author: CHIEF JUSTICE TURNAGE JUSTICE LEAPHART, JUSTICE TRIEWEILER

text:
    ANA MARIA TORRES, Plaintiff and Appellant, v. STATE OF MONTANA, Defendant and Respondent.
    No. 94-505.
    Submitted July 6, 1995.
    Rehearing Denied October 19, 1995.
    Decided August 24, 1995.
    52 St.Rep. 833.
    902 P.2d 999.
    273 Mont. 83.

      For Appellant: Michael D. Cok, Cok, Wheat & Brown, Bozeman; Stephen C. Pohl, Attorney at Law, Bozeman.
    For Respondent: Steven J. Harman and Michael P. Heringer, Brown, Gerbase, Cebull, Fulton, Harman & Ross, P.C., Billings.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Ana Maria Torres appeals an order of the District Court for the Eighteenth Judicial District, Gallatin County, dismissing her negligence complaint against the State of Montana. The court granted summary, judgment in favor of the State, ruling that the exclusive remedy provision of the Occupational Disease Act barred Torres from bringing suit against the State after she had successfully pursued an occupational injury claim against it. We affirm.

The issue is whether the court erred in entering summary judgment.

Torres was admitted to Montana State University (MSU) in 1985 to pursue her doctorate of philosophy in chemistry. She continued her studies until February of 1988, when she withdrew because of failing health.

While Torres pursued her doctorate degree, she was also employed by MSU as a teaching and research assistant. She was paid $6,500 per year and received $360 per quarter in out-of-state fee waivers. She was provided with workers’ compensation coverage.

Torres claims that beginning in the winter quarter of 1988, she began to suffer medical problems as a result of exposure to toxic substances. All of her claimed exposure to toxic substances occurred while she was in Gaines Hall on the MSU campus as either a student or an employee.

In February 1992, Torres filed a claim for workers’ compensation benefits, asserting that her medical problems were caused by her work-related activities for MSU. In her claim, Torres stated she suffered organic brain damage while working as a teaching and research assistant at Gaines Hall during the period of September 1985 to February 1988. She indicated that she worked five days per week, eight hours per day. She claimed she was injured over time and therefore suffered an occupational disease as a result of working at MSU.

The State initially denied Torres’s claim for compensation. However, on July 2,1993, the State and Torres entered a $47,500 disputed liability settlement under the Occupational Disease Act. The settlement was approved by order of the Employment Relations Division of the Department of Labor & Industry.

Torres filed this suit on August 30, 1993. In her complaint, she alleged that she sustained injuries as a result of her exposure to toxic substances while attending the MSU College of Graduate Studies as a student between 1985 and 1988.

The State moved for summary judgment in May 1994. After briefing and a hearing, the court issued its order and memorandum granting the motion. The court reasoned:

[Torres] now claims that the toxic exposure occurred primarily as a student. The percentages of exposure however are not important. The act does not speak to the applicability of the exclusive remedy where the injury claim arose from both work and non-work related activities. The fact remains that [Torres], by her own representations before the Workers’ Compensation Division and in her present affidavit, claimed that she was injured in the course and scope of her employment when she applied for workers’ compensation or occupational disease benefits. She negotiated and was paid consideration based upon this claim. As a result, the exclusive remedy provision bars her from suing the State of Montana at this time.

From this determination, Torres appeals.

Did the court err in entering summary judgment?

This Court’s standard of review of a summary judgment is the same as that initially used by the district court and as set forth at Rule 56(c), M.R.Civ.P. Minnie v. City of Roundup (1993), 257 Mont. 429, 431, 849 P.2d 212, 214. This Court must determine whether there is a genuine issue of material fact and whether the State is entitled to judgment as a matter of law, based upon the facts set forth in the pleadings and in the depositions, answers to interrogatories and requests for admissions, and affidavits in the record.

When a worker is injured on the job, his or her rights are governed by the statutory scheme of the Workers’ Compensation Act or the Occupational Disease Act. Both acts provide that the remedies thereunder are exclusive. The exclusivity provision of the Workers’ Compensation Act is codified at § 39-71-411, MCA. The only exception to the exclusive remedy provision of the Workers’ Compensation Act is set forth at § 39-71-413, MCA. That exception relates to intentional or malicious acts or omissions by the employer or a co-employee.

Because Torres settled her claim for benefits under the Occupational Disease Act, the exclusivity provision of that Act applies here and was relied upon by the District Court. It states:

The right to recover compensation pursuant to the provisions of this chapter for occupational diseases sustained by an employee and arising out of and in the course of employment, whether resulting in death or not, is the exclusive remedy therefor against an employer who is properly insured under the Workers’ Compensation Act and the Occupational Disease Act of Montana.

Section 39-72-305(1), MCA.

In his well-known treatise, Professor Larson discusses the policy reasons behind the exclusive remedy provision in workers’ compensation law:

Once a workmen’s compensation act has become applicable either through compulsion or election, it affords the exclusive remedy for the injury by the employee or his dependents against the employer and insurance carrier. This is part of the quid pro quo in which the sacrifices and gains of employees and employers are to some extent put in balance, for, while the employer assumes a new liability without fault, he is relieved of the prospect of large damage verdicts.

2A Larson’s Workmen’s Compensation Law, § 65.11 (1995). This Court has made a similar policy explanation:

The purpose of the Workers’ Compensation Act is to protect both the employer and the employee by incorporating a quid pro quo for negligent acts by the employer. The employer is given immunity from suit by an employee who is injured on the job in return for relinquishing his common law defenses. The employee is assured of compensation for his injuries, but foregoes legal recourse against his employer.

Sitzman v. Schumaker (1986), 221 Mont. 304, 307-08, 718 P.2d 657, 659.

Torres’s position in this action is that she became ill because of her exposure to chemicals during the fifty to sixty hours she spent each week in the chemistry laboratory as a student in pursuit of her degree. She contends that the exclusive remedy provisions do not apply in this case because she was not injured in the course and scope of her employment. She uses this argument to distinguish this case from cases concerning the dual capacity doctrine, which both parties describe as universally disfavored. Torres admits that the dual capacity doctrine was rejected by this Court in Herron v. Pack and Co. (1985), 217 Mont. 429, 705 P.2d 587.

Torres maintains that the District Court’s order expands the exclusive remedy doctrine so that an injured person could be prevented from recovering damages under both workers’ compensation and in an action for negligence. She sets forth, as an example, a hypothetical of a convenience store employee who, on his day off, slips and falls while shopping at the convenience store.

Torres’s hypothetical is not on point. Unlike the worker in her hypothetical, Torres concedes that her injuries may have been sustained at least in part within the scope and course of her employment. Moreover, the hypothetical leaves out the critical factor of a previous settlement between the parties, under workers’ compensation law, for the injury at issue.

The injuries which Torres now claims resulted in large part from toxic exposure while she was a student at Gaines Hall are the very same injuries for which she filed and settled her claim for workers’ compensation. For purposes of this action, Torres states that her disease arose from a hazard to which she was exposed outside of employment. However, when she filed her claim for workers’ compensation benefits, she did not allege that any portion of her disease was caused by exposure other than through her employment. Instead, she claimed that her disease arose out of and in the course of her employment.

If Torres had, at the time she filed her claim for workers’ compensation, revealed what she is contending now — i.e., that her exposure to the chemicals occurred primarily outside the employment relationship — then it appears she would not have been entitled to any benefits under the Occupational Disease Act. See § 39-72-408(4), MCA. She could then have pursued a negligence cause of action for her injuries.

Torres chose to pursue a remedy under the Occupational Disease Act and to enter a settlement under that Act. She has obtained a remedy for her injury — the $47,500 settlement under the Occupational Disease Act.

At oral argument, Torres took the position that a jury ought to be allowed to apportion the causation of her injuries between that which occurred in the course and scope of her employment and that which occurred outside of her employment. However, she chose not to argue dual causation in her claim for workers’ compensation, and she did not raise the issue of apportionment in negotiating her workers’ compensation settlement.

Torres further claims that the State failed to introduce any evidence to disprove her assertions of fact as to the cause of her injury and therefore failed to meet its burden of proof for summary judgment. She denies the District Court’s conclusion that she has conceded that her injuries resulted, at least in part, from her employment at MSU. She argues that no factual determination has been made on that issue, and that it is a material issue of fact.

There is no issue of material fact. Torres concedes that she has accepted a settlement under the Occupational Disease Act from the State for the injury of which she here complains.

There are several exceptions to the necessity for affirmative proof of the defense [that the plaintiff was an employee entitled only to workers’ compensation]. One occurs when the employer-employee relation is shown in plaintiff’s complaint. Another occurs when plaintiff admits that his injuries arose out of his employment with the defendant. And, of course, the most reliable exception of all is the actual acceptance of compensation benefits. Note that the plaintiff cannot escape the consequences of this action by declaring that he was accepting the benefits “without prejudice” to his negligence claim.

