text:
    JOHN MILLER, JR., and William E. Taylor, Plaintiffs and Appellants, v. YELLOWSTONE COUNTY, Yellowstone County Commissioners, Grace M. Edwards, Dwight MacKay, Conrad Burns, and Yellowstone County Treasurer, May Jenkins, Defendants and Respondents.
    No. 88-276.
    Submitted on Briefs Aug. 18, 1988.
    Decided Sept. 27, 1988.
    761 P.2d 829.
    Parker Law Firm, Paul E. Toennis, Billings, for plaintiffs and appellants.

      Harold Hanser, County Atty., David W. Hoefer, Deputy Co. Atty., Billings, for defendants and respondents.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

Rural Special Improvement District No. 41 was created in 1938 by the County Commissioners of Yellowstone County for the installation of a water main having a diameter of four inches for the benefit of the owners within the District. In 1986 the County Commissioners replaced the four-inch water main in the District with one having a diameter of twelve .inches and assessed the cost thereof to the owners within the District as a maintenance cost. We hold in this appeal by John Miller, Jr., from a summary judgment against him in the District Court, Thirteenth Judicial District, Yellowstone County, that the replacement of the water main was reconstruction, not maintenance, and reverse the District Court.

The County was apparently forced to enlarge the water main because of the erection of a new county jail within the boundaries of the District. The issue on appeal is whether the replacement of a four-inch water main with a main of nine times greater capacity is mere maintenance. The question seems to answer itself.

Under Section 7-12-2102, MCA, county commissioners are given broad power to order and create special improvement districts outside the limits of incorporated towns and cities for the purpose of building, constructing and acquiring all of the improvements allowed to city special improvement districts as described in Section 7-12-4102, MCA. Through the latter statute, the county commissioners thus have the power, whenever the public interest or convenience may require, to create special improvement districts “and order the acquisition, construction, or reconstruction” of water mains and extensions of water mains. Section 7-12-4102(2)(d)(iii), MCA. (Emphasis added.)

Once a rural special improvement district has been created, and the improvements installed, the county commissioners have two options by which to defray the cost of maintenance. Under Section 7-12-2120, it is made the duty of the county commissioners “to adequately and suitably maintain and preserve” the improvements and “to fully keep the same in proper repair and operation” by contract or otherwise as the board may determine. The whole cost of such maintaining, preserving or repairing the improvements under Section 7-12-2120 is assessed to the entire district and paid by the property owners with their taxes.

The other option for the county commissioners to pay maintenance costs is to create an improvement district maintenance fund under Section 7-12-2162, MCA. Under this provision it is the duty of the county commissioners, before the first Monday in September of each year, to adopt a resolution assessing the whole cost of maintaining, preserving or repairing the improvements for that year against the property within the district.

In this case, the County Commissioners apparently decided to proceed under Section 7-12-2120, MCA, to replace the water line, and to charge the district property owners the cost of replacement as maintenance, preservation and repair of the water line, spread over five years. But whichever option was used, the applicable principles remain the same.

No notice of the proposed replacement of the water line or opportunity to protest the replacement was given to the property owners within the District.

It is obvious that the meanings of the words “maintenance,” “preservation” or “repair” cannot be stretched to include the complete replacement of the water main, and its enlargement to nine times its capacity. A reconstruction occurred, for which the County Commissioners had the power to create a special improvement district under the statutes aforesaid. If the County Commissioners had proceeded to create a rural special improvement district for such reconstruction, the property owners would have been given notice of the intention to create the district (Section 7-12-2105, MCA) and of their right to protest its creation or extension (Section 7-12-2109, MCA).

We hold that the replacement of the water line in this case was not maintenance, but rather, reconstruction. We therefore reverse the summary judgment as to the appellant John Miller, Jr. The other plaintiff, William E. Taylor, has not appealed, and the judgment of the District Court stands as to him.

There were other issues raised both by Miller and the County in the District Court which were not reached because of the summary judgment. Those issues are not before us on this appeal. We therefore reverse and remand for further proceedings before the District Court in conformance with this opinion.

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

MR. JUSTICES SHEEHY did not participate in this cause.


source: Caselaw Access Project

author: MR. JUSTICE WEBER

license: Public Domain

text:
    CAMERON LEE, Claimant and Appellant, v. EUGENE LEE, d/b/a Wilderness Ranch and Lodge, Employer, and State Compensation Insurance Fund, Defendant and Respondent.
    No. 88-289.
    Submitted on Briefs Aug. 26, 1988.
    Decided Sept. 27, 1988.
    761 P.2d 835.
    John H. Bothe, Bothe & Lauridsen, Columbia Falls, for claimant and appellant.
    W.D. Hutchison, Agency Legal Services Bureau, Helena, for defendant and respondent.
   MR. JUSTICE WEBER

delivered the opinion of the Court.

The Workers’ Compensation Court denied Cameron Lee’s claim for compensation for a July 1986 injury, ruling that his claim is barred by his failure to give notice to his employer pursuant to Section 39-71-603, MCA. Cameron Lee appeals. We affirm.

The issue is whether Section 39-71-603, MCA, requires a claimant to notify his employer that he believes his injury is work-related in order for the claim to be considered compensable.

Eugene Lee owned an outfitting business, Wilderness Ranch & Lodge (Ranch), near Bigfork, Montana. Cameron Lee (Claimant) is Eugene Lee’s son. Claimant worked for the business as a packer-guide. On July 14, 1986, Claimant worked at the Ranch. At about 8 p.m., he and two of his friends who had been helping out at the Ranch left for Hungry Horse, Montana, where Claimant lived. Claimant drove his father’s two-ton truck because he was to pick up a load of hay before returning to the Ranch in the morning. Claimant parked the truck at his home, then went out with his friends. He was injured at approximately 2 a.m. when he was thrown out of the back of his friend’s pickup truck while returning home from a bar. Claimant’s wife told Eugene Lee about the accident and injuries the next morning. In his deposition, Claimant stated that he never spoke directly to his father about his injuries. Approximately one year later, Claimant filed a claim for workers’ compensation.

The Workers’ Compensation Court issued a summary judgment that Claimant did not give his employer the notice required under Section 39-71-603, MCA. In making that judgment, the court had before it the depositions of Eugene Lee, Claimant and Claimant’s wife. The hearing examiner’s proposed findings and conclusions, adopted by the court, stated that [t]here is nothing to inform an employer father that a son falling out of a pickup at 2:00 a.m. in the morning after closing a local bar, was engaging in any conceivable work-related activity. The claimant had every opportunity to supply such notice if he considered his actions work-related, but he failed to do so within the 60 days required in Section 39-71-603, MCA.”

Does Section 39-71-603, MCA, require a claimant to notify his employer that he believes his injury is work-related in order for the claim to be considered compensable?

Section 39-71-603, MCA (1985), provided:

“No claim to recover benefits . . . may be considered compensable unless, within 60 days after the occurrence of the accident which is claimed to have caused the injury, notice of the time and place where the accident occurred and the nature of the injury is given to the employer . . . Actual knowledge of the accident and injury on the part of the employer ... is equivalent to notice.”

(The statute was modified in 1987 to decrease to 30 days the time allowed to give notice.)

Claimant argues that Section 39-71-603, MCA, only requires that the employer be notified of the employee’s accident and the resulting injuries within 60 days. He asserts that any questions about the employer’s liability are properly addressed in the handling of a subsequent workers’ compensation claim. He claims that he was talking with his friends about setting up a hunting trip at the Ranch for the following summer. In his deposition, he stated that recruiting of future clients was expected of him as part of his job.

Claimant cites several Montana cases in arguing that the employer need only be notified that there has been an accident and that the employee has been injured, not that the injury is believed to be work-related. See Wight v. Hughes Livestock Co., Inc., (Mont. 1981), [_Mont._,] 634 P.2d 1189, 38 St.Rep. 1632; rev’d on other grounds after remand, 204 Mont. 98, 664 P.2d 303; Wilson v. Sun River Cattle Co. (1983), 206 Mont. 63, 670 P.2d 931. We conclude that these cases do not address the issue presented here. In those two cases, as in the large majority of cases, notice of the place and manner of injury makes it obvious that the injury is claimed to be work-related. Not so for a case such as this, where the claimant, a packer-guide, is asserting that his activities around 2 a.m; in a bar were work-related.

Eugene Lee stated in his deposition that he never expected Claimant to do any recruiting of future clients for the business. He also stated that he was a teetotaler and had made it clear to his employees, including Claimant, never to drink while on duty. Further, he stated that he had no idea that Claimant considered himself to be working that night until he was notified that a workers’ compensation claim had been filed, over a year later.

Constructive knowledge is not enough to satisfy the requirements of Section 39-71-603, MCA. Reil v. Billings Processors, Inc. (Mont. 1987), [229 Mont. 305,] 746 P.2d 617, 623, 44 St.Rep. 1985, 1993. The employer must have notice that the claimant considers his injury work-related.

“It is not enough, however, that the employer, through his representatives, be aware that claimant ‘feels sick’, or has a headache, or fell down, or walks with a limp, or has a pain in his back, or shoulder, or is in the hospital, or has a blister, or swollen thumb, or has suffered a heart attack. There must in addition be some knowledge of accompanying facts connecting the injury or illness with the employment, and indicating to a reasonably conscientious manager that the case might involve a potential compensation claim.”

3 Larson, Workmans’ Compensation Law, Section 78.31(a)(2) pp. 15-126 to 15-136 (1988). We adopt the above standard.

We conclude that the Workers’ Compensation Court did not err in ruling that Eugene Lee did not have adequate notice under Section 39-71-603, MCA. The facts before the lower court do not indicate that Eugene Lee had knowledge of accompanying facts connecting his son’s injury with his employment so that the case might involve a potential compensation claim. Under these facts we hold that notice under Section 39-71-603, MCA, must have included Claimant’s belief that his injury was work-related.

