Previous Oral Argument Schedule


2017 Oral Arguments

MARCH

--DA 16-0429    BITTERROOTERS FOR PLANNING, INC., and BITTERROOT RIVER PROTECTIVE ASSOCIATION, INC. Plaintiffs and Appellees, v. MONTANA DEPARTMENT OF ENVIRONMENTAL QUALITY, an agency of the State of Montana, Defendant and Appellant, STEPHEN WANDERER and GEORGIA FILCHER, Defendants, Intervenors and Appellants. Oral Argument is set for Wednesday, March 29, 2017, at 9:30 a.m. in the Courtroom of the Montana Supreme Court, Joseph P. Mazurek Justice Building, Helena, Montana.

The Department of Environmental Quality (DEQ) issued a permit for a wastewater discharge system for property near Hamilton. Anticipating construction of an unidentified “big box” store on the property, two Hamilton-area organizations—Bitterrooters for Planning, Inc., and Bitterroot River Protective Association, Inc.—challenged the permit. The First Judicial District Court ruled that the permit is void.

In this appeal, the landowners argue the District Court erred by concluding that, if and when DEQ reconsiders their application, the landowners must identify the nature of the anticipated “big box” business. In addition, both the landowners and DEQ question whether the District Court impermissibly expanded the scope of the Montana Environmental Policy Act analysis in its construction of the terms “secondary impacts” and “cumulative impacts.”

The Montana Environmental Information Center has filed an amicus brief.

APRIL

--OP 16-0555  ATLANTIC RICHFIELD COMPANY, Petitioner, v. MONTANA SECOND JUDICIAL DISTRICT COURT, SILVER BOW COUNTY, THE HON. KATHERINE M. BIDEGARAY, Respondent.    Oral Argument is set for Friday, April 7, 2017, at 9:30 a.m.  at the George Dennison Theater, University of Montana, Missoula, Montana, with an introduction to the oral argument beginning at 9:00 a.m. 

The Montana Supreme Court will hear argument on Atlantic Richfield Company’s  petition to reverse the Second Judicial District Court’s ruling in this action for damages to privately-owned lands within the boundaries of the Anaconda Smelter Superfund Site.  The issue before the Supreme Court is whether the District Court erred in refusing to grant Atlantic Richfield judgment as a matter of law that the federal Superfund law (CERCLA) bars the plaintiffs’ common-law claims for restoration damages.

The United States of America, the Montana Trial Lawyers Association and Montana Environmental Information Center, and the Clark Fork Coalition have filed friend-of-the-Court briefs.

MAY

--DA 14-0807  STATE OF MONTANA, Plaintiff and Appellee, v. MATTHEW JOHN BLAZ, Defendant and Appellant.   Oral Argument is set for Monday, May 1, 2017, at 10:30 a.m. in the Strand Union Building, Ballroom A on the campus of Montana State University, Bozeman, Montana, with an introduction to the oral argument beginning at 10:00 a.m. 

Matthew Blaz appeals his conviction of deliberate homicide in the death of his infant daughter, who died as a result of two skull fractures sustained in their home.

On appeal, Blaz argues the Second Judicial District Court erred when it allowed the State to present evidence at trial about an incident that occurred about a month before his daughter died, in which Blaz threw his wife down and pounded her head into the floor while she was holding the baby. Blaz maintains admission of that evidence deprived him of his right to a fair trial. The State responds that evidence of the prior incident is relevant as to Blaz’s disregard for his daughter’s well-being, and was properly admitted to rebut Blaz’s theory that a neighbor boy dropped the baby and fractured her skull. The issue requires application of the basic evidentiary rule that relevant evidence may be excluded if its probative value is outweighed by the danger of unfair prejudice.

--OP 16-0328    DERRICK EARL STEILMAN, Petitioner, v. MIKE BATISTA, TIMOTHY CHARLES FOX, Respondents.   Oral Argument is set for Wednesday, May 17, 2017, at 9:30 a.m. in the Courtroom of the Montana Supreme Court, Joseph P. Mazurek Justice Building, Helena, Montana.

This is a petition for writ of habeas corpus filed on behalf of Derrick Earl Steilman, who is serving a 100-year sentence with no parole for a 1999 deliberate homicide conviction.  The homicide was committed when Steilman was six weeks shy of his 18th birthday.  Steilman pled guilty, and the principal issue at sentencing was whether he should be eligible for parole.  Steilman did not appeal his conviction or sentence or seek post-conviction relief.

 In his petition for writ of habeas corpus, Steilman now raises a Miller argument – that his “life without parole” sentence is unconstitutional because the sentencing court did not consider the special circumstances of his youth.