2ALarson’s Workmen’s Compensation Law, § 65.12 (1995) (emphasis added). “[B]y accepting the benefits of the workmen’s compensation law [the employee] is foreclosed from now asserting that his injuries did not arise in the course of his employment.” Hensley v. United States (D.Mont. 1968), 279 F.Supp. 548, 551.

The operative fact in establishing exclusiveness is that of actual coverage. ...
... [A] valid and unappealed award for compensation ... is res judicata on the issue of coverage, and is binding on the court in which the employee attempts to bring his common-law suit.

2A Larson’s Workmen’s Compensation Law, § 65.14 (1995).

It is not necessary, as Torres contends, to rely upon a theory of estoppel to reach our conclusion. The controlling legal theory in this case is the exclusive remedy provision of the law of workers’ compensation.

In her reply brief, Torres voices a new argument, that the State’s interpretation of the exclusive remedy provision violates her right to equal protection by classifying victims of negligence according to whether the negligent tortfeasor is the victim’s employer. Because she did not raise this argument before the District Court or in her initial brief on appeal, we do not consider it. See Rule 23(c), M.R.App.P.; Denend v. Bradford Roofing & Insulation (1985), 218 Mont. 505, 509, 710 P.2d 61, 63-64.

We hold that, as a matter of law, Torres is not entitled to bring this action because she has already been accorded a remedy for her injury under the Occupational Disease Act. We therefore affirm the decision of the District Court granting summary judgment to the State of Montana.

JUSTICES GRAY, NELSON and WEBER concur.

JUSTICE LEAPHART,

dissenting.

I respectfully dissent. The Court has concluded that, since Torres filed and settled a claim under the Occupational Disease Act, any further tort claim is precluded by the exclusivity provisions of Section 39-72-305(1), MCA. Section 39-72-305(1), MCA, provides as follows:

The right to recover compensation pursuant to the provisions of this chapter for occupational diseases sustained by an employee and arising out of and in the course of employment, whether resulting in death or not, is the exclusive remedy therefor against the employer who is properly insured under the Workers’ Compensation Act and the Occupational Disease Act of Montana. [Emphasis added.]

In my view, the Court has ignored the fact that both Torres and the University wear more than one hat. In the context of her occupational disease claim, Torres was wearing the hat of an employee asserting a claim against her employer, Montana State University (MSU). In the context of her present tort claim, she wears the hat of a student asserting a claim against her educational institution. Section 39-72-305(1), MCA, by its own terms, provides an employee with an “exclusive remedy therefor against the employer.” As we acknowledged in Ridenour v. Equity Supply Co. (1983), 204 Mont. 473, 478, 665 P.2d 783, 786, “[t]he legislature only intended that an employee not have a common law action against his employer.” Having settled her occupational disease claim, Torres, as employee, is clearly precluded from asserting any further claims against MSU in its capacity as her employer. The statute does not, however, preclude Torres, in her role as student, from asserting a claim against MSU as her educational institution.

Torres should be given the opportunity, difficult as it may be, to present whatever evidence she can marshall to prove that she was exposed to toxic chemicals while acting as a student as opposed to her exposure during the course of her employment. She would also have the task of apportioning the damages resulting from these two distinct chemical exposures. As daunting as this burden may be, it is a matter of proof which should not be foreclosed by summary judgment.

The fact that Torres previously claimed she was exposed to chemicals during the course of her employment is not inconsistent with her present contention that she was also exposed while a student, outside the scope of her employment. The fact that the law provides that her occupational disease remedy is exclusive as against her employer does not foreclose a claim against non-employers, such as her educational institution.

I would reverse the entry of summary judgment and allow Torres to proceed to trial.

JUSTICE HUNT joins in the foregoing dissent of JUSTICE LEAPHART.

JUSTICE TRIEWEILER

dissenting.

I dissent from the majority opinion.

With no evidence from which the cause of Ana Torres’ disease can be apportioned between the time she spent at work and the time she spent in the chemistry lab as a student, the majority simply concludes that because she made a prior claim for occupational disease benefits, she is barred from now claiming that there was another equally significant or greater cause for her condition. Without so stating, the majority opinion bars Torres’ claim based on a theory of estoppel. However, estoppel has never been asserted as a defense in this case, and therefore, is not applicable. Furthermore, even if it had been pled, there is no evidence in the current state of the record which would support the elements of any form of estoppel.

The majority opinion is devoid of any recognition that there may be concurrent causes for the same injury and avoids any analysis of the Occupational Disease Act’s exclusivity provision, as applied to the facts in this case.

Distilled to its essence, the majority’s conclusion is simply that, “you were paid some money before. We’re not going to let you have any more.” This may satisfy the majority’s need to punish Torres for what it construes as inconsistent positions. However, in terms of legal analysis of the issues presented to this court, the majority opinion leaves a lot to be desired.

The issue in this case is whether Torres’ claim is barred by the exclusivity provision of Montana’s Occupational Disease Act. It is important to keep in mind that what she may have believed or said on some other occasion is a different issue and is not determinative of the first issue. However, because of the majority’s preoccupation with what it concludes was Torres’ inconsistent representation on an earlier occasion, it is necessary to analyze this case on two levels.

1. Is Torres’ claim barred by the exclusivity provision of the Occupational Disease Act?

2. What is the effect of Torres’ prior claim that her disability was caused or contributed to by the conditions of her employment?

ISSUE 1

Montana’s Occupational Disease Act is found at §§ 39-72-101 to -714, MCA. The exclusive remedy provision in the Occupational Disease Act is found at § 39-72-305(1), MCA, and provides:

The right to recover compensation pursuant to the provisions of this chapter for occupational diseases sustained by an employee and arising out of and in the course of employment, whether resulting in death or not, is the exclusive remedy therefor against an employer who is properly insured under the Workers’ Compensation Act and the Occupational Disease Act of Montana.

(Emphasis added.)

Therefore, by the plain language of the Occupational Disease Act, the exclusive remedy provision only pertains to those diseases which “arise out of’ a person’s employment. Section 39-72-408, MCA, specifically states that certain diseases do not “arise out of’ employment. It states that:

Occupational diseases shall be deemed to arise out of the employment only if:
....
(4) the disease does not come from a hazard to which workmen would have been equally exposed outside of the employment....

In this case, there is very little evidence. There is the affidavit of the plaintiff and an affidavit from a college administrator. However, plaintiff’s affidavit is uncontroverted to the effect that she spent at least three times as much time in Gaines Hall as a student (“outside of her employment”) as she did as a teaching assistant.

If Torres is able to prove what she alleges, and if some causal connection between chemicals and the atmosphere of Gaines Hall and her present disability can be established, then she has proven that her disease was caused by a hazard “outside of the employment,” and therefore, that it did not “arise out of’ her employment, and therefore, her claim is not barred by the exclusive remedy provision found at § 39-72-305, MCA.

The majority is very much concerned that plaintiff has previously received a portion of the disability benefits to which she would have been entitled had her disease been caused during her employment. However, an occupational disease, by definition, occurs over a prolonged period of time, and unlike an industrial injury, may be caused from conditions that existed not only in the workplace, but elsewhere. That is why the Occupational Disease Act, unlike the Workers’ Compensation Act, specifically provides for apportionment of disability benefits based on the percent of a given disease or disability that is attributable to exposure that occurs during the course of employment. Section 39-72-706(1), MCA, specifically provides in relevant part that:

[I]f disability ... from any other cause not itself compensable is aggravated, prolonged, accelerated, or in any way contributed to by an occupational disease, the compensation payable under this chapter must be reduced and limited to such proportion only of the compensation that would be payable if the occupational disease were the sole cause of the disability... as such occupational disease as a causative factor bears to all the causes of such disability ....

In other words, under the Occupational Disease Act, a claimant is entitled to recover only that portion of his or her disability benefits which represents the portion of his or her disability that arose out of employment. The Act specifically allows for an employer to disclaim liability for any portion of a person’s disability which is unrelated to employment. Therefore, based upon the previously mentioned statutes, that portion of disability would not be covered by the exclusive remedy provision found at § 39-72-305, MCA.

There are many issues to be resolved in this case. First, the fact finder needs to decide whether the plaintiff was injured by chemical exposure at Gaines Hall. If so, the fact finder needs to decide what portion of exposure occurred during the course of her employment, as opposed to the time during which she was a student, and whether, based on that determination, her claim is barred by the exclusive remedy provision. However, none of these issues can be resolved consistent with the statutory framework of the Occupational Disease Act based on the uncontroverted affidavit of the plaintiff.

ISSUE 2

The statutory framework within which to decide whether the exclusive remedy provision applies is not discussed in the majority opinion. Its discussion is limited to the fact that on a previous occasion the plaintiff made a claim for occupational disease benefits based on her contention that her disability was caused or contributed to by chemical exposure during the course of her employment. The second question, then, is what is the effect of her prior claim. That issue involves two sub-questions.