We affirm.

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


author: MR. JUSTICE GULBRANDSON

text:
    In the MATTER OF J.L.S. and A.D.S., Youth in Need of Care.
    No. 88-94.
    Submitted on Briefs Aug. 11, 1988.
    Decided Sept. 28, 1988.
    761 P.2d 838.

      Edmund Sheehy, Jr., J. Mayo Ashley, Helena, for appellant.
    Mike Greely, Atty. Gen., George Schunk, Asst. Atty. Gen., Mike McGrath, Co. Atty., Helena, for respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

The parents of J.L.S. and A.D.S. appeal from a judgment of the First Judicial District, Lewis and Clark County, terminating parental rights to the two children. The District Court awarded the Montana Department of Social and Rehabilitative Services custody of the two children, with authority to assent to adoption. We affirm.

The sole issue raised on appeal is whether the District Court failed to follow the dictates of Section 41-3-609, MCA, prior to terminating parental rights to J.L.S. and A.D.S. More specifically:

1. Did the District Court err in holding that the parents failed to comply with a court authorized treatment plan?

2. Did the District Court err in holding that the parents conduct was unlikely to change within a reasonable time?

J.L.S. and A.D.S. are the oldest two of four children born to A.S. (the father) and B.G. (the mother), a couple who have lived together since 1980. At the time of termination of parental rights, J.L.S. was five years of age and A.D.S. four.

The events culminating in the District Court’s termination of parental rights to J.L.S. and A.D.S. began on February 25, 1986. On that day, A.S. was arrested for domestic violence and B.G. was hospitalized as a result of this abuse. Both parents had been drinking at the time of this incident.

The children were left in the care of neighbors who later called the Lewis and Clark County Office of Human Services (LCCOHS). Prior to placing the children under temporary foster care, a social worker with LCCOHS observed numerous bruises on A.D.S. A petition for temporary investigative authority and protective services subsequently was filed and granted on February 28, 1986.

Psychological evaluations of the parents and the children were conducted in March of 1986. Clinical psychologist Dean Gregg, Ph.D., diagnosed both parents as having a mixed personality disorder. Psychologist Revel Miller, Ph.D., noted that both parents admitted to the routine consumption of a case of beer or more each night, yet they denied any problems with alcohol or with child abuse. Clinical psychologist Mary Chronister, Ph.D.,. diagnosed J.L.S. as suffering from major depression, recurrent, with melancholia. Further, she noted that J.L.S. appeared sad and fearful and that the child’s cognitive, psychomotor and social skills were all below normal. A.D.S. was diagnosed as having an attention deficit disorder with hyperactivity.

These psychological evaluations were introduced into evidence during hearings conducted on April 15, 17, and 28, 1986. Following the hearings, the District Court granted continuing temporary investigative authority to the State and denied the parents’ petition for return of custody of the two children. The District Court adjudicated J.L.S. and A.D.S. youths in need of care and ordered the Department of Social and Rehabilitative Services (SRS) through LCCOHS to retain temporary custody of the two children. The court then ordered respondent to develop a treatment plan, which was approved and adopted by the court at a dispositional hearing on May 15, 1986.

This initial treatment plan required the parents to abstain from the use of all alcohol and other chemicals, and to participate in various types of counseling with Dr. Molineux, the supervising therapist. Both Twila Costigan, the primary social worker assigned to the case, and Dr. Molineux testified that this first treatment plan was not successful because of the parents’ general unwillingness to follow the treatment plan. Although interaction with the children improved some, the father remained particularly hostile and uncooperative toward counseling efforts. Additionally, both parents continued to deny the existence of any problems. Two neighbors also testified that they had witnessed the father drinking beer in late August and again in October of 1986. Jim Hagen, a taxi cab driver, testified that he occasionally delivered beer to the home during the fall of 1986. Neither party contests the failure of this first treatment plan.

On November 13, 1986, upon petition of the State, the court ordered a continuation of the treatment plan and extended LCCOHS’ temporary custody of the two children until hearing of the matter on December 18, 1986. At the December hearing, respondent introduced testimony detailing the great improvements noticed in the children’s cognitive, emotional, social and psychological welfare during the past eight months of foster care. Based upon this fact and evidence of the parents’ failure to abide by the treatment plan as initially formulated, the court continued the placement of the two children in foster homes and designated Dr. Revel Miller, Ph.D., the new supervising therapist with authority to modify the first treatment plan as he determined appropriate.

In January and February of 1987, Dr. Miller scheduled several meetings with the parents and their attorneys to explain the terms of the treatment plan as modified. A.S. failed to show up for the scheduled meeting on three different occasions. B.G. failed to attend the first scheduled meeting. She did, however, keep the second scheduled meeting, but she refused to sign the new treatment plan without A.S. A.S. finally met with Dr. Miller on February 10, 1987, but A.S. became very angry and hostile after an explanation of only two points of the plan. Consequently, he left without signing the plan, stating as he left that he was not going to cooperate with the plan.

Upon request by the parents, a hearing was held on March 12, 1987 to discuss the new treatment plan as modified by Dr. Miller. At this hearing, the court requested that the Lewis and Clark County Attorney either dismiss the case or file a petition for termination. The County subsequently filed a petition for termination on March 25, 1987 and a hearing on the matter was held on May 21 and 22, 1987.

New evidence relating to the matter came to light following the May, 1987 hearing. Consequently, two additional hearings were held on August 14 and October 29, 1987, at which time the County introduced this new evidence. Marylis Filipovich, a social worker with LCCOHS, testified that A.S. had knocked on her door looking for the previous tenant at 6:30 a.m. on July 25, 1987. He had a beer in hand and his breath smelled of alcohol. Further, a barmaid testified that A.S. and B.G. were regular customers at the Ichabod bar in August and September of 1987. She testified that A.S. was permanently thrown out of the bar because of his loud and obnoxious behavior when drinking. In September of 1987, B.G. remained drinking in the bar all evening and then later became involved in a fight outside in the parking lot. Lastly, on October 24, 1987, A.S. was arrested for Criminal Trespass and the processing jailor testified that he was very intoxicated at the time of this arrest.

The District Court subsequently held that the parents had failed to comply with any termination plan, that the conduct or condition of the parents rendered them unfit to give J.L.S. and A.D.S. adequate care, and that the parents conduct was unlikely to change within a reasonable time. Having determined that the best interests of the two children would be best served by permanent placement in a foster home, the court terminated the parental rights on November 12, 1987. This appeal followed.

The issue on appeal is whether the District Court failed to follow the dictates of Section 41-3-609, MCA, prior to terminating the parental rights to J.L.S. and A.D.S.

The State may intercede on behalf of a child and file a petition for termination of parental rights “when it is apparent that the natural parent is failing, and is likely to continue to fail to provide the children with a minimally adequate life.” In re C.A.R. (Mont. 1984), [214 Mont. 174,] 693 P.2d 1214, 1221, 41 St.Rep. 2395, 2402; see also Section 41-3-602, MCA. The right of the natural parents to care and custody of their children, however, is a fundamental liberty interest. In re R.B., Jr. (Mont. 1985), [217 Mont. 99,] 703 P.2d 846, 848, 42 St.Rep. 1055, 1058 (citing Santosky v. Kramer (1982), 455 U.S. 745, 102 S.Ct. 1388, 71 L.Ed.2d 599). Consequently, the State has the burden of proving by clear and convincing evidence that all statutory termination criteria have been met. In re J.L.B. (1979), 182 Mont. 100, 117, 594 P.2d 1127, 1136.

The primary duty of deciding whether the State has met this burden of proof, and whether custody and parental rights should be terminated, lies with the District Court. On appeal, “all reasonable presumptions as to the correctness of the determination by the district court will be made.” In re C.A.R., 693 P.2d at 1218 (citing Foss v. Leifer (1976), 170 Mont. 97, 550 P.2d 1309). Therefore, we will not disturb a decision of the District Court unless a mistake of law exists or the factual findings are not supported by substantial credible evidence. In re V.B. (Mont. 1987), [229 Mont. 133,] 744 P.2d 1248, 1249, 44 St.Rep. 1838, 1840; In re M.D.Y.R. (1978), 177 Mont. 521, 534, 582 P.2d 758, 766 (citing Solie v. Solie (1977), 172 Mont. 132, 561 P.2d 443).

The section of the statute relevant to this termination case is Section 41-3-609(l)(c), MCA, which states:

“(1) The court may order a termination of the parent-child legal relationship upon a finding that . . .
“(c) the child is an adjudicated youth in need of care and both of the following exist:
“(i) an appropriate treatment plan that has been approved by the court has not been complied with by the parents or has not been successful; and
“(ii) the conduct or condition of the parents rendering them unfit is unlikely to change within a reasonable time.”

Neither party contests the District Court’s determination that J.L.S. and A.D.S. are youths in need of care. Appellants do contend, however, that a treatment plan was not in effect at the time of termination and that the court’s termination was an abuse of discretion.

Appellants’ first contention is without merit. The statute requires only that the parents fail to comply with an appropriate treatment plan. Both Dr. Molineux and Twila Costigan indicated that the first treatment plan approved by the District Court on May 15, 1986, failed due to the parents’ lack of cooperation with counseling efforts. Additionally, testimony was introduced which recounted various times when the parents were observed purchasing and/or drinking alcohol in the fall of 1986 in violation of the approved treatment plan. Substantial credible evidence exists supporting a determination that the parents failed to comply with the initial court-approved treatment plan, and it is thus irrelevant whether or not the new treatment plan, as modified by Dr. Miller, was in fact authorized and in effect prior to termination proceedings.

