author: MR. JUSTICE GULBRANDSON

text:
    BONNIE K. CROCKETT, Plaintiff and Appellant, v. CITY OF BILLINGS, Public Communications Dispatch Center, Defendants and Respondents.
    No. 88-136.
    Submitted on Briefs Aug. 4, 1988.
    Decided Sept. 22, 1988.
    761 P.2d 813.

      Jones Law Firm, Blair Jones, Billings, for plaintiff and appellant.
    Paul J. Luwe, City Attys. Office, Billings, for defendants and respondents.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court..

Bonnie K. Crockett appeals from a judgment by the District Court of the Thirteenth Judicial District, Yellowstone County, in this case brought against the City of Billings (City) for employment discrimination. The District Court ruled in favor of the defendant City. We affirm.

The issues raised on appeal are:

1. Whether the District Court considered and applied the standard of proof appropriate in a discrimination case?

2. Whether the findings of the District Court are supported by sufficient credible evidence?

3. Whether the District Court erred in admitting into evidence exhibits containing hearsay?

4. Whether the District Court appropriately considered the reasonable cause finding of the Montana Human Rights Commission?

Bonnie K. Crockett (Crockett) was employed by the City of Billings as a telephone operator from March 10, 1981 until July 13, 1983. In July of 1983, she voluntarily resigned, after notice, from her position with the City. She then sought work in San Diego. Crockett subsequently decided to return to Billings upon learning of her grandmother’s illness, and toward this end, Billings Police Officer Gary Crockett traveled to San Diego to help Crockett move back to Billings. The two were married during the move back to Billings.

In January of 1984, the City accepted applications to fill a telephone operator job opening in the Public Communications Dispatch Center (Center). Crockett applied for this telephone operator position, one she previously had held with the City. She passed the preliminary screening test given to all applicants and subsequently was interviewed on January 11, 1984. The interview was conducted by a selection committee of three people: Jessee Gonzalez (Gonzalez), supervisor of the Center; Captain John Hall, liaison officer between the Billings Police Department and the Center; and Richard Owens, a lead worker at the Center.

Crockett was asked numerous questions during the interview, including one question about how she would deal with those officers who lacked confidence in her ability to satisfactorily perform her job. Because of the demands of the position and concern for the safety of the officers and public, she also was asked if she would be able to dispatch her husband into a dangerous situation.

Following interviews with all the top candidates, the selection committee ranked the top four to six applicants in order of hiring priority. Crockett was ranked fourth or fifth. Although Gonzalez had discretion to select any of the top ranked applicants, he routinely selected the applicant ranked number one. Consequently, on January 17, 1984, Gonzalez offered the job to Camille Brynes, a single woman qualified for the position by virtue of her previous PBX switchboard experience but without previous work experience in the Center.

The City asserted Crockett was not ranked higher, and consequently was not hired, because of numerous performance problems during her former employment with the Center. More specifically, Gonzalez had extended her probationary period another ninety days because of problems with “attitude adjustment, work performance, absenteeism” and her need for increased productivity. Gonzalez notified Crockett of this extension by a letter written September 10, 1981. Although her performance appraisal for the period from July to December of 1981 noted her job aggressiveness and aptitude for learning, it commented upon her need to control flareups, to adjust her attitude when confronted with directives or policy changes, and to study street locations. Crockett was counseled about these problems on January 5, 1982. Her performance appraisal for the period of December 1981 though December 1982 again noted some performance problems, including her lax attendance without good excuse, defensiveness when given constructive criticism, nonconstructive use of idle time, irregular attendance at lead worker meetings, and excessive use of the telephone for personal calls. Additionally, Crockett received a written warning on February 18, 1982, because she made a shift change without the approval of the lead worker and then failed to notify the lead worker of illness preventing her from reporting for duty the following day. However, Crockett asserted that another co-employee requested this change, which Crockett obliged, and that the co-employee, not herself, thus was responsible for obtaining lead worker approval.

The City asserted that problems with various police officers also led to Crockett’s lower ranking. In 1982, four dispatch complaints were filed, with two verified as valid. These complaints included failure to acknowledge a call, which resulted in no backup, and to properly complete an abandoned automobile form. In 1983, six complaints concerning Crockett’s job performance were filed, with four verified as valid complaints; these included two improper officer dispatches, an employee dispute involving others in the Center, and a mix-up in complaint dispatch forms between Crockett and several others. Consequently, in September of 1983, Lieutenant Christensen expressed concerns about the rehire of Crockett should she reapply for a position with the Center.

Crockett alleged that she was not hired because of her marriage to a police officer and asserted that such marital discrimination was illustrated by the statements made by Gonzalez to V.E. Henman, business representative for the Teamsters Union which represents Center employees, and to Gary Angel, an employee with the City. Henman alleged that in a telephone conversation with Gonzalez on January 20, 1984, Gonzalez stated that he did not hire Crockett because she was married to a police officer. Gary Angel also asserted that he and his supervisor Paul Totten heard Gonzalez, while at a Center orientation session, make a similar comment about his reason for not hiring Crockett. However, city records indicate that no orientation sessions were conducted in the Center in 1984 and that Paul Totten was not hired until 1985. Further, Gonzalez denied making any such comment to Angel or Henman.

Both Crockett and her husband, Gary Crockett, stated that Gonzalez told them at a meeting with Gonzalez on January 23, 1984, that she was not hired primarily because of problems with police officers, but that her marriage to a police officer also had something to do with the decision not to rehire her. Yet, Crockett failed to claim on a subsequent preliminary inquiry by the Montana Human Rights Commission (Commission) that Gonzalez made any such reference to her marital status during their meeting with him. The charge of discrimination she filed with the Commission similarly failed to mention any reference by Gonzalez to her marital status. A letter written by Gary Crockett to the Commission, concerning the conversation with Gonzalez on January 23,1984, states that they only were told that Crockett was not hired because of past problems with officers. Additionally, Gonzalez denied stating during the meeting with Crockett, that her marriage was a reason for his decision not to rehire her.

Crockett filed a complaint with the Commission on February 17, 1984, alleging that the City discriminated against her by failing to hire her because of her marital status. The Commission issued a reasonable cause finding on April 25, 1985, following a preliminary investigation. No hearing was conducted, but instead on October 21, 1985, at the request of the City, the Commission issued a right to sue letter.

On January 10, 1986, Crockett filed suit in District Court alleging marital discrimination by the City. A nonjury trial was conducted on June 22 and 23, 1987. The District Court entered judgment against Crockett on December 18, 1987, holding that the City did not discriminate against Crockett because of her marital status when it failed to rehire her for the position for which she had applied. This appeal followed.

The first two issues raised on appeal involve the appropriate standard of proof in an employment discrimination case and the sufficiency of the evidence to support the District Court findings. To reduce any unnecessary duplication, we will discuss these two issues together.

The provisions that assure protected groups freedom from discrimination under Title 49 of the Montana Human Rights Act are closely modeled after the provisions of Title VII of the Federal Civil Rights Act of 1964, 42 U.S.C. Section 2000e et seq. Consequently, Montana courts have examined the rationale of federal case law and have expressly adopted, for all cases involving disparate treatment of a protected class member, the three-tier standard of proof set forth in McDonnell Douglas Corp. v. Green (1973), 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668. Johnson v. Bozeman School Dist. (Mont. 1987), [226 Mont. 134,] 734 P.2d 209, 44 St.Rep. 531; European Health Spa v. Human Rights Comm’n (Mont. 1984), [212 Mont. 319,] 687 P.2d 1029, 41 St.Rep. 1766; Martinez v. Yellowstone Co. Welfare Dept. (Mont. 1981), [_Mont._,] 626 P.2d 242, 38 St.Rep. 474.

Appellant, who was married in September of 1981, was clearly a member of a protected class. Marital status is a protected status and Sections 49-2-303 and 49-3-201, MCA, prohibit an employer from discriminating on the basis of such marriage.

“49-2-303. Discrimination in Employment. (1) It is an unlawful discriminatory practice for:
“(a) an employer to refuse employment to a person, to bar him from employment, or to discriminate against him in compensation or in a term, condition, or privilege of employment because of his . . . marital status . . .
“49-3-201. Employment of state and local government personnel. (1) State and local government officials and supervisory personnel shall recruit, appoint, assign, train, evaluate, and promote personnel on the basis of merit and qualifications without regard to . . . marital status . . .”

Further, appellant’s claim of employment discrimination arose from her alleged unequal and discriminatory treatment under hiring procedures which on their face do not discriminate against applicants married to police officers. This case thus involves a claim of disparate treatment of a protected class member and we hold that the standard of proof set forth in McDonnell Douglas is applicable to this case.

The first tier of proof in McDonnell Douglas, requires a complainant to initially establish a prima facie case of discrimination by proving the following four elements by a preponderance of the evidence:

“(i) that he belongs to a [protected class] . . .; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant’s qualifications.”

McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1924. The Supreme Court in McDonnell Douglas, however, noted that this standard of proof is flexible as the four elements may not necessarily apply to every disparate treatment claim. In Martinez, we thus recognized that the fourth element in McDonnell Douglas could be satisfied simply by showing that a job vacancy is filled by an applicant who is not a member of the particular protected group. See Martinez, 626 P.2d at 246 (citing Crawford v. Western Elec. Co., Inc. (5th Cir. 1980), 614 F.2d 1300).

The District Court considered and applied the standard of proof set forth in McDonnell Douglas and found that Crockett had established a prima facie case of employment discrimination. The District Court did not expressly state its application of the appropriate McDonnell Douglas standard. However, its findings of fact 2-9, cited as support for its determination that Crockett had established an initial prima facie case of marital discrimination, indicate the court followed the initial McDonnell Douglas four-tiered test. The District Court found that Crockett was a married applicant, that she had applied for a job posted by the City and that she was qualified for this job by virtue of her previous experience, that she was rejected despite her qualifications, and that the job was instead filled by a single woman. Neither party contests the sufficiency of these findings of fact.

The establishment of a prima facie case under McDonnell Douglas raises an inference of discrimination at law. The burden then shifts to the defendant to “articulate some legitimate, nondiscriminatory reason for the employee’s rejection.” McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824. Defendant only bears the burden of production of a legitimate nondiscriminatory reason. This burden comprises the second tier of proof under McDonnell Douglas-, it is imposed on the defendant for two reasons:

“[It] meet[s] the plaintiffs prima facie case by presenting a legitimate reason for the action and . . . frame [s] the factual issue with sufficient clarity so that the plaintiff will have a full and fair opportunity to demonstrate pretext.”

