author: JUSTICE McDONOUGH

text:
    DONALD D. CECIL, Plaintiff and Appellant, v. CARDINAL DRILLING COMPANY, a Colorado corporation, Defendant and Respondent.
    No. 90-153.
    Submitted on Briefs July 20, 1990.
    Decided Sept. 6, 1990.
    797 P.2d 232.

      Susan Fisher Stevens and Virginia A. Bryan, Wright, Tolliver & Guthals, Billings, for plaintiff and appellant.
    David A. Veeder, Veeder & Broeder, Billings, for defendant and respondent.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

Plaintiff Donald Cecil (Cecil) appeals the order of the Montana Thirteenth Judicial District Court, Yellowstone County, granting summary judgment to the defendant, Cardinal Drilling Company (Cardinal) on Cecil’s claim of wrongful discharge. The Court granted summary judgment to Cardinal on the grounds that there were no facts to dispute that Cecil’s termination was for other than legitimate business reasons. We affirm.

Cecil raises a sole issue on appeal:

Did the District Court err in granting summary judgment to Cardinal on Cecil’s claim of wrongful discharge under § 39-2-904(2), MCA?

Cardinal is a subsidiary of Ocelot Industries, a Canadian Corporation. Cecil, age 57, was recruited and hired in 1981 by Otto Jensen, who acted as Cardinal president until January 1988. When Jensen announced his plans to retire in December of 1987, an Ocelot employee, Bill Kelsay, informed Cecil that as the highest ranking employee after Jensen, he would likely be the next president of Cardinal. However in January, 1988, Kelsay hired Kurt Burris, former president of a competing drilling company, as president instead.

Ocelot informed Cecil that he was not named as president because he would have attempted to do all the work by himself and that it would take two people to carry out Ocelot’s plans for Cardinal’s future. Kelsay asked Cecil to stay on and help Burris run the company and promoted him to executive vice president. Kelsay allegedly told Cecil that Ocelot planned to infuse additional capital into Cardinal and that he expected great things for Cardinal and Cecil in the upcoming year.

In early 1988, after rumors concerning Ocelot’s solvency, Kelsay came to Billings to reassure Cardinal employees that their jobs were secure. In April Burris gave all Cardinal employees raises, including Cecil. Burris allegedly informed Cecil that he was pleased with his work and that Cecil would get more raises later. In May 1988, Burris prepared a revised budget for Cardinal, budgeting upward because it looked like it would be a good year for Cardinal.

During the first months of Burris’ presidency at Cardinal Cecil alleges that he worked diligently to familiarize Burris with the operations of Cardinal and ease Burris into his new position. Cecil alleges that by July of 1988, he had familiarized Burris with most, if not all, of his personal knowledge relating to Cardinal marketing activities.

Cecil alleges that on July 18,1988, he was summoned into Burris’ office and told without any prior warning or other indication of poor performance by him or the company, that he was being terminated. He alleges that he was told that his termination was effective immediately but that he might be given some severance pay. Cecil alleges that when he went to pick up his final paycheck Burris offered him an additional check for severance pay, conditioned upon Cecil signing a release of any claims against Cardinal. Later Burris presented a second release drafted by an attorney. Cecil declined to sign either release and has never received any severance pay.

Between July and December of 1988, Burris gave the remaining salaried staff of Cardinal in Billings an additional raise. At the end of 1988, Cardinal gave its field employees cash bonuses. Cardinal was able to meet its expenses through its own revenues in 1988. In March, 1989 within eight months of Cecil’s termination, Cardinal spent $225,000.00 to expand its drilling operations and allegedly hired a new employee for marketing and bidding, with duties identical to Cecil’s.

Another Cardinal employee, the safety director, was terminated at the same time as Cecil. Unlike Cecil, who had no performance deficiencies on his record, the safety director had recently been cited for DUI in an accident involving a company vehicle in a bar parking lot.

Burris claims that an anticipated decline in the price of crude oil was the reason for terminating Cardinal employees. Some time in the spring of 1988 Kelsay of Ocelot discussed making expenditure cuts with Burris, although termination of employees was not discussed at this time. Dining this downturn Ocelot itself terminated approximately 100 people. In July of 1988, Burris discussed with Kelsay his plans to terminate Cecil.

The price of crude oil did fall dramatically as Burris predicted; local and world oil prices fell sharply in 1988 beginning in April with a temporary rebound in July, and then resumed their downward trend until December 1988. Based on this trend, the District Court found that there was no genuine issue of material fact regarding the reason for Cecil’s termination. Furthermore, at the time Cecil’s job was terminated Cecil largely admits that crude oil prices were falling. The court also noted that the number of drilling rigs operated by Cardinal is directly related to the price of crude oil.

The District Court stated there was nothing in the record to suggest that Burris gained any pecuniary benefit from terminating Cecil. The Court further noted there was no evidence that Burris intended to harm Cecil; Cecil himself testified in his deposition that he and Burris had only a business relationship and had no problems in that relationship. While Cecil claims to have been wrongfully discharged, he offers no other specific reason for his termination to contradict that he was terminated for economic reasons.

At the time Cecil filed suit on September 29, 1988, his complaint included a count requesting declaratory judgment on the constitutionality of the Wrongful Discharge from Employment Act, a count alleging tortious breach of the implied covenant of good faith and fair dealing and a corresponding count requesting punitive damages, a count alleging gross negligence, and a count alleging wrongful discharge. Subsequently we upheld the constitutionality of the Act and its damage provisions in Meech v. Hillhaven West, Inc. (1989), 238 Mont. 21, 776 P.2d 488. Following Meech the remaining count of Cecil’s complaint alleged wrongful discharge under the Act. On January 9,1990, the District Court entered summary judgment in favor of Cardinal on Cecil’s claim of wrongful discharge, and all other counts precluded by Meech. Cecil now appeals solely with respect to his claim of wrongful discharge.

In order for summary judgment to issue, the movant must demonstrate that there is no genuine issue as to all facts deemed material in light of the substantive principles entitling the movant to judgment as a matter of law. Rule 56(c), M.R.Civ.P.; Cerek v. Albertson’s, Inc., (1981), 195 Mont. 409, 411, 637 P.2d 509, 511. Under the Wrongful Discharge From Employment Act a valid ground for maintaining a cause of action against a former employer is when the employee’s “discharge was not for good cause and the employment . . . .” Section 39-2-904(2), MCA. The Act defines good cause as “reasonable job-related grounds for dismissal based on a failure to satisfactorily perform job duties, disruption of the employer’s operation, or other legitimate business reason. ” Section 39-2-903(5), MCA.

It is well-settled in the case law prior to the Act that economic conditions constitute a “legitimate business reason.” This court has held that employers should not be foreclosed from “engaging in legitimate reductions in force necessary to maintain the economic vitality of the company.” Flanigan v. Prudential Federal Savings and Loan Association(1986), 221 Mont. 419, 426, 720 P.2d 257, 261. Furthermore, an employer is entitled to be motivated by and serve its own legitimate business interest and must be given discretion who it will employ and retain in employment. Hobbs v. Pacific Hide and Fur Depot (1989), 236 Mont. 503, 511, 771 P.2d 125, 130; Coombs v. Gamer Shoe Company (Mont. 1989), [239 Mont. 20,] 778 P.2d 885, 887, 46 St.Rep. 1478, 1480. We have also held that summary judgment is proper where there is no genuine fact issue as to whether an employee was terminated for a legitimate business reason. Coombs, 778 P.2d at 887-888.

Here, the District Court found that because of trends in the price of crude oil there was no genuine issue of material fact that Cecil was terminated for other than legitimate business reasons. On the other hand, Cecil alleges that he was terminated without good cause, because Cardinal did not act fairly and honestly when claiming “economic necessity” or “legitimate business reason” as the reason for his termination. However, once Cardinal made a sufficient showing of no material fact issues, the burden then shifted to Cecil to raise a factual issue sufficient to show that summary judgment was improper. See Thelen v. City of Billings, 238 Mont. 82, 85, 776 P.2d 520, 522. “If the movant has met this burden, it then shifts to the non-moving party to demonstrate a genuine issue of material fact. Mere denial or speculation will not suffice, the non-moving party must show facts sufficient to raise a genuine issue.” Gamble Robinson Co. v. Carousel Properties (1984), 212 Mont. 305, 312, 688 P.2d 283, 287. (Emphasis added.)

Here, Cecil did not offer any other motive or reason for his termination. He merely denied that the reasons were legitimate business reasons. And while the record might arguably show that it was possible for Cardinal to keep Cecil employed during the decline in oil prices, this Court cannot speculate as to what Cardinal’s real reasons may have been, if they were in fact not as claimed. Cecil has failed to meet his burden of raising a material fact issue sufficient to withstand a motion for summary judgment. The order of the District Court is

AFFIRMED.