First, was her prior claim inconsistent with her current claim. I agree with Justice Leaphart that it was not. Because of the nature of an occupational disease, as opposed to an industrial injury, an occupational disease can, as the Occupational Disease Act recognizes, occur over time and at more than one location. Therefore, it is not at all inconsistent with Torres’ current claim that her disease may have been contributed to during the course of her employment. Neither is it unreasonable at the outset of litigation before facts are fully developed to allege that a condition is attributable to more than one cause, and then let causation be more clearly established as a result of discovery and preparation. Ideally, the plaintiff should have been able to plead alternate claims in the same suit. However, that was not possible because of the exclusive jurisdiction of the Workers’ Compensation Court for occupational disease claims, and the fact that third-party claims have to be brought in the district court.

Furthermore, it must be kept in mind that had the State agreed that plaintiff’s occupational disease arose out of and was related to her employment, she was entitled to several times the amount of benefits she actually received. Following the logic of the majority opinion, why is the State not barred from defending this claim on the basis of her previous claim when it saved more than she received in the previous claim by denying that her disease was work related?

The second sub-question is, if Tbrres’ prior claim is deemed inconsistent with her current claim, then what is the effect of her prior claim?

Judicial estoppel and statutory estoppel do not apply because her prior claim was not made as part of any judicial proceeding.

Equitable estoppel does not apply because it has not been pled, it has not been argued on appeal, and even if it had been pled and argued on appeal, there is a total absence of proof of its several elements. Furthermore, there is a substantial question about whether the State of Montana has standing to raise the defense of equitable estoppel.

At most, plaintiff’s prior claim that her disability was caused during the course of her employment is an arguably inconsistent statement which can be presented to the fact finder for consideration in combination with her current contention that the majority of her exposure occurred outside the course of her employment. Her prior claim can be used to prove the truth of what was said on the prior occasion, or may be offered for impeachment. However, it does not establish as a matter of law that what she claims at this time, even if inconsistent, is untrue. Likewise, the State Fund’s prior position that her disability was not caused by her employment is arguably inconsistent with its current position that her claim is barred by the exclusive remedy provision of the Occupational Disease Act. Both of these prior positions are simply evidence to submit to the fact finder for consideration when it resolves the issues of whether plaintiff’s disease was caused by chemicals to which she was exposed at Gaines Hall; and if so, whether her greater exposure occurred as an employee or as a student.

The majority is too preoccupied by the fact that Torres received some benefit from her settlement with the State Fund based on her contention that her disability was caused during the course of her employment. The majority, on the other hand, has no problem with the fact that the State Fund probably saved more than it paid Torres by denying that her condition was caused during the course of her employment. The majority’s concern is unjustified. Even if Torres succeeds in this claim, she would receive no double recovery. The State is entitled to an offset from any recovery received in this case for the amount paid by the State Fund pursuant to Torres’ previous claim.

For these reasons, I dissent from the majority opinion. I would reverse the summary judgment of the District Court and remand this case to the District Court for resolution of the factual issues raised by Torres’ complaint.


source: Caselaw Access Project

author: CHIEF JUSTICE TURNAGE

license: Public Domain

text:
    MOLERWAY FREIGHT LINES, INC., Plaintiff and Appellant, v. RITE-LINE TRANSPORTATION SERVICES, INC., Defendant and Respondent.
    No. 95-114.
    Submitted on Briefs July 6, 1995.
    Decided August 24, 1995.
    52 St.Rep. 839.
    902 P.2d 9.
    273 Mont. 95.

      For Appellant: W. Anderson Forsythe, Moulton, Bellingham, Longo and Mather, PC., Billings.
    For Respondent: James C. Bartlett, Hash, O’Brien and Bartlett, Kalispell.
   CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Molerway Freight Lines, Inc. (Molerway), appeals the decision of the Fourth Judicial District Court, Missoula County, enforcing a contract in favor of Rite-Line Transportation Services, Inc. (Rite-Line). We affirm.

We find the following issues, as rephrased by this Court, dispositive on appeal:

1. Did the District Court err in admitting parol evidence to determine the intent of the parties to the Buy-Sell Agreement?

2. Did the District Court err in determining that the Montana Public Service Commission (PSC) “approved” the transfer of Montana Intrastate Certificate of Public Convenience and Necessity No. 1136 (Certificate No. 1136) pursuant to the terms of the Buy-Sell Agreement?

3. Did the District Court err in determining that Molerway had waived the condition of PSC approval of Certificate No. 1136?

Molerway and Rite-Line are motor carriers operating intrastate trucking businesses in Montana. Intrastate trucking is regulated by the PSC. The PSC issues Montana Intrastate Certificates of Public Convenience and Necessity by which motor carriers are allowed to establish routes within Montana. Certificates can only be sold or transferred with PSC approval.

Rite-Line owned Certificate No. 1136 which authorized it to operate certain routes within the State of Montana. Molerway, a direct competitor of Rite-Line, sought to obtain Certificate No. 1136. Following negotiations, Molerway and Rite-Line agreed upon a purchase price of $150,000. Molerway’s attorney drafted a Buy-Sell Agreement. On February 13, 1991, Molerway and Rite-Line officials signed the Buy-Sell Agreement setting forth the terms of the transaction. Under the agreement, Molerway was required to pay $30,000 down and monthly payments of $5,427.27 until the $150,000 was paid off. The parties also executed a lease of Certificate No. 1136, allowing Molerway to take immediate possession of the certificate and ensuring that there was no interruption in carrier service.

The Buy-Sell Agreement was expressly conditioned on the PSC’s approval of the transfer. The Buy-Sell Agreement provided, in part:

In the event the transfer is not approved and approval cannot be obtained within a reasonable length of time after hearing on the application, then this Agreement shall be considered null and void, and any funds received by Seller for payment of the purchase price shall be refunded to the Buyer.

Following execution of the Buy-Sell Agreement, the parties applied to the PSC for approval of the transfer of the certificate.

On March 15, 1991, the PSC approved the lease of the certificate. At that time, representatives of the PSC indicated that portions of Certificate No. 1136 which were duplicative of other routes already covered in Molerway’s other certificates would be cancelled.

Both parties feared that the PSC’s cancellation of duplicate authorities would jeopardize the Buy-Sell Agreement. Rite-Line had a security interest in Certificate No. 1136. Rite-Line feared that if the duplicate authorities were cancelled upon approval by the PSC, it would lose its security for the remaining payments due on the Buy-Sell Agreement.

On June 4, 1991, Molerway’s attorney wrote the PSC concerning the cancellation of duplicate authorities. The letter stated, in part:

The payoff on this Agreement is only two years from the date the Commission approves of the transfer. Perhaps the Commission would postpone the deletion of the duplicate authorities until the outstanding balance has been paid off. That way, Rite-Line is protected and the Commission would be relieved of interfering with a contract.
Molerway does not want to delay the transfer of this authority, nor does it expect to default on the Agreement. Perhaps we could have a meeting with Rite-Line, Molerway and the Commission to weigh the alternatives.

Rite-Line made a similar request that the cancellation of duplicate authorities be delayed until the Buy-Sell Agreement was fulfilled.

On July 22, 1991, the PSC issued Order No. 6051 in which it approved the transfer of Certificate No. 1136. Pursuant to the requests of Molerway and Rite-Line, the PSC delayed any action on cancelling duplicate authorities until Certificate No. 1136 was paid off. As of the time of trial, the PSC had not ruled on what it considered to be a “duplicate authority.” Neither Molerway nor Rite-Line presented evidence at trial to establish precisely what the PSC would consider to be a “duplicate authority.” Therefore it is unclear what routes, if any, would be cancelled pursuant to PSC Order No. 6051. PSC Order No. 6051 states:

It is the Commission’s policy to cancel duplicating motor carrier authority upon a sale or transfer.... However, the Commission has determined that the unique circumstances of this case justify the recognition of an exception. Specifically, the “Buy-Sell Agreement” between Rite-Line and Molerway establishes a security interest in PSC Certificate No. 1136 and its subparts during the payment period of two (2) years. If Certificate No. 1136 were to be cancelled, the collateral identified in the Agreement would cease to exist. Therefore, the Commission will defer cancelling the duplicating authority for two (2) years solely for these reasons, approve the transfer with the conditions described below.

Although the PSC had done what Molerway had specifically requested in its June 4, 1991 letter, Molerway objected to Order No. 6051. Molerway stopped payment on its August installment on the Buy-Sell Agreement, and on September 4, 1991, sent Rite-Line a notice of rescission of contract. Molerway requested the return of the $30,000 down payment and first two installments in exchange for returning Certificate No. 1136 to Rite-Line. Rite-Line refused to rescind the contract.