JUNE

--DA 16-0156    IN THE MATTER OF: J.S., Respondent and Appellant. Oral Argument is set for Wednesday, June 28, 2017, at 9:30 a.m. in the Courtroom of the Montana Supreme Court, Joseph P. Mazurek Justice Building, Helena, Montana.

The issue in this appeal is whether J.S.’s attorney provided her with ineffective assistance of counsel at involuntary mental health commitment proceedings. Appellate counsel for J.S. argues that her trial counsel rendered ineffective assistance when she failed to investigate alternative community treatment options or to request a continuance for that purpose, failed to give J.S. the opportunity to testify at the hearing, and failed to object to hearsay testimony. As part of its argument, the State of Montana asks the Court to revise the standard for evaluating claims of ineffective assistance of counsel in involuntary commitment cases, as set forth in In re K.G.F., 2001 MT 140, ¶¶ 70-86, 306 Mont. 1, 29 P.3d 485.

JULY

--DA 16-0745    ZIRKELBACK CONSTRUCTION, INC., Third-Party Plaintiff and Appellant, v. DOWL, LLC dba DOWL HKM, Third-Party Defendant and Appellee.   Oral Argument is set for Wednesday, July 12, 2017, at 9:30 a.m. in the Courtroom of the Montana Supreme Court, Joseph P. Mazurek Justice Building, Helena, Montana.

Zirkelbach--the general contractor for the construction of a Fed Ex ground facility in Billings--contracted with DOWL for professional design and engineering services. A clause in their contract limited DOWL’s liability to $50,000. In this action, Zirkelbach sued DOWL and other defendants for alleged defects in the project. The Thirteenth Judicial District Court has upheld the contract provision limiting DOWL’s liability to $50,000. Zirkelbach appeals, arguing that the limitation clause violates Montana’s general prohibition on exculpatory clauses in contracts.

--DA 16-0670    TANYA L. MLEKUSH, Plaintiff and Appellant, v. FARMERS INSURANCE EXCHANGE, Respondent and Appellee.    Oral Argument  is set for July 26, 2017 at 9:30 AM in the Courtroom of the Montana Supreme Court, Joseph P. Mazurek Building, Helena, Montana.

Mlekush was injured in an automobile collision for which the driver of the other vehicle admitted liability. In this action, Mlekush seeks reimbursement from her own auto insurance company for her damages beyond the coverage limits of the other driver’s insurance. For a second time, the First Judicial District Court has determined that Mlekush is not entitled to recover her attorney fees and costs from her insurer under the so-called “insurance exception” to the American Rule (in civil litigation, each side pays its own attorney fees and costs). Mlekush argues that, because she was forced to assume the burden of legal action to recover the full benefit of her insurance contract, she is entitled to those fees and costs.

AUGUST

--DA 16-0716   ELAINE MITCHELL, and all others similarly situated, Plaintiffs and Appellants, v. GLACIER COUNTY, and STATE OF MONTANA, Defendants and Appellees.    Oral Argument is set for Wednesday, August 9, 2017, at 9:30 a.m. in the Courtroom of the Montana Supreme Court, Joseph P. Mazurek Justice Building, Helena, Montana.

In this action, Elaine Mitchell seeks declaratory and injunctive relief against Glacier County, which she claims is mismanaging tax monies and failing to comply with statutory and constitutional budgeting requirements. Mitchell is a Glacier County property tax payer, and also seeks to appear on behalf of other Glacier County taxpayers who have paid taxes under protest. The First Judicial District Court dismissed the action on grounds that Mitchell does not have standing to bring it, because she had not alleged a concrete injury to her property or to her individual constitutional or statutory rights. Both Glacier County and the State of Montana appear in support of the District Court’s dismissal of the action.

SEPTEMBER

--DA 16-0739   ALPS PROPERTY & CASUALTY INSURANCE COMPANY, d/b/a Attorneys Liability Protection Society, A Risk Retention Group, Plaintiff and Appellees, v. McLEAN & McLEAN, PLLP; DAVID McLEAN; MICHAEL McLEAN and MIANTAE McConnell, Defendants and Appellants. __________________________________________ McLEAN & McLEAN, PLLP and MICHAEL McLEAN, Counter Plaintiffs and Appellants, v. ALPS PROPERTY & CASUALTY INSURANCE COMPANY, Counter Defendants and Appellees. _________________________________________________ JOSEPH MICHELETTI and MARILYN C. MICHELETTI, Intervenors and Appellants.     Oral Argument is set for Friday, September 22, 2017, at 3:00 p.m.  at 3:00 p.m. at Fairmont Hot Springs Resort, Anaconda, Montana, with an introduction to begin at 2:30 p.m. 