Texas Dept. of Community Affairs v. Burdine (1981), 450 U.S. 248, 255-56, 101 S.Ct. 1089, 1095, 67 L.Ed.2d 207, 217. A defendant thus only need raise a genuine issue of fact by clearly and specifically articulating a legitimate reason for the rejection of an applicant. Johnson, 734 P.2d at 212.

As noted in McDonnell Douglas, even past conduct may be relevant to an employer’s assessment of present fitness for a job. McDonnell Douglas, 411 U.S. at 806-07, n. 21, 93 S.Ct. at 1826, n. 21, (citing Garner v. Bd. of Public Works of Los Angeles (1951), 341 U.S. 716, 71 S.Ct. 909, 95 L.Ed. 1317). A defendant need not adopt a hiring procedure that maximizes the hiring of any one protected class, nor even persuade the court that the defendant’s decision was actually based upon the proffered reasons. Furnco Constr. Corp. v. Waters (1978), 438 U.S. 567, 577-78, 98 S.Ct. 2943, 2950, 57 L.Ed.2d 957, 968; Burdine, 450 U.S. at 254. 101 S.Ct. at 1094.

The District Court’s conclusion of law number 3 clearly indicates that the court also considered and applied the facts to this second tier of proof required in McDonnell Douglas. The court concluded that the reason offered by the defendant in support of its decision not to rehire plaintiff, namely past job performance problems, constituted a legitimate nondiscriminatory reason.

Appellant contends, however, that the findings of past performance problems by the court were not supported by the evidence. Upon review, we must view the evidence in “a light most favorable to the prevailing party” to determine whether the findings of the trial court are supported by substantial credible evidence. Wallace v. Wallace (1983), 203 Mont. 255, 259, 661 P.2d 455, 457 (quoting from In re Marriage of Bosacker (1980), 187 Mont. 141, 145, 609 P.2d 253, 256). We will not set aside the District Court’s findings of fact unless they are unsupported by substantial credible evidence and thus clearly erroneous. See Rule 52(a), M.R.Civ.P.

The District Court based its determination that prior performance problems did in fact exist upon various exhibits introduced into evidence and upon witness testimony. A letter documented the extension of Crockett’s initial probationary period on September 10, 1981, because of absenteeism, work performance, and attitude problems. Further, performance appraisals on Crockett’s job performance during the period of July 1981 to December of 1982 documented numerous job performance problems including defensiveness when constructively criticized, flareups of temper, lax attendance without excuse, and the excessive use of the office telephone for personal calls. Testimony indicated that Crockett was counseled about these performance problems on January 5, 1982, and again on January 3, 1983. Captain John Hall testified that he had received numerous complaints from officers about Crockett’s job performance. Those written complaints which were found valid after investigation included complaints for failure to acknowledge a call resulting in no back-up, failure to properly complete an abandoned automobile form, mix-up in complaint dispatch forms involving others, involvement in an employee dispute while at work, and two improper officer dispatches. The above evidence certainly amounts to substantial credible evidence supporting the District Court’s finding of legitimate job performance problems. The District Court did not commit legal error when it thereafter concluded that a legitimate nondiscriminatory reason existed supporting the defendant’s decision not to rehire Crockett.

Once the defendant has produced a legitimate reason in support of its decision not to rehire, the plaintiff then must show that the defendant’s reasons are in fact a pretext. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. at 1824; Martinez, 626 P.2d at 246. This is the third and last tier of proof required in McDonnell Douglas. As stated in Burdine, proof of the pretextual nature of the defendant’s proffered reasons may be either direct or indirect:

“She may succeed in this either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer’s proffered explanation is unworthy of credence.”

Burdine, 450 U.S. at 256, 101 S.Ct. at 1095. Ultimately, the plaintiff must persuade the court by a preponderance of the evidence that the employer intentionally discriminated against her. Johnson, 734 P.2d at 213.

The District Court’s conclusion of law number 4 states: “Based on findings of fact 15 through 18, Plaintiff failed to show that the reason articulated by Defendant for not hiring Plaintiff was a pretext.” This conclusion illustrates that the District Court did in fact appropriately consider and apply the facts to the third-tier standard of proof set forth in McDonnell Douglas. We conclude that the District Court properly considered and applied all three tiers of proof required in McDonnell Douglas.

Appellant again contends, however, that the evidence does not support the court’s conclusion that the articulated performance problems were legitimate. We hold, however, that substantial credible evidence exists in support of the court’s' determination that marital status was not the more likely motivation behind the City’s decision. Evidence was introduced contradicting the testimony of Gary and Bonnie Crockett, Gary Angel, and Bud Henman. This contradicted testimony had formed the basis of plaintiff’s allegations of discrimination, as all three alleged they were told by Gonzalez that Crockett was not hired because she was married to a police officer.

Gonzalez himself testified under oath that he did not state to anyone that Crockett’s marital status was a reason for her nonhire. The evidence indicated that Paul Totten was in fact not even hired until 1985, the year after Gary Angel alleged Totten was present when Gonzalez made the disputed discriminatory comments at a work orientation session. Additionally, the charge of discrimination filed by Crockett failed to mention the alleged discriminatory comment by Gonzalez. Further, the letter Gary Crockett wrote to the Commission stated only that they were told she was not hired because of her past problems with officers. All the above mentioned testimony and evidence was offered to refute any direct evidence of marital discrimination. We hold that this evidence combined with the previously mentioned credible evidence of performance problems amounted to substantial credible evidence which supported the District Court’s determination that marital status was not the motivating reason for nonhire. The fact that the previously introduced complaints and reprimands were written and filed when Crockett was single, further supports the District Court’s determination that evidence of prior performance problems was in fact credible.

The Court of Appeals for the Ninth Circuit has held, and we think rightly so, that a defendant must be given an additional opportunity to prove that he or she would have made a similar employment decision, irrespective of any unlawful discrimination, only if liability for unlawful discrimination is first established. See, Muntin v. State of California Parks & Recreation Dept. (9th Cir. 1984), 738 F.2d 1054, 1056. The District Court’s ultimate determination that the plaintiff failed to prove unlawful discrimination in this case prevents any need for examining the weight given an alleged unlawful motive. Consequently, the District Court did not err by confining its findings to a consideration and application of the standard of proof found in McDonnell Douglas.

The third issue raised on appeal is whether the District Court erred by admitting Exhibits G, H, I, and J under Rule 803(6), M.R.Evid., the business record exception to the hearsay rule, and under the pretrial stipulation by both parties. Exhibits G, H, I, and J are written complaints about Crockett’s job performance that various police officers filed with Captain John Hall.

The pre-trial order had an exhibit list attached which gave a brief description of each exhibit and noted any objections. The plaintiff made no objection on the pre-trial order to the admission of Exhibits G, H, I, and J. The District Court thus admitted these exhibits over plaintiff’s objections at trial, rioting that these exhibits could be properly classified as exceptions to the hearsay rule under Rule 803(6), M.R.Evid.

Having stipulated to the admission of documents without foundation, a party may not later raise a hearsay objection at trial. Swenson v. Buffalo Bldg. Co. (Mont. 1981), [_Mont__,] 635 P.2d 978, 984, 37 St.Rep. 1588, 1594. The District Court did not err by admitting the exhibits without foundation as agreed to by both parties in the pre-trial order. We thus need not discuss whether the exhibits were properly admissible under Rule 803(6), M.R.Evid.

The fourth issue raised on appeal is whether the District Court gave sufficient weight to the reasonable cause finding of the Commission. We hold that the District Court did not err in the weight given to the reasonable cause finding as it was not properly admissible in the first place.

The issue of the admissibility of a reasonable cause finding has not been previously addressed by this Court, but much federal case law exists on the subject of the admissibility under federal law of findings by the Equal Employment Opportunity Commission (EEOC). The majority of the federal circuits generally have held that the admissibility of the EEOC’s final decision of cause is a matter of trial court discretion. See, e.g., Walton v. Eaton Corp. (3rd Cir. 1977), 563 F.2d 66; Strong v. Mercantile Trust Co. (8th Cir. 1987), 816 F.2d 429, cert. denied,_U.S._, 98 L.Ed.2d 771, 108 S.Ct. 759 (1988). The Ninth Circuit has gone even farther and held that EEOC findings are per se admissible. See, e.g., Smith v. Universal Servs., Inc. (5th Cir. 1972), 454 F.2d 154; Bradshaw v. Zoological Soc’y of San Diego (9th Cir. 1978), 569 F.2d 1066. All circuits, which admit EEOC findings, however, do so under Rule 803(8) of the Federal Rules of Evidence which is significantly different from Rule 803(8) of the Montana Rules of Evidence.

The Federal Rule generally allows for the admission of agency findings which result from an investigation authorized by law; lack of trustworthiness is the only express limitation upon admission. More specifically, Rule 803(8), Fed.R.Evid. states that the following are excepted from the hearsay rule:

“(8) Public Records and Reports. — Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth . . . (C) . . . factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness.”

Montana, on the other hand, has adopted the Uniform Rules’ version of Rule 803(8) which contains four additional limitations not found in Rule 803(8), Fed.R.Evid. The additional limitation pertinent to the issue of the admissibility of the reasonable cause finding is found in subsection (iv) which reads:

“[T]he following are not within this exception to the hearsay rule: . . . (iv) factual findings resulting from special investigation of a particular complaint, case, or incident . . .”

Rule 803(8), M.R.Evid., specifically excludes factual findings such as the reasonable cause finding of the Commission which directly results from an investigation of a particular complaint of discrimination.

In Tiemann v. Santarelli Enterprises, Inc. (Me. 1984), 486 A.2d 126, the Supreme Court of Maine, a state which has also adopted the Uniform Rule’s version of 803(8), ruled that federal cases decided under the Federal Evidentiary Rule 803(8) (C), were inapposite to a decision made under Maine’s Evidentiary Rule 803(8). The Maine court then held that an investigative report of a particular complaint of discrimination was not admissible under Rule 803(8), M.R.Evid. Tiemann, 486 P.2d at 131-132. We similarly hold that the reasonable cause finding of the Montana Human Rights Commission was not properly admissible at trial, and that the District Court erred in admitting it into evidence. This error, however, was not prejudicial to the outcome of this case.

Affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, McDONOUGH, WEBER, SHEEHY and HUNT concur.


source: Caselaw Access Project

author: MR. JUSTICE WEBER

license: Public Domain

text:
    ROBERT HURLY, Plaintiff and Respondent, v. DEAN STUDER, Ralph Studer, and Larry Chouinard, Defendants and Appellants.
    No. 88-215.
    Submitted on Briefs Aug. 11, 1988.
    Decided Sept. 22, 1988.
    761 P.2d 821.
    Ward Swanser, Moulton, Bellingham, Longo & Mather, Billings, for defendants and appellants.
    Robert Hurly, Glasgow, for plaintiff and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

Mr. Hurly brought this suit to recover a balance due on his fees for negotiation services rendered for the defendants. The District Court for the Seventeenth Judicial District, Valley County, denied defendants’ motion for change of venue. We remand for reconsideration.

The sole issue is whether the District Court erred in denying defendants’ motion for change of venue.

Mr. Hurly is an attorney in private practice at Glasgow, Montana. The defendants were the owners, operators, and managers of a development complex near Billings. According to the complaint, Mr. Hurly agreed to “provide business skills to renegotiate on the guarantees of the Defendants to [a Billings bank], and to work to renegotiate the terms of [certain loans mortgaged to a Maryland corporation].” Mr. Hurly’s complaint alleges that he provided those services, but that the defendants failed to pay the entire fee for the services. In answer to the complaint, the defendants filed a motion for change of venue to Yellowstone County. They appeal from the denial of that motion.

Did the District Court err in denying defendants’ motion for change of venue?

In denying the motion for change of venue, the District Court relied upon this Court’s opinion in Whalen v. Snell (1983), 205 Mont. 299, 667 P.2d 436. Whalen involved an attorney’s claim for his legal fees. The complaint alleged damages resulting from the defendant’s failure to pay the agreed rate for attorney fees. This Court concluded that this was a claim of bad faith in tort and that the rule for venue was therefore found at Section 25-2-102, MCA. The complaint in the present case alleges breach of contract, not tort. Further, Mr. Hurly emphasizes that he was providing business negotiation skills and not legal services. We conclude that Whalen is not controlling.

Section 25-2-121, MCA, governs venue for actions upon contracts. In relevant part it provides:

“(1) The proper place of trial for actions upon contracts is either:
“(a) the county in which the defendants, or any of them, reside at the commencement of the action; or
“(b) the county in which the contract was to be performed. The county in which the contract was to be performed is:
“(ii) if no county is named in the contract as the place of performance, the county in which, by necessary implication from the terms of the contract, considering all of the obligations of all parties at the time of its execution, the principal activity was to take place.
“(2) Subsections (2) (a) through (2)(d) do not constitute a complete list of classes of contracts; if however, a contract belongs to one of the following classes, the proper county for such a contract for the purposes of Subsection (l)(b)(ii) is:
“(b) contracts of employment or for the performance of services: the county where the labor or services are to be performed[.]”

When it ruled on the motion for change of venue, the court had before it the complaint, the motion and response to the motion for change of venue, two affidavits of Dean Studer, and two affidavits of Robert Hurly. The first affidavit of Dean Studer indicates that the defendants are all residents of Yellowstone County. It also states that “the individual contract was to be performed in Yellowstone County and not Hill [sic] County.” Mr. Studer’s second affidavit states that Mr. Hurly met with defendants in Billings and hired a negotiator who conducted negotiations, mailed correspondence, and made phone calls from Billings. Mr. Hurly’s affidavits state that while some of his services were performed by himself or others at other locations, the great majority were performed by him in his law offices in Valley County. The affidavits clearly present conflicting evidence as to where the contract was performed under Section 25-2-121(l)(b)(ii) or (2)(b), MCA. The District Court must make the initial factual determination on this issue. Section 25-2-201, MCA.

Remanded for reconsideration of the motion for change of venue.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES McDON-OUGH, HUNT and HARRISON concur.


author: MR. JUSTICE HARRISON

text:
    BROOK W. GARRETSON and Linda Garretson, Plaintiffs and Appellants, v. MOUNTAIN WEST FARM BUREAU MUTUAL INSURANCE CO., and Western Agricultural Insurance Co., Defendants and Respondents.
    No. 88-137.
    Submitted on Briefs June 22, 1988.
    Decided Sept. 23, 1988.
    761 P.2d 1288.
    Calvin A. Calton, Calton, Hamman, Calton & Wolfe, Billings, for plaintiffs and appellants.
    James D. Walen, Felt & Martin, Billings, for defendants and respondents.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

Plaintiffs Brook and Linda Garretson appeal a District Court order granting summary judgment in favor of Mountain West Farm Bureau Mutual Insurance Company (Farm Bureau). Summary judgment was granted January 12, 1988, in the Thirteenth Judicial District, Yellowstone County. We affirm.

On May 19, 1987, plaintiff-appellant Brook Garretson was involved in an automobile accident. The vehicle driven by Garretson, a 1984 Chrysler Laser, was “totaled.” The Garretsons purchased the vehicle December 19, 1986, for $8,995. At the time of the accident, the Garretsons’ outstanding balance on their car loan was $8,295.

The Garretsons insured the vehicle with Farm Bureau and the insurance policy included the following provisions:

“Appraisal. (Not applicable to liability coverages). If you and we fail to agree on the amount of loss, either one can demand that the amount of loss be set by appraisal. If either makes a written demand for appraisal, each shall select a competent, independent appraiser and notify the other of the appraiser’s identity within 20 days of receipt of the written demand. The two appraisers shall then select a competent, impartial umpire. If the two appraisers are unable to agree upon an umpire within 15 days, you or we can ask a judge of a court of record in the state where the residence [sic] premises is located to select an umpire. The appraisers shall then set the amount of the loss . . . Each appraiser shall be paid by the party selecting that appraiser. Other expenses of the appraisal and the compensation of the umpire shall be shared equally.
“Suit against us. No action shall be brought against us unless there has been compliance with the policy provisions and the action is started within four years after the date of discovery of loss or damage.”

The Garretsons’ insurance claim was investigated by Gary Cantrell (Cantrell), Farm Bureau’s claims representative. Cantrell initially valued the car at $6,295 and offered to settle the claim in that amount. According to Garretson, Cantrell stated that if the offer were refused, the value would be determined through arbitration and the Garretsons would receive $5,400 to $5,500 for the vehicle. Cantrell contends he merely described the appraisal procedures set forth in the insurance policy. The Garretsons assert Cantrell later phoned Linda Garretson at work and attempted to settle the claim with her.

The Garretsons demanded payment in the amount of $8,295. When Farm Bureau refused, the Garretsons filed a complaint on June 16, 1987, alleging bad faith. On July 13, 1987, counsel for Farm Bureau demanded the Garretsons’ loss be appraised through the procedures set forth in Garretsons’ policy. The Garretsons refused, contending the most accurate estimation of their loss was the remaining amount of their loan. Additionally, the Garretsons claim an accurate appraisal is impossible because the damage is so severe. Yet, according to Farm Bureau, severely damaged vehicles can still be appraised by experts with reasonable accuracy.

Summary judgment was granted in favor of Farm Bureau on January 12, 1988. The District Court found Farm Bureau had neither breached the contract nor acted in bad faith, and was entitled to value the vehicle through the appraisal process. The District Court also noted Western Agricultural Insurance Company was not a proper defendant in this action.

The parties have stated the issues in this case in differing ways. We believe the critical issue on appeal is whether a private automobile insurance policy may require the parties to submit to an appraisal process to determine the value of the loss in the event there is a disagreement as to value. Although the policy does not specifically provide that the parties are bound by the process, the wording indicates the appraisal process is intended to generate a valuation which is final and binding.

Prior to 1985, Section 28-2-708, MCA, stated:

“Restraints upon legal proceedings void. Every stipulation or condition in a contract by which any party thereto is restricted from enforcing his rights under the contract by the usual proceedings in the ordinary tribunals or which limits the time within which he may thus enforce his rights is void.”

This statute has been included in the laws of Montana since 1895 and is a codification of the common law rule. See, Wortman v. Montana Central Railway Co. (1899), 22 Mont. 266, 278, 56 P. 316, 321. The effect of Section 28-2-708, MCA, was that contract provisions requiring arbitration of all future contract disputes were void. See, e.g. Smith v. Zepp (1977), 173 Mont. 358, 369, 567 P.2d 923, 929.

The 1985 Montana Legislature amended Section 28-2-708, MCA, adding the law would not affect the validity of an agreement enforceable under the “Uniform Arbitration Act,” Title 27, Chapter 5 of the Montana Codes. The amendment validates arbitration provisions in a contract if they meet the requirement stated in the Uniform Arbitration Act. This obviously has a limiting effect on the scope of Section 28-2-708, MCA. Both parties refer to the Act in their arguments, but we find the Act inapplicable to the present case. Section 27-5-114, MCA, states in part:

“(2) A written agreement to submit to arbitration any controversy arising between the parties after the contract is made is valid and enforceable except upon such grounds as exist at law or in equity for the revocation of a contract. This subsection does not apply to:
“(b) any agreement concerning or relating to insurance policies or annuity contracts except for those contracts between insurance companies;

This statute clearly excludes the Garretsons’ auto insurance policy and the current dispute is not controlled by the Uniform Arbitration Act.

Prior to 1985, contract provisions requiring arbitration to resolve all future disputes were invalid. However, we had developed at least one exception to this rule. While we had concluded that a contract could not require binding arbitration of all future disputes, those disputes relating solely to questions of fact, such as value or quantity, were subject to arbitration.

The roots of this exception predate the codification of the general rule. In Randall v. American Fire Ins. Co. (1891), 10 Mont. 340, 353, 25 P. 953, 956-957, this Court stated:

“[T]he question, as to how far courts will be governed by a provision in the contract, requiring that controversies arising as to the rights and liabilities of parties thereunder be submitted to arbitration, has engaged the profound consideration of both American and English courts of last resort. The conclusion reached, and probably settled beyond further controversy, is that a provision in a contract, requiring all differences or controversies arising between the parties as to their rights and liabilities thereunder, to be submitted to arbitration, will not be allowed to interfere with or bar the litigation of such controversies when brought into court. To enforce such provisions would be to allow parties to barter away the jurisdiction of courts to determine the rights of parties and redress their wrongs. Therefore such provisions are disregarded as against public policy. But many of the same eminent authorities hold that a provision in a contract requiring that the value or quantity of a thing which might be involved in a controversy thereunder be ascertained and determined by arbitration, or in some other possible and reasonable manner, does not oust the jurisdiction of the courts, but only requires a certain character of evidence of a fact in controversy. Therefore a provision in a contract like the one under consideration in the case at bar, requiring that the value of the assured property, under certain conditions, shall be ascertained by appraisal, is not disregarded as against public policy, but is upheld has valid.” (Citations omitted.) (Emphasis in original.)