On January 29, 1992, Molerway filed a complaint in the Fourth Judicial District Court, Missoula County, seeking to rescind the Buy-Sell Agreement and to have returned to it money paid pursuant to that agreement. Rite-Line answered and counter-claimed, seeking specific performance of the Buy-Sell Agreement.

Following the June 7-8,1994 trial, the District Court held in favor of Rite-Line. The court determined that the PSC’s order constituted an “approval” of the Certificate transfer and that by Molerway’s course of conduct, it waived its right to rescind the contract due to the cancellation of duplicate authorities. Molerway appeals from the decision of the District Court.

Issue 1

Did the District Court err in admitting parol evidence to determine the intent of the parties to the Buy-Sell Agreement?

Molerway argues that the District Court erred by allowing the introduction of parol evidence during trial in order to determine the intent of the parties. Molerway insists that the Buy-Sell Agreement was clear and unambiguous on its face. Therefore, the contract should have been construed strictly by its terms and no parol evidence concerning the parties’ intent should have been allowed.

We review district court evidentiary rulings to determine if the court abused its discretion. State v. Passama (1993), 261 Mont. 338, 863 P.2d 378. The language contained in a contract controls its interpretation if the contract is clear and unambiguous. Hennen v. Omega Enterprises, Inc. (1994), 264 Mont. 505, 508-09, 872 P.2d 797, 799; §§ 28-3-401 and 28-2-905, MCA. In Montana Bank of Circle v. Meyers and Son (1989), 236 Mont. 236, 769 P.2d 1208, we stated:

The rule has long been that where no ambiguity exists in the written documents, no parol evidence may be taken, (citation omitted) and the duty of the court is simply to apply the language as written.

Montana Bank, 769 P.2d at 1212.

However, when ambiguities exist in a contract, the court may look to parol evidence to ascertain the intent of the parties. In Monte Vista Co. v Anaconda Co. (1988), 231 Mont. 522, 755 P.2d 1358, we stated:

An ambiguity exists when a contract is subject to two interpretations and parol testimony can be used to determine what the parties intended. (Citations omitted.) However, intent of the parties is only looked to when the agreement in issue is not clear on its face. (Citation omitted).

Monte Vista, 755 P.2d at 1362.

A review of the record reveals that the Buy-Sell Agreement was not clear and unambiguous on its face. While the agreement specifically conditioned validity of the contract on the PSC’s “approval” of the transfer, the agreement does not define what will constitutes an “approval.” Specifically, it is unclear whether “approval” as limited by Order No. 6051 would constitute “approval” under the contract.

Also, the agreement contains contradictory language concerning the purpose of the transfer. The agreement reads, in the recital, “[i]n buying this permit, it is the Buyer’s intention to serve the area and customers previously served by the Seller.” This is the only clear expression of Molerway’s intent. This purpose is not inconsistent with and would not be affected by the PSC’s cancellation of duplicate authorities. However, elsewhere in the agreement, the contract appears to contemplate the transfer of Certificate No. 1136 as an asset rather than merely as a means by which to service Rite-Line’s customers.

We conclude that these contradictory provisions render the Buy-Sell Agreement ambiguous. As such, parol evidence was properly admissible in order to determine the intent of the parties. We hold that the District Court did not abuse its discretion in admitting parol evidence in order to determine the intent of the parties.

Issue 2

Did the District Court err in concluding that the PSC “approved” the transfer of Certificate No. 1136 pursuant to the terms of the Buy-Sell Agreement?

Molerway argues that approval by the PSC was a condition precedent expressly stated in the Buy-Sell Agreement. Molerway claims that by issuing Order No. 6051 which stated duplicate authorities would be cancelled in two years, the PSC did not “approve” Certificate No. 1136 and all its subparts as was a condition precedent to the contract. Because the condition precedent did not occur, Molerway insists it is not bound by the Buy-Sell Agreement.

Rite-Line argues that PSC Order No. 6051 was an “approval” of the certificate transfer. Rite-Line contends that the PSC’s asserted right to cancel duplicate authorities following completion of the contract does not render the PSC’s decision a denial. The District Court agreed, concluding that Molerway’s failure to object and acquiescence to the PSC’s cancellation of duplicate authorities following fulfillment of the contract illustrated Molerway’s intent that cancellation of duplicate authorities would not result in a “denial” of the transfer application.

Rite-Line also insists that Molerway received what it bargained for: authority to use the routes designated in Certificate No. 1136, elimination of Rite-Line as a competitor along those routes, and the assurance that Certificate No. 1136 would not be sold to another motor carrier.

We will not overturn a district court’s findings of fact unless they are clearly erroneous. Interstate Production Credit Assoc. v. DeSaye (1991), 250 Mont. 320, 820 P.2d 1285. We review district court conclusions of law to determine if the court’s interpretation of the law was correct. Steer, Inc. v Dep’t of Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 603.

As discussed above, when a contract is not clear and unambiguous on its face, the court must look elsewhere to discern the intent of the parties. Monte Vista, 755 P.2d at 1362. In this case, the evidence establishes that Molerway did not consider the cancellation of duplicate authorities to be a “denial” of the transfer application. During the March 1991 meeting to discuss the lease of Certificate No. 1136, Molerway did not object to the PSC’s suggestion that it would cancel duplicate authorities. Molerway made two installment payments on the contract after it had actual knowledge of the PSC’s intention to cancel duplicate authorities. Molerway also encouraged, or at the very least acquiesced to, the PSC’s decision to cancel duplicate authorities in its June 4, 1991 letter. By its actions and failure to act, Molerway has manifested its intent that the PSC’s cancellation of duplicate authorities would not render the decision a denial of the transfer application.

We conclude that the District Court’s finding that the PSC’s cancellation of the duplicate authorities did not amount to a denial of the transfer application was not clearly erroneous.

Issue 3

Did the District Court err in determining that Molerway waived the condition of PSC approval of the certificate transfer?

As an alternative reason for enforcing the contract, Rite-Line argued, and the District Court concluded, that even if the PSC’s cancellation of duplicate authorities constituted a denial of the transfer, Molerway waived its right to rely on the condition precedent of PSC approval. The District Court concluded that Molerway’s course of conduct from the March 1991 meeting of the parties with the PSC until issuance of the PSC’s Order No. 6051 manifested Molerway’s intent not to require PSC approval of Certificate No. 1136 in its entirety.

Waiver is a voluntary and intentional relinquishment of a right. McGregor v. Cushman/Mommer (1986), 220 Mont. 98, 714 P.2d 536. In McGregor, this Court stated:

Waiver is the voluntary, intentional relinquishment of a right. (Citation omitted.) A waiver of a right of action will be declared only when the party clearly manifests such an intention. (Citations omitted.)

McGregor, 714 P.2d at 543.

The record reveals that Molerway voluntarily and intentionally relinquished its right to rely on the PSC’s approval of the certificate transfer in its entirety. Molerway made no objections when it first learned that the PSC was considering cancelling duplicate authorities. Molerway made two installment payments on the contract while it knew or should have known that the PSC was considering cancel-ling the duplicate authorities.

Most persuasive was the June 4,1991 letter from Molerway to the PSC. In this letter, Molerway not only acquiesced to the PSC’s cancellation of duplicate authorities, but encouraged such a cancellation. In the letter, Molerway’s attorney stated:

Perhaps the Commission would postpone the deletion of the duplicate authorities until the outstanding balance has been paid off. That way, Rite-Line is protected and the Commission would be relieved of interfering with a contract.
Molerway does not want to delay the transfer of this authority, nor does it expect to default on the Agreement. [Emphasis added.]

Despite Molerway’s claim that it merely intended to “buy some time” by sending this letter, we conclude that the letter is susceptible to only one interpretation. Molerway stated it wanted to postpone the PSC’s cancellation of the duplicate authorities until after expiration of the Buy-Sell Agreement. Molerway further stated that it did not intend to default on the Buy-Sell Agreement despite the cancellation of the duplicate authorities.

We conclude that Molerway’s course of conduct, particularly its letter of June 4, 1991, manifested a voluntary and intentional relinquishment of its right to rely on the condition precedent of the PSC’s approval of Certificate No. 1136 in its entirety in order to void the contract. We hold the District Court’s conclusion of law was correct. Affirmed.

JUSTICES GRAY, NELSON, HUNT and TRIEWEILER concur.


author: JUSTICE TRIEWEILER

text:
    BERNARD F. CECHOVIC and JUNE C. CECHOVIC, Plaintiffs and Respondents, v. HARDIN & ASSOCIATES, INC., W. EDWARD HARDIN, and DIXIE BULLOCK, Defendants and Appellants, and PAMELA B. SAVILLE, n/k/a PAMELA SPRINGALL, Defendant, Respondent, and Cross-Appellant.

      No. 94-028.
    Submitted on Briefs March 16, 1995.
    Decided August 24, 1995.
    52 St.Rep. 854.
    902 P.2d 520.
    273 Mont. 104.