Appellants also contend that the District Court’s conclusion that the parents conduct was unlikely to change within a reasonable time was not supported by substantial credible evidence. Section 41-3-609(2), MCA, states that in determining whether the conduct or condition of the parents is unlikely to change within a reasonable time, the court must find:

“[T]hat continuation of the parent-child legal relationship will likely result in continued abuse or neglect or that the conduct or the condition of the parents renders the parents unfit, unable, or unwilling to give the child adequate parental care.”

The court must consider the seven criteria outlined in Sections 41-3-609(2)(a) through (g), MCA, when making such a determination. The District Court’s conclusions of law clearly indicate that the court carefully considered each of these seven factors.

The court found that at least four of the listed criteria applied to A.S. and two applied to B.G. Substantial credible evidence exists in support of these findings. First, the evidence shows that A.S. had a history of violent behavior; he was previously arrested for physically abusing his wife, and numerous bruises found on A.D.S. indicate she was abused as well. Second, testimony by numerous people indicated that both parents routinely drank alcoholic beverages to excess, that they became aggressive and violent under the influence of alcohol, and that they were generally unable to properly care for their children during times of such excess. Third, a physical examination of A.D.S. revealed numerous bruises on her neck, arm, back, buttocks and legs which point to physical abuse. Fourth, the testimony of Twila Costigan and Dr. Molineux indicates that counseling efforts under the initial plan were unsuccessful because of a general hostile and uncooperative attitude, most notably by the father, during counseling sessions. Dr. Miller also testified of his repeated efforts in January and February of 1987 to meet with the parents to explain the modified treatment plan. The last such attempt ended with a statement by A.S. that he would not cooperate with the plan. Given all the above evidence, we hold that the District Court did not err in holding that the conduct and condition of the parents rendered them unfit to provide adequate parental care and that such conduct was unlikely to change in a reasonable time.

Prior to ordering termination of parental rights to J.L.S. and A.D.S., the court also considered the best interests of the two children. This consideration is in accord with the statutory mandate of Section 41-3-609(3), MCA, which states:

“In considering any of the factors in subsection (2) in terminating the parent-child relationship, the court shall give primary consideration to the physical, mental, and emotional conditions and needs of the child. The court shall review and, if necessary, order an evalúation of the child’s or the parent’s physical, mental, and emotional conditions.”

Further, this Court has previously stated that when parents commit acts which deprive a child of an adequate physical and emotional environment, the best interest of the child becomes paramount over parental rights. In re C.A.R., 693 P.2d at 1219 (citing In Re Bad Yellow Hair (1973), 162 Mont. 107, 509 P.2d 9).

Testimony was given that the children had made a lot of progress cognitively, emotionally, and mentally while in foster care. Further, Dr. Miller stated that, in all likelihood, both children would regress to their previous behavioral patterns if returned home. Dr. Guggenheim similarly stated in regards to J.L.S that:

“continued placement in a consistent and supportive home environment would seem extremely important ... in a child who already has a tendency for passive/ aggressive and manipulative adaptations to stress ...”

Given all the above evidence, we hold that substantial credible evidence exists supporting the District Court’s decision to terminate parental rights to J.L.S. and A.D.S. Finding no abuse of discretion, we affirm the District Court’s decision.

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


author: MR. CHIEF JUSTICE TURNAGE

text:
    NORTH AMERICAN VAN LINES, Employer, and Liberty Mutual Insurance Co., Petitioner and Appellant, v. EVANS TRANSFER AND STORAGE, and State Compensation Insurance Fund, Defendants and Respondents.
    No. 87-367.
    Submitted on Briefs Aug. 11, 1988.
    Decided Oct. 4, 1988.
    766 P.2d 220.
    Garlington, Lohn & Robinson, Larry Jones, Missoula, for petitioner and appellant.
    James Gardner, Workers’ Compensation, Helena, for defendants and respondents.
   MR. CHIEF JUSTICE TURNAGE

delivered the Opinion of the Court.

Appellant, Liberty Mutual Insurance Company (Liberty Mutual), appeals the Workers’ Compensation Court’s denial of attorney fees on summary judgment. Liberty Mutual and respondent, State Compensation Insurance Fund (State Fund), were named as defendants in an action involving Darrell Schrock, an injured worker. State Fund was found to be liable for benefits to Schrock and Liberty Mutual moved for its attorney fees to be paid by State Fund. Liberty Mutual alleged that its costs and expenses went to defending against the allegations by State Fund that Liberty Mutual was the insurer at risk.

We affirm.

The issue on appeal is whether Section 39-71-611, MCA (1979), awards attorney fees between two defendant insurance companies.

On December 11, 1984, Darrell Schrock was injured in an industrial accident while driving a truck owned by Evans Transfer and Storage and leased by North American Van Lines. Schrock sued both Liberty Mutual Insurance (appellant), insurer for North American Van Lines, and State Compensation Insurance Fund (respondent), insurer for Evans Transfer and Storage. In Schrock v. Evans Transfer and Storage (Mont. 1987), [225 Mont. 348,] 732 P.2d 848, 44 St.Rep. 292, it was held that Liberty Mutual was not liable to claimant Schrock for the payment of workers’ compensation benefits. Rather, State Fund was the insurer at risk and was liable for Schrock’s workers’ compensation benefits.

On April 8, 1987, appellant moved for summary judgment on the issue of attorney fees to be paid by State Fund to Liberty Mutual. In the proposed pretrial orders, though, neither State Fund nor Liberty Mutual had brought forth a claim for attorney fees. On August 5, 1987, the Workers’ Compensation Court denied the claim for attorney fees stating that there was no genuine issue of fact and neither of the insurers, as defendants, was entitled to attorney fees.

The issue on appeal is whether an insurer is entitled to attorney fees from another insurer for defending a claim against the injured worker. In Schrock, State Fund alleged that Liberty Mutual was the carrier at risk. Liberty Mutual contends that it spent time defending against the claims of State Fund and, therefore, is entitled to attorney fees from State Fund.

Appellant cites two cases as precedent in the matter of attorney fees in a dispute between insurance carriers. These cases are: Belton v. Carlson Transport (1983), 202 Mont. 384, 658 P.2d 405, and Guild v. Big Fork Convalescent Center (Mont. 1987), [229 Mont. 466,] 747 P.2d 217, 44 St.Rep. 2139. In Belton, the claimant was injured in 1977. Hartford Accident and Indemnity paid the workers’ compensation benefits. In 1979 claimant was injured again, aggravating the 1977 injury. Although the claimant was covered by another insurance company, Transport Indemnity, the Workers’ Compensation Court held that Hartford was at risk for this injury also. The Workers’ Compensation Court stated that because the injury had never completely healed, payments for aggravation of the original injury were still the obligation of Hartford. On appeal we held that it is not necessary that the injury be “completely healed” but that the duty to pay benefits ends when the injury is at “maximum healing” or a “medically stable condition.” Where two insurance companies are in dispute over which insurer is the obligatory party, the insurance company which was on risk at the time of the injury pays the benefits until the dispute is resolved. The Court went on to say:

“If it is later determined that the insurance company on risk at the time of the accident should not pay the benefits, this insurance company, of course, has a right to seek indemnity from the insurance company responsible for the benefits already paid out to the claimant.”

Belton, 202 Mont. at 392, 658 P.2d at 410.

Appellant asserts that the language from Belton authorizes it to collect attorney fees from State Fund. However, the language above shows that the insurance company is entitled to only the “benefits” already paid out to the claimant. We discussed the right of a prevailing insurer to seek indemnity for benefits it paid out. In Belton, whether one insurer is responsible for another insurer’s attorney fees was not at issue.

The claimant in Guild v. Big Fork Convalescent Center (Mont. 1987), [229 Mont. 466,] 747 P.2d 217, 44 St.Rep. 2139, was injured in 1983 when covered by Rockwood Insurance Company. In 1985 the claimant was again injured in a nonwork-related accident “triggered” by the 1983 injury. In 1985 the claimant’s insurer was Employee Benefits Insurance Co. (EBI), who paid benefits before the Workers’ Compensation Court’s findings. We held that Rockwood was liable to pay benefits to the claimant, and, in turn, Rockwood was liable to EBI to pay those benefits paid prior to the decision.

In Guild, 747 P.2d at 220, 44 St.Rep. at 2143-2144, we stated:

“If on remand the Workers’ Compensation Court rules that Rock-wood is responsible for temporary total or permanent partial benefits for Mrs. Guild, it appears that Rockwood is liable to EBI for benefits paid during this action and for EBI’s attorney fees.”

This language in Guild, apparently granting attorney fees to EBI on remand, making Rockwood liable for attorney fees, was a misinterpretation of the legislative intent in designing the workers’ compensation statutes.

Section 39-71-611, MCA (1979), applicable here, provides that:

“In the event an insurer denies liability for a claim for compensation or terminates compensation benefits and the claim is later adjudged compensable by the workers’ compensation judge or on appeal, the insurer shall pay reasonable costs and attorneys’ fees as established by the workers’ compensation judge.”

A legislative history of Section 39-71-611 reveals that the original language used by the Montana legislature provided attorney fees for claimants only:

“Section 2. In the event the insurer denies the claim, or terminates a claim that has already been accepted, and the claim is later determined to be compensable either through hearing or appeal to the courts, the insurer shall pay all costs incurred by the claimant, including reasonable attorneys’ fees as established by the division.”

Chapter 477, Section 2, Laws of Montana, 1973.

In 1974 and 1979, the statute was amended. Although the amendment discarded the language “all costs incurred by the claimant,” there is no indication that the purpose of the statute is changed. Nor does the legislative intent appear to have changed. Attorney fees were meant to be provided to the claimant and not to the defending insurance parties. In the minutes for the Labor and Employment Relations Committee, Norm Grosfield, Administrator of the Workers’ Compensation Division in 1979, stated as a proponent of the bill:

“Section 2 would amend 39-71-611 by providing that the workers’ compensation judge rather than the division of workers’ compensation shall set the award of attorney fees and costs in certain cases. Under the law if an insurer denied liability for a claim or terminates benefits, and it is determined that the action of the insurer was wrong, the insurer must pay reasonable costs and attorney fees to the claimant’s attorney.”