The Randall case was cited with favor in School District No. 1 v. Globe & Republic Ins. Co. (1965), 146 Mont. 208, 212-213, 404 P.2d 889, 892, where we upheld the validity of an insurance policy provision requiring arbitration when the parties disputed the amount of loss incurred. In Globe, we noted a distinction between an agreement requiring a private appraisal to settle a dispute regarding a pure question of fact, i.e., the value of the loss incurred, and an agreement requiring binding arbitration as to the resolution of all future disputes. See also, Palmer Steel Structures v. Westech, Inc. (1978), 178 Mont. 347, 350, 584 P.2d 152, 154; Smith v. Zepp (1977), 173 Mont. 358, 369, 567 P.2d 923, 929; and State ex rel. Cave Const. Co. v. District Court (1967), 150 Mont. 18, 22, 430 P.2d 624, 626.

Where there is no disputed issue of material fact, summary judgment is proper. We agree respondent is entitled to judgment as a matter of law. The District Court did not err in granting summary judgment since there is no disputed issue of material fact. Rumph v. Dale Edwards, Inc. (1979) 183 Mont. 359, 365, 600 P.2d 163.

The appellants’ complaint arose from a dispute over the amount of loss resulting from an automobile accident. By the terms of the insurance contract, if either party demands an appraisal, that amount of loss to the vehicle must be set by an appraisal. Here, the dispute deals with the amount of loss and the insurance contract clearly provides for an appraisal of such dispute. The parties must comply with the appraisal process before filing a complaint. The contract provisions in Globe were almost identical to those before us. There we held appraisal provisions were not contrary to public policy and therefore it was proper for either party to demand an appraisal. Upon like reasoning, the District Court properly granted Farm Bureau’s motion for summary judgment.

We agree with the District Court’s conclusion that the parties are bound by the appraisal process set forth in the insurance policy. Therefore, we affirm the District Court’s order of summary judgment.

Affirmed.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES WEBER, GULBRANDSON, SHEEHY, HUNT and McDONOUGH concur.


author: MR. JUSTICE HARRISON MR. JUSTICE McDONOUGH,

text:
    RONALD J. BREWER, Plaintiff and Appellant, v. SKI-LIFT, INC., a Montana corporation, Defendant and Respondent.
    No. 87-467.
    Submitted May 24, 1988.
    Decided Sept. 26, 1988.
    762 P.2d 226.
    Allan M. McGarvey, McGarvey, Heberling, Sullivan and McGarvey, Kalispell, for plaintiff and appellant.
    Norman L. Newhall, III, Linnell, Newhall and Martin, Great Falls, for defendant and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

Plaintiff, Ronald Brewer (Brewer), appeals a summary judgment granted in favor of defendant, Ski-Lift, Inc. (Ski-Lift), on October 14,1987, in the Fourteenth Judicial District, Meagher County, Montana. We reverse and remand.

On December 26, 1983, plaintiff Brewer suffered an injury while skiing at “Showdown,” a recreational ski area owned by Ski-Lift, a Montana corporation. Brewer contends his injury was caused by the negligence of the ski area operator. Brewer was skiing through powder snow when one ski came off and he fell. He claims his fall was an intentional response after he realized he had lost one ski. Upon falling, Brewer sustained injuries which he contends include fractured ribs, an aggravated degenerative back condition and a hemopneumothorax of the right lung. Brewer states his injuries resulted because he fell on a tree stump which was just beneath the snow and not visible. He contends the stump was removed from its natural position in the course of ski hill maintenance and placed in a dangerous location. Further, he contends the stump was turned upside down with sharp roots sticking upward and that proper maintenance would have eliminated such a hazard.

Following discovery proceedings, Ski-Lift filed a motion for summary judgment and the motion was granted October 14, 1987. The District Court concluded the judgment would favor defendant Ski-Lift even if Brewer’s facts were assumed to be true. The District Court reasoned that the circumstances of the accident, as related by Brewer, were controlled by the “Skier Responsibility” statutes. Sections 23-2-731 to -737, MCA. The District Court noted that, by statute, a skier is barred from recovery from a ski area operator if the skier suffers any injury as a result of “any risk inherent in the sport of skiing . . .” Section 23-2-737, MCA. Relying on Section 23-2-736, MCA, the District Court stated such risks include:

“a. Variations in terrain, surface or subsurface snow conditions, rocks, trees and other forms of forest growth or debris.
“b. Maintenance of the skier’s control of speed and course at all times while skiing.
“c. Collisions with an object while skiing.”

The District Court held that assuming all of Brewer’s facts were true, the injury resulted from risks inherent in the sport of skiing. Therefore, no genuine issue as to any material fact existed and defendant Ski-Lift was entitled to summary judgment.

Three questions are raised for our consideration on appeal:

1. Do the Montana “Skier Responsibility” statutes violate constitutional guarantees of equal protection?

2. Are the Montana “Skier Responsibility” statutes unconstitutionally vague?

3. Assuming the Montana “Skier Responsibility” statutes are held constitutional, did the District Court properly grant summary judgment in favor of defendant?

Issue 1: Do the Montana “Skier Responsibility” statutes violate constitutional guarantees of equal protection?

Brewer contends that the skier responsibility statutes, Sections 23-2-731 to -737, directly conflict with Article II, Section 16 of the Montana Constitution, guaranteeing the right to full legal redress. Brewer primarily attacks Section 23-2-736, MCA, and asserts that, without any showing of a compelling state interest, the statute denies a person’s fundamental right to full legal redress and cites Pfost v. State (Mont. 1985), [219 Mont. 206,] 713 P.2d 495, 42 St.Rep. 1957; and, White v. State (1983), 203 Mont. 363, 661 P.2d 1272. Plaintiff also relies on Madison v. Yunker (1978), 180 Mont. 54, 589 P.2d 126 (holding a liable statute unconstitutional because it effectively failed to provide a sufficient remedy); and, Corrigan v. Janney (Mont. 1981), [_ Mont. _,] 626 P.2d 838, 38 St.Rep. 545 (holding that it would be unconstitutional “to deny a tenant all causes of action . . . arising out of the negligent management of rental premises by a landlord”). The crux of Brewer’s argument is that the skier responsibility statutes absolve a ski area operator from all liability, even if a ski injury is caused by the operator’s negligent or reckless behavior.

Ski-Lift responds that although the State Constitution guarantees a right to full legal redress, the Legislature retains the power to define the scope and extent of that right. Significantly, Ski-Lift maintains that the skier responsibility statutes do not leave Brewer without a remedy for acts of negligence by the operator. In making this argument Ski-Lift relies on Section 23-2-731, MCA, which states, in part, “[t]hat there are inherent risks in the sport of skiing that are essentially impossible to eliminate by the ski area operator but that should be known by the skier.” Ski-Lift contends that this statement of purpose creates a situation where the skier only assumes “risks inherent in the sport of skiing.” This argument is made despite the fact that Section 23-2-736(1), MCA, specifically requires that a skier assume “the risk and all legal responsibility for injury to himself or loss of property that results from participating in the sport of skiing by virtue of his participation.”

Although Brewer initially frames this issue by alleging an unconstitutional restriction on his right to full legal redress, here the court denied him any redress. Both parties also address the equal protection aspects of the skier responsibility statutes. This case is not a denial of full legal redress, but rather a case of denial of any redress and therefore appropriately decided on the constitutional basis of denial of equal protection. Therefore, we choose to begin our analysis on this basis. The constitutional guarantee of equal protection requires that all persons be treated alike under like circumstances. Amend. XIV, Section 1, U.S. Const.; and Art.II, Sec. 4., Mont. Const. The foundation of this discussion relates to the fact that the statutes classify skiers and treat them differently than those who engage in other sports activities which are inherently dangerous. The statutes require skiers alone to assume the risk of injury. Additionally, the statutes classify ski area operators in their own class, and allow them certain rights not enjoyed by other recreational businesses.

In considering the constitutionality of the skier responsibility statutes, we must begin by presuming that the statutes are constitutional. It has long been the general rule of this Court that statutes carry a presumption of constitutionality. See, e.g. Goodover v. Department of Administration (1982), 201 Mont. 92, 95-96, 651 P.2d 1005, 1007. Generally, “whenever there are differing possible interpretations of [a] statute, a constitutional interpretation is favored over one that is not.” Department of State Lands v. Pettibone (Mont. 1985), [216 Mont. 361,] 702 P.2d 948, 956, 42 St.Rep. 869, 878.

Professor Lawrence H. Tribe, in his treatise American Constitutional Law, (2nd. Ed.), page 1440 speaking on “equal protection” notes:

“[T]o provide content, equal protection came to be seen as requiring ‘some rationality in the nature of the class singled out,’ with ‘rationality’ tested by the classification’s ability to serve the purposes intended by the legislative or administrative rule: ‘The courts must reach and determine the question whether the classifications drawn in a statute are reasonable in light of its purpose . . .’”

Citing, McLaughlin v. Florida (1964), 379 U.S. 184, 191, 85 S.Ct. 283, 288, 13 L.Ed.2d 222, 228.

At page 1441 Professor Tribe refers to two Supreme Court cases, Zobel v. Williams (1982), 457 U.S. 55, 102 S.Ct. 2309, 72 L.Ed.2d 672, and Hooper v. Bernalillo County Assessor (1985), 472 U.S. 612, 105 S.Ct. 2862, 86 L.Ed.2d 487. These two cases involved an irrational distinction made between state residents — the first being for the payment of monies to Alaska residents and the second to the New Mexico tax exemption for those who had served in the Vietnam War and who moved to New Mexico by a specified date. The rationale of those cases is appropriate here.

In Hooper, the Court speaking through Chief Justice Burger, stated a good general rule:

“When a state distributes benefits unequally, the distinctions it makes are subject to scrutiny under the Equal Protection Clause of the Fourteenth Amendment. Generally, a law will survive that scrutiny if the distinction rationally furthers a legitimate state purpose . . . [a]s in Zobel, if the statutory scheme cannot pass even the minimum rationality test, our inquiry ends.”