      For Appellants: Terry F. Schaplow, Attorney at Law, Bozeman; James H. Goetz and Robert K. Baldwin, Goetz, Madden & Dunn, Bozeman (for Hardin & Assoc, W. E. Hardin, and Bullock); Brenda R. Cole and Kent R. Douglass, Swandal, Douglass, Frazier & Cole, Livingston (for Springall).
    For Respondents: Calvin L. Braaksma, Landoe, Brown, Planalp & Braaksma, Bozeman (for Cechovics).
    For Amicus Montana Association of Realtors: John K. Tabaracci, Sullivan, Tabaracci, & O’Rourke-Mullins, Missoula.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

The plaintiffs, Bernard and June Cechovic, filed a complaint, and later an amended complaint, in the District Court for the Sixth Judicial District in Park County in which Dixie Bullock, Edward Hardin, Pamela Saville (n/k/a Pamela Springall), and Hardin and Associates were named as defendants. The Cechovics alleged that they sustained damages as a result of Bullock’s negligent misrepresentation regarding the boundary for property they purchased from Saville. Saville filed a cross-claim against Hardin and Bullock in which she sought indemnification for any damages she might be obligated to pay, plus her costs and attorney fees. Following trial, the jury returned a verdict in favor of the Cechovics. The District Court entered its judgment and an indemnification order in favor of Saville against Hardin and Bullock. The District Court denied Hardin and Bullock’s post-trial motions which were filed pursuant to Rules 50 and 59, M.R.Civ.P., and denied Saville’s motion for an award of attorney fees and costs. Hardin and Bullock appeal from the judgment and post-trial orders. Saville appeals from the post-judgment order denying her attorney fees. We affirm the judgment of the District Court and its denial of the parties’ post-trial motions.

We rephrase the issues on appeal as follows:

1. Was there substantial evidence to support the jury’s verdict in favor of the Cechovics?

2. Did the District Court abuse its discretion when it refused Hardin and Bullock’s proposed jury instructions?

3. Did the District Court err when it denied Hardin and Bullock’s motion for summary judgment based on the statute of limitations, or when it declined to instruct the jury on that subject?

4. Was the jury’s damage award supported by substantial credible evidence?

5. Did the jury properly award Pamela Saville damages?

Saville raises the following issue on cross-appeal:

Did the District Court err when it denied Pamela Saville’s motion to award attorney fees?

FACTUAL BACKGROUND

In 1977, James Grizzard divided a parcel of land located in Park County and sold Tract 4, a 20-acre parcel, to Pamela Saville and her late husband. Grizzard retained Tract 5, which was located to the west of Tract 4. Saville, who was not a Montana resident, had minimal involvement with Tract 4 after it was purchased. She and her husband divided their 20-acre parcel into two 10-acre parcels — an east tract and a west tract. In 1980, the Savilles sold the east Tract, 4B, to Jim and Gwen Handl and kept the west Tract, 4A. Sometime in the early 1980s, Mr. Saville informed Handl that he could graze horses on Tract 4Aif he would put up a temporary fence to keep them off the neighboring property.

Handl spoke to Grizzard about building a fence, and Grizzard agreed to allow Handl to construct the fence. Grizzard indicated the approximate location of the boundary pins that divided his land from the Savilles. Handl constructed the fence between two surveyor pins and pastured his horses on Tracts 4A and 4B. However, the pin to which the south end of the fence was anchored was not the actual boundary pin. As a result, the fence that Handl believed to be the boundary between Tract 4A and Grizzard’s property included property that actually belonged to Grizzard.

Shortly after Mr. Saville’s death in 1987, Dixie Bullock, a real estate salesperson who had recently received her real estate license and was employed by Edward Hardin, a broker, contacted Pamela Saville to request permission to show Tract 4A to a potential buyer. Bullock testified that Hardin obtained a certificate of survey that included Tract 4A and sent it to the potential buyer. Later Bullock decided to show the property to the Cechovics whom Bullock knew were interested in river front property.

On September 8 or 9, 1987, Cechovics met Bullock at her office located in Hardin’s brokerage firm in Livingston, Montana. The three of them then viewed Tract 4A, which was bounded by the Yellowstone River to the south, a county road to the north, Grizzard’s property to the west, and the Handls’ property to the east. Because the fence Handl had constructed on the west end of the property was not located on the actual western boundary, a promontory that overlooked the Yellowstone River was located within the western fence, but was actually part of Grizzard’s land.

The parties disagree what was actually said by Bullock while they toured the property.

Mr. Cechovic testified that while standing on the promontory Bullock stated it would be a beautiful location for the construction of the Cechovics home. He also testified that Bullock showed them a yellow pin on the west property line and told him that the pin was the west property line pin. Mr. Cechovic also testified that Bullock showed him a pin on the eastern boundary that divided the property from the Handls’ property.

Mrs. Cechovic testified that while standing on the promontory Bullock said, “[H]ow’s this for a place to build your house?” Mrs. Cechovic added that Bullock pointed to the yellow pin at the southwest corner and then walked with Mr. Cechovic to the southeast pin. As a result of Bullock’s alleged statements, the Cechovics stated they believed that the western fence was the boundary between Tract 4A and Grizzard’s property.

Bullock testified that she did not represent that the western fence was the boundary and did not point out any survey pins. Bullock did not recall the substance of any conversations that occurred while on the promontory. However, she admitted that she assumed the western fence was the boundary and that the promontory was located on Tract 4A. She also recalled discussing the view from the promontory. Finally, Bullock acknowledged that she had not asked Saville about property boundaries.

After viewing the property, Bullock and the Cechovics returned to Hardin’s office. Hardin testified that Cechovics were concerned about the location of the promontory so he, Bullock, and Mr. Cechovic examined Certificate of Survey No. 491, which was a survey that included Tract 4A. Bullock also testified that the Cechovics were concerned about the property boundary.

Cechovics, however, testified that they were not concerned about the boundaries because Bullock had pointed them out. Mr. Cechovic did state that he obtained a copy of a portion of Certificate of Survey No. 491 from the county clerk and recorder and visited the property several times.

The Cechovics decided that they wanted to purchase the property and made several offers. Finally, after other offers were rejected, Hardin and Bullock prepared and mailed Saville a buy-sell agreement which she signed on September 14, 1987.

Saville testified that after she learned the Cechovics were interested she suggested to Bullock that they obtain a survey before finalizing their purchase. Hardin and Bullock testified that they told the Cechovics to obtain a survey if they were uncertain about the boundaries. Cechovics denied that they were told to obtain a survey. They did not have the property surveyed.

The transaction closed on approximately November 9, 1987. Cechovics built their home near the location on the promontory that Bullock allegedly represented was located on Tract 4A, and moved into their new home by August 1988.

Sometime in the spring of 1991, Grizzard decided to sell that part of his property which was adjacent to the Cechovics’property. In order to divide his property, Grizzard had Survco survey his land. The proper corner pin was located underneath some land in the Cechovics’ yard. The survey indicated that the true eastern boundary of Grizzard’s land was located to the east of the Cechovics’home. Their home, in other words, was actually located on Grizzard’s property.

Mr. Cechovic testified that after he learned of the boundary discrepancy, he was told that Grizzard would sue Cechovics if the pending sale of Grizzard’s property was interfered with by the location of their home. They were also advised that John Tecca, the purchaser, would not purchase the land if the problem was not resolved. Cechovics, therefore, contacted Tecca and agreed to move their home in consideration of payment by Tecca in the amount of $10,000.

On July 12, 1991, Cechovics filed a complaint, and later an amended complaint, in which they alleged that Bullock, Hardin, Hardin and Associates, Inc., and Saville had negligently misrepresented the boundary of the land they purchased. Saville was named on the basis of her status as principal in an agency relationship with Hardin and Bullock. Saville filed a cross-claim against Hardin and Bullock for indemnification from liability for Hardin and Bullock’s conduct, and sought a statutory penalty, as well as her attorney fees and costs.

Before the case came to trial, Hardin and Bullock moved for summary judgment based on the statute of limitations. The District Court denied that motion. Following a jury trial, the jury returned a verdict in favor of the Cechovics and awarded damages in the amount of $65,733.22. The jury also found the Cechovics contributorily negligent and apportioned one percent of fault to them, and 99 percent to Hardin and Bullock. The jury also awarded Saville damages in an amount equal to three times Hardin and Bullock’s commission for the sale. The District Court entered its judgment and an indemnification order in favor of Saville and against Hardin and Bullock.

Hardin and Bullock filed motions for a new trial or a judgment as a matter of law pursuant to Rules 50 and 59, M.R.Civ.P. Saville filed a post-trial motion for an award of her attorney fees and costs based on her successful cross-claim. The District Court denied the parties’ post-trial motions. Hardin and Bullock appeal from the District Court’s judgment and denial of their post-trial motions. Saville appeals from the District Court’s denial of her post-trial motion.