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


source: Caselaw Access Project

author: JUSTICE HUNT

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. LARRY JOE SUNFORD, Defendant and Appellant.
    No. 90-012.
    Submitted April 19, 1990.
    Decided Sept. 7, 1990.
    796 P.2d 1084.

      Clinton H. Kammerer, Kammerer Law Offices, Missoula, for defendant and appellant.

      Marc Racicot, Atty. Gen., Elizabeth L. Griffing, Asst. Atty. Gen., Helena, Robert Deschamps, III, County Atty., Barbara Harris, Deputy County Atty., Missoula, for plaintiff and respondent.
   JUSTICE HUNT

delivered the Opinion of the Court.

Defendant and appellant, Larry Joe Sunford, was found guilty by a jury empaneled in the Fourth Judicial District Court, Missoula County, of one count of driving while under the influence of alcohol, a misdemeanor, and one count of speeding, a misdemeanor. He appeals. We affirm.

The following issues are presented for our consideration:

1. Did the District Court err in concluding that an airport security officer, outside his jurisdiction, may make a valid citizen’s arrest?

2. Did the District Court err in denying defendant’s motion to dismiss for lack of a speedy trial?

Between 1:30 and 2:00 a.m. on January 26,1989, defendant, Larry Joe Sunford, was driving on U.S. Highway 10 West when Donald Disney, a security officer for the Missoula County Airport Authority, recorded his speed with a radar detection gun at 78 mph. The speed limit on the highway was 55 mph.

Disney turned on the lights on top of his car and stopped defendant’s vehicle. After talking with and observing defendant, Disney arrested him for driving while under the influence and excessive speeding. All events, the recording of the speed by the security officer, the stop and the arrest, occurred outside of the grounds of the Missoula County Airport.

On April 7, 1989, trial began in Missoula County Justice Court. After examining Disney, defendant moved to dismiss the case on the grounds that the security officer lacked the authority to make the stop and arrest because the events took place outside of his area of jurisdiction. The Justice Court granted the motion. The State appealed to the District Court.

In District Court, defendant again moved to dismiss on the grounds that the security officer lacked authority to arrest the defendant. The motion was submitted on briefs on July 10, 1989. The court denied the motion on August 24, 1989.

The District Court then scheduled the case for trial for October 10, 1989. On September 15,1989, defendant moved to dismiss for lack of a speedy trial. The motion was denied on October 13, 1989.

Following a jury trial held October 17,1989, defendant was found guilty of one misdemeanor count of driving while under the influence, a second offense, in violation of § 61-8-401, MCA, and one misdemeanor count of speeding in violation of § 61-8-310, MCA. Judgment was entered on November 28, 1989. Defendant now appeals.

The first issue is whether the District Court erred in concluding that an airport security officer, outside his jurisdiction, may make a valid citizen’s arrest.

While a municipality or a county may appoint airport guards or police with full police powers, the jurisdiction of such officers extends only to enforcing ordinances, resolutions, rules and orders enacted for the management, government and use of the airport. Section 67-10-301, MCA. The State therefore concedes that Donald Disney, the airport security officer, did not act within his jurisdiction when he stopped and arrested defendant on U.S. Highway 10 West, outside of the boundaries of the Missoula County Airport.

The State argues that the arrest was nevertheless lawful under the precedent established in State v. McDole, 226 Mont. 169, 734 P.2d 683 (1987). In that case, we held that a police officer could make a valid arrest outside of his jurisdiction if a private citizen could have made a lawful arrest under the same circumstances. We stated:

“A police officer outside his jurisdiction has not lost his characteristics of being a citizen and has all the arrest capabilities that a private citizen has. Thus, we hold that if an arrest by a private citizen would be lawful under the existing circumstances, the arrest by an officer out of his jurisdiction would be lawful.”

McDole, 226 Mont. at 172, 734 P.2d at 685.

Defendant contends that McDole does not apply in this case because an airport security officer has less general authority than a city police officer. As the District Court observed, however, the extent of the arresting officer’s jurisdiction is not the issue. The security officer in the present case admittedly exceeded the scope of his jurisdiction whatever its extent. The issue is whether he made a valid citizen’s arrest.

A private citizen may make a lawful arrest in any one of the following situations:

“(1) [H]e believes on reasonable grounds that an offense is being committed or attempted in his presence;
“(2) a felony has in fact been committed and he believes on reasonable grounds that the person arrested has committed it; or
“(3) he is a merchant, as defined in 30-11-301, and has probable cause to believe the other is shoplifting in the merchant’s store.”

Section 46-6-502, MCA.

In the present case, the District Court found that the security officer had reasonable grounds to believe that an offense was being committed in his presence. We agree.

The security officer’s radar detection device recorded defendant’s speed at 78 mph, 23 miles over the speed limit. Defendant’s excessive rate of speed could easily have been observed and approximated by a private citizen, even without the aid of a radar gun. In addition, when he alighted from the car after being stopped by the security officer, defendant smelled of alcohol, swayed back and forth and slurred his speech. A private citizen, after noting defendant’s demeanor, could have reasonably believed that defendant had been driving under the influence of alcohol.

Because a private citizen could have made a valid citizen’s arrest under these circumstances, the District Court did not err in concluding that the security officer, although acting outside his jurisdiction, lawfully arrested defendant.

The second issue raised for review is whether the District court erred in denying defendant’s motion to dismiss for lack of a speedy trial.

Montana law requires a defendant who is charged with a misdemeanor to be brought to trial within six months after entry of plea. Section 46-13-201(2), MCA, provides:

“The court, unless good cause to the contrary is shown, must order the prosecution to be dismissed if a defendant whose trial has not been postponed upon his application is not brought to trial within 6 months after entry of plea upon a complaint, information, or indictment charging a misdemeanor.”

Defendant argues that this statute was violated because he did not receive a full trial in District Court until more than nine months after entering his plea in Justice Court. We do not agree.

The six-month rule contained in § 46-13-201(2), MCA, does not apply in circumstances where the defendant is tried in justice court and the judgment is appealed for trial de novo in district court. State v. Schnell, 107 Mont. 579, 582, 88 P.2d 19, 20 (1939). In State v. Knox, 207 Mont. 537, 541, 675 P.2d 950, 952 (1984), we reaffirmed the holding of Schnell, stating:

“It appears that Section 46-13-201(2), MCA, is inapplicable to a trial de novo in District Court. A trial de novo is a ‘new trial,’ one which does not strictly speaking, arise out of entry of plea upon a complaint but arises out of an appeal.”

Once an action is appealed from justice to district court, it is treated as if it were a new trial. Questions regarding speedy trial in cases concerning new trials are analyzed under the constitutional standards of Barker v. Wingo, 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972). See Knox, 207 Mont. at 541-42, 675 P.2d at 952.

In the present case, defendant was charged and entered his plea on January 26,1989. Trial in Justice Court commenced on April 7, 1989. After defendant examined the security officer, he moved to dismiss the case and the court granted the motion.

The statutory six-month rule was complied with when the initial trial began in Justice Court on April 7,1989. It is immaterial that the trial was not fully tried in Justice Court at that time. What is material is that the trial commenced within six months after defendant entered his plea. Such action in the initial forum is all that is required by § 46-13-201(2), MCA.

We must now examine the rest of the speedy trial issue under the Barker constitutional analysis. Four factors figure into the analysis: (1) the length of the delay; (2) the reason for the delay; (3) the assertion of the right by the defendant; and (4) the prejudice to the defense. Barker, 407 U.S. at 530, 92 S.Ct. at 2192, 33 L.Ed.2d at 117.

The first element, the length of the delay, is of primary importance. Unless the delay is presumptively prejudicial, we need not consider the remaining factors. If we find that the delay is presumptively prejudicial, the state must rebut the presumption by proffering a reasonable explanation for the delay and demonstrating that the defendant was not prejudiced. State v. Curtis, [241 Mont. 288,] 787 P.2d 306, 313, 47 St.Rep. 277, 283 (Mont. 1990).

In determining the length of the delay, we first look to the overall time period that elapsed between the Justice Court order that allowed the appeal for trial de novo in District Court and the commencement of the trial in District Court. We initially calculate this time period without considering whether the delay was caused by defendant’s own actions. Curtis, 787 P.2d at 313, 47 St.Rep. at 284.

Whether the length of the delay is presumptively prejudicial depends on the facts of each case; no particular time frame automatically triggers a speedy trial inquiry. More complex actions may warrant a longer delay than relatively simple cases. Curtis, 787 P.2d at 314, 47 St.Rep. at 285.

