusion that because Simmons settled its claim against Holly Corporation and dismissed its appeal against that defendant, Simmons is precluded from pursuing its claim for civil conspiracy against the bank.

There was nothing about Simmons’ settlement with Holly Corporation which resolved the merits of that claim. Furthermore, settlement of claims is presumed to be in the best interests of the parties, the courts, and the Montana public. State ex rel. Deere v. District Court (1986), 224 Mont. 384, 730 P.2d 396. Settlement of claims should be encouraged by this Court, not discouraged. Yet, the majority opinion will make it impossible for a plaintiff to settle with one of two tort feasors under similar circumstances in the future.

Based on this decision, future defendants like Holly Corporation will simply have to continue to be involved in the litigation and incur the attendant expenses so long as Simmons is unable to resolve its differences with some other alleged co-conspirator. Defendants like Holly Corporation will have absolutely no control over their own destiny because no future plaintiff will be able to settle a claim with one defendant until the case has been resolved against all defendants. This is bad public policy and serves no rational purpose under the circumstances in this case.

For these reasons, I dissent from the majority opinion. I would remand the issues of breach of fiduciary duty and civil conspiracy to the District Court for resolution of the factual issues that have been raised by the evidence that is already in the record.

JUSTICE HUNT concurs in the foregoing concurrence and dissent of JUSTICE TRIEWEILER.