ISSUE 1

Was there substantial evidence to support the jury’s verdict in favor of the Cechovics?

We will affirm the jury’s verdict if there is substantial credible evidence to support the verdict. Interstate Production Credit Ass’n v. DeSaye (1991), 250 Mont. 320, 322-23, 820 P.2d 1285, 1287. This Court’s role is not to agree or disagree with a jury’s verdict. Silvis v. Hobbs (1992), 251 Mont. 407, 411, 824 P.2d 1013, 1015 (citing Griffel v. Faust (1983), 205 Mont. 372, 376, 668 P.2d 247, 249). Once we conclude that substantial evidence supports the verdict, our inquiry is complete. Silvis, 824 P.2d at 1015 (citing Griffel, 668 P.2d at 249). Substantial evidence has been defined as evidence a reasonable mind might accept as true and can be based on weak and conflicting evidence. Silvis, 824 P.2d at 1015 (citing Buskirk v. Nelson (1991), 250 Mont. 92, 97, 818 P.2d 375, 378). When we determine whether substantial evidence supports the jury’s verdict, we review the evidence in a light most favorable to the party who prevailed at trial. If the evidence attrial conflicts, the jury’s role is to determine the weight and credibility of the evidence. Silvis, 824 P.2d at 1015-16.

As Hardin and Bullock indicate, the elements of negligent representation are set forth in Barrett v. Holland & Hart (1992), 256 Mont. 101, 107, 845 P.2d 714, 717-18. There, we stated that a claim for negligent misrepresentation requires proof of the following elements:

1. the defendant made a representation as to a past or existing material fact;
2. the representation must have been untrue;
3. regardless of [his or her] actual belief, the defendant must have made the representation without any reasonable ground for believing it to be true;
4. the representation must have been made with the intent to induce the plaintiff to rely on it;
5. the plaintiff must have been unaware of the falsity of the representation and he must have been justified in relying upon the representation;
6. the plaintiff, as a result of his reliance, must sustain damage.

Barrett, 845 P.2d at 717-18 (citing Kitchen Krafters, Inc. v. Eastside Bank of Montana (1990), 242 Mont. 155, 165, 789 P.2d 567, 573). Although Hardin and Bullock do not concede that Bullock misrepresented the property boundaries, the thrust of their argument is that a realtor cannot be held negligent for failing to discover that an apparent boundary was not the actual boundary. They focus on the third element and contend that if Bullock made a misrepresentation, she had reasonable grounds to believe it was true.

In State Bank of Townsend v. Maryann’s, Inc. (1983), 204 Mont. 21, 33, 664 P.2d 295, 301, we recognized the definition of negligent misrepresentation found at Restatement (Second) of Torts § 552 and stated that it requires a showing of the failure to exercise the care or competence of a reasonable person in obtaining or communicating information. Relying on a comment to § 552, we added that what is reasonable, as with other negligence claims, is dependent upon the circumstances. Generally the level of care and competence the recipient of information is entitled to expect is determined in light of the circumstances and will vary, dependent upon many factors. Finally, we stated, “[t]he question is one for the jury, unless the facts are so clear as to permit only one conclusion.” State Bank of Townsend, 664 P.2d at 302 (quoting § 552 cmt. a).

In this case, the evidence relevant to the elements of negligent misrepresentation was disputed. Mr. Cechovic testified that Bullock indicated that the pin at the southern end of the western fence marked the boundary. Bullock testified that she assumed the pin was the accurate boundary and assumed that the promontory was on Tract 4A. Saville testified that she supplied written documentation to Bullock and suggested to Bullock that the buyers have the property surveyed before finalizing the sale. According to the Cechovics, Bullock did not convey this information to them.

Testimony indicated that Hardin and Bullock obtained a certificate of, survey before Bullock showed the property to the Cechovics. Although Hardin and Bullock claim that the Cechovics should have discovered the discrepancy between the certificate of survey and the fence, Hardin and Bullock either did not discover the discrepancy themselves, or failed to indicate the discrepancy to the Cechovics.

Finally, expert testimony indicated that fences are not reliable as boundaries and that boundary lines are only determined by surveys or from personal knowledge of an informed owner. David Viers, a real estate broker, testified that without accurate information from a seller he would not represent a boundary to a potential buyer. He added that a sales agent or broker has a duty to disclose information and suggestions from the seller, e.g., that a survey be obtained, to potential buyers. Tony Wastcoat, another expert, testified that regulations require licensees to gather all pertinent facts and prohibits misrepresentations. He added that if he was showing rural property similar to the property in this case that he would not rely on a fence as a boundary, even if it was marked by a pin. He added that if the facts as stated in Cechovics prior depositions were true that the Cechovics established a breach of duty.

It was the jury’s role to apply these facts to the instructions. Interpreting the evidence in a light most favorable to the Cechovics, we conclude that substantial evidence supports the jury’s verdict that Bullock did not have reasonable grounds to believe her representations were true. Therefore, the third element of negligent misrepresentation was established.

Hardin and Bullock next argue that the fifth element was not satisfied because the Cechovics neither relied, nor could they justifiably rely on, any alleged misrepresentation. They argue, based on cases from other jurisdictions and cases which are distinguishable, that a buyer cannot rely on an alleged misrepresentation if the buyer undertakes an independent investigation because the buyer is deemed to rely on his or her own investigation. Finally, they contend that an independent investigation clause, similar to the one in the contract in this case, bars a claim based on negligent misrepresentation according to our decisions in Lowe v. Root (1975), 166 Mont. 150, 531 P.2d 674, and Lee v. Stockmen’s National Bank (1922), 63 Mont. 262, 286, 207 P. 623, 630.

We note that the issue of whether the Cechovics relied on, and were reasonable in relying on, Bullock’s alleged misrepresentation was also a question for the jury. Based on the evidence set forth above, and the elements of negligent misrepresentation, the jury could have decided that the Cechovics relied on Bullock’s representations. We will not reweigh the evidence and second-guess the jury’s determination on this issue.

Next, we must determine whether the independent investigation clause bars the Cechovics’ claim. Although Lee did not involve the duties of real estate licensees, Hardin and Bullock rely on language from Lee which stated that if a party that claims to have been deceived has done his or her own independent investigation, or had the means to ascertain the truth, reliance on a representation, however false, affords no ground for complaint. However, the point of Lee was that the plaintiff could not recover for fraud or misrepresentation for the defendant’s failure to disclose facts that the plaintiff knew to exist. Lee, 207 P. at 630.

Although the Cechovics did visit the property several times before the sale, and did obtain a certificate of survey from the county clerk and recorder’s office, Mr. Cechovic testified that he did not attempt to compare the plat to the boundaries because he relied on Bullock’s representations regarding the western boundary. Nor did he have the property surveyed. Unlike Lee and Lowe, the Cechovics did not undertake an independent investigation. As we more recently stated, an “ ‘independent investigation’ clause does not preclude justifiable reliance by a buyer on misrepresentations of the seller and its realtor.” Wagner v. Cutler (1988), 232 Mont. 332, 336, 757 P.2d 779, 782 (citing Parkhill v. Fuselier (1981), 194 Mont. 415, 419, 632 P.2d 1132, 1135. We added in Wagner that where a plaintiff relied on a realtor’s misrepresentations, the seller is liable based on agency principles set forth in § 28-10-602, MCA. Wagner, 757 P.2d at 782.

Substantial evidence indicates that the Cechovics justifiably relied on Bullock’s representations regarding the property boundary and that the promontory where the Cechovics ultimately built their home was on the property Bullock represented for sale on behalf of her principal. Mr. Cechovic stated that he did not conduct an independent investigation because he was confident that Bullock’s representations were accurate.

Hardin and Bullock claim that the error was obvious because the records indicate over 160 feet less river frontage than the fence boundary would have indicated. However, they do not explain how their oversight in this regard was reasonable if the discrepancy was so obvious. In light of the fact that Hardin and Bullock, who are licensed real estate professionals, did not discover the error, it would be unjust to impose that requirement on the Cechovics who claim they relied on Bullock’s representations.

We conclude that substantial evidence supports the jury’s determination that the Cechovics relied on, and were justified when they relied on, Bullock’s misrepresentations. Contrary to Hardin and Bullock’s assertions, and assertions made by the Montana Association of Realtors, our decision does not mean that a broker is responsible to have property surveyed in every case. We merely conclude that, based on the evidence presented in this case, there was an adequate factual basis for the jury’s finding that these defendants negligently misrepresented the boundary of the property purchased by Bernard and June Cechovic.

ISSUE 2

Did the District Court abuse its discretion when it refused Hardin and Bullock’s proposed jury instructions?