Hooper, 472 U.S. at 618, 105 S.Ct. at 2866, 86 L.Ed.2d at 493.

Our initial aim is to analyze the purpose of the skier responsibility statutes with the above constitutional principles in mind. In enacting the statutes the Legislature offered a specific statement of purpose:

“It is recognized that there are inherent risks in the sport of skiing that are essentially impossible to eliminate by the ski area operator but that should be known by the skier. It is the purpose of 23-2-731 through 23-2-737 to define those areas of responsibility and affirmative acts for which the ski area operator is liable for loss, damage, or injury and those risks for which the skier expressly assumes or shall be considered to have voluntarily assumed the risk of loss or damage and for which there can be no recovery.”

Section 23-2-731, MCA. In general the purpose was to more specifically define the standards of care and duty to be observed by both the skier and the ski area operator. Such a purpose is certainly legitimate and is a proper area for legislation.

There is a legitimate state interest in protecting the ski industry from frivolous lawsuits and liability over which the operator has no control. This leads us to the analysis of the troublesome portion of the skier responsibility statutes. Sections 23-2-736 and 23-2-737, MCA.

“23-2-736. Skier’s assumption of responsibility duties. (1) A skier assumes the risk and all legal responsibility for injury to him self or loss of property that results from participating in the sport of skiing by virtue of his participation. The assumption of risk and responsibility includes but is not limited to injury or loss caused by the following: variations in terrain, surface or subsurface snow or ice conditions, bare spots, rocks, trees, other forms of forest growth or debris, lift towers and components thereof, pole lines, and plainly marked or visible snowmaking equipment.
“(2) A skier is responsible for knowing the range of his own ability to ski any slope, trail, or area and for skiing within the limits of his ability, skiing only on designated slopes and trails, maintaining control of speed and course at all times while skiing, heeding all posted warnings, and refraining from acting in a manner that may cause or contribute to the injury of anyone. The responsibility for collisions with a person or object while skiing is the responsibility of the person or persons and not the responsibility of the ski area operator.
“(3) A person who is skiing may not place an object in the ski area or on the uphill track of a passenger tramway that may cause a passenger or skier to fall, cross the track of a passenger tramway except at a designated and approved area, or if involved in a skiing accident, depart from the scene of the accident without leaving personal identification before notifying the proper authorities or obtaining assistance when the skier knows that a person involved in the accident is in need of medical or other assistance.
“23-2-737. Effect of comparative negligence. Notwithstanding any comparative negligence law in this state, a person is barred from recovery from a ski area operator for loss or damage resulting from any risk inherent in the sport of skiing as described in 23-2-736. (Emphasis added.)”

In substance the underscored portions provide that a skier assumes the risk and all legal responsibility for injury to himself that results from participating in skiing; and that the responsibility for collisions with an object is the responsibility of the skier and not the responsibility of the ski area operator; and finally that notwithstanding the comparative negligence law of Montana, a skier is barred from recovery from a ski area operator for loss from any risk inherent in the sport of skiing, thereby eliminating the theory of comparative negligence. A fair reading of the underlined portions of the above statutes prohibits the skier from obtaining legal recourse against an operator even if the injury is proximately caused by the negligent or even intentional actions of the operator.

Counsel for Ski-Lift urges us to interpret Section 23-2-736, MCA, in light of the purposes stated in Section 23-2-731, MCA, and to thereby conclude that a skier does not assume the risk of operator negligence because that is not a risk inherent in the sport of skiing. We are unable to reach that conclusion after a careful review of the above underscored language in Sections 23-2-736 and 23-2-737, MCA.

Although the state has a legitimate interest in protecting the economic vitality of the ski industry, there is no rational relationship between this purpose and requiring that skiers assume all risks for injuries regardless of the cause and regardless of the presence of negligence or intentional conduct on the part of the ski area operator. As we read the above underscored portions of Sections 23-2-736 and 23-2-737, MCA, we conclude that these portions of the statutes are needlessly over broad and clearly go far beyond the stated purposes of the statutes as set forth in Section 23-2-731, MCA. Applying the test referred to in Hooper, we conclude that the underscored portions of these two statutes cannot pass even a minimum rationality test. These provisions are not related to inherent risks in the sport of skiing which are essentially impossible to eliminate by the ski area operator as stated in Section 23-2-731, MCA. We conclude that these provisions fail to pass the minimum rationality test for the following reasons: there is nothing in the legislation to suggest a reason to require that a skier assumes the risk and legal responsibility for injury to himself and for collisions and that there is no responsibility on the part of the ski area operator. Such provisions eliminate any theory of negligence on the part of the ski area operator. This contradicts Section 27-1-701, MCA, under which a person is responsible for an injury resulting from his want of ordinary care. In a similar manner, the underscored portion of Section 23-2-737, MCA, fails to meet the minimum rationality test in providing that notwithstanding the comparative negligence law of Montana, a person is barred from recovery from a ski area operator for loss from any risk inherent in the sport of skiing. In effect this appears to be an attempt to go back to the old law of negligence which provided in Montana that a person who was in any way contributorially negligent was barred from recovery. Again there is a total absence of a minimum rational basis for concluding that such a provision is required in connection with skiing when such an activity is compared with the various other activities which in themselves are also to be classed as inherently dangerous, but in which the comparative negligence laws are held to apply.

We therefore conclude that the above quoted sections of Section 23-2-736(1), MCA, and Section 23-2-737, MCA, violate the constitutional guarantee of equal protection and we accordingly hold them invalid, such invalid provisions being as follows:

“23-2-736. Skier’s assumption of responsibility duties. (1) A skier assumes the risk and all legal responsibility for injury to himself or loss of property that results from participating in the sport of skiing by virtue of his participation. . .
“(2) [T]he responsibility for collisions with a person or object while skiing is the responsibility of the person or persons and not the responsibility of the ski area operator . . .
“23-2-737. Effect of comparative negligence. Notwithstanding any comparative negligence law in this state, a person is barred from recovery from a ski area operator for loss or damage resulting from any risk inherent in the sport of skiing as described in 23-2-736.”

By way of suggestion and for the purpose of guiding the District Court, the following statement could be implemented as a jury instruction in this case as a replacement for the now invalid first sentence of Section 23-2-736(1), MCA:

“A skier assumes the risk and all legal responsibility for injury to himself or loss of property resulting from the inherent risks in the sport of skiing that are essentially impossible to eliminate by the ski area operator.”

This statement is in conformity with the stated purpose of the skier responsibility statutes and would not require all skiers to assume all risks no matter what the cause. At the same time, it would seem to accomplish the intent of the statutes. Further, we invite the Legislature to reconsider these statutes and enact appropriate additions or changes which are in conformity with this opinion.

In view of our determination of this first issue, we need not determine the remaining two issues. Here the statutory scheme fails to pass the minimum rationality test. We reverse and remand to the District Court for further considerations of defendant’s motion for summary judgment in accordance with this opinion.

MR. JUSTICES WEBER, SHEEHY and HUNT, and HON. JACK L. GREEN, District Judge, sitting for MR. CHIEF JUSTICE TURNAGE and HON. TED L. MIZNER, District Judge, sitting for MR. JUSTICE GULBRANDSON, concur.

MR. JUSTICE McDONOUGH,

dissenting:

A statute might be unfair but not unconstitutional. Our “skier responsibility” statute, Section 23-2-736, MCA, does not violate the constitutional guarantee of equal protection.

The majority opinion points out the statute classifies skiers separately and treats them differently than those who are engaged in other sports activities which are inherently dangerous, and places the ski area operators in a separate class and allows them certain rights not enjoyed by other recreational businesses. The equal protection question becomes, then, does the statute have some rational basis in fact and bear a rational relationship to legitimate state objects? Or, are the skiers being treated differently on a basis of a criteria wholly unrelated in a rational way to the objectives of the statute?

The objective of Section 23-2-736, MCA, is to define the duties and responsibilities of the skier and the ski area operator because of the inherent risks in the sport of skiing. Statutes in this part also define the responsibility of the ski lift operators and of the lift passengers. Would anyone challenge the rationality of such provisions or of provisions governing roller coasters and passengers? Risk distinctions between sports exist, and rational choices based on the perceived distinctions are made everyday. Sky diving and bull riding are to some people considered dangerous, while football is not. The legislature should be free to recognize the degrees of such risk and impose duties and obligations where needed.

The classification here is proper because it includes all who possess the characteristics or attributes which are the basis of the classification. Skier’s differences from those excluded (such as sky divers and bull riders) are substantial and are related to the purpose of this legislation.

Legitimate purposes and objectives here are safety, prevention of frivolous lawsuits, and reduction of liability of the ski area operators because of the uncertain potentially great ski area operator’s liability. These reasons are valid as a basis for the classification. See Pizza v. Wolf Creek Ski Development Corp. (Colo. 1985), 711 P.2d 671; Grieb v. Alpine Valley Ski Area, Inc. (1986), 155 Mich.App. 484, 400 N.W.2d 653.

The majority essentially does not agree with the legislature as to some of the delineated duties and responsibilities. This is not a basis for violation of the equal protection clause.

The proposed instruction of the majority, under their reasoning, would violate the equal protection clause by shifting the burden of responsibility to the ski area operator for all risks that are not essentially impossible for him to eliminate. It substitutes the Court’s judgment for that of the legislature in violation of Section 1-1-108, MCA.

I concur, however, with the majority as to the unconstitutionality of Section 23-2-737, MCA, “Effect of comparative negligence”, but for another reason. It clearly violates Section 12, Article V of the 1972 Montana Constitution, which provides as follows: “the Legislature shall not pass a special or local act when a general act is, or can be made, applicable.” This is a special act under these circumstances and the general comparative negligence act is applicable.


author: MR. CHIEF JUSTICE TURNAGE

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. JACKIE WAYNE BURK, Defendant and Appellant.
    No. 88-14.
    Submitted on Briefs Sept. 1, 1988.
    Decided Sept. 26, 1988.
    761 P.2d 825.
    J. Dirk Beccari, Missoula, for defendant and appellant.
    Mike Greely, Atty. Gen., Barbara Claassen, Asst. Atty. Gen., Helena, Robert L. Deschamps, III, Co. Atty., Missoula, Betty Wing, Deputy Co. Atty., for plaintiff and respondent.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Jackie Wayne Burk appeals his conviction of sexual intercourse without consent, Section 45-5-503, Montana Code Annotated. He was tried and convicted in May 1987 in the Fourth Judicial District, Missoula County, Honorable James B. Wheelis presiding. Burk was sentenced to twenty-five years in the Montana State Prison for his conviction of sexual intercourse without consent, to run consecutively with an additional ten-year sentence imposed for use of a weapon in the commission of the offense. The total Montana sentence imposed was to run concurrently with a previous Idaho sentence on an unrelated matter. We affirm.

