SAMPLE CASES:
1. Bellanger v. American Music Co.,
325 Mont. 221, 104 P.3d 1075, 22 IER Cases 612, 2004 MT 392, Mont., December 30, 2004 (NO. 03-770)
Former employee brought action against employer for constructive discharge and against former
owner of employer, who allegedly treated employee in an abusive manner, for tortious interference
with her business relationship with employer. The Eighth Judicial District Court, Cascade County,
Julie Macek, J., granted defendants' motions for summary judgment. Employee appealed. The
Supreme Court, Patricia O. Cotter, J., held that: (1) genuine issue of material fact precluded
summary judgment for employer, and (2) former owner failed to carry his burden of establishing that
he was an ostensible agent of employer entitled to privilege from suit.
2. Beck v. Flathead County,
240 Mont. 128, 783 P.2d 383, Mont., December 01, 1989 (NO. 89-235)
Nurse's aide sought permanent partial disability benefits for cervical injury. The Workers'
Compensation Court, Timothy Reardon, J., denied claim, and aide appealed. The Supreme
Court, 749 P.2d 527, reversed and remanded. On remand the Workers' Compensation Court
awarded benefits. Employer and State Compensation Insurance Fund appealed.
The Supreme Court, Barz, J., held that: (1) Supreme Court's prior decision did not require Workers'
Compensation Court to conduct evidentiary hearing for additional findings regarding loss of earning
capacity; (2) res judicata barred defendants from asserting that stipulation regarding rate of
disability benefits was not binding; and (3) Workers' Compensation Court was not required to conduct
evidentiary hearing regarding costs and attorney fees. Affirmed.
3. State ex rel. Burlington Northern R. Co. v. District Court of Eighth Judicial Dist. of State of Mont. In and
For County of Cascade,
239 Mont. 207, 779 P.2d 885, Mont., September 19, 1989 (NO. 89-96)
Plaintiffs brought negligence action against Board of Medical Examiners and State based on Board's
failure to limit or revoke doctor's license to practice medicine, which allegedly caused avoidable
complications in two pregnancies and resulted in deaths of two infants. The District Court, Eleventh
Judicial District, County of Flathead, Leif Erickson, J., dismissed action, and plaintiffs appealed. The
Supreme Court, McDonough, J., held that doctrine of quasi-judicial immunity precluded suit against
Board of Medical Examiners and State.
4. Koppen v. Board of Medical Examiners,
233 Mont. 214, 759 P.2d 173, Mont., August 11, 1988 (NO. 87-472)
Plaintiffs brought negligence action against Board of Medical Examiners and State based on Board's
failure to limit or revoke doctor's license to practice medicine, which allegedly caused avoidable
complications in two pregnancies and resulted in deaths of two infants. The District Court, Eleventh
Judicial District, County of Flathead, Leif Erickson, J., dismissed action, and plaintiffs appealed. The
Supreme Court, McDonough, J., held that doctrine of quasi-judicial immunity precluded suit against
Board of Medical Examiners and State.
5. Daniels v. Kalispell Regional Hosp.,
230 Mont. 407, 750 P.2d 455, Mont., February 18, 1988 (NO. 87-368)
Appeals were taken from order of the Workers' Compensation Court. The Supreme Court, Harrison,
J., held that: (1) evidence sustained finding that worker suffered injury when she had reaction to
talc on gloves she wore as nurse's aide which harmed her immune system resulting in an increased
tendency to have anaphylactic reactions; (2) evidence sustained finding of total permanent
disability; but (3) denial of partial conversion of benefits to lump sum in order to allow claimant to
buy a house and to start a business in which her husband would operate a backhoe was not an
abuse of discretion. Affirmed.