The District Court has discretion when it decides how to instruct the jury, taking into consideration the parties’ theories, and we will not overturn the court’s decision absent an abuse of discretion. Arnold v. Boise Cascade Corp. (1993), 259 Mont. 259, 267, 856 P.2d 217, 222. When we examine whether jury instructions were properly given or refused, we consider the instructions in their entirety, as well as in connection with the other instructions given and the evidence at trial. Story v. City of Bozeman (1993), 259 Mont. 207, 222, 856 P.2d 202, 211 (citing Feller v. Fox (1989), 237 Mont. 150, 156, 772 P.2d 842, 846).

Hardin and Bullock contend that the District Court erred when it failed to instruct the jury about the Cechovics’ duty to investigate, their actual investigation, and their right to rely on representations of the boundary location. Their arguments are similar to arguments made regarding the first issue and will not be repeated at length.

Hardin and Bullock contend that the District Court erred when it refused their proposed instructions H-8 and H-10. Proposed instruction H-8 stated:

A purchaser of property is under a duty to make a reasonable investigation of the property prior to purchasing it.

Proposed instruction H-10 stated:

The buy/sell signed by the Plaintiffs contained an independent investigation clause which reads as follows:
“Purchaser enters into this agreement in full reliance upon his independent investigation and judgment. Prior verbal representations or agreements do not modify or affect this agreement.”
If you find that the Plaintiffs had ample opportunity to investigate the property for themselves, they may not rely on any alleged misrepresentation of the Defendants.

The District Court refused H-8 because it concluded that Batten v. Watts Cycle & Marine, Inc. (1989), 240 Mont. 113, 783 P.2d 378, which was cited by defendants as authority for that instruction, did not stand for the principle stated in the instruction. The District Court refused H-10 after concluding that it was a comment on the evidence.

Hardin and Bullock claim that the court removed from the jury’s consideration the question of whether the Cechovics had the opportunity to, or did engage in, an independent inquiry, and whether they actually or reasonably relied on the alleged misrepresentation in light of their own investigation. That argument is belied by the facts that the jury was instructed regarding contributory negligence; that issue was argued to the jury; and, it found the Cechovics partially at fault for their own damages.

We agree with the District Court’s conclusion that Batten does not stand for the proposition set forth in proposed instruction H-8. In Batten, we recognized that the defects complained of were discoverable upon a reasonable inspection and concluded that the plaintiff failed to indicate sufficient facts that any representations were false. Therefore, we concluded that the core element of fraud, constructive fraud, and negligent misrepresentation was missing. Batten, 783 P.2d at 381-82. Our statement that the defects were discoverable was not the basis for our holding in Batten since we concluded that factual misrepresentations were not proven. Even if Batten had stood for the proposition for which it was cited by Hardin and Bullock, we have held that language from this Court’s opinions is not intended for use as jury instructions. Hunsaker v. Bozeman Deaconess Foundation (1978), 179 Mont. 305, 333, 588 P.2d 493, 509. We conclude that the District Court did not abuse its discretion when it refused proposed instruction H-8.

Hardin and Bullock also claim that the District Court erred when it refused their proposed instruction H-10. That instruction contained a direct quote from the buy-sell agreement Cechovics signed. Cechovics objected, and the District Court agreed, that H-10 commented on the evidence. The District Court stated that Hardin and Bullock were entitled to argue to the jury about the contractual language in support of their contention that the Cechovics should have inquired, but stated that it would be improper for the court to comment on the evidence. We agree with the District Court.

If the District Court allowed the instruction it would have repeated and emphasized a direct quote from the buy-sell agreement that was admitted as an exhibit at trial. To have done so would have violated principles that prohibit a district court from impermissible comments on the evidence. See Rule 614(b), M.R.Evid., Clark v. Norris (1987), 226 Mont. 43, 53, 734 P.2d 182, 188 (stating that the District Court cannot comment on the evidence).

We hold that the District Court did not abuse its discretion when it refused Hardin and Bullock’s proposed instructions H-8 and H-10. After examining the instructions in their entirety, and as a whole, we conclude that the District Court adequately explained the legal principles advanced by the parties at trial.

ISSUE 3

Did the District Court err when it denied Hardin and Bullock’s motion for summary judgment based on the statute of limitations, or when it declined to instruct the jury on that subject?

A summary judgment order is interlocutory, but is appeal-able after a final judgment is rendered. Riley v. Carl (1981), 191 Mont. 128, 131, 622 P.2d 228, 230. Our standard ofreview of a district court’s summary judgment ruling is de novo. Spain-Morrow Ranch, Inc. v. West (1994), 264 Mont. 441, 444, 872 P.2d 330, 331 (citing Minnie v. City of Roundup (1993), 257 Mont. 429, 431, 849 P.2d 212, 214).

Hardin and Bullock contend that the Cechovics’ claim is barred by the three-year statute of limitations for negligence which should apply to this case. Section 27-2-204(1), MCA. They assert that the elements necessary for a claim of negligent misrepresentation accrued in 1987 when the property was purchased, and since suit was not filed until 1991, the District Court erred when it denied their motion for summary judgment. In the alternative, they claim that the statute of limitations raised a factual issue about which the jury should have been instructed.

Cechovics respond that their claim was not barred by any statute of limitations because the elements of their claim did not occur until they were damaged in March 1991. They argue that the two-year statute of limitations for fraud set forth at § 27-2-203, MCA, applies, and the discovery rule tolls the statute until the fraud or misrepresentation is discovered. Since the boundary problem was not discovered until the spring of 1991, they contend that their complaint was filed on time.

Neither party’s position is entirely correct. We have, in the past, applied the two-year statute where it was either directly, or by inference, agreed upon by the parties. See Williams v. DeVinney (1993), 259 Mont. 354, 362-63, 856 P.2d 546, 551-52; R.H. Grover, Inc. v. Flynn Ins. Co. (1989), 238 Mont. 278, 286, 777 P.2d 338, 343; White v. Lobdell (1984), 208 Mont. 295, 306, 678 P.2d 637, 642. We have also previously stated that in Montana an action for negligent misrepresentation is an action for fraud. Bushnell v. Cook (1986), 221 Mont. 296, 301, 718 P.2d 665, 668. Finally, as the Cechovics indicate, the Federal District Court for the District of Montana has stated that a claim for negligent misrepresentation is governed by the two-year statute of limitations. Shupak v. New York Life Ins. Co. (D. Mont. 1991), 780 F. Supp. 1328, 1333.

However, these statements in our previous cases are inconsistent with our recognition that negligent misrepresentation is similar to other negligence causes of action. See Barrett, 845 P.2d at 717-18. Negligent misrepresentation requires proof of elements that are obviously different than the elements required to prove fraud. Indeed, as we have stated, negligent misrepresentation involves breach of a reasonable standard of care, not intentional misrepresentation. Because negligent misrepresentation is couched in terms of negligence, we conclude that the three-year statute of hmitations for negligence applies.

However, we also conclude that the District Court correctly denied Hardin and Bullock’s motion for summary judgment because damages were not sustained in this case until 1991; a cause of action does not accrue until all elements of the claim have occurred; and the period of limitations begins to run when the cause accrues. Section 27-2-102(1)(a) and (2), MCA. In Montana, a claim or cause of action arises when all elements exist or have occurred. We recently reiterated this principle and recognized that in negligence cases the earliest date a cause of action could accrue is when a person suffers damages from the alleged negligent conduct. Uhler v. Doak (1994), 268 Mont. 191, 885 P.2d 1297, 1303.

The Survco survey in 1991 revealed that the property on which the Cechovics built their home in fact belonged to Grizzard. At that point, the Cechovics were forced to move their home. Prior to that time, Cechovics had no cause of action against Bullock. Uhler, 885 P.2d at 1303. Their complaint was filed later in 1991, well within the three-year statute of limitations.

We hold that the District Court was correct when it denied Hardin and Bullock’s motion for summary judgment based on the statute of limitations.

Hardin and Bullock claim, in the alternative, that the District Court erred because it failed to instruct the jury regarding the statute of limitations. They contend that when evidence conflicts, the issue of whether a cause of action is barred by a statute of limitations is a question for the jury. Stagg v. Stagg (1931), 90 Mont. 180, 300 P. 539; Hill v. Squibb & Sons (1979), 181 Mont. 199, 592 P.2d 1383.

However, based on our previous discussion, we conclude that there was no conflict in the evidence. We conclude that the District Court did not abuse its discretion when it refused to give Hardin and Bullock’s proposed jury instructions regarding the statute of limitations.

ISSUE 4

Was the jury’s damage award supported by substantial credible evidence?

The amount of damages awarded is properly left to the jury and this Court will not substitute its judgment for the jury’s unless the amount awarded is so grossly out of proportion that it shocks the conscience of this Court. Simchuck v. Angel Island Comm. Ass’n (1992), 253 Mont. 221, 230, 833 P.2d 158, 163 (citing Gunning v. General Motors Corp. (1989), 239 Mont. 104, 107, 779 P.2d 64, 66). In Simchuck, we also reiterated the principle that this Court will review the record in the light most favorable to the prevailing party to determine if substantial evidence supports the jury’s verdict. Simchuck, 833 P.2d at 163 (citing Gunning, 779 P.2d at 67).