The issue on appeal is whether the District Court erred in allowing the Missoula County Attorney to present evidence of defendant’s absence from the first scheduled trial on this matter along with an accompanying jury instruction on flight.

On December 21, 1985, defendant, age twenty-eight, went on a date with T.R., the complaining witness, age eighteen. Defendant picked her up at her house in Clinton and took her to a Christmas party in Missoula. Both consumed alcohol and defendant “smoked a joint”: a marijuana cigarette. When the party dwindled, they left in search of another Christmas party to be held by friends of Burk. After this point, the details are hotly disputed, and there is no agreement as to what transpired over the next several hours.

After a car wreck in Pattee Canyon at approximately 1:00 a.m., Burk and T.R. were picked up by passers-by in a Bronco. Burk forgot his coat in the wrecked car. T.R. wanted to go to the hospital because of the injuries to her head and face she received when Burk’s car went off the road and slammed into a tree. But, at Burk’s insistence, they were dropped off at the Babbit residence in Milltown. Unable to awaken the Babbits for assistance, they went to a neighboring trailer to use the phone. The trailer had no phone. Burk then lost track of T.R. for a short time but discovered her outside on the road exiting the trailer park. Burk testified that T.R. was going to walk across the field to the IGA in Milltown to call her parents for a ride home and she thought it best that he not be there. Defendant testified that he did not see T.R. again that night and was unaware of any incident which may have happened to her until the officers arrested him at about 4:30 a.m. while he was attempting to retrieve his car from the Pattee Canyon ditch.

T.R. relates a vastly different story of what happened to her in the early morning hours of December 22, 1985. Finding the IGA pay phone jammed, T.R. crossed the street and phoned her parents from a local business. It was 2:24 a.m. She asked her parents for a ride home and was waiting for them at the IGA when Burk reappeared.

He was now wearing dark blue snow clothing. He convinced T.R. that the Babbits, who had just given him the coat, had phoned her parents and that she was now supposed to go with Burk and wait inside at the Babbits’ for her parents. Believing Burk’s story, T.R. started off across the field again with Burk. As they walked across the walking bridge in Milltown Burk commented to her how easy it would be to push someone off the bridge to their death and make it look like an accident. T.R. took this as a threat.

After they crossed the bridge, Burk wanted to go under the bridge to “smoke a joint.” T.R. refused. Burk then told her she could go willingly or under force and with that he wrestled her down the embankment. T.R. testified that she landed on some bushes and rocks. She sat on the rocks while Burk smoked his cigarette. He then tried to kiss her but she refused. Burk tried to kiss her again and crawled on top of her. T.R. scratched his face. Angered, Burk told her that she could do this willingly or under force, and he then pulled a knife out of his pocket. T.R. testified that the knife blade was six inches in length. He rubbed the knife along her hair, ear and neck. He then took off his snow jacket and instructed her to lie on it. He pulled up her shirt and bit her right breast. T.R. testified that out of fear for her life, she was still and passive while Burk pulled down her pants and penetrated her. Burk then stated it would not be fun if T.R. was not going to move, so he stood up, pulled up his pants and left.

T.R. then went toward a light that was on in the trailer park. From the trailer, she phoned her parents again and told them she had been in two car wrecks, raped and threatened with murder. Her mother called 911 and within minutes a sheriff’s officer picked up T.R. She gave a full description of Burk and the location of his car. Burk was apprehended by other officers at 4:30 a.m. at the location of his car as given by T.R.

The officers transported T.R. to St. Patrick’s Hospital where a rape protocol kit examination was performed and the evidence preserved. T.R. was taken from the hospital to the sheriff’s department for a statement and some further questioning.

The evidence at trial from the rape protocol exam revealed sperm, four to six hours old, on T.R.’s underwear which matched the sperm that was also found on defendant’s underwear. Expert serologist testimony revealed that 30 percent of the male population had Burk’s blood and semen type so that this match up was not identity perfect. Rather, it was a probability test showing that defendant was definitely within the 30 percent group type of men as possible assailants. Examination by Dr. Girard revealed a lesion on T.R.’s right breast consistent with a bite mark.

Testimony from Estella Harris, whose phone T.R. used at 4:00 a.m., related that T.R. showed up on their door step crying and hysterical. She requested to use the phone, her clothes were dirty, she had dirt and twigs in her hair. She stated that she had just been raped.

Officers investigating the crime scene under the bridge found tennis shoe prints matching the same shoes that Burk was wearing. Also clothing patterns in the dirt near the rocks on the river bank were found. Additionally, when apprehended by officers in Pattee Canyon, Burk was wearing the dark ski jacket and had a knife in his pocket.

At trial the prosecution further introduced evidence of the June 4, 1986, original trial date for which defendant failed to appear. Defendant appeared the next day with an implausible story of an automobile accident the day before and the resultant disorientation which prevented his appearance.

The prosecution sought to show guilt by conduct of defendant’s attempt to avoid prosecution. However, defendant appeared at the courthouse the following day and was arrested. Defense counsel objected to the introduction of his absence as evidence of flight. The trial judge allowed the testimony and the jury was allowed to hear defendant’s tale. The jury was also given an instruction as to the use of flight evidence, from which they could infer a consciousness of guilt.

The jury convicted Burk of sexual intercourse without consent. Burk appeals.

I. EVIDENCE OF FLIGHT

The tension surrounding evidence of flight usually involves the issue of immediacy. Flight is an attempt to avoid arrest or prosecution. Gann v. State (Ind. 1988), 521 N.E.2d 330. Evidence of such is used to prove guilt by conduct. State v. Charlo (Mont. 1987), [226 Mont. 213,] 735 P.2d 278, 44 St.Rep. 597; see also McCormick on Evidence, Section 271 at 803 (3d Ed. 1984). Through the use of an accompanying instruction, the jury is allowed to infer a consciousness of guilt from evidence of flight. Charlo, 735 P.2d at 282, 44 St.Rep. at 603.

In the instant case, immediacy is not an issue. Because it was several months after the arrest and charges that defendant disappeared, the inference that defendant tried to escape arrest is negated.

However, we are not convinced that the evidence negates the possibility that defendant was trying to avoid prosecution, since he disappeared on the day of trial. Thus, the immediacy element is not at issue.

It should be noted, however, that a defendant must do more than merely fail to show up for the flight evidence to be proper. United States v. Sanchez (2nd Cir. 1986), 790 F.2d 245; Commonwealth v. Babbs (1985), 346 Pa.Super. 498, 499 A.2d 1111. In the instant case, the defendant’s nonappearance at his trial was coupled with the incredible story which he recounted to the authorities when he appeared the next day.

According to defendant’s testimony, he was involved in a single car accident on Blue Mountain Road outside of Missoula while en route to the courthouse for his trial. While he was driving along the Bitterroot River, a cigarette which he was trying to put in the ashtray fell to the floor and began burning. Defendant reached over to grab it, swerved off the road and plunged his car into the river. He testified that he became disoriented from hitting the trees and rocks as he was swept down river while trying to escape.

Once on dry land he hiked to Lolo Pass. (The opposite direction from Missoula, the place of trial.) It was midday when he reached the highway at the pass. Seeing no cars at all, he took off across country, headed for his residence in south Florence. He hiked the rest of that day and all through the night in the rain and hail. The next day he appeared at the courthouse in Missoula, dry, calm and oriented, to explain his absence to the judge. This is the story which Burk also told the jury at his second trial in May 1987.

At trial, the prosecution introduced evidence by Officer Reed that although the river had been searched repeatedly by the sheriff’s department, even during low water periods, no evidence of a car wreck was ever found and defendant’s car was not retrieved.

Officer Bell, an officer familiar with that area, testified that it would take five days and nights to hike the territory allegedly covered by the defendant on June 4, 1986. Through the officer’s testimony, defendant’s story was discounted on several points. In light of Officer Bell’s testimony, coupled with Officer Reed’s testimony and no car ever being found in the river, defendant’s story seems inherently unbelievable. It is reasonable that a jury could infer a consciousness of guilt by Burk’s absence coupled with this story.

A District Court’s ruling on the admissibility of certain evidence will not be disturbed absent a showing of an abuse of discretion. Cooper v. Roston (Mont. 1988), [232 Mont. 186,] 756 P.2d 1125, 45 St.Rep. 978. The trial judge in this case heard the defendant’s testimony in a June 1986 hearing and held an in camera hearing in May 1987 at which the State made an additional offer of proof before the judge ruled on its admissibility. Under these facts, defendant has failed to meet his burden of proof that the district judge abused his discretion in allowing the flight evidence.

Prosecutors introducing questionable evidence to prove guilt beyond a reasonable doubt are inviting issues of reversible error. In the instant case, it should be noted that a jury conviction easily could have been sustained from the substantial credible testimonial and scientific evidence against defendant which was produced at trial, notwithstanding the flight evidence. Thus, at most, the unnecessary flight evidence would have been harmless error had it been determined to be inappropriate. However, because there was more than mere absence on the part of the defendant and no issue of immediacy, the flight evidence was proper.

II. FLIGHT INSTRUCTION

The judge instructed the jury on the evidence as follows:

“If you are satisfied that the crime charged in the information has been committed by someone, then you may take into consideration any testimony showing or tending to show flight by the defendant. This testimony may be considered by the jury as a circumstance tending to prove a consciousness of guilt, but it is not sufficient of itself to prove guilt. The weight to be given such circumstances and significance, if any, to be attached to it, are matters for the jury to determine.”

A jury instruction is proper when it is “relevant to evidence or issues in a case and when it is supported by some evidence or some logical inference from other evidence presented at trial.” Charlo, 735 P.2d at 281, 44 St.Rep. at 602. (Emphasis added.) It is clear from the foregoing discussion of the evidence adduced at trial that this instruction was definitely supported by the evidence. Further, the instruction was a correct statement of the law. Indeed the instruction was taken verbatim from this Court’s opinion in Charlo.