In the present case, 193 days elapsed between April 7, 1989, the date of dismissal in Justice Court, and October 17, 1989, the date of trial in District Court. Although the delay is slightly over six months, we hold that it is presumptively prejudicial, considering the fact that the case consisted of the relatively simple misdemeanor charges of driving under the influence and speeding. See State v. Bailey, 201 Mont. 473, 655 P.2d 494 (1982) (delay of 186 days triggered speedy trial analysis in case involving felony charge of attempted sale of dangerous drugs); State v. Fife, 632 P.2d 712, 38 St.Rep. 1334 (1981) (delay of 194 days presumptively prejudicial in case involving robbery charge); State v. Sanders, 163 Mont. 209, 516 P.2d 372 (1973) (delay of six months and 22 days provoked further inquiry in case involving two counts of second degree assault).

The burden therefore shifts to the State to explain the reason for the delay and to show that defendant was not prejudiced by the delay. To explain the delay, the State points to the motions to dismiss filed by defendant. The State correctly notes that, if the decision on a motion filed by the defendant actually delays the setting of the trial date, the delay is charged to the defendant and not the State. Curtis, 787 P.2d at 315, 47 St.Rep. at 286.

Here, defendant filed his first motion to dismiss on June 16, 1989, alleging that the security officer lacked the authority to make a lawful arrest. The State responded on June 30,1989 and defendant filed his reply on July 10, 1989. The corut denied the motion on August 24, 1989. This period of time, from June 16 to August 24,1989, a total of 69 days, must be charged to the defendant because it appears that the court delayed setting the trial date until rendering a decision on the motion.

On September 8, 1989, the court scheduled the trial for October 10,1989. On September 15,1989, defendant filed a motion to dismiss for lack of speedy trial. The State filed its opposition to the motion on September 29, 1989, and the District Court denied the motion on October 13,1989. This time period, from September 15 to October 13, 1989, a total of 28 days, is also charged to the defendant as the trial was delayed pending the outcome of the motion.

All told, of the 193 days between the trial in Justice Court and the trial de novo in District Court, 97 must be attributed to defendant, leaving only 96 chargeable to the State. A delay of 96 days is not sufficiently prejudicial to defendant to constitute a violation of his right to a speedy trial. The District Court did not err in denying the motion to dismiss for lack of a speedy trial.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES BARZ, SHEEHY and WEBER concur.


author: JUSTICE HARRISON

text:
    SAMUEL J. GRENZ, Plaintiff and Appellant, v. MICHAEL C. PREZEAU and Terry N. Trieweiler, Defendants and Respondents.
    No. 90-011.
    Submitted on Briefs Aug. 23, 1990.
    Decided Sept. 11, 1990.
    798 P.2d 112.

      Samuel J. Grenz, Whitefish, pro se.
    Terry Trieweiler, Michael C. Prezeau, Whitefish, Todd Hammer, Kalispell, for defendants and respondents.
   JUSTICE HARRISON

delivered the Opinion of the Court.

On September 29, 1989, Samuel J. Grenz filed this action in the District Court of the Eleventh Judicial District, Flathead County, Montana, alleging that attorney Michael C. Prezeau had negligently represented him in connection with his workers’ compensation claim. Grenz further alleged that attorney Terry N. Trieweiler was a partner of Prezeau and was vicariously liable for Prezeau’s negligent conduct. On December 27, 1989, the District Court granted the motions of Prezeau and Trieweiler for summary judgment. From this judgment Grenz appeals. We affirm.

Appellant presents the following issues:

1. Did the District Court err in granting respondents’ summary judgment motions?

2. Did the District Court err in failing to find that at the time of the alleged misconduct respondents were partners by estoppel?

On August 22, 1984, Samuel Grenz injured his right elbow while working for American Stud Company. He sought treatment from a physician and continued to work -until November 18, 1985, when he quit because of pain in both elbows and bis lower back.

On April 15, 1986, Grenz employed the Trieweiler Law Firm to represent him in connection with his workers’ compensation claim. At that time, attorneys Michael Prezeau and Terry Trieweiler were partners in the Trieweiler firm. Prezeau, who signed the employment agreement with Grenz, handled all aspects of Grenz’s claim.

On October 1, 1987, Trieweiler and Prezeau terminated their partnership agreement. Prior to the dissolution of the partnership, Trieweiler had met with Grenz on two occasions and had not provided any services on Grenz’s behalf. Trieweiler had no contacts with Grenz subsequent to the partnership dissolution. After the partnership was dissolved, Prezeau continued to represent Grenz.

The events in issue occurred during the first three months of 1988. On January 19, 1988, the attorney for the workers’ compensation insurer requested an independent medical examination of Grenz to be performed in Kalispell by Northwest Medical Panel, a group of multi-disciplinary medical specialists. When informed of the request, Grenz immediately agreed to participate. The Panel consisted of a neurologist, an orthopedic surgeon, a physical medicine and rehabilitation specialist, and a clinical psychologist.

On January 22, Prezeau sent a schedule of his medical appointments for the panel evaluation to take place February 1 and 2. In the letter, Prezeau advised Grenz that the Medical Panel should have access to the records of Grenz’s treating physicians, Dr. Herbert Gray, a psychiatrist, and Dr. Janice Gray, a pain management specialist. Prezeau asked Grenz “to contact both Drs. Gray next week and give them authorization to discuss your case with the doctors from the medical panel and to provide written information as may be requested.”

A few days later, on January 25, Prezeau received a letter from Skip Schloss, who coordinated the Panel, requesting medical summaries from Dr. Herbert Gray and Dr. Janice Gray, as well as suggesting that a report from Dr. Arvin Wilson, a chiropractor, be submitted. Prezeau sent a copy of Schloss’ letter to Grenz and again recommended that Grenz contact Dr. Herbert Gray and Dr. Janice Gray, but noted that he did not see a need to involve Dr. Wilson. Grenz did not contact any of the doctors as requested by Prezeau.

As evidenced by Medical Management Northwest’s Treatment History Chart Review, the Medical Panel did have access to records of Dr. Janice Gray through December 1987. In addition, the Medical Panel possessed brief summarizations of the number of treatments Grenz received from Dr. Herbert Gray and Dr. Wilson. Pursuant to ARM 24.29.1405, physicians who treat an injured worker under the Workers’ Compensation Act must provide reports to the insurer on request. The insurer’s attorney furnished these records to the Medical Panel.

The Medical Panel diagnosed Grenz as having lumbar degenerative disease attributable to work-related injuries as well as to Grenz’s weight lifting avocation. The Panel felt that this condition was at “maximum medical improvement” and that Grenz needed no further medical treatment. In addition, the Medical Panel found X-ray evidence of calcification and bone formation in Grenz’s elbow and again traced the condition to his work injury and aggravation from his weight-lifting activities. Based on these back and elbow injuries, the Panel rated Grenz’s impairment as ten percent of the whole man.

In relation to psychological difficulties, the Panel found that Grenz no longer suffered from acute depression related to his work injuries, and that the psychologist’s diagnosis of a personality disorder and learning disability were not work-related. The Medical Panel deferred to Grenz’s own psychiatrist, Dr. Gray, for a psychiatric impairment rating, “should one be required.”

In reviewing Grenz’s suitability for five occupations submitted by Jeannette Stangl, Vocational Rehabilitation Specialist, the Medical Panel approved the job of Photograph Finisher.

Prezeau sent Grenz a copy of the Panel Summary when he received it and invited Grenz to meet with him on March 2 to discuss the evaluation. Grenz strongly objected to the Medical Panel’s evaluation and insisted that Prezeau take immediate action. Prezeau explained that the Panel’s evaluation was not entirely unfavorable, especially since the Panel deferred to Grenz’s own psychiatrist for consideration of his psychological condition/and counseled against taking any immediate action.

Grenz sent a letter to the insurer detailing numerous objections, including: (1) the Panel’s diagnosis overlooked many of his work-related injuries; (2) the examination did not properly address his mental and emotional state; (3) he was not informed by his attorney of the need for obtaining various records and x-rays; and (4) one of the physicians had consulted records of Grenz obtained from his associate without Grenz’s consent.

On March 23, Grenz terminated Prezeau’s employment and undertook his own legal representation. Until that time Grenz had received temporary total disability benefits at the maximum statutory rate. In August 1988, the benefits were reduced to permanent partial disability status. At that point, Grenz retained another attorney, and due to the second attorney’s efforts, Grenz’s temporary total disability status was reinstated. Grenz continues to receive biweekly benefits at the maximum rate.

I

Did the District Court err in granting respondents’ summary judgment motions?