6. Beck v. Flathead County,
230 Mont. 294, 749 P.2d 527, Mont., February 10, 1988 (NO. 87-262)
Forty-three-year-old nurse's aide who had sustained work-related, cervical injury, filed claim for
permanent partial disability benefits. The Workers' Compensation Court, Timothy Reardon, J., denied
claim, and nurse's aide appealed. The Supreme Court, Turnage, C.J., held that 43-year-old nurse's
aide, who occasionally missed work because of headaches allegedly related to injury, was not barred
from recovering permanent partial disability benefits simply because she was employed at higher
hourly wage after injury. Reversed and remanded.
7. Sedlack v. Bigfork Convalescent Center,
230 Mont 273, 749 P.2d 1085, Mont., February 10, 1988 (NO. 87-168)
Registered nurse sought permanent partial disability benefits for back injury. The Workers'
Compensation Court, Timothy Reardon, J., denied benefits. Nurse appealed. The Supreme Court,
Harrison, J., held that: (1) proof of actual wage loss was not prerequisite to recovery of
benefits, and (2) nurse suffered diminution of earning capacity required for award of benefits.
Reversed and remanded.
8. Snyder v. San Francisco Feed & Grain,
230 Mont. 16, 748 P.2d 924, Mont., December 31, 1987 (NO. 87-263)
Claimant commenced action to recover workers' compensation benefits for a ruptured basilar tip
aneurysm. The Workers' Compensation Court, Timothy Reardon, J., found that the claimant's
evidence did not establish a compensable industrial accident. Appeal and cross appeal were taken.
The Supreme Court, Sheehy, J., held that: (1) there was sufficient evidence that the claimant's
ruptured aneurysm was a compensable industrial accident; (2) no “psychological reconstruction” was
necessary to show a stress-related injury; (3) the unusual or unexpected mental strain of a stressful
work environment which caused a preexisting aneurysm to rupture was a tangible happening of a
traumatic nature; (4) the claimant's treating physician's initial opinion, based on incomplete
knowledge, should not have been given greater weight than other medical testimony; and (5)
hypothetical questions posed by the claimant's counsel were based on testimony in the record, even
if the questions did not repeat the testimony verbatim.
9. Larson v. Crissmore,
228 Mont. 9, 741 P.2d 401, Mont., August 05, 1987 (NO. 86-310)
Claimant sought recovery of workers' compensation benefits. The Workers' Compensation Court,
Timothy Reardon, J., denied additional requested benefits. Claimant appealed. The Supreme Court,
Harrison, J., held that: (1) claimant was entitled to additional temporary total disability benefits up
to 300 weeks; (2) that amount could not be granted in addition to 500 weeks of permanent disability
benefits already granted to claimant; and (3) to recover discretionary award, claimant was required
to show that he had lost both hands, arms, feet, legs, or eyes.
10. Weldele v. Medley Development,
227 Mont. 257, 738 P.2d 1281, Mont., June 25, 1987 (NO. 86-143)
State Compensation Insurance Fund appealed from determination by Workers' Compensation Court,
Timothy Reardon, J., setting aside full and final compromise settlement of claim based on parties'
mutual mistake of material fact. The Supreme Court, Hunt, J., held that parties' mistaken belief, at
time settlement was entered into, that claimant's injuries were limited to healed carpal tunnel
syndrome and rotator cuff problem, while claimant in fact suffered from thoracic outlet syndrome as
well, constituted mutual mistake of material fact warranting setting aside of settlement and
reopening of claim.
11. Barnes v. Koepke,
226 Mont. 470, 736 P.2d, Mont., April 28, 1987 (NO. 86-416)
Former hospital administrator brought action against county and county commissioners alleging that
their personal dislike for him led them to conspire to secure his discharge from his position and to
ruin him financially by terminating lease of hospital and nursing home complex to nonprofit
corporation had entered into contract with plaintiff's employee to provide management services to
complex. The District Court of the Ninth Judicial District, Glacier County, R.D. McPhillips, J., granted
defendants' motion to dismiss. The Supreme Court, Harrison, J., held that county and county
commissioners were immune from action arising from decision not to renew lease.