Defense counsel next argues that it is legally inadmissible under Rule 403, M.R.Evid., arguing that its probative value is substantially outweighed by its prejudicial effect, and, the instruction improperly called additional attention to the issue of flight. We disagree.

There is probative value to flight evidence. “The fact that the jury could reasonably interpret the defendant’s actions as flight in avoidance of prosecution would support the instruction on flight.” Gann v. State (Ind. 1988), 521 N.E.2d at 334. Burk had ample opportunity to tell the jury his reasons for absence and to dissipate any prejudice the jury might attach to the fact that Burk was not present on June 4,1986. Determining the credibility of Burk’s story was properly left to the jury. The instruction itself cautions the jury that the significance, if any, of Burk’s absence is for them alone to determine. We find no error in this instruction.

Although the flight evidence was unnecessary in this case, the District Court did not abuse its discretion in allowing it. The jury instruction properly accompanied the flight evidence.

Judgment affirmed.

MR. JUSTICES HARRISON, HUNT, WEBER and SHEEHY concur.


text:
    LEVIN DAVIS and Sara Davis, Plaintiffs and Appellants, v. COURT V. SHERIFF, Mardi M. Sheriff and the Commercial Union Insurance Company, a Massachusetts corporation, Defendants and Respondents.
    No. 88-55.
    Submitted on Briefs Aug. 18, 1988.
    Decided Sept. 26, 1988.
    762 P.2d 221.

      Mark P. Yeshe, Harrison, Yeshe & Murphy, Helena, for plaintiffs and appellants.
    Paul Meismer, Garlington, Lohn & Robinson, Missoula, James L. Jones, Dorsey & Whitney, Billings, for defendants and respondents.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Plaintiffs Levin and Sara Davis (the Davises) brought a malicious prosecution action against Court and Mardi Sheriff (the Sheriffs) and against Commercial Union Insurance Companies (Commercial). The Davises also filed first-party and third-party insurance bad faith claims against Commercial Union.

The District Court of the First Judicial District, Honorable Henry Loble presiding, directed verdicts for defendants on the malicious prosecution claims and on Mr. Davis’s first-party bad faith claim. Trial was had on the remaining issue of third-party insurance bad faith. The jury returned a verdict in favor of the plaintiff Davises but awarded them only one dollar compensatory damages and one dollar punitive damages. The Davises’ motion for a new trial on the issue of damages was denied December 16, 1987, and this appeal followed.

We affirm.

The Davises present the following issues on appeal:

Did the District Court abuse its discretion by

(1) directing verdicts on the malicious prosecution claims in favor of Sheriffs and Commercial;
(2) directing the verdict for Commercial on the first-party insurance bad faith claim;
(3) refusing to grant a new trial as to compensatory damages;
(4) refusing to grant a new trial as to punitive damages; and
(5) refusing to admit plaintiffs’ proposed exhibit number 45 on damages.

This malicious prosecution suit arises out of a series of events beginning with a fire in 1977. As of March 22, 1977, the Davises were managing/leasing the Yacht Basin Bar and Restaurant from the Sheriffs until a fire on October 1, 1977, destroyed the premises, including property of the Davises. The Davises asserted that the cause of the fire was a leaky roof which caused a short in the electrical system.

The Davises lost roughly $10,000 due to the fire. They attempted to recover this sum from Commercial Union who insured the premises for the Sheriffs. Commercial Union refused to pay, saying that the cause of the fire was either arson or negligence on the part of the Davises. It was determined that a burner had been left on either by the Davises or one of their employees. This, however, was disputed as the cause of the fire since at least one expert testified that the fire could not have started in the kitchen. However, Commercial Union then counterclaimed in the amount of $150,000 in damages for the building, which amount was later reduced to $75,000. Eventually, that claim was dropped all together. It was that counterclaim that forms the basis for this action.

Trial was had on those issues which resulted in a verdict for the Davises for their loss of $10,000. (Levin and Sara Davis v. Court V. and Mardi M. Sheriff, Cause No. 44240). However, it cost the Davises $5,000 to recover that money due to them under the insurance policy because of Commercial Union’s refusal to pay the claim, their counterclaim and their insistence on litigating the matter. Thus, the Davises suffered an out-of-pocket loss of $5,000, and this claim of malicious prosecution against the Sheriffs and their insurance company resulted.

The Davises also claimed that they were listed as insured on the policy and they filed a first-party as well as a third-party insurance bad faith claim against Commercial Union. The first-party claims were dropped by the District Court on a motion for directed verdict. Likewise, verdicts on the malicious prosecution claims were directed in favor of both defendants. Davises assign those directed verdicts as abuse of discretion by the District Court. We disagree.

I. Standard of Review

The standard for reviewing a trial court’s judgment was set forth by this Court recently in Marriage of Watson (Mont. 1987), [227 Mont. 383,] 739 P.2d 951, 44 St.Rep. 1167. There, we stated that a District Court’s judgment, when based on substantial credible evidence, will not be altered unless a clear abuse of discretion is shown. Watson, 739 P.2d at 954, 44 St.Rep. at 1170. In In re Marriage of Stewart (Mont. 1988), [232 Mont. 40,] 757 P.2d 765, 45 St.Rep. 850, this Court specifically condemned previous language regarding the standard of review. Determinations of whether the district judge acted arbitrarily, without the employment of conscientious judgment or exceeded the bounds of reason were specifically rejected by this Court. We have defined substantial evidence as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” State v. Lamb (1982), 198 Mont. 323, 646 P.2d 516.

Thus, for each issue raised by the Davises, this Court should defer to the discretion of the trial court unless this Court finds that the District Court’s ruling was not based on substantial credible evidence and was an abuse of discretion.

II. Directed Verdicts

We defined the standard for a directed verdict as follows:

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

Semenze v. Leitzke (Mont. 1988), [232 Mont. 15,] 754 P.2d 509, 511, 45 St.Rep. 829, 831.

Thus, in this case the District Court granted the directed verdicts because it held there was insufficient evidence to support the claims of malicious prosecution and first-party insurance bad faith. We agree.

III. Malicious Prosecution

The burden on plaintiffs asserting malicious prosecution is heavy. They may only recover damages when each of the six essential elements of the claim are fully “complied with.” Orser v. State (1978), 178 Mont. 126, 582 P.2d 1227. It is well settled that those six elements are as follows:

(1) a judicial proceeding commenced and prosecuted against the plaintiff;
(2) the defendant’s responsibility for litigating, prosecuting, or continuing the proceeding;
(3) lack of probable cause for the defendant’s acts;
(4) that the defendant was actuated by malice;
(5) that the proceeding terminated in favor of the plaintiff; and
(6) that the plaintiff suffered damages.

See, Vehrs v. Piquette (1984), 210 Mont. 386, 390, 684 P.2d 476, 478; Reece v. Pierce Flooring (Mont. 1981), [_Mont._,] 634 P.2d 640, 642, 38 St.Rep. 1655, 1657-1658.

If one of these elements is not proved, verdict may be directed for the defendant. Orser, 582 P.2d at 1232; St. Paul Mercury Insurance Co. v. Jeep Corp. (1977), 175 Mont. 69, 71, 572 P.2d 204, 205.

It is clear from the evidence in the case at bar that plaintiffs’ case lacks evidence against both defendants on the issues of lack of probable cause and malicious intent. Evidence of the remaining elements is also weak. Because plaintiffs are not able to prove a prima facie case of malicious prosecution, their claim must fail as a matter of law and verdict was properly directed.

The first issue is that of probable cause on which to base the defendants’ counterclaim. The record is clear that defense counsel acting for Sheriffs had probable cause before instituting the counterclaim. Because the damages sought in the counterclaim arose out of the same transaction and same set of facts as the plaintiffs’ suit, defense counsel properly viewed his claim as a compulsory or mandatory counterclaim under Rule 13(a), M.R.Civ.P., and knew he must assert his clients’ claim or it would be barred. That would be no excuse for negligent factual investigation, but this fact coupled with the interviews conducted by counsel Drake defeats the claim of lack of probable cause.

Most noteworthy in Drake’s factual investigation is the following. Ed Herzog, the insurance adjuster, filed a report that listed the cause of fire as arson. Drake reviewed this report and interviewed Herzog personally as to that report prior to filing his counterclaim. Drake also interviewed Dan Schulte, a prospective buyer of the Yacht Basin Bar and Restaurant. One week before the fire, Schulte had hired Deputy State Fire Marshall Matt Kunnary to inspect the electrical and wiring system on the premises. Drake confirmed with Schulte that Kunnary’s report showed the electrical system to be “in good working order.”

Thus, there was a real dispute among the experts as to the cause of the fire and plaintiffs’ claim of faulty electrical wiring was discounted on at least two occasions. From the foregoing, one could reasonably find probable cause to assert the Sheriffs’ counterclaim and plaintiffs’ prima facie case of malicious prosecution fails. The verdict was properly directed in favor of defendants.

Because Davises fail on this element and their case against the Sheriffs fails, we will not discuss the other areas revealed by the record of insufficient evidence for this claim.

The Davises next allege malicious prosecution against Commercial Union under the same facts. However, probable cause existed for the insurance company just as for the Sheriffs, as discussed above, and plaintiffs’ case fails.

We find no reason to discuss the other issues on which plaintiffs’ case against Commercial also fails. Verdict was properly directed in favor of Commercial Union on the malicious prosecution claim.

IV. First-Party Insurance Bad Faith Claim

Plaintiff Mr. Davis next assigns error to the directed verdict on his claim of first-party insurance bad faith. Mr. Davis asserts that since he was listed on the policy as an insured, he should be afforded a status such that the statutory duty Commercial Union owed to the Sheriffs was likewise owed to Mr. Davis.

However, plaintiff’s case fails both in evidence and by his conduct. Plaintiff failed to bring forth evidence of any specific statutory violations by Commercial and even failed to present evidence of general business practice.

Additionally, Davis’s conduct complicates his case. The only possible “duty” owed by Commercial to Davis would have been to provide a legal defense to Davis for the counterclaim and then indemnify if necessary in that suit. But the record clearly shows Davis retained his own counsel and at no time requested Commercial to defend. Thus, even though Commercial had knowledge of the suit pending, bad faith cannot be found for not providing what has not been requested. Likewise, we will not stretch the contractual fiduciary duty of an insurer to cover this situation where Davis made no claimant contact with Commercial, no request for defense, and no request for indemnity. The status argument has been treated by Davis as an afterthought.

From the foregoing want of evidence to support any existing theory of bad faith, verdict was properly directed.