Grenz filed his second amended complaint on November 28, 1989. His allegations are summarized as follows: (1) Prezeau conspired with the insurer’s attorney to limit the Northwest Panel Medical Evaluation “to such an extent as to deny Plaintiff his legal entitlements;” (2) Prezeau and Trieweiler “did not properly advise and represent” Grenz or his interests; and (3) Prezeau and Trieweiler “with actual fraud and/or malice, conspired and/or neglected to attempt in good faith to effectuate prompt, fair and equitable settlement of Plaintiff’s Claim.”

On the basis that the facts did not support Grenz’s allegations, Prezeau and Trieweiler moved for summary judgment.

A court grants summary judgment when no genuine issue exists as to any material fact, and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.p.; Blaskovich v. Noreast Development Corp. (Mont. 1990), [242 Mont. 326,] 790 P.2d 977, 978, 47 St.Rep. 740, 742; Boles v. Simonton (Mont. 1990), [242 Mont. 394,] 790 P.2d 977, 978, 47 St.Rep. 793, 796. The moving party through supporting affidavits first must demonstrate that a genuine issue of fact does not exist. The burden then shifts to the party opposing the motion to show that there were genuine issues for trial. Rule 56(e), M.R.Civ.P.; Blaskovich, 790 P.2d at 978, 47 St.Rep. at 742.

Grenz failed to meet his burden of supporting his accusations. Grenz’s claim of conspiracy is based upon the conclusions that: (1) the insurer’s attorney improperly influenced the Medical Panel, and (2) that Prezeau must have known about it.

Grenz’s evidence consists of a letter sent by the insurer’s attorney to Skip Schloss, the coordinator of Medical Management Northwest, on February 17,1988, requesting the following:

“As you and I have discussed, I am asking that the Panel physicians limit their evaluation of Mr. Grenz to his physical condition and his physical restrictions affecting employment, to the exclusion of any psychological factors affecting Mr. Grenz. This will permit the medical doctors on the Panel to limit their opinions to their areas of expertise.”

Grenz asserts that this letter represents an improper attempt on the part of the insurer’s attorney to limit the scope of the Panel’s examination and that Prezeau colluded with the insurer’s attorney to prevent the Panel from considering all of Grenz’s disabilities.

Insurers can request that claimants submit to physical examinations pursuant to § 39-71-605, MCA. The statute provides no guidelines for the examination other than that consideration will be given for the claimant’s convenience, physical condition, and ability to attend. Aside from those requirements, the insurer is free to choose who will conduct the examination and where and when the examination takes place. The statute does not address whether the insurer is entitled to limit the examination in any way.

Under § 89-71-605, MCA, the claimant has no authority to object to or control any aspect of the examination, other than that he may have a physician present during the examination. On the other hand, the claimant’s failure to cooperate with the examination could result in suspension of benefits. Section 39-7-605(l)(b), MCA (1983).

Though the Medical Panel may have overlooked some of Grenz’s physical injuries or his psychological condition, prior to the examination Prezeau could do little to remedy the situation. Should a medical examination result in denial or reduction of benefits, the claimant can challenge the insurer’s action through a mediation procedure or in a hearing before the workers’ compensation judge. See § 39-71-2401, MCA(1989); § 39-71-2905, MCA(1983). After his benefits were reduced, the attorney Grenz subsequently hired did take these steps, resulting in restoration of full benefits to Grenz.

Even if the insurer’s actions in limiting the examination were improper, Grenz did not present any evidence that Prezeau had knowledge of the insurer’s request before he received, on the day that the Medical Panel compiled the Panel Summary, a copy of the letter sent by the insurer’s attorney. The letter does not mention Prezeau nor implicate him in any way. Grenz’s charge of a conspiracy between the two attorneys is completely unfounded.

Grenz’s second allegation is that Prezeau did not properly represent Grenz. Grenz claims that Prezeau fell short in his representation of Grenz by failing to have all of his medical records and X-rays sent to Medical Management Northwest, by not requesting a second independent medical examination, and by not taking steps to correct job classifications.

One of Grenz’s principal complaints is that the Panel did not have records regarding his mental and emotional condition, and that if the Panel had had these records, the Panel’s evaluation would have been more favorable to Grenz.

First of all, Grenz is correct that the Medical Panel should have had those records. However, the record indicates that Prezeau sent two letters to Grenz asking him to authorize the release of information from Dr. Herbert Gray, his psychiatrist, and Dr. Janice Gray. Grenz did not follow through with his requests. Prezeau testified that he requested Grenz to contact his treating physicians, rather than getting a release and having the records sent to himself, because of Grenz’s extreme sensitivity about release of medical information. Grenz’s protest to the Panel regarding the use by one physician of his partner’s records demonstrates his sensitivity in this area.

Secondly, although a psychologist on the Panel did examine Grenz, the Panel deferred to Grenz’s own physician, Dr. Gray, for a psychiatric impairment rating. Prezeau pointed out that the fact that the Panel deferred to Dr. Gray was favorable to Grenz.

We also note that the Medical Panel had access to most of Grenz’s records and X-rays from other sources.

As for requesting a second medical examination and objecting to the job classification of photograph finisher, Prezeau was aware of Grenz’s wishes for quick action, but in his professional judgment counseled against taking any immediate steps. In order to determine whether Prezeau in this instance departed from the prevalent standard of care, Grenz needed either expert testimony or Prezeau’s own testimony identifying his conduct as negligent. Carlson v. Morton (1987), 229 Mont. 234, 239, 745 P.2d 1133, 1136. Grenz provided neither.

Grenz contends that Prezeau failed to request a second examination within two weeks from the mailing of the evaluation as required by § 39-71-711(3)(b)(i), MCA. The statute in effect on the date of injury governs workers’ compensation benefits. Buckman v. Montana Deaconess Hospital (1986), 224 Mont. 318, 321, 730 P.2d 380, 382. Section 711 of the Workers’ Compensation Act did not take effect until July 1, 1987. Since Grenz’s injury occurred in 1984, § 39-71-711, MCA, does not apply.

Grenz’s third allegation is that Prezeau failed to effectuate a prompt and equitable settlement of his claim. Grenz’s own affidavit filed in opposition to the Motion for Summary Judgment refutes this assertion:

“The very first day, when I retained the Defendants I told Terry Trieweiler that I never, never intend to settle my Workers’ Compensation Claim and that all I wanted to do is, to go to school and reeducate myself so I could get on with my life----On November 13th, 1986, I again told the Defendants that I don’t want to settle my Workers’ Compensation Claim, I just want to go to school and rehabilitate myself.”

Obviously, Grenz cannot charge the defendants with failing to settle his claim when he himself directed otherwise.

In addition to showing that no genuine issue of material fact exists, the party moving for summary judgment must establish that he is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P.; Blaskovich, 790 P.2d at 979, 47 St.Rep. at 742.

In this case, the defendants had to show that at least one of the elements of a legal malpractice action were not satisfied because no genuine issue of fact supporting the element existed.

In a malpractice action, the plaintiff must prove that an attorney-client relationship existed and that the act constituting negligence or breach occurred. The plaintiff must show that “but for” such negligence the client would have been successful in the prosecution or defense of the action. Lorash v. Epstein (1989), 236 Mont. 21, 24, 767 P.2d 1335, 1337. Finally, the plaintiff must establish that the negligent act proximately caused his damages. Thelen v. City of Billings (1989), 238 Mont. 82, 85-6, 776 P.2d 520, 523-24.

As a matter of law, Prezeau is entitled to summary judgment because of the absence of facts indicating that he negligently handled Grenz’s legal affairs. Furthermore, Grenz has not indicated, beyond mere allegations, actual damages or injury. Grenz claims that the defendants’ tortious conduct prevented him from “rising above his disability” and preparing himself for meaningful employment, as well as contributing to Grenz’s “present condition of permanent total disability.”

No facts support these allegations. In fact, the record shows the opposite - that during the entire time that Prezeau and his firm represented him, Grenz received the maximum workers’ compensation benefits allowable by law. His benefits were reduced temporarily, but not until some months after Prezeau’s representation of Grenz had been terminated.

We hold that plaintiff failed to demonstrate any genuine issue of material fact and that defendants were entitled to summary judgment as a matter of law.

II

Did the District Court err in failing to find that at the time of the alleged misconduct respondents were partners by estoppel?

The facts are uncontroverted that Trieweiler did not provide any legal services for Grenz and that Trieweiler and Prezeau dissolved their partnership on October 1,1987, three months before the events in question occurred. Since we find that Prezeau is absolved of liability, Trieweiler cannot be held liable for Prezeau’s conduct. Therefore, we need not address the second issue of whether a partnership by estoppel existed between Prezeau and Trieweiler at the time of the alleged negligence.