12. North v. Bunday,
226 Mont. 247, 735 P.2d 270, Mont., March 31, 1987 (NO. 86-472)
State and individual tort-feasor applied for writ of supervisory control to prohibit surviving spouse
from recovering against State due to fact that negligence of driver exceeded negligence of State and
negligence of individual tort-feasor. The Supreme Court, Sheehy, J., held that comparative
negligence statute, which bars plaintiff's recovery if negligence is greater than negligence of person
against whom recovery is sought, required negligence of 45% negligent driver to be compared with
combined negligence of 40% negligent tort-feasor and 15% negligent State in order to determine
right to recovery. Issuance of writ of denied, and cause remanded.
13. Matter of Estate of Farnum,
224 Mont. 304, 730 P.2d 391, Mont., December 12, 1986 (NO. 86-68, 86-78)
Mother of child killed in automobile/bicycle collision sought appointment as personal representative of
child's estate and in another action petitioned for authority to enter into compromise settlement of
claims against driver of automobile. Father filed objection to the petition. The Eleventh Judicial
District Court, County of Flathead, Nat Allen, J., appointed mother personal representative and
approved settlement. Appeal was taken. The Supreme Court, Weber, J., held that: (1) mother was
proper person to be personal representative of estate of daughter; (2) probate court had jurisdiction
to approve settlement; (3) probate court could authorize mother to settle both survival and
wrongful death causes of action; and (4) allocation of proceeds was supported by substantial
evidence. Affirmed.
14. Streich & Associates, Inc. v. St. Paul Mercury Ins. Co.,
221 Mont. 209, 717 P.2d 1101, Mont., April 29, 1986 (NO. 85-490)
Purchaser of potting soil brought complaint alleging that his potato crop was damaged by potting
soil. Named as defendants were seller and seller's insured. Defendants filed motion requesting venue
be changed. The District Court, Eleventh Judicial District, in and for County of Flathead, Nat Allen, J.,
denied motion, and appeal was taken. The Supreme Court, Turnage, C.J., held that insurer's duties
under Unfair Trade Practices Act included investigation and negotiation of claim which could only
have been performed realistically in county where crop was grown, and therefore, claim alleging
purchaser's potato crop was damaged by potting soil purchased from insured and that insurer failed
to act reasonably promptly with respect to claim for damages to potato crop was properly brought in
county where crop was grown. Affirmed.
15. Kyriss v. State,
218 Mont. 162, 707 P.2d 5, Mont., October 03, 1985 (NO. 83-479)
Prisoner brought medical malpractice action against prison physicians. The District Court, Third
Judicial District, Powell County, Robert Boyd, J., entered judgment against doctors, and doctors
appealed. The Supreme Court, Sheehy, J., held that: (1) sufficient evidence justified verdict
against doctors; (2) trial court did not abuse its discretion in allowing highlighted copies of prisoner's
medical records to go to jury; and (3) prison physicians were not state employees and therefore
were not entitled to protection of immunity. Affirmed.
16. Rudeck v. Wright,
218 Mont. 41, 709 P.2d 621, Mont., September 12, 1985 (NO. 84-84)
Survivor brought medical malpractice wrongful death and survivor claims against surgeon and others.
Jury returned verdict of $75,000 on wrongful death claim and nothing on survivor claim and survivor's
motion for new trial was granted by the District Court of the First Judicial District, County of Lewis &
Clark, Gordon Bennett, J., and surgeon appealed. The Supreme Court, Joel G. Roth, District Judge,
held that: (1) survivor had right to new trial on ground that jury verdict awarding $75,000 for
wrongful death and nothing for survival was inconsistent, and (2) surgeon was negligent per se and
liable for patient's injury and death caused by surgical sponge that was left in patient's body prior to
closing incision, where surgical nurse's failure to inform surgeon of unaccounted-for sponge and
radiologist's failure to detect sponge in postsurgical x-rays were substantial factors in bringing about
patient's injury and death. Affirmed and remanded.