Live Stream Here

This action arises out of malpractice liability claims against the law firm of McLean & McLean and its legal malpractice insurer ALPS, for acts of law firm member David McLean. The Third Judicial District Court entered summary judgment that ALPS properly rescinded the firm’s insurance policy based on David McLean’s material misrepresentations (he failed to inform ALPS of his thefts of client monies, which culminated in his imprisonment). The court also ruled that the claims at issue were not afforded coverage under the policy and that the policy was void ab initio, thereby denying coverage to third-party claimants like law firm clients and Appellants Micheletti. The court ruled that the “innocent insured” doctrine does not apply.

Appellants Micheletti argue that material issues of fact exist as to what David McLean should have known and done. They also argue they had a reasonable expectation of coverage and are third-party beneficiaries of the insurance policy. Appellant McLean & McLean points out that law firm member Michael McLean did not commit any of David McLean’s bad acts, and aggressively took action and reported them when he learned of them. McLean & McLean maintains Michael McLean is entitled to receive Innocent-Insured Coverage under the policy. McLean & McLean also maintains that the policy did not give ALPS the right to rescind or void it, and the fact that ALPS had to obtain court relief to do so means the common-law doctrines of reasonable expectations, the prudent insurer, and the innocent insured all apply.

Amicus Property Casualty Insurers of America has filed a brief in support of the District Court’s decision, and the Montana Trial Lawyers Association has filed an amicus brief in support of the Appellants.

NOVEMBER

--DA 17-0020   ****ARGUMENT IS VACATED**** Parties have filed a notice of settlement as of November 6, 2017.   No argument will be presented. 

 DENICE A. STOKKE, a single woman, Plaintiff and Appellant, v. AMERICAN COLLOID COMPANY, a Delaware Corporation; G.K. CONSTRUCTION, INC., a Wyoming Corporation; and JOHN DOES, I-III, Defendants and Appellees.    Oral Argument  is set for Wednesday, November 8, 2017, at 9:30 a.m. in the Courtroom of the Montana Supreme Court, Joseph P. Mazurek Justice Building, Helena, Montana.

Appellant Denise Stokke worked for a company that provided contracted services, including watering roads for dust control, at American Colloid’s (ACC) large bentonite mine on the Montana/Wyoming border. In this action, Stokke seeks damages from ACC for injuries she suffered when she fell while crossing boards to access a water well at the mine.  The District Court granted ACC summary judgment, ruling that ACC owed no legal duty to Stokke because general contractors are not liable to the employees of their subcontractors.

On appeal, Stokke argues that ACC is liable for her damages under her separate premises liability claim.  She also argues that ACC is liable for her injuries under 3 exceptions to the general rule of no liability for injuries to a subcontractors’ employees:  where the general contractor negligently exercises retained control over a subcontractor's work; where the activity is inherently dangerous; or where there is a non-delegable duty based upon contract.   ACC argues that none of the three exceptions apply under the facts of this case, and that a determination that there is no duty under the owner-independent contractor liability analysis also results in a finding of no duty under a premises liability theory.

--OP 17-0322   ROBERT D. BASSETT, Plaintiff and Appellant, v. PAUL LAMANTIA; CITY OF BILLINGS, Defendants and Appellees.     Oral Argument is set for Wednesday, November 29, 2017, at 9:30 a.m. in the Courtroom of the Montana Supreme Court, Joseph P. Mazurek Justice Building, Helena, Montana.

Bassett has filed a federal law suit for damages from injuries he suffered when Billings police officer Lamantia tackled him, in a case of mistaken identity, while the officer was pursuing a criminal suspect.

Under the public duty doctrine as recognized in Montana, law enforcement officers are protected from claims of negligence based on their unique status as public servants. In this case, the Ninth Circuit Court of Appeals has asked the Montana Supreme Court to answer the following question:

Under Montana law, does the public duty doctrine shield a law enforcement officer from liability for negligence where the officer is the direct and sole cause of the harm suffered by the plaintiff?

The Montana Trial Lawyers Association has filed a friend-of-the-court brief on Bassett’s behalf. The Montana County Attorneys Association, Montana Sheriffs and Peace Officers Association, the Montana Association of Chiefs of Police, and the Montana Police Protective Association, and the Montana League of Cities and Towns, the International Municipal Lawyers Association, and the Montana Association of Counties have filed friend-of-the-court briefs on behalf of Defendants Lamantia and the City of Billings.