V. New Trials

Davises also appeal from denial of their request for a new trial on the issues of compensatory and punitive damages. Davises assert that both damages awards are inadequate,, that they are contrary to the law as given to the jury, and contrary to the weight of the evidence. Davises argue that since the evidence of their damages was uncontroverted, they are somehow entitled to the amount alleged as a matter of right. We disagree.

Although appeals as to damages usually occur because the amount awarded is alleged to be excessive rather than inadequate, the law in Montana as to damages is well-settled. The amount of damages is committed first to the discretion of the jury and next to the discretion of the trial judge who, in passing on the motion for a new trial, may set aside the verdict if it is not just. Dahlin v. Rice Truck Lines (1960), 137 Mont. 430, 352 P.2d 801. “This Court will not substitute its judgment for that of the jury, especially where, as here, the trial court has approved the verdict by denying the motion for a new trial.” Dahlin, 137 Mont. at 438, 352 P.2d at 805, quoting McNair v. Berger (1932), 92 Mont. 441, 15 P.2d 834. Accord: Sullivan v. City of Butte (1930), 87 Mont. 98, 285 P. 184; Teesdale v. Anschutz Drilling Co. (1960), 138 Mont. 427, 357 P.2d 4; Wyant v. Dunn (1962), 140 Mont. 181, 368 P.2d 917; Hurly v. Star Transfer Co. (1962), 141 Mont. 176, 376 P.2d 504; Vogel v. Fetter Livestock Co. (1964), 144 Mont. 127, 394 P.2d 766.

Thus, the standard of review is not whether the nominal damages are inadequate, but rather, whether the trial court abused its discretion in refusing to grant a new trial. It is fundamental to our system of trial by jury that the factfinder who hears the evidence possesses the right to judge the credibility of the witnesses and may accept or reject the evidence offered. In the case at bar, after a week of testimony and lengthy explanation of the underlying years of litigation and previous damage awards made to the Davises, the jury determined the appropriate award for the Davises in this case was two dollars.

The trial judge, relying on the same evidence and the knowledge that damage awards are left first to the sound discretion of the jury, properly refused to upset that jury determination.

It should be further noted that no plaintiff is ever entitled to exemplary damages as a matter of right, regardless of the situation or the sufficiency of the facts. Spackman v. Ralph M. Parsons Co. (1966), 147 Mont. 500, 414 P.2d 918.

Based on the law and the record in this case, Davises fail to convince this Court that the trial court abused its discretion.

VI. Proposed Exhibit 45

Plaintiffs next assign as error the refusal of their proposed exhibit Number 45. Exhibit 45 was a written summary which purported to show the financial arrangement between Davises and their counsel and the disposition of funds recovered from the underlying tort action as evidence of Davises’ damages.

The District Court properly refused to admit Exhibit 45 because it was a writing containing hearsay. This writing did not fit into any hearsay exception under Rule 801, M.R.Evid. Further, it was not the exclusive evidence on this issue. The record reveals that the trial judge invited counsel to present oral testimony in lieu of Exhibit 45 to reach the same result, but counsel totally discontinued his line of questioning when Exhibit 45 was refused.

A District Court’s ruling on the admissibility of certain evidence will not be disturbed absent a showing of an abuse of discretion. Cooper v. Rosston (Mont. 1988), [232 Mont. 86,] 756 P.2d 1125, 45 St.Rep. 978. Under these facts, Davises fail to prove that the trial court abused its discretion by refusing to admit Exhibit 45, especially when the trial judge encouraged the evidence to come in through other means.

Finding no abuse of discretion by the trial judge on any of the five issues raised by Davises, judgment is hereby affirmed.

MR. JUSTICES HARRISON, HUNT, WEBER and GULBRANDSON concur.


author: MR. JUSTICE McDONOUGH

text:
    CHARLES R. WAGNER, Melissa L. Wagner and William L. Peterson, Plaintiffs and Appellants, v. ANDREA OLENIK, James C. Herbel, and Ethel Herbel, Defendants and Respondents.
    No. 88-222.
    Submitted on Briefs Aug. 18, 1988.
    Decided Sept. 26, 1988.
    761 P.2d 822.
    Moses Law Firm, Stephen C. Moses, Billings, for plaintiffs and appellants.
    Dorsey & Whitney, John G. Crist, Billings, for defendants and respondents.
   MR. JUSTICE McDONOUGH

delivered the Opinion of the Court.

This appeal from the Thirteenth Judicial District, in and for the County of Big Horn, involves appellants Wagners’ and Peterson’s (Wagners’) claim for an easement by necessity across the property of respondents Olenik and Herbels. The District Court granted Olenik’s and Herbels’ motion for summary judgment holding that no easement by necessity existed. We affirm.

Wagners present the following issues for review:

(1) Was there a factual issue before the Court regarding access to the premises in 1914?
(2) Can an implied easement be extinguished by adverse possession?

The relevant facts and procedure are as follows: The lower court reasoned that no easement existed because the common grantor of the parties’ predecessors in title, the United States, had access out of its property at the time a transfer to Olenik’s predecessor in title severed unity of the parcels. The lower court also held that even if an easement had existed at the time the United States severed unity of title, adverse possession had extinguished the easement prior to the claim made here. We agree that no facts support Wagners’ contention that an easement by necessity has ever existed on the properties at issue, and affirm on that basis.

The alleged easement, a two track unimproved trail the width of an automobile, runs through Wagners’ property in Section 27, Township 3 North, Range 33 East, M.P.M., Big Horn County, Montana, and proceeds through property owned by Herbels and Olenik in Sections 34 and 35, Township 3 North, Range 33 East, M.P.M., Big Horn County, Montana.

The parties agree that after unity of title was broken no one person has held all the parcels through which the trail runs. The parties. also agree that no express easement was retained by the government when unity of title was severed.

The following conveyances are listed in the lower court as agreed facts:

“11. The following portions of the Olenik property were conveyed from the United States Government to Olenik’s predecessors in interest by Patent No. 404785 on May 13, 1914:
“The South half (SV2) of the Northeast quarter (NEVi) and the Southeast quarter (SEVi) of the Northwest quarter (NW í/4) of Section 35, Township 3 North, Range 33 East, M.P.M. according to the Official Plat of the Survey of the said Land, returned to the General Land Office by the Surveyor-General.
“12. The following portions of the Olenik property were conveyed to Olenik’s predecessors in interest by Patent No. 450810 on December 23. 1914:
“The Southwest quarter (SWVá) of the Northwest quarter (NW lA) of Section 35 and the Northeast quarter (NEVi) of Section 34 of Township 3 North, Range 33 East, M.P.M. according to the Official Plat of the Survey of the said Land, returned to the General Land Office by the Surveyor-General.
“13. The following portion of the Herbel Property as conveyed to Herbels’ predecessors in interest by Patent No. 479100 on June 21, 1915:
“The North half (NV2) of the Northwest quarter (NWVi) of Section 35, Township 3 North, Range 33 East, M.P.M. according to the Official Plat of the Survey of the said Land, returned to the General Land Office by the Surveyor-General.
“14. The following portion of the Wagner/Peterson property as conveyed to Wagner/Peterson’s predecessors in interest by Patent No. 579984 on April 23, 1917:
“The South half (SV2) of Section 27, Township 3 North, Range 33 East, M.P.M. according to the Official Plat of the Survey of the said Land, returned to the General Land Office by the Surveyor-General.
“15. The following portion of the Olenik property was conveyed to Olenik’s predecessors in interest by Patent No. 579982 on April 23, 1917:
“The Northwest quarter (NW14) of Section 34 East, Township 3 North, Range 33 East, M.P.M. according to the Official Plat of the Survey of the said Land, returned to the General Land Office by the Surveyor-General.”

The parties agree that the first conveyance, on May 13, 1914, severed unity of title. The only fact question remaining for the lower court on the actual existence of the alleged easement was whether the grantor of the parties’ predecessors in title, the United States, retained an easement by necessity because the conveyance cut off access to its remaining property. The lower court found in this regard:

“[A]t the time of separation of the ownership of the property, that is 1914, there was an alternative route to the highway in question, hence an easement by necessity was not created at that time.”

Facts presented by Olenik and Herbels revealed that no physical barriers existed to prevent the United States from gaining access to what became Wagners’ property across property remaining in its ownership following the conveyance on May 13, 1914. Wagners offered no facts to refute this contention.

I.

On the first issue Wagners contend the District Court erred because it equated the possibility of riding a horse across open prairie with “access” for analyzing whether necessity to use the alleged easement existed in 1914. Olenik and Herbels respond that Wagners incorrectly equate “access” with the existence of a road or trail. We agree with Olenik’s and Herbels’ argument.

Necessity must be strictly defined by the lack of the means of ingress and egress. State v. Cronin (1978), 179 Mont. 481, 488, 587 P.2d 395, 399. A strict definition of the lack of a way in and out of property does not include lack of a road under the agreed facts of this case. See, e.g., Oyler v. Gilliland (Ala. 1980), 382 So.2d 517. The agreed facts demonstrate that the United States retained access to the South half of Section 27, that is, what became Wagners’ property, at the time the May 13,1914, conveyance severed unity of title. More specifically, the facts reveal that the United States had access in and out of the South half of Section 27 from the North half of Section 27, the South half of Section 26, the South half of Section 28, and beyond.

Necessity of the alleged easement for access to the parcel retained by the grantor must exist at the time unity of title is broken. Graham v. Mack (Mont. 1984 [1985]), [216 Mont. 165,] 699 P.2d 590, 596, 41 St.Rep. 2521, 2528. Otherwise, no easement is created. Cronin, 587 P.2d at 399.

District courts properly grant summary judgment when no material fact questions exist, and in light of the substantive principles of law involved, the established facts entitle the movant to judgment as a matter of law. Fleming v. Fleming Farms, Inc. (Mont. 1986), [221 Mont. 237,] 717 P.2d 1103, 1106, 43 St.Rep. 776, 779. The lack of a material fact question on the absence of necessity at the time the May 13, 1914, conveyance entitled Olenik and Herbels to judgment as a matter of law.

II.

The second issue here is rendered moot by resolution of the first issue because in the absence of creation of an easement by necessity, no showing need be made that Olenik’s and Herbels’ control of the alleged easement extinguished such easement. Thus, we affirm on the basis of resolution of the first issue for Olenik and Herbels.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES HARRISON, GULBRANDSON and SHEEHY concur.