17. Shupert v. Anaconda Aluminum Co.,
215 Mont. 182, 696 P.2d 436, Mont., March 07, 1985 (NO. 84-180)
Claimant filed petition seeking total disability benefits for back injuries suffered during employment as
pot reliner. The Workers' Compensation Court, Timothy Reardon, J., denied the petition, and claimant
appealed. The Supreme Court, Harrison, J., held that: (1) orthopedic surgeon's deposition testimony
that he found no objective physical signs of injury was not substantial evidence, and (2) another
neurologist's deposition testimony established that claimant met his burden to prove that his present
symptoms were related to original injury. Reversed and remanded with instructions.
18. Moilanen v. Marbles Moving & Storage,
214 Mont. 367, 694 P.2d 485, Mont., January 03, 1985 (NO. 82-371)
Appeal was taken by claimant from an order of the Workers' Compensation Court, Timothy Reardon,
J., awarding him temporary total disability, rather than permanent total compensation benefits. The
Supreme Court, Shea, J., held that: (1) claimant was not required to undergo back surgery before a
determination could be made on the extent of his disability; (2) physician's testimony did not
preclude a conclusion that claimant's back injury was anything less than permanent; (3) further
question whether claimant was totally or partially disabled was a question for the Workers'
Compensation Court in the first instance; (4) claimant was not entitled to a lump-sum payment of
future disability benefits where he bypassed required statutory procedures and set forth only a
vague plan for using lump sum if granted; and (5) a ruling that the State Fund wrongfully terminated
claimant was not a basis for awarding claimant the 20 percent statutory penalty without a further
ruling on the necessary question whether the failure constituted an unreasonable refusal to pay.
Affirmed in part, reversed in part, and remanded
19. Dallas v. Burlington Northern, Inc.,
212 Mont. 514, 689 P.2d 273, Mont., October 15, 1984 (NO. 84-07)
Railroad employee brought action pursuant to Federal Employers' Liability Act seeking damages for
personal injuries sustained during course of his employment with railroad. The Eighth Judicial District
Court, Cascade County, H. William Coder, J., returned jury verdict in favor of employee in amount of
$477,000, and denied railroad's motion for new trial. Railroad appealed. The Supreme Court, Morrison,
J., held that: (1) evidence supported finding that railroad had violated Federal Boiler Inspection Act;
(2) testimony by medical experts was sufficient to provide basis for consideration of permanent
impairment to employee's earning capacity; (3) physician's testimony was sufficient to support
finding that it was probable that employee's condition would not improve during his lifetime; (4) trial
court's refusal to instruct jury on nontaxability of any award made by jury if error, was harmless;
and (5) evidence supported award of lost earnings and future earnings capacity. Affirmed.
20. State Farm Mut. Auto Ins. Companies v. Queen,
212 Mont. 62, 685 P.2d 935, Mont., August 17, 1984 (NO. 83-252)
Insured filed action seeking declaratory judgment that it did not insure automobile driver for accident
in which passenger was injured. The Ninth Circuit Court of Appeals certified questions to the Supreme
Court, Morrison, J., which held that driver was covered under policy. Questions answered.
21. Johnson v. Marias River Elec. Co-op., Inc.,
211 Mont. 518, 687 P.2d 668, Mont., August 14, 1984 (NO. 83-370)
Surviving spouse brought wrongful death action on behalf of herself and two minor children.
Defendants moved for summary judgment as to the claims of the minor children. The Ninth Judicial
District Court, Toole County, Bernard W. Thomas, J., granted the motion, and surviving spouse
appealed. The Supreme Court, Sheehy, J., held that the minor children could properly maintain an
action for damages under wrongful death statute, even though they were not “heirs” as defined by
probate code. Reversed.