We hold that Section 39-71-611 grants compensation to the claimant for attorney fees in defending against the insurance company’s denial of a rightful claim for benefits. Attorney fees are not granted to the insurance companies. The purpose of statutorily providing attorney fees in claims of injured workers is to provide the injured claimant with the fullest recovery possible.

“If therefore, the social purpose of Workers’ Compensation Acts is to provide for the injured worker a fund which replaces his lost earnings or his lost earning capacity, the reasonable cost of effectuating such social purpose where litigation is necessary ought also be the burden of the industry. Any erosion of the workers’ right of recovery by imposing upon the worker the cost of procuring his rights erodes to that extent the social purpose.”

Wight v. Hughes Livestock Co., Inc. (1983), 204 Mont. 98, 108, 664 P.2d 303, 309.

Because the purpose of attorney fees is to insure that the injured worker receives the full amount of available compensation benefits, the insurance company, in turn, should not be able to claim that Section 39-71-611 entitles it to attorney fees, as a defendant, when it is successful over another defendant insurance company. That is not the purpose of the statute.

Moreover, Section 39-71-611 is written in terms of a “claim.” It is the “claim” which is denied by the insurance company and that same “claim” which may or may not be adjudged compensable by the court. When an injured worker is successful in that “claim,” he alone is entitled to attorney fees. However, in the case where two insurers are both defendants, attorney fees cannot be sanctioned against the insurer who is liable for the benefits, to be paid to the other defendant insurer. Attorney fees are allowed for “claimants” only. The defending insurance companies are not claimants.

In Guild we incorrectly ordered attorney fees on remand. It would be improper for the Workers’ Compensation Court to order the party found responsible for the benefits to pay the other insurance company for the time it spent in defending against the claim. That portion of Guild which ordered attorney fees to the losing insurance company in a dispute between insurers is overruled.

The purpose of the workers’ compensation statutes is to protect the interests of the injured worker.

Because of the decision here, it is not necessary to discuss the other issues on appeal.

Affirmed.

MR. JUSTICES HARRISON, SHEEHY, HUNT and McDON-OUGH concur.


author: MR. JUSTICE WEBER MR. CHIEF JUSTICE TURNAGE,

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. MARK MISNER, Defendant and Appellant.
    No. 88-26.
    Submitted on Briefs Aug. 4, 1988.
    Decided Oct. 6, 1988.
    763 P.2d 23.

      Michael M. Morse, Billings, for defendant and appellant.
    Mike Greely, Atty. Gen., Robert F.W. Smith, Asst. Atty. Gen., Helena, Peter W. LaPanne, County Atty., Roundup, for plaintiff and respondent.
   MR. JUSTICE WEBER

delivered the Opinion of the Court.

Mr. Misner appeals his conviction of felony assault and disorderly conduct in a jury trial in the District Court for the Fourteenth Judicial District, Musselshell County. We affirm.

The issues are:

1. Was there sufficient evidence to convict Mr. Misner of felony assault on Mr. Taber?

2. Can Mr. Misner’s actions properly give rise to verdicts of felony assault and disorderly conduct?

At approximately 4:30 p.m. on March 31,1987, Mr. Misner and his wife went to the Musselshell County Welfare Office in Roundup, Montana. Mrs. Taber, a secretary in the office, and her husband, the eligibility technician, both testified at trial that Mr. Misner had become angry and shouted on previous visits to the office. For example, Mr. Taber testified that:

“The earliest meeting in January did result in an argument. I again had tried to explain the criteria that we use to determine eligibility, the types of things that an applicant must present for verification or proof, if you will, of their circumstances.
“Q. How was there an argument; how did an argument develop?
“A. Things that are required of an individual when applying for programs, things like birth certificates, marriage licenses, things of that nature, Mr. Misner said he didn’t have and couldn’t get, and what was he supposed to do if he couldn’t get them? And he would get angry because I wasn’t, you know, handing him money right then and there on the spot. And I don’t control those things. That’s policy, you know. And he left the office that day. He wanted my supervisor’s name; he wanted to talk to somebody else. I can assume he did not approve or like what I was saying, and perhaps didn’t believe what I was telling him; I don’t know. I can only assume. I did give him the number to Lewistown. And as he left my office that day he was again volatile and angry, and you know, we had already had arguments in the past. I gave him the number, and as he walked out of the office he leaned up against the door and he said, ‘Well, I don’t know,’ he says, ‘I’m going to call Lewistown,’ but he says, ‘I’m going to get some help if I have to bust some heads around here.’ There isn’t but one tech in this County, and that’s my head.”

When he came into the welfare office on March 31, Mr. Misner complained to Mrs. Taber about being required to fill out certain forms as part of the process of applying for welfare benefits. She testified that:

“Well, after a time, you know, I couldn’t calm him down any more, and he just kept yelling. So at this point Dan came out of his office, and he asked what the problem was. And Mark then continued to say the same things to Dan, yell and swear, and told him he was sick of everything, filling out papers. And Dan said, ‘Well, you don’t have to fill out the papers if you don’t want to.’ He said, ‘I’m just doing my job.’ And he said, ‘Frankly, I don’t need this abuse from you; every time you come in you are like this.’ So at that point Mark turned around and he stormed out the door and he stopped in the middle of the street and he lifted up his fist like this (indicating) and he said — I understood it to mean he was yelling at Dan — he said, ‘Come out here and we’ll settle this right now.’ And I just kept standing there watching him. And so at this point Dan had turned around and gone back into his office, so he didn’t see him do this. So I watched him walk across the street —”

Mr. Taber testified as to what happened after he spoke to Mr. Misner:

“I just kind of shook my head. I was pretty rattled. I’ve been through this same scenario with Mr. Misner many times. It keeps getting worse each time. Every contact he is displeased with what I have to say or what action has been taken. And I just kind of shook my head as he was going out the door, and he hollered back, ‘Why don’t you come out here and we’ll settle this right here and now.’ And I took that to mean he wanted to fight me out in the street.
“Q. Did you?
“A. Is that going to settle anything? No. I didn’t.
“Q. Did you respond at all to his invitation?
“A. No. I didn’t make any comments. I just walked back in my office, you know . . . .”

Mrs. Taber testified as to what happened next:

“[W]hen he got to his pickup he opened the door all the way open, and with his left hand he flipped the seat forward, reached in with his right and just picked [a rifle] up like this (indicating). I couldn’t tell if he had his finger on the trigger or not, but he just picked it up with one hand like this (indicating) and was yelling and shaking it. And at that point I said, ‘Oh, my God, he’s got a gun.’ And I just stood there. I just stood there.”

Mr. Taber testified as follows:

“About that time I was standing in the office, my door was open, Kathy yelled ‘Oh, my God, he’s got a gun.’ I looked out there; I could see her desk — her desk is in full view of mine. She was standing there kind of bolt upright, in a daze, and I didn’t know what to do. I mean frankly I don’t know how long I stood there. When she said, ‘Oh, my God, he’s got a gun,’ I knew in my heart he had a gun.
“Q. How did that make you feel?
“A. I was scared. I hunt a lot. I know what guns can do. And I watch TV too. I’m scared. You know, I’m not in this job to get shot. And frankly I’ve been scared for a long time, because I don’t know when this guy is going to go off the deep end and do something. I’ve had too many arguments, every time he comes in the office. And now he’s got a gun. I stood there in shock for a few seconds; I don’t know how long. I walked out there, and at that time I saw just enough to see him closing the door, and he drove off.”

Mr. Misner was charged with two counts of felony assault. At trial, he presented the testimony of his wife and a third party that he had not waved a gun, but that he had banged a shovel against his truck before he got into it. The jury found him guilty of felony assault upon Mr. Taber and guilty of disorderly conduct, a lesser included offense, in relation to Mrs. Taber. Mr. Misner was sentenced to seven years in prison with the sentence suspended on seven conditions including 90 days in the county jail and staying away from the victims. He appeals.

I

Was there sufficient evidence to convict Mr. Misner of felony assault on Mr. Taber?

“A conviction cannot be overturned when the evidence, viewed in the light most favorable to the prosecution would allow any rational trier of fact to find the essential elements of the crime beyond a reasonable doubt.” State v. George (1983), 203 Mont. 124, 130, 660 P.2d 97, 100, citing Jackson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573. Our review is therefore limited to a determination of whether any rational jury could have found the elements of felony assault.

A person commits the offense of felony assault if he purposely or knowingly causes reasonable apprehension of serious bodily injury in another by use of a weapon. Section 45-5-202(2)(b), MCA. The defense appears to be addressing its arguments to the element of reasonable apprehension of serious bodily injury. It refers to the absence of any evidence that Mr. Misner pointed the rifle at Mr. Taber or even at the welfare office. It also refers to the absence of any claim that Mr. Taber saw the rifle. Further, it emphasizes the physical distance between Mr. Misner and Mr. Taber at the time Mr. Misner waved the rifle.

The essence of the defense’s argument is that Mr. Taber neither saw nor came into close enough physical proximity to the gun. The defense would appear to ask us to require that Mr. Taber must step outside the welfare office and into the street in order for an apprehension of serious bodily injury to be reasonable. However, Mr. Taber did testify about his previous confrontations with Mr. Misner and that he was told by his wife that Mr. Misner, who had just left the office, had a gun outside the building. He unequivocally testified to his apprehension of serious bodily injury. We conclude that it was not necessary that Mr. Taber personally observe the gun being waved at him in order to experience reasonable apprehension of serious bodily injury.