2016 Oral Arguments

Previous Oral Arguments

2016


FEBRUARY

--DA 15-0205  MARK IBSEN, INC., D/B/A URGENT CARE PLUS, on behalf of itself and all those similarly situated, Plaintiff and Appellant, v. CARING FOR MONTANANS, INC., F/K/A BLUE CROSS AND BLUE SHIELD OF MONTANA, INC., and HEALTH CARE SERVICE CORP., and JOHN DOES 1-X, Defendants and Appellees.  Oral Argument is set for Wednesday, February 24, 2016 at 9:30 a.m. in the Courtroom of the Montana Supreme Court, Joseph P. Mazurek Justice Building, Helena, Montana.

Ibsen (d/b/a Urgent Care Plus) filed this lawsuit after Blue Cross and Blue Shield of Montana (BCBS) charged consumers—including Ibsen’s employees—insurance premiums that included kickbacks to the Montana Chamber of Commerce, which had marketed the plans to its members. The Montana Insurance Commissioner has fined BCBS $250,000 for this practice, which she determined violated the Unfair Trade Practices Act (UTPA).

The First Judicial District Court dismissed Ibsen’s lawsuit against BCBS’s successors Caring for Montanans and Health Care Service Corporation on grounds that there is no private remedy for violation of the UTPA. On appeal, Ibsen argues he is entitled to file the complaint based on common-law causes of action for breach of contract, breach of fiduciary duty, and unjust enrichment. BCBS’s successors have filed separate responses in support of the District Court’s decision. The Montana Trial Lawyers have filed a friend-of-the-Court brief in support of Ibsen, and the Insurance Commissioner has filed a friend-of-the-Court brief supporting the District Court’s decision.

APRIL

--DA 15-0399   MONTANA MUNICIPAL INTERLOCAL AUTHORITY, Plaintiff and Appellant, v. CITY OF BOZEMAN; GOVERNMENT ENTITIES MUTUAL, INC.; XL INSURANCE COMPANY OF NEW YORK, INC,; XL INSURANCE AMERICA, INC.; INDIAN HARBOR INSURANCE COMPANY; Defendants, and WESCO INSURANCE COMPANY, Defendant, Appellee and Cross-Appellant.   Oral Argument is set for Wednesday, April 6, 2016, at 9:30 a.m. in the Old Supreme Court Chambers, Capitol Building, Room 303, Helena, Montana.

Montana Municipal Interlocal Authority (MMIA) provides pooled risk liability protection for the City of Bozeman. In this action, MMIA seeks to prevent Wesco Insurance Company from compelling arbitration of their dispute about reinsurance coverage for pollution damages from the Story Mill Road landfill in Bozeman.

The issue on appeal is whether the District Court erred in refusing to enjoin reinsurer Wesco from compelling arbitration of its dispute with MMIA. The issue hinges largely upon which law controls: the Federal Arbitration Act, or Montana state law codified at § 27-5-114(2)(c), MCA. The Montana State Auditor and the Reinsurance Association of America have filed friend-of-the-Court briefs.

--DA 15-0375  CITY OF MISSOULA, Plaintiff and Appellee, v. MOUNTAIN WATER COMPANY and CARLYLE INFRASTRUCTURE PARTNERS, LP,  Defendants and Appellants.THE EMPLOYEES OF MOUNTAIN WATER COMPANY, Intervenors and Appellants. Oral Argument is set for Friday, April 22, 2016, at 9:00 a.m. at the UC Ballroom, University of Montana, Missoula, Montana, with an introduction to the oral argument beginning at 8:30 a.m.

The Fourth Judicial District Court has granted a preliminary order of condemnation allowing the City of Missoula to take over the Missoula water system now operated by Mountain Water Company. The court ruled that municipal ownership of the system is a “more necessary public use” than private ownership.

Although Mountain Water and its parent company raise several issues on appeal, the Court has limited oral argument to the question of whether the District Court correctly applied the law as set forth in § 70-30-111, MCA, and City of Missoula v. Mountain Water Co., 228 Mont. 404, 743 P.2d 590 (1987).

--DA 15-0502  JON KRAKAUER, Petitioner and Appellee, v. STATE OF MONTANA, by and through its COMMISSIONER OF HIGHER EDUCATION,Clayton Christian, Respondent and Appellant.    Oral Argument is set for Wednesday, April 27, 2016 at 10:00 a.m. in the Strand Union Building, Ballroom A on the campus of Montana State University, Bozeman, Montana, with an introduction to the oral argument beginning at 9:30 a.m.