22. Hafer v. Anaconda Aluminum Co.,
211 Mont. 345, 684 P.2d 1114, Mont., July 26, 1984 (NO. 83-351)
Claimant appealed from a judgment of the Workers' Compensation Court, William Hunt, J. The Supreme
Court, 643 P.2d 1192, vacated and remanded. On remand, the Workers' Compensation Court, Timothy
Reardon, J., found that the claimant's earning capacity had been impaired by 40%, but found that the
claimant was only 30% permanent partially disabled and computed an award based on that figure.
Claimant appealed. The Supreme Court, Haswell, C.J., held that factors other than earning capacity
impairment were relevant to determining the degree of permanent partial disability only when the
court was unable to make an independent determination of the degree to which the claimant's earning
capacity had been impaired and, therefore, since the court had determined that the claimant's
earning capacity was reduced by 40%, that was the figure to be used in computing his benefits.
Order vacated and cause remanded.
23. Ruple v. Bob Peterson Logging Co.,
209 Mont. 276, 679 P.2d 1252, Mont., April 19, 1984 (NO. 83-440)
Claimant appealed from a judgment of the Workers' Compensation Court, Timothy Reardon, J., which
denied conversion of his future disability benefits into a lump-sum payment. The Supreme Court,
Gulbrandson, J., held that Workers' Compensation Court did not abuse its discretion in denying
conversion of all of claimant's disability benefits to lump sum and in concluding that a partial lump-sum
payment might be in best interests of claimant, who was capable of meeting his monthly expenses on
his current income notwithstanding his indebtedness. Affirmed.
24. White v. State,
203 Mont. 363, 661 P.2d 1272, 43 A.L.R.4th 1, Mont., April 08, 1983 (NO. 82-170)
Action was brought against the State for injuries sustained when mental hospital inmate, who
allegedly escaped from hospital due to negligence of the State, attacked plaintiff. The State alleged
that government was immune from liability for noneconomic damages and for punitive damages. The
District Court, Eighth Judicial District, County of Cascade, John McCarvel, J., granted summary
judgment in favor of plaintiff, holding that statutory limitations on governmental liability for damages in
tort and for exemplary and punitive damages were unconstitutional. The State appealed. The
Supreme Court, Morrison, J., held that: (1) statute prohibiting recovery from the State and its
political subdivisions for noneconomic damage, and limiting amount of economic damages recoverable,
is unconstitutional in its entirety, and (2) rational basis exists for statutorily created immunity from
punitive damage assessments for governmental entities, and such statutory provision is
constitutional. Affirmed in part; vacated in part; and remanded.
25. Moen v. Peter Kiewit & Sons' Co.,
201 Mont. 425, 655 P.2d 482, Mont., December 13, 1982 (NO. 81-106, 82-29)
Consolidated appeals were taken from an order of the Workers' Compensation Court, Timothy Reardon,
J., granting a motion to quash a petition for a hearing and from the District Court of the Thirteenth
Judicial District, Yellowstone County, William J. Speare, J., on an adverse jury verdict in a negligence
action for the wrongful death of the claimant's husband. The Supreme Court, Weber, J., held that: (1)
the employer's motion to quash was procedurally acceptable in the Workers' Compensation Court; (2)
the denial of the request for a new hearing was proper; (3) the district court did not err by not
allowing the claimant to testify regarding her telephone conversation with her husband on the night
before his death; (4) the district court did not err in allowing a witness to testify regarding what the
husband did not say at the time he allegedly suffered a heart attack; (5) the jury was properly
instructed; and (6) the evidence, although weak, was for the jury. Affirmed.