We hold that the jury in this case, as a rational trier of fact, could have found the presence of the essential elements of felony assault upon Mr. Taber, beyond a reasonable doubt. We therefore affirm the conviction on that charge.

II

Can Mr. Misner’s actions properly give rise to verdicts of felony assault and disorderly conduct?

The defense asserts that one act on the part of Mr. Misner cannot give rise to the two divergent verdicts reached here. It does not develop this argument any further and the State points out that no objection was made to the instructions given at trial. We may assume that the question raised is how the acts could constitute felony assault as to Mr. Taber and only disorderly conduct as to Mrs. Taber.

We conclude, based on Mrs. Taber’s testimony, that a rational jury could have found that she did not have reasonable apprehension of serious bodily injury because she did not believe Mr. Misner’s threats were aimed at her. Also based on that testimony, a rational jury could have found that Mr. Taber had reasonable apprehension of serious bodily injury because he reasonably believed Mr. Misner’s threats from the street were aimed at him. Since we conclude that the evidence would allow the above findings by a rational jury, we affirm the convictions.

Affirmed.

MR. JUSTICES HARRISON, GULBRANDSON and McDON-OUGH concur.

MR. CHIEF JUSTICE TURNAGE,

dissenting:

I agree with Mark Misner that there was insufficient evidence to" convict him of felony assault upon Dan Taber under Section 45-5-202(2) (b), MCA. This section provides:

“(2) A person commits the offense of felony assault if he purposely or knowingly causes:
“(b) reasonable apprehension of serious bodily injury in another by use of a weapon.”

Dan Taber and his wife Kathy Taber on March 31, 1987, were employed at the Musselshell County Welfare office at Roundup, Montana.

Misner was at this office seeking assistance and was verbally abusive to Kathy over filling out certain forms. Dan Taber came out of his office, separate from what was apparently the reception area, and told Misner he did not have to fill out the forms if he chose not to do so. Misner left, Dan Taber returned to his office and did not see any more of the conduct of Misner that resulted in his conviction of felony assault; but Kathy did, and therein lies the problem.

Kathy testified that, out of the sight of Dan Taber, Misner stood in the middle of the street outside the welfare building and yelled, “come out here and we’ll settle this right now.” Dan Taber heard this.

Kathy further testified that Misner then crossed the street to his truck, about thirty yards from the welfare building, took a .22 caliber rifle from it, and with one hand, the barrel point in the air, shook it in the direction of the welfare building. Misner never aimed or pointed the rifle at Kathy, Dan or the welfare building. Dan Taber never saw Misner with the rifle. Misner then drove away.

Kathy Taber yelled, “oh, my God, he’s got a gun.” At that time Dan Taber came out of his office, after Misner had driven away.

The jury found Misner not guilty of felony assault upon Kathy Taber and guilty only of disorderly conduct, a misdemeanor, as to his conduct towards her. It is logically inconsistent that the jury would find Misner not guilty of felony assault upon Kathy Taber, who was the only one to testify as an eyewitness to Misner’s conduct with the rifle. If any one, under these facts, could have had a reasonable apprehension of serious bodily injury, it would have been Kathy Taber, not Dan Taber.

The only testimony that the jury heard concerning a felony assault upon Dan Taber was the statement of Kathy that Misner had a gun. Dan Taber did not see the gun or that it was aimed at him, which it never was. The only reference to the gun was the statement by Kathy Taber that Misner had a gun.

The record is insufficient as to evidence that Misner purposely or or knowingly caused reasonable apprehension in Dan Taber of serious bodily injury by use of a weapon.

This evidence, when viewed in the light most favorable to the prosecution, would not allow a rational trier of fact to find the essential elements of the crime beyond a reasonable doubt.

The determined and successful effort of the county attorney over objection to get before the jury testimony that Misner had received considerable assistance and money from the welfare office did little to encourage the jury to avoid bias toward Misner.

Undoubtedly, Misner was less than a good witness in his own defense, leaving the jury with little reason to search their minds for compassion, but the result in this case is not how our justice system determines the basis of guilt or innocence of an accused.

I would reverse Mark Misner’s conviction of felony assault.

MR. JUSTICES SHEEHY and HUNT concur in the foregoing dissent.


author: MR. JUSTICE HARRISON MR. JUSTICE SHEEHY,

text:
    STATE OF MONTANA, Plaintiff and Respondent, v. RONALD ALLEN CLARK, Defendant and Appellant.
    No. 88-95.
    Submitted Aug. 11, 1988.
    Decided Oct. 7, 1988.
    762 P.2d 853.

      McKinley Anderson, Bozeman, for defendant and appellant.
    Mike Greely, Atty. Gen., Mark J. Murphy, Asst. Atty. Gen., Helena, A. Michael Salvagni, County Atty., Jennifer Bordy, Deputy County Atty., Bozeman, for plaintiff and respondent.
   MR. JUSTICE HARRISON

delivered the Opinion of the Court.

This is an appeal from the Eighteenth Judicial District Court, Gallatin County. Defendant/appellant, Ronald Allen Clark, was found guilty by the District Court, after a jury trial, of Driving Under the Influence of Alcohol, a misdemeanor, in violation of Section 61-8-401, MCA. From this judgment, Clark appeals.

We affirm.

Clark raises the following issues on appeal:

1. Whether he was denied due process by being deprived of a reasonable opportunity to gather exculpatory evidence, and;

2. Whether the District Court erred in overruling the defendant’s objections to the use of the Horizontal Gaze Nystagmus test as evidence at trial.

On July 15, 1986, at approximately 1:30 a.m., Deputy Sheriff Roy Irby of the Gallatin County Sheriff’s Office observed Clark’s vehicle traveling north on 7th Avenue. Deputy Irby saw Clark’s vehicle begin to turn north into the southbound lane, nearly hitting the median, but quickly jerk into the proper lane of traffic. Deputy Irby followed defendant for approximately one and one-quarter miles, observing Clark swerving from lane to lane and straddling the divider line. One-quarter mile from Clark’s home, Deputy Irby attempted to stop defendant by flashing his emergency lights. Clark did not respond, but instead drove to his home, where Clark exited his vehicle. Deputy Irby approached Clark and attempted to administer various field sobriety tests, including the Horizontal Gaze Nystagmus test (HGN). Clark performed the HGN test, the result of which indicated alcohol consumption. Clark refused to perform any other sobriety tests. Based on Clark’s erratic driving, results of the HGN test, smell of alcohol on Clark’s breath, and his uncooperative, unruly behavior, Deputy Irby arrested Clark.

Deputy Irby brought Clark to the Gallatin County Detention Center. During a booking search, Detention Officer Lee Kersey discovered five Valium tablets on defendant’s person.

During a reading of the State of Montana Implied Consent Law Advisory Form, Clark interrupted, asking for a physician’s care. When Deputy Irby did not respond, Clark asked if he was being denied a physician’s care, and Deputy Irby replied, “at this time.” Continuing a reading of the implied consent form, Clark stated he wanted “a physician and registered nurse at this moment to take a sample of my blood.” Deputy Irby replied, “just a minute.” When Deputy Irby finished reading the implied consent form, Clark refused the breath test.

Deputy Irby placed Clark in the custody of Deputy Kersey for placement in a holding cell. Deputy Kersey testified that Clark was unruly, uncooperative and used profane language. Because of his behavior, Deputy Kersey made phone calls for Clark. Detention Officers made five calls for the defendant, including three to his physician, Dr. Kurtz. One such call was made immediately after Clark was placed in the holding cell and had requested care for a foot injury. During none of these calls did Clark request the physician to perform a blood test. Clark was held for a period of fourteen hours, at which time he was released on bond.

The first issue is whether Clark was denied due process by being deprived of an opportunity to obtain exculpatory evidence. Clark argues his two requests to Deputy Irby during the reading of the implied consent form, and the Deputy’s reply, placed the officer on notice he was requesting an independent blood sample. The State contends phone calls were made on Clark’s behalf, three to his physician, and during none of these calls did he request a blood test. These calls, the State argues, gave Clark sufficient opportunity to obtain an independent blood test.

Section 61-8-405(2), MCA, allows for additional tests to determine blood alcohol, providing:

“[T]he person tested may, at his own expense, have a physician or registered nurse of his own choosing administer a test, in addition to any administered at the direction of a peace officer, for the purpose of determining the amount of alcohol in his blood at the time alleged as shown by chemical analysis of his blood, breath, or urine

As this Court has recognized, a criminal accused has a constitutional right to attempt to obtain exculpatory evidence. State v. Swanson (Mont. 1986), [222 Mont. 357,] 722 P.2d 1155, 43 St.Rep. 1329; State v. Peterson (Mont. 1987), [227 Mont. 418,] 739 P.2d 958, 44 St.Rep. 1268; State, City of Bozeman v. Heth (Mont. 1988), [230 Mont. 268,] 750 P.2d 103, 45 St.Rep. 194. When the crime involves intoxication, the accused has a right to obtain a sobriety test independent of that offered by the arresting officer. Further, this right may not be abridged solely because the accused refused to submit to the sobriety test chosen by the arresting officer.

While these rights may seem absolute, they are not without limitation. Our decisions do not mandate police officers to affirmatively act to obtain exculpatory evidence, but instead, to avoid interference with efforts on the part of the accused to obtain a sampling of his blood.

“While the police have no duty to assist an accused in obtaining independent evidence of sobriety, they cannot frustrate such an effort through either affirmative acts or their rules and regulations.” Swanson, 722 P.2d at 1158. Clearly, the Swanson rule only applies when (1) the defendant has timely claimed the right to a blood test, and (2) the officer or officers do not unreasonably impede the defendant’s right to obtain a blood test. “If a blood test of the defendant is unavailable through no unreasonable acts of an officer or officers, the Swanson rule does not apply.” Peterson, 739 P.2d at 961.