The District Court’s grant of summary judgment to Prezeau and Trieweiler is affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES SHEEHY, WEBER and HUNT concur.


author: CHIEF JUSTICE TURNAGE

text:
    IN RE THE MARRIAGE OF JODI RAE HALL, Petitioner and Appellant, and ROBERT WALKER HALL, Respondent AND Respondent.
    No. 90-050.
    Submitted on Briefs Aug. 9, 1990.
    Decided Sept. 11, 1990.
    798 P.2d 117.

      Gary R. Thomas, Thomas Law Office, Red Lodge, for petitioner and appellant.
    Kent E. Young, Red Lodge, for respondent and respondent.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Jodi Rae Hall (now Jodi Rae Bangart) appeals the decision made by the Thirteenth Judicial Court, Carbon County, which denied her Petition for Income Deduction, denied a retroactive child support increase for 1987, modified her requests for retroactive child support increases for 1988 and 1989, and modified her award of attorney fees. We affirm in part, and reverse and remand in part.

Appellant raises the following issues:

1. Did the District Court err in denying appellant’s Petition for Income Deduction?

2. Did the District Court err in determining that retroactive child support increases should be effective January 1, 1988, rather than January 1, 1987?

3. Did the District Court err in determining 1988 child support to be $235.00 per month and 1989 child support to be $255.00 per month?

4. Did the District Court err in awarding the appellant’s attorney fees of $1,125.00?

Jodi Rae Hall and Robert Walker Hall were divorced on August 3, 1981, following a five-year marriage. One child, Shawn David Hall, was bom during the marriage on August 7, 1976.

The parties’ Custody, Support and Property Settlement Agreement (hereinafter Agreement), which was incorporated into the Final Decree, granted Jodi sole custody of Shawn and granted Robert reasonable visitation rights to Shawn. Additionally, the Agreement called for Robert to pay Jodi monthly child support payments of $175.00, and specified that if either party initiated court proceedings concerning this Agreement, the unsuccessful party would pay the prevailing party’s attorney fees.

In 1986, when Robert was seriously in arrears with his child support payments, Jodi moved the District Court for a show cause hearing, requesting the court to hold Robert in contempt for failing to pay child support as specified in the Agreement. Robert and Jodi, in a Stipulation approved by an Order filed on January 7, 1987, agreed, among other things, to the following: 1) Robert owed Jodi $3,357.20 in delinquent child support payments, 2) Robert owed Jodi $290.74 for Jodi’s attorney fees and costs, 3) Robert would increase his monthly child support payment from $175.00 to $200.00 effective November 1, 1986, 4) Robert would pay Jodi $35.00 monthly toward the delinquent child support arrearage until paid, 5) Robert would pay Jodi’s attorney $35.00 monthly toward the above mentioned attorney fees and costs until paid, 6) Jodi would be responsible for Shawn’s health insurance, 7) if Robert’s income increased, the above payments would be renegotiated, 8) Robert must provide Jodi with an annual sworn statement, beginning every January 1st, hereafter, as to his total monthly income, and 9) if Robert or J odi were to initiate a court action with regard to this agreement, the unsuccessful party would pay the prevailing party’s attorney fees.

In June, 1987, Robert and Jodi orally modified the Stipulation and Order. Robert and Jodi, however, disagree as to the terms of the oral modification. In any event, Robert decreased his monthly child support payment beginning in June, 1987, from $200.00 to $180.00, which resulted in total payments to Jodi of $215.00, $180.00 for child support payment and $35.00 toward the delinquent child support payment.

Beginning January 1,1987, to the present, Robert failed to provide Jodi with annual sworn statements of his monthly income, which Robert agreed to provide by the terms of the Stipulation and Order. Through this same time period, however, Robert consistently paid Jodi $215.00 a month, $180.00 for child support and $35.00 toward the pre-1987 child support delinquency. Two years later, on June 15, 1989, Jodi filed a Petition for Income Deduction, a Motion to Increase Support, a Motion for Order to Show Cause, and on November 3,1989, a Motion for Attorney’s Fees.

On December 11,1989, the District Court: 1) denied Jodi’s Petition for Income Deduction because Jodi failed to prove by a preponderance of the evidence that Robert was three months in arrears in child support payments as specified in § 40-5-304, MCA, and the 1989 amendments to § 40-5-204, MCA, which provide for an exception to the three-month delinquency requirement for income deduction, was not applicable here because the statute’s effective date was January 1,1990,2) granted in part and denied in part Jodi’s Motion to Increase Child Support, with the court taking into consideration Robert’s children from a subsequent marriage, and 3) granted in part and denied in part Jodi’s motion for attorney fees based upon her partial success of this court action. From these decisions, Jodi appeals.

1. Did the District Court err in denying appellant’s Petition for Income Deduction?

Petition for Income Deduction, Jodi requested that Robert be subject to withholding of his income regarding his child support payments, based upon his still outstanding pre-1987 delinquent child support obligation and the disputed child support payments following the June, 1987 oral agreement, under § 40-5-301, et. seq., MCA. Income deduction, however, is allowed only when payments are considered delinquent. Section 40-5-304, MCA, provides:

“Nonpayment of child support required by any order of a district court or by a similar order of a court of another jurisdiction becomes delinquent under this part when the amount owed is equal to 3 months of child support payments.”

The District Court found that Jodi did not prove that Robert was delinquent in an amount equal to three months of child support payments because of the intervening January 7,1987 Stipulation and Order, which dealt with the pre-1987 delinquency and altered the 1981 Agreement. Additionally, because the terms of the 1987 oral agreement are disputed and the agreed upon amount of Robert’s child support payment is unclear, the District Court held that Jodi did not prove by a preponderance of the evidence that Robert was delinquent in an amount equal to three months of child support with regard to any child support payments due after June, 1987.

Jodi, however, argues that it does not matter whether Robert was delinquent in an amount equal to three months of child support under the January 7, 1987 Stipulation and Order, and the 1987 oral agreement; it matters only that Robert was over three months delinquent under the 1981 Agreement. We disagree and hold that Robert is not delinquent in an amount equal to three months in his child support obligation because of the intervening January 7,1987 Stipulation and Order, as well as the 1987 oral agreement, both of which altered the terms of the 1981 Agreement. To hold otherwise would result in repeated litigation with regard to modification of agreements, stipulated and approved by court order, and executed oral agreements.

Jodi further argues that even if Robert is not determined to be three months delinquent in child support payments, Robert is still subject to income deduction because of the 1989 amendments to § 40-4-204, MCA, which provide for automatic withholding of child support payments with regard to modifications of existing child support agreements. See § 40-4-204(5), MCA.

The District Court held that these 1989 amendments to § 40-4-204, MCA, were inapplicable to the facts of this case because the amendments’ effective date was January 1, 1990, nearly one month after the final decision in this matter. Jodi, however, argues that the 1989 amendments are applicable because their effective date was October 1, 1989.

The District Court relied on opinion letters issued by the Department of Social and Rehabilitation Services and the Montana Legislative Council when it found that the effective date was January 1, 1990. These letters, which have no legal effect, state that the drafters of the 1989 amendments intended the effective date to be January 1, 1990, in order to allow the child Support Enforcement Division time to plan and prepare the collection process. The opinion letters cite § 40-5-411(l)(a), MCA, to support their position, which provides that January 1,1990, is the effective date with regard to the 1989 amendments.

However, § 40-5-411(l)(a) specifically excepts § 40-4-204, MCA, from this effective date of January 1, 1990. Additionally, the enabling legislation of the 1989 amendments, Laws of Montana, Ch. 702, § 32 (1989) provides:

“Applicability. [This act] applies to child support orders and modifications of child support orders issued after September 30, 1989.”

Therefore, we hold that the effective date for the 1989 amendments of § 40-4-204, MCA, was October 1, 1989. Here, because the District Court’s Memorandum and Order on Income Deduction, Child Support and Attorney’s Fees was dated December 7, 1989 and filed December 11,1989, the 1989 amendments of § 40-4-204 are applicable, and Robert is subject to automatic income withholding.

Robert further argues that if the 1989 amendment applies, he falls within the exception provided in § 40-4-204(5)(b)(i), MCA:

“(b) Income is not subject to automatic withholding if:
“(i) the obligee or obligor demonstrates and the court finds that there is good cause not to require automatic income withholding

Robert asserts that since the 1987 oral agreement, he has consistently paid $180.00 monthly child support payments to Jodi, and this constitutes good cause not to require automatic withholding. We disagree. Because the amount agreed upon in the 1987 oral agreement is disputed by the parties and the District Court did not determine the amount, Robert’s consistent monthly payment of $180.00 does not constitute good cause not to require automatic income withholding. We therefore reverse the District Court’s Order Denying Income Deduction, and remand this case for proceedings consistent with this opinion.

2. Did the District Court err in determining that retroactive child support increases should be effective January 1, 1988, rather than January 1, 1987?