26. Goodnough v. State,
199 Mont. 9, 647 P.2d 364, Mont., July 01, 1982 (NO. 81-195)
Negligence action was brought against the State arising out of an automobile accident in which
plaintiffs' car was struck by a passing vehicle while making a left turn. The District Court, Eleventh
Judicial District, Flathead County, Robert Sykes, J., entered judgment on jury verdict in favor of the
State, and plaintiffs appealed. The Supreme Court, Daly, J., held that: (1) trial court's instructions on
proximate cause were not inconsistent or contradictory and reflected, in substance, the applicable
law, and therefore plaintiffs were not prejudiced by giving of those instructions, which included an
instruction on superseding, intervening cause, and trial court did not err in failing to give plaintiffs'
proposed instruction concerning the conduct of a third party; (2) testimony that occupants of vehicle
which collided with plaintiffs' vehicle were seen outside of road relieving themselves was relevant to
establish speed of that vehicle, which caught up with plaintiffs' vehicle, and was admissible in suit in
which plaintiffs sought recovery of damages from State for injuries received in the collision where the
prejudicial nature of the testimony, if any, was outweighed by the probative value; and (3) since jury
returned verdict for State, error committed by trial court in not allowing counsel for plaintiffs to
question prospective jurors about their beliefs, as taxpayers, concerning financial outcome of the
case was harmless. Affirmed.
27. Hafer v. Anaconda Aluminum Co.,
198 Mont. 105, 643 P.2d 1192, Mont., April 29, 1982 (NO. 81-188)
Claimant appealed from judgment of the Workers' Compensation Court, William Hunt, J. The Supreme
Court, Weber, J., held that: (1) claimant could properly elect between the loss of earning capacity
provision and the indemnity provisions though his earnings were not actually decreased, and (2)
limitation on benefit paid under the indemnity provisions did not apply when worker proceeded under
the loss of earning capacity provision. Vacated and remanded.
28. Hock v. Lienco Cedar Products,
194 Mont. 131, 634 P.2d 1174, Mont., September 28, 1981 (NO. 80-464)
State Compensation Insurance Fund appealed from an order of the Workers' Compensation Court,
William E. Hunt, J., granting claimant's petition for lump-sum award of benefits. The Supreme Court,
Weber, J., held that: (1) Workers' Compensation Court, in considering whether to advance lump-sum
benefits to widow to be recovered by terminating payment of biweekly benefits on sixteenth birthday
of widow's child until advance had been recovered, should have appointed a guardian ad litem for the
child or made a finding stating reasons why appointment was unnecessary, and (2) although claimant
sought only a $6,000 advancement at hearing stage and did not seek.$19,000 lump-sum award until
she was before Workers' Compensation Court, that court could entertain the petition seeking the
greater amount, particularly in light of the fact that, by division's own admissions, no resolution would
have been had. Order in accordance with opinion.
29. Gunnels v. Hoyt,
194 Mont. 265, 633 P.2d 1187, Mont., September 09, 1981 (NO. 80-106)
Negligence action arising out of motor vehicle accident was filed. The District Court, Flathead
County, James M. Salansky, J., entered judgment in favor of defendants, and plaintiff appealed. The
Supreme Court, Weber, J., held that: (1) there was no violation by defendants of either tail lamp or
backing statutes rendering them negligent per se; (2) evidence supported conclusion that the
defendants did not breach duty of care owed to the plaintiff; and (3) substantial evidence supported
determination that defendants' actions did not proximately cause plaintiff's injury. Affirmed.
30. Lauman v. Lee,
192 Mont. 84, 626 P.2d 830, Mont., April 01, 1981 (NO. 80-87)
Motorist brought action against owner and operator of other automobile to recover damages arising
out of automobile collision. The Eleventh Judicial District Court, Flathead County, James Salansky, J.,
entered judgment in favor of operator and passenger of other automobile and against owner of other
automobile, and appeals were taken. The Supreme Court, Sheehy, J., held that: (1) evidence
sustained finding that plaintiff motorist suffered actual damages as result of defendant owner's
conduct in destroying critical physical evidence relating to plaintiff's theory of the case; (2) evidence
sustained finding that defendant operator of automobile and his passenger were not negligent in
connection with the collision at issue; and (3) award of $17,500 damages assessed against owner of
automobile was not excessive. Affirmed.