No such unreasonable impediments exist in the present case. Rather, Clark was given an opportunity to obtain an independent sampling. The detention officer testified to phone calls made on Clark’s behalf, including a call to Dr. Kurtz immediately after being placed in the holding cell. Clark requested physician attention for a foot problem. At no time did Clark request Dr. Kurtz to administer a blood test.

We recognize Clark twice requested a physician’s care during the reading of the implied consent form. However, these requests in no way diminish the effect of the later phone call to Clark’s doctor. We reemphasize our holding in Swanson to the effect that police officers have no affirmative duty to assist in the gathering of exculpatory evidence, nor may they frustrate such efforts on the part of the accused.

Next, Clark asserts the admission of evidence regarding the results of the HGN test was in error as lacking proper foundation. We find this argument unpersuasive.

Horizontal Gaze Nystagmus is the inability of the eyes to maintain visual fixation as they are turned to the side. In the HGN test, the driver is asked to cover one eye and focus the other on an object held by the officer at the driver’s eye level. As the officer moves the object gradually out of the driver’s field of vision toward his ear, he watches the driver’s eyeball to detect involuntary jerking.

The admission of this type of evidence is a matter of first impression in this jurisdiction. Several states, including Texas, Arizona, and Illinois, have allowed its admission as one method of indicating impairment. Howard v. State (Tex.App. 1987), 744 S.W.2d 640; State v. Superior Court (1986), 149 Ariz. 269, 718 P.2d 171; People v. Vega (1986), 145 Ill.App.3d 996, 99 Ill.Dec. 808, 496 N.E.2d 501. We adopt the position of these courts in allowing the admission of the tests. The pivotal question now becomes one of proper foundation.

At trial Deputy Irby testified to the sobriety test administered to Clark. Upon questioning as to the “cause” of the nystagmus reaction, Clark objected to the testimony as lacking foundation. Appellant contends such testimony is not sufficient to establish a “general acceptance” of the test in the scientific community, relying on Frye v. United States (D.C.Cir. 1923), 283 F. 1013. This reliance is misplaced.

Rule 702, M.R.Evid., governs admissibility of expert testimony. It provides:

“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.”

The foundation requirements surrounding expert testimony have been substantially liberalized, eroding the “general acceptance” doctrine enunciated in Frye. As stated in Barmeyer v. Montana Power Co. (1983), 202 Mont. 185, 193, 657 P.2d 594, 598, “[w]e hold that the general acceptance rule is not in conformity with the spirit of the new rules of evidence.” Unless an exaggerated popular opinion of the accuracy of the particular technique makes its use prejudicial or likely to mislead the jury, the better approach is to admit all relevant scientific evidence in the same manner as other expert testimony and allow its weight to be attacked by cross examination or refutation. Barmeyer, 657 P.2d at 598.

Clark contends Deputy Irby was not sufficiently qualified to testify as to the scientific reliability of the HGN test. However, the scientific reliability was nonetheless discussed through Clark’s own witness, Dr. Curt Kurtz.

“Q. To the best of your knowledge and training, what different things would cause that [nystagmus] reaction to an individual?
“A. Acute trauma to the head, chronic trauma to the head from a previous injury, some damage internally to the brain from whatever reason; whether it be from stroke or infection, various chemicals. Under these, I lump prescription drugs, tranquilizers, pain medications, anticonvulsants and alcohol . . .
“Q. So, what you’re saying is, that there’s a multitude of reasons?
“A. There’s a multitude. Nystagmus is a very non-specific diagnostic test in the world of medicine. It’s gained some credibility with alcohol, but if it’s thrown in any other variable, it’s kind of questionable whether it’s really reliable . . .
“[Nystagmus] was instituted as one of the relatively simple . . . studies for a police officer to do on somebody suspected of being intoxicated.”

Upon the testimony of Dr. Kurtz, the District Court found sufficient basis for the admissibility of the HGN test. This Court has long held it is within the jurisdiction of the trial judge to admit scientific and expert testimony. State v. Sharbono (1977), 175 Mont. 373, 384, 563 P.2d 61, 68.

As to the results of the test, Deputy Irby testified he was certified through the Montana Law Enforcement Academy, completing the required number of training hours. Further, Deputy Irby testified he administered the test in the proper manner. No other foundation need be shown.

We affirm.

MR. CHIEF JUSTICE TURNAGE and MR. JUSTICES WEBER and GULBRANDSON concur.

MR. JUSTICE SHEEHY,

specially concurring:

I concur in the result of this appeal but not in the discussion of the nystagmus test.

A positive horizontal gaze nystagmus result should be approved by us as supplying probable cause for an arrest but not as positive proof of DUI, since so many factors can cause nystagmus. Here we have a driver who was on daily use of Valium by prescription. No distinction is made in the opinion that such drugs may themselves cause horizontal gaze nystagmus. An unsophisticated jury would take the result of the test in this case, without further explanation, as absolute scientific proof of DUI. The subject is much broader than that. A requirement for admissibility should be that the additional “battery” of field tests were also given, or that a blood alcohol test confirmed the nystagmus results. That is what other states require. Arizona v. Superior Court and Blake (1986), 149 Ariz. 269, 718 P.2d 171.


author: MR. JUSTICE GULBRANDSON MR. JUSTICE HUNT,

text:
    ROBERT P. BARRETT, Plaintiff and Respondent, v. ASARCO, INCORPORATED, a New Jersey corporation, and Robert D. Hearst, Defendants and Appellants.
    No. 87-303.
    Submitted June 21, 1988.
    Decided Oct. 11, 1988.
    763 P.2d 27.

      Holland & Hart, James M. Ragain and Kyle A. Gray argued, Billings, for defenants and appellants.
    Gene A. Picotte and Robert M. Kampfer argued, Clancy, for plaintiff and respondent.
   MR. JUSTICE GULBRANDSON

delivered the Opinion of the Court.

ASARCO appeals a Lewis and Clark County District Court order denying ASARCO’s motion for a new trial. We reverse and remand for a new trial.

Robert P. Barrett (Barrett) was employed by ASARCO for fifteen years and five months. He held a managerial position as a shift foreman since 1973. On November 26, 1983, Barrett injured his back in a work related accident at ASARCO’s East Helena plant. ASARCO paid Barrett his full salary and reimbursed Barrett for medical expenses from the date of the injury until May 8, 1984, when Barrett’s employment was terminated.

ASARCO met with Barrett on May 8, 1984. At that meeting, the plant superintendent, Robert Hearst, confronted Barrett with information received from another ASARCO employee, namely, that Barrett had been observed unloading hay bales at the Helena Fairgrounds while he continued to receive full salary from ASARCO for his earlier back injury. Barrett denied any involvement in unloading hay bales, and he was subsequently fired for lying to ASARCO about his physical activities.

Barrett filed this action on May 7, 1985, alleging that ASARCO had breached the implied covenant of good faith and fair dealing in the context of an employment relationship. The District Court set October 31, 1986 as the deadline for answers to interrogatories, with all discovery to be completed by November 3, 1986. On December 16, 1986, ASARCO learned the names of six witnesses who allegedly had information about various incidents of dishonesty by Barrett during his employment and within three years of his termination date. These incidents allegedly included lying to superiors about sleeping on shift and about taking sick leave, stealing several hundred dollars worth of tools and equipment from ASARCO, and requesting one of his crew members to also steal for him. Consequently, twenty-four days prior to trial, on January 8, 1987, ASARCO supplemented its interrogatories and witness list to include the names of these six witnesses.

On January 13, 1987, Barrett moved in limine to exclude this evidence on the grounds that the testimony was irrelevant and disclosed after the discovery deadline. Thereafter, ASARCO offered to let Barrett depose each of the new witnesses and to order expedited transcripts, both at ASARCO’s expense. Barrett’s attorney initially accepted this offer but then canceled the depositions, moving instead to exclude this new evidence. On January 28, 1987, the District Court ruled that Barrett was not prejudiced by ASARCO’s late disclosure of additional witnesses and service of supplemental interrogatory answers, ruling that:

“1. ASARCO was not aware of the identity of the witnesses before the discovery deadline;
“2. the supplemental answers were served twenty-four days before trial;
“3. Barrett had an opportunity to depose the witnesses at ASARCO’s expense but declined to do so;
“4. Barrett did not move for a continuance. (Emphasis theirs.)”

Consequently, the District Court denied Barrett’s motion in limine without prejudice.

Barrett renewed its motion in limine on February 1, 1987, the day before trial, asserting that ASARCO knew of the witness testimony over five months before the discovery deadline. On February 3,1987, two days into the trial, the District Court granted this motion in limine, barring the alleged evidence of employee misconduct.

The jury trial commenced on February 2, 1987. On February 10, 1987, the jury returned a verdict in favor of the plaintiff in the amount of $338,500 in compensatory damages and $75,000 in punitive damages.

On February 17, 1987, Cheryl Lynn Uphaus (Uphaus), a person omitted from Barrett’s interrogatory answers as a person with knowledge relevant to the case, contacted ASARCO claiming knowledge allegedly illustrating that the jury verdict clearly was erroneous. ASARCO subsequently met with Uphaus and she signed a sworn statement concerning a conversation she overheard and activities she observed Barrett engage in during his disability leave from ASARCO. These alleged activities appeared inconsistent with a severe back injury. She alleged that she had overheard Mike Barrett, a fellow foreman at ASARCO, tell his brother Robert Barrett not to haul or unload hay anymore. In response, Barrett allegedly told his brother that he could continue to haul hay if he concealed his activities from ASARCO.

On February 25,1987, ASARCO moved for a new trial alleging that it was deprived of a fair trial because of the District Court’s exclusion of witness testimony about previous alleged incidents of Barrett’s dishonest dealings with ASARCO. Additionally, ASARCO asserted that the newly discovered information from Uphaus merited a new trial.