In her Motion to Increase Child Support, Jodi’s request included a retroactive increase in child support for 1987, based upon the Guidelines for Determining Child Support and Robert’s increased income for those years. The District Court denied the retroactive increase in child support for 1987, finding that the first modification in child support should be considered as of January 1, 1988, because of the January 7, 1987 Stipulation and Order. In the January 7, 1987 Stipulation and Order, Robert agreed to increase his child support and included Robert’s then current income based on his December, 1986 earnings. The District Court held that it was not a material breach of the January 7,1987 Stipulation and Order for Robert to fail to report his monthly earnings on January 1, 1987, because he had just reported his earnings the previous month and had just renegotiated his child support payment based on those earnings.

We agree with the District Court’s reasoning and hold that the court properly denied Jodi’s request for a retroactive child support increase for 1987. There remains, however, an unresolved issue regarding the child support payments from June, 1987 through December, 1987. The June, 1987 oral agreement modified the amount of child support, but Jodi and Robert disagree as to the agreed upon amount. The District Court failed to determine this amount. We therefore remand this case to the District Court to determine the modified amount of child support under the 1987 oral agreement, which will affect the child support payments from June, 1987 through December, 1987.

3. Did the District Court err in determining 1988 child support to be $235.00 per month and 1989 child support to be $255.00 per month?

Jodi additionally requested retroactive increases in child support for 1988 and 1989 in her Motion to Increase Child Support, based on the Guidelines for Determining Child Support and Robert’s income for these years. According to Jodi’s calculations, Robert should have paid $337.84 a month in 1988, and $386.12 a month in 1989. The District Court modified Jodi’s request, taking into consideration the fact that Robert had remarried following his divorce from Jodi and had two subsequent children to support. Based on this consideration, the District Court modified Jodi’s request, and increased Robert’s child support to $235.00 a month for 1988 and $255.00 a month for 1989. Considering subsequent children when determining an increase in child support contradicts Part 13 of the Guidelines for Determining Child Support (Guidelines), [227 Mont. 1]:

“when this guide is being used to reevaluate a prior child support order for modification, the position is taken that the parent’s prior child support obligations have absolute precedence over the needs of a new family.”

Jodi argues that the District Court abused its discretion when it did not apply Part 13 of the Guidelines and considered Robert’s subsequent children when determining Robert’s increase in child support.

Section 40-4-204(3)(a) and (b), MCA, provides:

“(a) Whenever a court issues or modifies an order concerning child support, the court shall determine the child support obligation by applying the standards in this section and the uniform child support guidelines adopted by the department of social and rehabilitation services pursuant to 40-5-209, unless the court finds by clear and convincing evidence that the application of the standards and guidelines is unjust to the child or to any of the parties or is inappropriate in that particular case.
“(b) If the court does not apply these standards and guidelines to determine child support, it shall state its reasons for finding that the application of such standards and guidelines is unjust to the child or a party or is inappropriate in that particular case.”

Hence, a court is not bound to apply the Guidelines if the court, by clear and convincing evidence, finds that the application of the Guidelines would have an unjust result to the parties or siblings. See also, In Re the Marriage of McFarland (Mont. 1989), [240 Mont. 209,] 783 P.2d 409, 412, 46 St.Rep. 2060, 2064. Here, the District Court found that “common sense and equity” demanded the consideration of Robert’s two subsequent children whom he must also support. Clearly the District Court did not apply the Guidelines to avoid an unjust result. Accordingly, we hold that the District Court did not abuse its discretion in considering Robert’s subsequent children, when it modified Jodi’s request for a retroactive increase in child support for 1987 and 1988.

4. Did the District Court err in awarding the appellant’s attorney fees of $1,125.00?

In Jodi’s Motion for Attorney’s Fees, Jodi requested reasonable attorney fees in the sum of $3,953.22 with regard to this action. This sum was later reduced to $3,620.72 due to errors in fee calculations. Both the 1981 Agreement and the January 7, 1987 Stipulation and Order provide that if either Jodi or Robert initiate proceedings with regard to the 1981 Agreement or Stipulation and Order, the unsuccessful party will be responsible for the attorney fees of the successful party. Additionally, § 40-4-110, MCA, provides that the court:

“may order a party to pay a reasonable amount for the cost to the other party of maintaining or defending any proceeding under chapters 1 and 4 of this title and for attorney's fees

The District Court modified Jodi’s request for attorney fees, based upon Jodi’s success in this matter and § 40-4-110, MCA, and awarded her costs and expenses of $264.87 and attorney fees of $1,125.00. Jodi argues that the District Court abused its discretion when it modified her request for attorney fees.

When reviewing a district court’s award of attorney fees, this Court determines whether substantial evidence supports the district court’s findings. In Re the Marriage of Brown (1978), 179 Mont. 417, 427, 587 P.2d 361, 367. (Citations omitted.) Here, we hold that, based upon the 1981 Agreement and the 1987 Stipulation and Order, along with § 40-4-110, MCA, the District Court did not abuse its discretion when it modified Jodi’s award of attorney fees.

Affirmed in part, and reversed and remanded in part.

JUSTICES HARRISON, SHEEHY, WEBER and HUNT concur.


author: JUSTICE WEBER JUSTICE HUNT,

text:
    WILLIAM E. KEMP, Plaintiff and Appellant, v. BIG HORN COUNTY ELECTRIC CO-OPERATIVE, a Montana Corporation, Defendant and Respondent.
    No. 89-602.
    Submitted on Briefs May 3, 1990.
    Decided Sept. 18, 1990.
    Rehearing Denied Oct. 24, 1990.
    798 P.2d 999.

      JUSITCE McDONOUGH concurred in result.
    JUSTICE HUNT filed an opinion concurring in part and disstinting in part.
    Robert C. Kelleher, Sr., Kelleher Law Office, Butte, for plaintiff and appellant.
    James E. Torske, Kronmiller & Torske, Hardin, for defendant and respondent.
   JUSTICE WEBER

delivered the Opinion of the Court.

This appeal arises from an order of the District Court, Thirteenth Judicial District, Big Horn County, Montana, granting defendant’s motion for summary judgment. Plaintiff appeals. We affirm.

The sole issue on appeal is whether the District Court erred in granting summary judgment in favor of defendant.

Big Horn County Electric Cooperative Inc. (Big Horn) contracted with Swain and Morris Construction Company (S & W) for construction of a 69 KV line between Lodge Grass, Montana, and Hardin, Montana.

Plaintiff, William Kemp, was an employee and foreman for S & W on this project. On August 28, 1986, plaintiff was injured when the cables broke on a High Ranger bucket lift in which plaintiff was riding. The bucket turned upside down and plaintiff fell ten to twelve feet to the ground. Plaintiff had a safety belt but was not wearing it at the time of the accident.

Plaintiff filed a complaint against Big Horn alleging breach of a duty to furnish a safe place of employment; breach of a duty to furnish and require safety practices; and breach of a duty to comply with various safety codes. Plaintiff later amended the complaint to allege a breach of a non-delegable duty to comply with the Montana Scaffolding Act. Defendant filed a motion for summary judgment. After consideration of memoranda, depositions and exhibits, the District Court granted summary judgment in favor of defendant, concluding that Big Horn did not retain control over the manner of work performed by S & W and had no duty in respect to plaintiff. It is from this order that plaintiff appeals.

Summary judgment is appropriate only if there are no genuine issues of material fact. See, Kelly v. Widner (1989), 236 Mont. 523, 526, 771 P.2d 142, 144:

"... a summary judgment is proper when it appears ‘that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.’ 10 Wright, Miller and Kane, Federal Practice and Procedure, section 2716, p. 643.
“Initially the burden of proof must be carried by the moving party seeking summary judgment. .. However, where the record discloses no genuine issue of material fact, the burden of proof shifts to the party opposing the motion . . . Once the burden has shifted in this fashion, the party opposing the motion is held to a standard of proof about equal to that initially imposed upon the moving party under Rule 56(c), M.R.Civ.P. . .”

The general rule of contractor liability is that an employer is not liable for the negligence of an independent contractor or its employees. Micheletto v. State (Mont. 1990), [483] 798 P.2d 989, 991, 47 St.Rep. 1740; Kemp v. Bechtel Constr. Co. (1986), 221 Mont. 519, 524, 720 P.2d 270, 274; Dvorak v. Matador Serv. Inc. (1986), 223 Mont. 98, 102, 727 P.2d 1306, 1308; Restatement (Second) of Torts § 409.

On appeal, plaintiff contends that three exceptions to this general rule apply in his case. First, plaintiff contends that Big Horn had non-delegable duties in respect to safety. Second plaintiff contends Big Horn retained control over the performance of work, creating a duty to S & W employees. Third, plaintiff contends the work was inherently dangerous, creating vicarious liability on the part of Big Horn. We will discuss each contention separately.