31. Jaap v. District Court of Eighth Judicial Dist., In and For Cascade County,
191 Mont. 319, 623 P.2d 1389, Mont., February 24, 1981 (NO. 80-409)
In action for damages alleged to have arisen out of automobile accident, the District Court issued
order which in part permitted defendant to interview plaintiff's physicians outside presence ofplaintiff's
attorney, and plaintiff applied for writ of supervisory control for purpose of reversing such discovery
order. The Supreme Court, Sheehy, J., held that the District Court was without power to order private
interview of plaintiff's physicians. Application granted; order of district court vacated in part.
32. Roy v. Neibauer,
188 Mont. 81, 610 P.2d 1185, Mont., May 12, 1980 (NO. 79-56)
Appeal was taken from order of the District Court of the Eighth Judicial District, County of Cascade,
Joel G. Roth, J., granting summary judgment in favor of one of two defendants. The Supreme Court,
Shea, J., held that the appeal was premature, in absence of express determination that there was no
just reason for delay of appeal. Appeal dismissed without prejudice.
33. Britton v. Burlington Northern, Inc.,
184 Mont. 107, 601 P.2d 1192, Mont., November 02, 1979 (NO. 14927)
Defendant appealed from a judgment of the Nineteenth District Court, Lincoln County, Robert M.
Holter, J., and plaintiff filed a motion to dismiss. The Supreme Court, Haswell, C. J., held that the time
within which district court was required to rule on motion for new trial commenced running on June 25
when appellant's brief was filed, the 15-day period for its ruling expired on July 5, and it was
automatically deemed denied on that date, and its order of denial on July 20 was void so that
appellant had 30 days thereafter in which to file its notice of appeal, and since notice of appeal was
filed August 3 within such 30-day period, that invested the Supreme Court with jurisdiction to hear
the appeal. Motion to dismiss denied.
34. Helmke v. Goff,
182 Mont 494, 597 P.2d 1131, Mont., June 18, 1979 (NO. 14230)
Passenger brought action against driver of car for injuries suffered in single car accident. After jury
verdict for driver, the Nineteenth District Court, Lincoln County, Robert M. Holter, J., denied
passenger's motions for judgment notwithstanding the verdict and for new trial, and passenger
appealed. The Supreme Court, Sheehy, J., held that: (1) inferences of fact raised by plaintiff's case
were for jury to determine under doctrine of res ipsa loquitur, even though defendant did not attempt
to explain accident or show his lack of negligence, and (2) “mere happening” instruction was so
incompatible with res ipsa loquitur instruction also given to jury as to require reversal.
Reversed and remanded.
35. Poeppel v. Fisher,
175 Mont. 136, 572 P.2d 912, Mont., December 16, 1977 (NO. 13461)
One schoolteacher brought suit against another, seeking to recover money damages for an assault
and battery which allegedly occurred after plaintiff had physically ejected a student from his
classroom. The Eleventh District Court, Flathead County, Robert Sykes, J., entered judgment in favor
of plaintiff, and defendant appealed. The Supreme Court, Daly, J., held that: (1) the jury's failure to
award exemplary or punitive damages was not a bar to the award of actual or compensatory
damages, (2) since the district court's ruling on posttrial motions delayed entry of judgment until June
24, 1976, plaintiff's memorandum of costs and disbursements was timely filed on April 26, 1976, and
(3) substantial evidence failed to show that the appeal was taken without substantial or reasonable
grounds or only for purposes of delay, and therefore damages would not be awarded the appellee
under Rule 32. Judgment affirmed.