The District Court denied ASARCO’s motion for a new trial and this appeal followed. ASARCO raises the following two issues:

1. Did the District Court err and abuse its discretion by excluding testimony concerning incidents of respondent Barrett’s alleged dishonesty with ASARCO?

2. Did the District Court abuse its discretion by refusing to grant appellant ASARCO a new trial based on:

(a) Barrett’s failure to disclose the name of Cheryl Lynn Uphaus in response to ASARCO’s discovery requests; and
(b) the newly discovered evidence from Uphaus?

I. ISSUE ONE

The District Court barred the evidence of Barrett’s alleged employment dishonesty on the following five grounds:

(a) ASARCO may well have had knowledge of some of the matters prior to the discovery cut-off date.-
(b) the instances of conduct which are the subject of the testimony are too remote in time to be of any probative value;
(c) the instances of conduct had nothing to do with the termination of Barrett’s employment;
(d) the relevancy of the instances of conduct is remote and the prejudicial effect of the evidence outweighs its probative value; and
(e) allowing the testimony would lead to “mini trials” concerning the merits of the allegations made by the witnesses.

This opinion will address each of the District Court’s five grounds for excluding the evidence of Barrett’s alleged employee misconduct.

A. LATE DISCLOSURE

The District Court’s first reason for excluding ASARCO’s offered evidence was that ASARCO made a late disclosure of the witnesses who would testify as to Barrett’s alleged employee misconduct. Rulings on the admissibility of evidence are within the discretion of the district court. Rule 104, M.R.Evid.; Cooper v. Rosston (Mont. 1988), [232 Mont. 186,] 756 P.2d 1125, 1127, 45 St.Rep. 978, 981. We will not reverse a district court’s ruling on the admissibility of evidence unless we determine that the district court abused its discretion. Cooper, 756 P.2d at 1127, 45 St.Rep. at 981.

This Court has noted that the district court has the discretion to control discovery activities. State of Oregon ex rel. Worden v. Drinkwalter (Mont. 1985), [216 Mont. 9,] 700 P.2d 150, 152, 42 St.Rep. 599, 601. It is also within the district court’s discretion to decide what sanctions are to be imposed on a party who fails to comply with discovery rules. Sikorski v. Olin (1977), 174 Mont. 107, 111, 568 P.2d 571, 573.

In Sikorski, the trial court allowed Sikorski to amend one answer to an interrogatory on the day of trial. On appeal, Olin contended that he was surprised and prejudiced by the trial court’s decision to allow Sikorski to amend his interrogatories on the day of trial. This Court found it noteworthy that Olin did not request a continuance on the ground of surprise or undue advantage and opined that the failure to request a continuance constituted a waiver by Olin to claim any error on appeal. Sikorski, 568 P.2d at 573.

Barrett asserts that, had the District Court allowed the evidence, he would have been prejudiced because the necessary, preparation to defend the accusations of employee dishonesty “would require more work than the main case.” No facts exist, however, which support Barrett’s contention that he would have been prejudiced. ASARCO gave notice of the new witnesses and the content of their testimony nearly a month before trial. ASARCO also offered to promptly have the new witnesses deposed at its expense. Yet, Barrett refused ASARCO’s offer to bear the expenses of depositions and expedited transcripts and also failed to request a continuance. Barrett may not claim prejudice given these facts.

Barrett’s claim that ASARCO knew five months before the discovery deadline of the existence of witnesses who might testify to Barrett’s alleged employee misconduct similarly fails to merit an exclusion of the evidence. The exclusion of evidence for noncompliance with discovery rules is a harsh remedy. Wolfe v. Northern Pacific Railway Co. (1966), 147 Mont. 29, 40-41, 409 P.2d 528, 534. Wolfe sets forth the following relevant language with regard to this issue:

“Rule 33, M.R.Civ.P., authorizing the use of interrogatories for purposes of pre-trial discovery from any ‘adverse party,’ although liberally construed to make all relevant facts available to parties in advance of trial and to reduce the possibilities of surprise and unfair advantage [citation omitted], cannot become a weapon for punishment or forfeiture in the hands of a party, or an instrument for avoidance of trial on the merits. The rule, in conjunction with other discovery and pre-trial procedures, has been designed to secure a just, speedy and inexpensive determination of actions, and to assure that a judgment be given on the facts as they actually exist. [Citation omitted.] Even though under Rule 37, sanctions may be imposed upon a party who fails to comply with the discovery requirements of the rules, and specifically upon a party who fails to properly answer interrogatories, necessarily it must lie within the authority of the trial judge to determine from the circumstances of each case what constitutes compliance and non-compliance and to determine what sanctions, if any, are to be imposed. A strict rule of exclusion could in many instances defeat the desired goal of a decision on the merits ... In interpreting these rules we will reverse the trial judge only when his judgment may materially affect the substantial rights of the appellant and allow a possible miscarriage of justice.”

Wolfe, 409 P.2d at 534. As will be discussed later in this opinion, the excluded evidence was important to the resolution of this case on the merits. Exclusion of this evidence was not warranted by ASARCO’s late disclosure of new witnesses given the surrounding circumstances (i.e., ASARCO’s supplementation of its interrogatory answers twenty-four days before trial, Barrett’s refusal to depose the new witnesses at ASARCO’s expense, and Barrett’s failure to request a continuance). ASARCO’s alleged knowledge of the new witnesses before the discovery deadline also does not warrant exclusion. Consequently, Barrett’s claim of prejudice by ASARCO’s late disclosure did not justify the exclusion of this evidence which substantially affected ASARCO’s rights. Accordingly, we hold that the District Court abused its discretion by excluding the evidence on the basis of late disclosure.

B. REMOTENESS IN TIME

The District Court’s second reason for excluding the offered evidence was that the instances of Barrett’s alleged employee misconduct were too remote in time to be relevant. The District Court has the discretion to determine that evidence is too remote in time and we will not reverse the District Court’s determination of remoteness absent a manifest abuse of that discretion. Martin v. Laurel Cable T.V., Inc. (Mont. 1985), [215 Mont. 229,] 696 P.2d 454, 457, 42 St.Rep. 314, 316; Preston v. McDonnell (1983), 203 Mont. 64, 67, 659 P.2d 276, 277.

No fixed test exists by which the district court may determine remoteness of evidence. Rather, remoteness depends upon both the nature of the evidence and the circumstances of the case. Preston, 659 P.2d at 277. Given the nature of the evidence and circumstances in Martin, this Court ruled that a six-year-old letter was not too remote to have been admitted into evidence. Martin, 696 P.2d at 457. However, in Preston, this Court upheld the exclusion of two ten-year-old documents because of their remoteness. Preston, 659 P.2d at 277.

In the instant case, the evidence ASARCO sought to introduce into evidence, which included acts of alleged employee dishonesty and theft, occurred within three years of Barrett’s employment termination. Additionally, the nature of the alleged witness testimony excluded by the District Court directly pertains to the issue of Barrett’s honesty with his employer. The alleged witness testimony is thus relevant to ASARCO’s defense that it terminated Barrett for his dishonesty. Given the relatively short length of time elapsing from the occurrence of the disputed evidence until trial, the eyewitness nature of the evidence and the importance of the evidence to ASARCO’s ultimate defense of termination for dishonesty, we hold that the District Court erred in excluding such evidence on the basis of remoteness in time.

C. RELEVANCY AND THE “FLANIGAN” RULE

The District Court stated, as its third reason for excluding evidence, that the alleged previous incidents of dishonesty were discovered only after ASARCO fired Barrett and thus were not relevant since after-acquired evidence may not serve as additional reasons for termination of an employee. See Flanigan v. Prudential Federal Savings & Loan (Mont. 1986), [221 Mont. 419,] 720 P.2d 257, 43 St.Rep. 941. After-acquired evidence, however, may be introduced if relevant to the character of a party when that character is an essential element of the defendant’s original defense. Rule 404(c), M.R.Evid., states:

“Evidence of a person’s character or a trait of his character is admissible in cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense.”

Additionally, Rule 405(b), M.R.Evid., provides that a party may introduce specific instances of that conduct which relate to the character at issue.

Rule 404(c), M.R.Evid., is directly applicable to the evidence excluded in this case. ASARCO based its termination decision upon Barrett’s alleged dishonesty about previous hay-lifting activities. The honesty of Barrett was placed in issue by ASARCO’s defense of its termination decision. Further, ASARCO did not seek to offer the after-acquired evidence of Barrett’s previous alleged incidents of dishonesty as additional reasons justifying the termination decision. Rather, ASARCO intended to demonstrate that its original reason for terminating Barrett, namely, his alleged dishonesty about hay-lifting activities, was indeed an honest defense as attested to by other recent incidents of alleged dishonesty.

The issue of Barrett’s alleged previous penchant for dishonesty with his employer is in turn critical to a determination of whether the dishonesty alleged by ASARCO on May 8, 1987 did in fact occur. An employer does not breach the implied covenant of good faith and fair dealing by sudden termination of an employee who has a reasonable expectation of job security if the employer has a fair and honest reason for such termination. As this Court stated in Flanigan:

“The covenant, in a long-term employment situation, only requires the employer to have a fair and honest reason for termination. An employee’s incompetence or lack of loyalty certainly constitute sufficient reasons under this standard.”

Flanigan, 720 P.2d at 262. A termination of an employee because of lies to an employer certainly would constitute such a fair and honest reason for termination. If such a reason for termination honestly exists in this case, ASARCO could not be held in breach of the covenant.