In Stepanek v. Kober Constr. (1981), 191 Mont. 430, 434, 625 P.2d 51, 53, we recognized that non-delegable duties may be created by contract. In addressing plaintiff’s contention on this issue, we begin by examining relevant contractual language. The District Court found, and we agree, that the contract between Big Horn, the general contractor, and S & W, the subcontractor, placed no duty on Big Horn in regard to safety. The relevant sections of the contract pursuant to Article IV, “Particular Undertakings of the Bidder,” provide:

“Section 1, Protection to Persons and Property. The Bidder [S & W] shall at all times take all reasonable precautions for the safety of employees on the work and of the public, and shall comply with all applicable provisions of Federal, State, and Municipal safety laws and building and construction codes, as well as the safety rules and regulations of the Owner [Big Horn]. All machinery and equipment and other physical hazards shall be guarded in accordance with the ‘Manual of Accident Prevention in Construction’ of the Associated General Contractors of American unless such instructions are incompatible with Federal, State, or Municipal laws or regulations. The following, provisions shall not limit the generality of the above requirements:
“f. The Project, from the commencement of work to completion, or to such earlier date or dates when the Owner [Big Horn] may take possession and control in whole or in part as hereinafter provided shall be under the charge and control of the Bidder [S & W] and during such period of control by the Bidder [S & W] all risks in connection with the construction of the Project and the materials to be used therein shall be borne by the Bidder [S & W]. The Bidder [S & W] shall make good and fully repair all injuries and damages to the Project or any portion thereof under the control of the Bidder [S & W] by reason of any Act of God or other casualty or cause whether or not the same shall have occurred by reason of the Bidder’s [S & W] negligence. The Bidder [S & W] shall hold the Owner [Big Horn] harmless from any and all claims for injuries to persons or for damage to property happening by reason of any negligence on the part of the Bidder [S & W] or any of the Bidder’s [S & W] agents or employees during the control by the Bidder [S & W] of the Project or any part thereof.”

Further, Construction Specifications, which were incorporated into the Contract at page CS-4, stated:

“4. Construction Safety Procedures
“The Contractor [S & W] will adhere to all safety practices as described by O.S.H.A. standards. Hard hat protection, eye, and hand protection are recommended. Any fines or requirements imposed by O.S.H.A., Workmen’s Compensation, or any other authorized safety agency will be strictly the responsibility of the Contractor [S & W]. Construction safety is exclusively the responsibility of the Contractor [S & W]. The Contractor [S & W] shall develop and maintain for the duration of this contract a safety program that will effectively incorporate and implement all safety provisions. The Contractor [S & W] shall appoint an employee who is qualified and authorized to supervise and enforce compliance with the safety program.”

Based on the language of the contract, the District Court concluded that the contract placed the responsibility for implementation of the safety program and job safety on S & W. Although plaintiff contends that certain written policies of Big Horn imposed safety duties upon Big Horn, we agree with the District Court that these policies are irrelevant since they are not a part of the contract. Plaintiff’s contention that the Montana Scaffolding Act placed duties upon Big Horn is likewise misplaced since S & W assumed the safety duties.

Plaintiff also contends that Big Horn had a non-delegable duty to provide him a safe place to work, citing the “Safe Place to Work Statute,” § 50-71-201, MCA. This statute requires the general contractor to exercise reasonable care in its establishment of the safety program. Kemp v. Bechtel Constr. Co., 720 P.2d at 276. In the present case the contract provided for safety precautions which, pursuant to the above analysis were totally assumed by S & W. Further, exhibits and deposition testimony demonstrated that at the preconstruction conference S & W’s safety program was discussed. Plaintiff has failed to present any facts indicating that Big Horn failed in its duty to establish a safety program.

The contract provisions in the present case are directly comparable to the contract provisions regarding safety responsibilities in Micheletto. In that case as well as in the present case, the contract did not contain any provisions requiring the general contractor to be responsible for either initiating, maintaining or supervising safety programs as was present in Stepanek. As a result, in Micheletto, this Court agreed that a non-delegable duty based on contract was not assumed by the State and held that the District Court correctly concluded that the State as a general contractor did not have a non-delegable contractual duty to supervise the safety of the trenching operations by the Telephone Company. In a similar manner, in the present case, we conclude that the plaintiff has failed to present any genuine issues of material fact to support his contention that Big Horn had a non-delegable contractual duty to the plaintiff to supervise the operation of S & W, or that Big Horn breached a duty under § 50-71-201, MCA.

As a second contention, plaintiff urges that Big Horn retained control of the work performed by S & W, triggering an exception to the general rule of non-liability. Plaintiff’s contention in regard to control is premised upon Restatement (Second) of Torts § 414, which provides:

Section 414. Negligence in Exercising Control Retained by Employer.

“One who entrusts work to an independent contractor, but who retains the control of any part of the work, is subject to liability for physical harm to others for whose safety the employer owes a duty to exercise reasonable care, which is caused by his failure to exercise his control with reasonable care."

In support of his contention that Big Horn reserved control of S & W’s work, plaintiff relies on a contract provision from Article II, “Construction,” Section 6, “Supervision and Inspection,” which provides:

“c. The manner of construction of the Project, and all materials and equipment therein, shall be subject to the inspection, tests, and approval of the Owner . . .”

However, the contract language stating that the “manner of construction is subject to approval by the owner” does not create control of that part of the work. Comment (c) of § 414 describes the type of control contemplated by § 414:

“c. In order for the rule stated in this Section to apply, the employer must have retained at least some degree of control over the manner in which the work is done. It is not enough that he has merely a general right to order the work stopped or resumed, to inspect its progress or to receive reports, to make suggestions or recommendations which need not necessarily be followed, or to prescribe alterations and deviations. Such a general right is usually reserved to employers, but it does not mean that the contractor is controlled as to his methods of work, or as to operative detail. There must be such a retention of a right of supervision that the contractor is not entirely free to do the work in his own way.”

We conclude that the issue of control on the part of Big Horn is actually determined and controlled under our cases of Kemp v. Bechtel Constr. Co., and Micheletto. As we pointed out in Micheletto, with regard to control by the general contractor:

“In general we conclude that before liability is found on the basis of control by the general contractor, there must be a clear contractual provision which establishes that the general contractor has assumed the responsibility for initiating, maintaining and supervising safety precautions as was present in the Stepanek contract.”

Micheletto, at 994. In a manner similar to both Kemp v. Bechtel Constr. Co. and Micheletto, we conclude that in the present case, Big Horn had properly provided appropriate safety precautions in its contract with S & W. We further emphasize that the contractual provisions in this case contain no specific provision which obligates Big Horn to be responsible in any manner for initiating, maintaining or supervising safety precautions and programs as was contained in Stepanek and referred to in both of the companion cases. We conclude here that Big Horn complied with its duty of reasonable care with regard to safety procedures. We hold that Big Horn complied with all contractual duties of reasonable care required under the contract and statutes, and that Big Horn did not negligently exercise control over the operations of S & W in the course of which the plaintiff was injured.

Plaintiff next contends that in the present case the work was inherently dangerous, creating vicarious liability on the part of Big Horn. We discussed the inherently dangerous exception at length in Kemp v. Bechtel Constr. Co., noting § 416 and § 427, Restatement (Second) of Torts, which provide:

Section 416. Work Dangerous in Absence of Special Precautions.
“One who employs an independent contractor to do work which the employer should recognize as likely to create during its progress a peculiar risk of physical harm to others unless special precautions are taken, is subject to liability for physical harm caused to them by the failure of the contractor to exercise reasonable care to take such precautions, even though the employer has provided for such precautions in the contract or otherwise.
“Section 427. Negligence as to Danger Inherent in the Work.
“One who employs an independent contractor to do work involving a special danger to others which the employer knows or has reason to know to be inherent in or normal to the work, or which he contemplates or has reason to contemplate when making the contract, is subject to liability for physical harm caused to such others by the contractor’s failure to take reasonable precautions against such danger.”

In Kemp v. Bechtel Constr. Co., trenching was performed without the use of a trench box. The trench caved in, resulting in serious injury to a digger. In discussing plaintiff’s contention that trenching is inherently dangerous, we stated:

“In order for § 416 to apply the work must present ‘a peculiar risk ... unless special precautions are taken.’ Section 427 is only applicable to work ‘involving a special danger . . . inherent in . . . the work.’ Here, the type of trenching contemplated in the subcontract presented no peculiar risk or inherent danger. Rather, the risk or danger arose out of a failure to use standard precautions.”

Kemp, 720 P.2d at 275.