36. Reeves v. Ille Elec. Co.,
170 Mont. 104, 551 P.2d 647, Mont., June 21, 1976 (NO. 13191)
Administrator of estate of deceased college student brought survival action seeking damages for
personal injuries and death of the student, who was electrocuted in a whirlpool bath at the Montana
State University. The Eighteenth District Court, Gallatin County, W. W. Lessley, J., entered judgment
of dismissal as to one defendant and separate summary judgments in favor of two remaining
defendants, and plaintiff appealed. The Supreme Court, Haswell, J., held that the ten-year limitations
period of the architects' and builders' statute does not violate constitutional provision that speedy
remedy is to be afforded for every injury since the legislature did not interfere with any vested right
of plaintiff but simply cut off accrual of the right to sue after ten years, that contention that statute
violated the Constitution by embracing more than one subject and by not clearly expressing that
subject in the title of the act came too late where it was raised more than two years after effective
date of the act, that the act did not violate equal protection merely because materialmen and owners
of real property may not avail themselves of its benefits and that the defendant which supplied the
whirlpool bath was merely a materialman. Affirmed in part and reversed and remanded in part.
37. Berge v. Boyne USA, Inc.,
779 F.2d 1445, C.A.9 (Mont.) January 09, 1986 (NO. 84-4428, 85-3586)
Diversity action was brought against landowner to recover for injuries sustained on the property. The
United States District Court for the District of Montana, Jack D. Shanstrom, United States Magistrate,
ruled on applicable standard of care, and appeal was taken. The Court of Appeals held that duty of
care did not depend on whether plaintiff was a trespasser, licensee or invitee. Affirmed.
38. Mackey v. Prudential Ins. Co. of America,
666 F. Supp. 1447, D.Mont., October 20, 1986 (NO. CV 84-229-M)
Former employee brought action to reinstate disability benefits and recover extracontractual and
punitive damages allegedly arising from wrongful termination of benefits. The District Court, Lovell, J.,
held that: (1) all extra-ERISA claims against disability benefits plan were preempted, and (2) state law
claims against administrator, an insurance company, were preempted. Defendants' motion for summary
judgment granted.
39. Kyriss v. Aetna Life and Cas. Co.,
624 F. Supp. 1130, D.Mont., January 09, 1986 (NO. CV 84-115-M-CCL)
Victim of medical malpractice brought action against malpractice insurer for alleged failure to negotiate
in good faith and expeditiously settle claim. Insurer moved to strike paragraphs from complaint alleging
bad faith in appeal of malpractice judgment in state court. The District Court, Lovell, J., held that: (1)
under Montana law, motive behind decision to appeal could be considered in bad-faith action; (2)
Montana Supreme Court rule permitting award of costs for appeal brought for purposes of delay did
not deprive other courts of jurisdiction to consider motive behind decision to appeal; and (3)
consideration of alleged bad faith in taking an appeal did not constitute an unconstitutional “chilling
effect” on insurer's right of access to courts. Motion denied.
40. Casey v. Third Judicial District Court, Granite County,
Supreme Court case number 05-324
Petition for Supervisory Control in which a medical malpractice plaintiff challenged the delay in her hearing before the
Montana Medical Legal Panel. The Montana Supreme Court exercised supervisory control and held that jurisdiction of the
Montana Medical Legal Panel was subject to its own rules, which required a hearing within 120 days of transmittal of a
medical malpractice claim unless good cause existed for extending the deadline. The Montana Medical Legal Panel lost
jurisdiction over the claimant's case when it failed to find good cause for extending the hearing beyond 120 days.
41. Gerlach v. State,
Supreme Court Case Number 04-472
Petition for Injunctive and Declaratory Relief in which the petitioners challenged the constitutionality of I-147 pursuant to
Article V, Section 11(3) of the Montana Constitution. I-147 was a ballot initiative in which special mining interests sought to
repeal the ban on cyanide leech mining. The Montana Supreme Court denied the Petition on the grounds that it did not
present an emergency and did not consider the merits of the petition. Ultimately, Montana voters voted against I-147.