Hardin and Bullock contend that the jury improperly awarded damages for lost river frontage based on testimony from Jim Burke, the Cechovics’ expert appraiser. They assert that the Cechovics received the exact acreage and amount of river frontage that they thought they were getting, based on the plat of the land they reviewed, and therefore, have sustained no damages for lost river frontage. Saville joins in this contention. We disagree.

In Montana, every person who suffers detriment from another’s unlawful act or omission may recover damages. Section 27-1-202, MCA. Detriment is defined as a loss or harm suffered in person or property. Section 27-1-201, MCA.

Cechovics point out that a primary attraction of the land was Bullock’s representation that the river front promontory was included, and that there is no comparable location on the property they eventually received. Jim Burke testified that the most valuable feature of the property was the river frontage. He stated that when parties purchase river front property they buy it for the river frontage, not the acreage behind it. In addition, the jury viewed the property pursuant to § 25-7-401, MCA. As a result, the jury not only heard expert testimony, but observed the views and quality of the Cechovics’ homesite before and after they moved their home.

Interpreting the evidence in a light most favorable to the Cechovics, we conclude that substantial evidence supports the jury’s damage award and the award does not shock this Court’s conscience.

ISSUE 5

Did the jury properly award Pamela Saville damages?

The jury’s verdict and damage award in favor of Saville against Hardin and Bullock must be upheld if supported by substantial evidence. Simchuck, 833 P.2d at 163. Saville filed a cross-claim against Hardin and Bullock in which she claimed damages based on §§ 37-51-321, and -323(2), MCA. The District Court instructed the jury on this issue and the jury awarded Saville $7110, which was three times the amount of Hardin and Bullock’s commission for sale of her property.

Hardin and Bullock contend that the court erred when it instructed the jury on this issue and, in the alternative, that the jury’s verdict and judgment are not supported by the evidence. They claim that Saville was not a “person aggrieved” pursuant to § 37-51-323(2), MCA, and that a real estate licensee is not liable for honest or natural mistakes. Van Ettinger v. Pappin (1978), 180 Mont. 1, 13, 588 P.2d 988, 996.

Section 37-51-323(2), MCA, provides:

In case any person in a civil action is found guilty of having received any money or the equivalent thereof as a fee, commission, compensation, or profit by or in consequence of a violation of any provision of this chapter, he shall in addition be liable to a penalty of not less than the amount of the sum of money so received and not more than three times the sum so received, as may be determined by the court, which penalty may be recovered in any court of competent jurisdiction by any person aggrieved.

(Emphasis added.) Violations which are forbidden are listed in § 37-51-321(1), MCA. The jury was instructed about the following violations:

(b) making any false promises of a character likely to influence, persuade, or induce;
....
(i) offering real property for sale or lease without the knowledge and consent of the owner or the owner’s authorized agent or on terms other than those authorized by the owner or the owner’s authorized agent....

The District Court’s Instruction No. 33 stated that if the jury found that Bullock or Hardin engaged in conduct prohibited by either of the above two enumerated subsections, then Saville was entitled to recover a penalty of one to three times the commission she paid to the realtors.

Hardin and Bullock claim that based on our decision in Van Ettinger, Saville was not a “person aggrieved” pursuant to § 37-51-323, MCA. In Van Ettinger, the buyer sued the broker who represented to the buyer that an easement appurtenant with the property for sale included the right to use a swimming pool. However, prior to closing, the buyer discovered that the neighbor, upon whose property the pool was located, refused to allow the buyer to use the pool. The buyer filed suit against the broker for fraud for representing the easement for use of the pool. This Court held that the buyer could not recover because he had waived his rights and had independent knowledge, before closing, which precluded reliance on the broker’s statements. Van Ettinger, 588 P.2d at 995. We also stated that the buyers were not aggrieved persons under the Real Estate License Act because they failed to establish that the easement did not exist and added that the buyers could not recover because they closed the transaction with knowledge of problems concerning the easement. Finally, we stated that while the Real Estate License Act should be construed to lend maximum efficacy to the enforcement of fiduciary relationships in the real estate profession, penalty provisions would certainly envision willful misconduct as opposed to a natural or honest mistake. Van Ettinger, 588 P.2d at 996.

Here, unlike Van Ettinger, the Cechovics did not know about the misrepresentations before closing the transaction, and did not waive their rights to rely on Bullock’s statements. In addition, the evidence in this case warrants the jury’s finding that Bullock breached fiduciary duties she owed to Saville, her principal.

Furthermore, we conclude that the Montana Real Estate License Act envisions penalties without proof of willful misconduct. The Act states that any person aggrieved may recover a statutory penalty from the licensee. Section 37-51-323(2), MCA. Likewise, that Act prohibits a licensee from making any false promises of a character likely to influence, persuade, or induce a buyer and from offering real property for sale without the knowledge and consent of the owner or on terms other than those authorized by the owner. Section 37-51-321, MCA. Evidence was introduced that a jury could interpret to be violative of these provisions. Accordingly, the District Court did not abuse its discretion when it instructed the jury on this issue.

We also conclude that Saville was a person aggrieved under the plain language of the statute. Hardin and Bullock are subject to provisions of the Montana Real Estate License Act. We have held that the Real Estate License Act provisions set a standard of conduct that licensees must conform to, and a violation is sufficient reason to deny a broker a commission. Lyle v. Moore (1979), 183 Mont. 274, 599 P.2d 336; Cornell v. Watson (1978), 176 Mont. 344, 349, 578 P.2d 308, 311. Substantial evidence was introduced to indicate that Hardin and Bullock violated the Real Estate License Act and their duty to Saville. After their misrepresentation was discovered, Cechovics’ complaints named Saville as a party who should be held liable for Bullock’s alleged misrepresentation. We have already concluded that the Cechovics’ misrepresentation claim was supported by substantial evidence and caused Cechovics’ damages. Therefore, we conclude that Saville was a person aggrieved from a licensee’s violation of provisions of the Montana Real Estate License Act.

We also conclude that, contrary to our statement in Van Ettinger, in order to recover the statutory penalty, Saville was not required to prove an intentional or malicious violation of the Act’s provisions. We affirm the District Court’s decision to instruct the jury regarding this issue and its judgment in accordance with the jury’s verdict.

CROSS-APPEAL ISSUE

Did the District Court err when it denied Pamela Saville’s motion for her attorney fees?

Saville filed a cross-claim against Hardin and Bullock in which she requested her attorney fees. This Court has stated that attorney fees are not normally recoverable unless a specific statute or contractual provision provides for recovery of attorney fees. Lane v. Smith (1992), 255 Mont. 218, 226, 841 P.2d 1143, 1148. Saville has not indicated a statute which mandates that she recover her attorney fees. She does, however, claim that a contractual provision in the listing agreement she signed with Hardin and Bullock provides for recovery of attorney fees. The relevant language of the listing agreement states:

In the event of any suit or action on this contract, it is agreed between us that the court, whether trial or appellate, may allow the prevailing party therein such sum as may be adjudged that party’s reasonable attorney’s fees.

Use of the word “may” ordinarily renders a court’s award of attorney fees to a prevailing party discretionary. See Gaustad v. City of Columbus (1994), 265 Mont. 379, 383, 877 P.2d 470, 472. Here, however, the District Court determined that, while Saville prevailed, the action was not “on the contract;” on that basis, the court concluded that the attorney fee provision was inapplicable. We review a court’s legal conclusions to determine whether they are correct. In re Marriage of Barnard (1994), 264 Mont. 103, 106, 870 P.2d 91, 93.

Saville asserts that she is entitled to fees based on our prior decision in Lane, 841 P.2d at 1148. In Lane, the underlying claim was based on a breach of the listing agreement. On that basis, the district court awarded attorney fees to the prevailing party under a contract provision substantially similar to that at issue here. We affirmed.

The District Court in this case rejected Saville’s claim for attorney fees because the action was not for breach of the listing agreement. In her cross-claim, Saville did allege that she entered a contract with Hardin and Bullock who breached fiduciary duties, as well as statutory provisions of the Montana Real Estate License Act, and requested statutory penalties, as well as her attorney fees. However, the Cechovics’ underlying claim was based on misrepresentation. In her cross-claim, Saville pleaded that if the Cechovics’ allegations of misrepresentation were true, then Hardin and Bullock breached duties they owed her. Her claims are necessarily based on the Cechovics’ claims which sound in tort, not contract. Therefore, we affirm the District Court’s decision not to award Saville’s attorney fees.

We affirm the judgment of the District Court. For the reasons set forth above, we also conclude that the District Court did not abuse its discretion when it denied Hardin and Bullock’s motion for a new trial and judgment as a matter of law pursuant to Rules 50 and 59, M.R.Civ.P.

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