Further, alleged evidence of previous incidents of dishonesty would be relevant to the issue of whether an employee has a reasonable expectation of job security and thus may claim the protection of the implied covenant of good faith and fair dealing. As stated in Dare v. Montana Petroleum Marketing Co. (Mont. 1984), [212 Mont. 274] 687 P.2d 1015, 41 St.Rep. 1735:

“[T]he implied covenant protects the investment of the employee who in good faith accepts and maintains employment reasonably believing their job is secure so long as they perform their duties satisfactorily.” (Emphasis added.)

Dare, [212 Mont. at 282] 687 P.2d at 1020.

Protection necessarily hinges on the employee’s good faith performance of job duties because the covenant of good faith and fair dealing mandates a reciprocal duty. The United States Court of Appeals for the Ninth Circuit has described this reciprocal duty of good faith and fair dealing as a “two-way” street demanding mutual compliance. Los Angeles Memorial Coliseum Comm’n v. NFL (9th Cir. 1986), 791 F.2d 1356, 1361, cert. denied,_U.S__, 108 S.Ct. 92, 98 L.Ed.2d 53 (1987). The District Court similarly recognized the reciprocal nature of the covenant and thus correctly offered the following instruction to the jury:

“When the covenant of good faith and fair dealing is implied in the employment relationship, the duty is reciprocal; that is to say, the employer owes the employee a duty of good faith and fair dealing and the employee owes the employer the same duty.”

Indeed, as stated in Los Angeles Memorial Coliseum Comm’n, an employee who breaches his or her duty of good faith and fair dealing may not then complain of unfair dealing by the employer. The Ninth Circuit in Los Angeles Memorial Coliseum Comm’n thus held that the Raiders football team franchise could not circumvent the NFL’s procedures for relocating football team franchises on the one hand, yet maintain, on the other hand, a lawsuit against the NFL for breach of the covenant occasioned by the NFL’s unreasonable withholding of relocation authorization. The Ninth Circuit held that breach of the implied covenant by one party served to negate any breach by the other party, such that neither party was entitled to recovery. See Los Angeles Memorial Coliseum Comm’n, 791 F.2d at 1361. The Ninth Circuit, however, warned of the narrow application of this rule stating:

“We emphasize that our ruling does not embrace a broad rule whereby any two breaches of the implied good faith promise by opposing contracting parties constitute ‘offsetting penalties’ which cancel each other out; our ruling applies only to factual contexts such as the present one, where both breaches concerned the same issue and occurred during one episode of the contractual relationship.”

Los Angeles Memorial Coliseum Comm’n, 791 F.2d at 1362-63.

Similarly, Barrett cannot claim that ASARCO’s alleged sudden, “underhanded” termination decision was a breach of the covenant of good faith and fair dealing if Barrett himself failed to deal honestly in his job performance with ASARCO. Recent alleged acts of dishonesty by Barrett involve the same issue of fair dealing within the employment relationship that Barrett alleges ASARCO breached. Evidence of such alleged immediate dishonesty on Barrett’s part is certainly relevant to a determination of whether Barrett had a reasonable belief in job security and thus may claim protection under the covenant, or whether in fact any claim by him of a breach of good faith and fair dealing was negated by his similar breach with ASARCO. Consequently, we hold that the District Court erred in excluding the evidence of Barrett’s alleged employee misconduct, which misconduct is relevant to a determination of whether Barrett dealt with ASARCO in good faith.

ASARCO also sought to introduce evidence of alleged employee misconduct to impeach Barrett’s character for veracity under Rule 405, M.R.Evid., and to establish that Barrett had a habit or routine practice of lying to his employers under Rule 406 M.R.Evid. ASARCO’s arguments in this regard need not be addressed in light of the above discussion and our holding that the evidence in question is admissible on other grounds.

D. PROBATIVE VALUE VERSUS PREJUDICIAL EFFECT

In its fourth reason for exclusion of the evidence in question, the District Court found that, even though the evidence might have some tangential relevancy concerning Barrett’s character and his damages, the prejudicial effect of the evidence outweighed any probative value. Relevant evidence is defined as that “evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.” Rule 401, M.R.Evid. Rule 403, M.R.Evid., allows for the exclusion of relevant evidence “if its probative value is substantially outweighed by the danger of unfair prejudice ...”

Evidence of Barrett’s alleged employee misconduct had a tendency to make the existence of his lack of good faith and absence of a reasonable expectation in job security more or less probable. The District Court instructed the jury that Barrett’s good faith must be presumed and that this presumption could only be rebutted by proof of bad faith. The District Court then excluded the very evidence ASARCO offered to rebut that presumption. ASARCO contends that the probative value of the evidence outweighs any prejudice to Barrett because of the reciprocal nature of the covenant of good faith and fair dealing. We agree. ASARCO was entitled to have the jury consider all evidence probative on the issues, not just the evidence favoring Barrett. We hold that the District Court erred in excluding the evidence on the grounds of unfair prejudice.

E. THE MAIN ISSUES OF THE CASE

The District Court opined that the issues raised by ASARCO’s offered evidence would lead to “mini trials” which would detract from the main issues of the case. The main issues of this case involve allegations of breach of the covenant of good faith and fair dealing that existed between ASARCO and Barrett. The offered evidence is probative and admissible because it provides evidence directly relevant to ASARCO’s central defense of alleged dishonesty and to the reasonableness of Barrett’s expectation of job security. Accordingly, the District Court also erred in excluding evidence of Barrett’s alleged employee misconduct on the grounds that the evidence would detract from the main issues of the case.

II. ISSUE TWO

ASARCO’s first issue is dispositive of this appeal and, on the basis of our holding above, this case is reversed and remanded for a new trial. Accordingly, we will not address ASARCO’s second issue regarding newly discovered evidence.

Reversed and remanded for a new trial.

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

MR. JUSTICE HUNT,

dissenting:

I dissent. The majority’s opinion may have the effect of severely weakening the implied covenant of good faith and fair dealing within employment relationships. The majority holds that Barrett’s alleged dishonesty is relevant in determining whether Barrett had a reasonable belief in job security, which would allow him protection under the covenant, or whether the covenant was negated by his alleged dishonesty during the past three years. Under such reasoning, an employer may drag up incidents from the distant past to escape being subject to the implied covenant of good faith and fair dealing.

Rare is the employee that can assert undying loyalty to a company employer and a flawless work record. Consequently, the majority’s decision allows a company employer to defeat the covenant by bringing up an employee’s alleged misconduct at trial, even though the employer had not previously reprimanded the employee for such conduct at the time of the conduct nor warned the employee of the serious consequences of doing such conduct. Conceivably, the judge or jury could determine that an employee’s conduct, such as a tendency to take ten extra minutes for a coffee break once a week for the last three years, could defeat the covenant even though the employer failed to state its dissatisfaction with such practices at the time.

In Dare v. Montana Petroleum Marketing Co. (Mont. 1984), [212 Mont. 274,] 687 P.2d 1015, 41 St.Rep. 1735, this Court held that “whether a covenant of good faith and fair dealing is implied in a particular case depends upon objective manifestations by the employer giving rise to the employee’s reasonable belief that he or she has job security and will be treated fairly” (emphasis added). 687 P.2d at 1020, 41 St.Rep. at 1739. The covenant “protects the investment of the employee who in good faith accepts and maintains employment reasonably believing their job is secure so long as they perform their duties satisfactorily” (Emphasis added.). 687 P.2d at 1020, 41 St.Rep. at 1740. While the majority implies that the holding in Dare is still applicable, their holding in the instant case creates an uncomfortable ambiguity. In Dare, the applicable standard for an employee to assert the implied covenant of good faith and fair dealing is an “objective manifestation by employer” and a “reasonable belief’ by the employee of job security.

In the present case, Barrett had worked for ASARCO for over fifteen years before he was fired. He had held a managerial position as a shift foreman since 1973. No evidence exists that would indicate that Barrett failed to perform his duties as a shift foreman satisfactorily. The record indicates that Barrett was fired solely because witnesses had allegedly seen him unloading bales of hay despite his severe back injury. When the trial drew near, however, ASARCO relied upon past conduct of Barrett’s that ASARCO found undesirable, and boldly asserts that such conduct would rebut an employee’s reasonable belief of job security even after fifteen years of service with ASARCO.

I have no reservation in requiring an employee to act in good faith and deal fairly with the employer, however, I object to the holding that would allow an employer to rebut the implied covenant of good faith and fair dealing it owes to an employee when the employer gave no objective manifestations that it was displeased with the employee, and now claims that the employee has no reasonable belief of job security because of something the employee may have done three years ago or more. An employer has a duty to the employee to act in good faith and deal fairly with the employee, this would include warning the employee, at the time of an undesirable conduct by the employee, that the conduct, if continued, may lead to the employee’s firing.

I also assert that the majority erroneously applied the Ninth Circuit Court decision, Los Angeles Memorial Coliseum Comm’n v. NFL (9th Cir. 1986), 791 F.2d 1356, cert. denied,_U.S._, 108 S.Ct. 92, 98 L.Ed.2d 53 (1987) in this case. The court in Los Angeles Memorial Coliseum Comm’n specifically stated that the rule enunciated in that case applies only when “both breaches concerned the same issue and occurred during one episode of the contractual relationship.” Los Angeles Memorial Coliseum Comm’n, 791 F.2d at 1362-63. In the present case, Barrett’s alleged past conduct, that may have occurred three years ago and which may have included taking a nap while at work, cannot be considered the same issue or episode as whether he lifted hay bales after his back injury. I contend that the majority’s broad application of this rule is exactly what the Ninth Circuit’s warning intended to guard against.

I would therefore hold that ASARCO should not be allowed to rebut the implied covenant of good faith and fair dealing by introducing evidence of Barrett’s alleged conduct which ASARCO is apparently using only to justify its firing of Barrett.

MR. JUSTICE SHEEHY concurs in the foregoing dissent of MR. JUSTICE HUNT.