In the recent case oí Micheletto, also a case of a trench cave-in, this Court followed the analysis and holding of Kemp v. Bechtel Constr. Co. and concluded that trenching is not an inherently dangerous activity. Micheletto at 993. In a similar manner, in the present case, the use of the bucket on the High Ranger bucket lift was dangerous to the plaintiff because a safety belt was not used. Had this standard precaution been used, there would have been no extraordinary risk as the result of the use of the High Ranger bucket lift. In this case, the failure to attach the safety belt in the use of the equipment is comparable to the failure to use trench box or other safety precautions in both Kemp v. Bechtel Constr. Co. and Micheletto. We conclude that under the facts in the present case, the work was not inherently dangerous.

We conclude that plaintiff failed to present any facts which would create a genuine issue of material fact in regard to the liability of Big Horn. Accordingly, we affirm the District Court’s grant of summary judgment in favor of Big Horn.

Affirmed.

CHIEF JUSTICE TURNAGE and JUSTICES HARRISON, BARZ and GULBRANDSON, retired, sitting for JUSTICE SHEEHY, concur.

JUSTICE McDONOUGH concurs in the result of the foregoing opinion.

JUSTICE HUNT,

concurring in part and dissenting in part:

I concur with the portions of the Majority Opinion dealing with nondelegable duties based on contract and control. However, I dissent from the Majority’s analysis regarding inherently dangerous activity.

The Majority holds that the use of an aerial lift bucket is not an inherently dangerous activity because standard precautions may be implemented to prevent the risks involved in using the bucket. However, for the reasons I pointed out in my dissents to Kemp v. Bechtel Constr. Co., 221 Mont. 519, 528-34, 720 P.2d 270, 276-80, (1986) and Micheletto v. State, [483] 798 P.2d 998-990 (Mont. 1990) [47 St.Rep. 1740], I disagree. The ability to lessen the dangers normally found in inherently dangerous activity through the use of ordinary safeguards does not change the basic character of the activity. If the nature of the activity is inherently dangerous, it remains inherently dangerous whether or not standard precautions may be taken to lessen the dangers normal to the activity.

Because the use of the aerial lift bucket constituted an inherently dangerous activity, defendant, as employer of the contracting firm, retained a nondelegable duty to furnish plaintiff with a safe place to work. Restatement (Second) of Torts §§ 416 and 427 (1977). Plaintiff, in his complaint and in his deposition, maintained that defendant failed to provide a safe place to work because the aerial lift bucket was not equipped with standard safety devices to which he could attach his safety belt. By so alleging and testifying, plaintiff raised a material question of fact. He should be allowed to take his case to the jury.

I would reverse the District Court on this issue.


author: JUSTICE WEBER

text:
    ROBERT B. FRANKLIN, Plaintiff and Respondent, v. A. WESLEY SWENSON, DEFENDANT AND APPELLANT.
    No. 90-169.
    Submitted on Briefs Aug. 9, 1990.
    Decided Sept. 11, 1990
    798 P.2d 122.

      Patrick F. Flaherty, Flaherty & Winner, Great Falls, for defendant and appellant.
    Joan E. Cook, Miller & Cook, Great Falls, for plaintiff and respondent.
   JUSTICE WEBER

delivered the Opinion of the Court.

Defendant’s appeal from Justice Court to the District Court of the Eighth Judicial District, Cascade County, was dismissed on the grounds that the undertaking filed failed to meet the requirements of either §§ 25-33-201 or 25-33-205, MCA. From that decision, defendant appeals to this Court. We reverse.

The sole issue for our review is whether the District Court properly dismissed Swenson’s appeal from Justice Court?

Plaintiff, Robert Franklin (Franklin), filed a complaint in Cascade County Justice Court alleging that defendant, Wesley Swenson (Swenson), negligently prepared Franklin’s 1987 Federal and State Income Tax returns. The Justice Court entered judgment against Swenson for taxes and accrued interest in the sum of $2,015.50 ($1,977 + costs of $38.50), and attorney fees of $600.

Swenson filed a notice of appeal and demand for jury trial to the District Court. He then filed an affidavit and posting of property bond as security for appeal, promising to sell his home, and from the resulting equity pay to Franklin the judgment and associated costs should Franklin again prevail in the District Court. Swenson filed a $500 undertaking for costs on appeal executed by Western Surety Company as surety.

Swenson also filed with the Clerk of Court a one year Certificate of Deposit (CD) with a face value of $2,287.14. The CD was in the names of Arden W. or Romayne E. Swenson as joint tenants with right of survivorship. Defendant executed an assignment of the CD to the Clerk of Court. Romayne E. Swenson did not execute such a document. The Bank acknowledged the assignment of the CD.

Franklin moved to dismiss the appeal arguing Swenson’s undertaking was defective due to a lack of the requisite sureties. Ahearing was held on Franklin’s motion and the District Court dismissed the appeal on the grounds that Swenson failed to comply with § 25-33-201, MCA, or in the alternative, § 25-33-205, MCA. From that decision, Swenson appeals to this Court.

Did the District Court properly dismiss Swenson’s appeal from Justice Court?

The District Court concluded that Swenson failed to comply with either § 25-33-201, MCA, or § 25-33-205, MCA. Section 25-33-201, MCA, provides that an undertaking must be filed with “two or more sureties, in a sum equal to twice the amount of the judgment”. Section 25-33-205, MCA, provides for the deposit of money in lieu of undertaking and states:

“Whenever an undertaking is required on appeal by the provisions of this chapter, a deposit in the court below of the amount of the judgment appealed from plus $300. . .”

The District Court concluded that since Swenson filed with only one surety, the alternative procedure provided by § 25-33-205, MCA, applied. However, the District Court also concluded that Swenson failed to comply with the alternative procedure. It concluded that the CD deposited with the Clerk of Court was not properly assigned because both joint tenants did not execute an assignment. It further concluded that the amount deposited with the Clerk of Court was insufficient.

Section 25-33-205, MCA, requires a deposit in the amount of the judgment ($2,015.50) plus $300 ($2,315.50). The District Court held that the CD would have had to have been in the name of A. Wesley Swenson alone or both joint tenants should have executed assignments. The District Court further held that the $500 cost bond filed by Swenson was not in an amount sufficient to meet the requirements of § 25-33-201, MCA, nor was it filed with two sureties.

Swenson maintains that substantial compliance with the statute is sufficient to perfect the appeal from the Justice Court to the District Court. He argues that under § 25-33-205, MCA, his deposit was short only $28.36. (Statutory amount of $2,315.50 less face value of CD of $2,287.14 equals $28.36). He urges that the true measure of the CD is the “cash” value rather than the “face” value. The cash value of the CD at the date of assignment was $2,475.83, which exceeded the required $2,315.50. Swenson further contends that his assignment of the CD was valid. He argues that one joint tenant on a CD can transfer the CD without consent of the other joint tenant.

Franklin maintains that the CD was defective because it was not in the correct amount and because Romayne Swenson did not execute an assignment of her interest. He further maintains that the $500 bond is statutorily insufficient because it was not signed by two sureties.

The purpose for requiring an undertaking is for the preservation of the rights of the litigants as established by the justice court. An undertaking on appeal in “substantial compliance” with the statute clothes the District Court with jurisdiction. State ex rel. Gregory v. District Court (1930), 86 Mont. 396, 284 P. 537; Adams v. Crismore (1984), 211 Mont. 245, 683 P.2d 497. When the -undertaking is insufficient a new one may be filed, and the appeal saved. “Insufficient” means merely defective and not void. A “void” undertaking is equivalent to no undertaking. An ambiguous undertaking was declared void in Pirrie v. Moule (1905), 33 Mont. 1, 6, 81 P. 390, 392. If the undertaking filed is void the appeal must fail for lack of jurisdiction. Goldsmith v. Lane (1987), 226 Mont. 341, 735 P.2d 306.

Because Swenson did not file with two sureties, § 25-33-205, MCA, controls. Under that statute Swenson’s deposit of money in lieu of the undertaking was only $28.36 short. We conclude that Swenson’s undertaking was merely insufficient and in substantial compliance with the statute. We hold that the District Court erred in dismissing Swenson’s appeal from Justice Court. We further hold that on remand, Swenson shall be allowed to perfect his undertaking by depositing the correct amount ($2,315.50) with the Clerk of Court. The Clerk shall release the CD and assignment so that Swenson can cash the CD by September 21, 1990, according to its terms. Cash in the amount of $2,315.50 shall be deposited with the Clerk of Court. Should Swenson fail to so deposit the cash proceeds on or before September 21, 1990, the appeal shall be dismissed.

Reversed and remanded.

JUSTICES BARZ, McDONOUGH, HUNT and SHEEHY concur.