Journalist Jon Krakauer asked the Commissioner of Higher Education for copies of disciplinary records of a University of Montana student and, when the Commissioner refused to provide those records, brought this action to force disclosure of the records. The First Judicial District Court ruled that Krakauer is entitled to the requested records under the right-to-know provision of the Montana Constitution and a since-repealed public records statute, § 2-6-102, MCA. The court also ordered the Commissioner to pay Krakauer’s attorney’s fees and costs.

The Commissioner appeals, arguing that disclosure of the records is prohibited by the federal Family Educational Rights and Privacy Act of 1974 (FERPA), the § 20-25-515, MCA, requirement that a university shall release a student’s academic record only upon request by the student or a court-issued subpoena, and the student’s right to privacy under the Montana Constitution. The Commissioner also argues that the District Court abused its discretion in ordering him to pay Krakauer’s attorney’s fees and costs.

The Court has accepted friend-of-the-Court briefs from the United States Attorney for Montana (concerning FERPA) and from several journalistic organizations that support Krakauer.

MAY

--DA 14-0813  THE CLARK FORK COALITION, a non-profit organization KATRIN CHANDLER, an individual, BETTY J. LANNEN, an individual, POLLY REX, an individual, and JOSEPH MILLER, an individual, Petitioners and Appellees, v. JOHN E. TUBBS, in his capacity as Director of the Montana Department of Natural Resources and Conservation and THE MONTANA DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION, an executive branch agency of the State of Montana, Respondents, v. MONTANA WELL DRILLERS ASSOCIATION, Intervenors and Appellants, v. MONTANA ASSOCIATION OF REALTORS and MONTANA BUILDING INDUSTRY ASSOCIATION, Intervenors and Appellants, v. MOUNTAIN WATER COMPANY, Intervenor.     Oral Argument is set for Wednesday, May 18, 2016, at 9:30 a.m. in the Courtroom of the Montana Supreme Court, Joseph P. Mazurek Justice Building, Helena, Montana.

The First Judicial District Court invalidated a 1993 administrative rule defining “combined appropriation” for purposes of the Water Use Act permitting process. That rule limited “combined appropriations” to two or more groundwater developments that are “physically manifold” together. The court reasoned that the 1993 rule allowed large consumptive water users to evade permitting and to impact senior water rights holders by drilling multiple unconnected wells for a single large use. The court reinstated a 1987 rule on the subject and ordered the Department of Natural Resources and Conservation to reinitiate rulemaking. The 1987 definition of “combined appropriation” is:

[A]n appropriation of water from the same source aquifer by two or more groundwater developments, the purpose of which, in the department’s judgement, could have been accomplished by a single appropriation. Groundwater developments need not be physically connected nor have a common distribution system to be considered a ‘combined appropriation.’ They can be separate developed springs or wells to separate parts of a project or development. Such wells and springs need not be developed simultaneously. They can be developed gradually or in increments. The amount of water appropriated from the entire project or development from these groundwater developments in the same source aquifer is the ‘combined appropriation.’

Appellants argue the 1993 rule is consistent with statutes and reasonably necessary to effectuate the statutes’ purpose. They also argue that, by reinstating the 1987 rule, the court violated the Montana Administrative Procedure Act and the public’s right to participate under the Montana Constitution. The Court has accepted amicus briefs from the Montana Association of Counties, Water Systems Council, Montana Trout Unlimited, the Montana League of Cities and Towns, and a coalition of environmental groups led by Bitterrooters for Planning

--DA 15-0690  JASON T. TALBOT, Plaintiff and Appellee, v. WMK-DAVIS, LLC, Defendant, and CUDD PRESSURE CONTROL, INC., Intervenor and Appellant. Oral Argument is set for Wednesday, May 25, 2016, at 9:30 a.m. in the Courtroom of the Montana Supreme Court, Joseph P. Mazurek Justice Building, Helena, Montana.

Oklahoma resident Jason Talbot was injured when he was hit by a motor vehicle while working in Billings for his Oklahoma-based employer, Cudd Pressure Control, Inc. Talbot is receiving Oklahoma workers compensation benefits. In this personal injury action, Talbot has sued the employer of the driver of the motor vehicle that hit him. Cudd intervened to assert a lien against any recovery Talbot obtains.

The issue in this appeal is which state’s law applies regarding Cudd’s lien claim: the law of Montana, or the law of the state of Oklahoma. The Yellowstone County District Court ruled that Montana law applies and Cudd cannot subrogate until Talbot has fully recovered all of his damages, including costs and fees.

JUNE

--DA 15-0605  JUNKERMIER, CLARK, CAMPANELLA, STEVENS, P.C., a Montana Professional Corporation, Plaintiff and Appellant, v. ALBORN, UITHOVEN, RIEKENBERG, P.C., a Montana Professional Corporation, TERRY ALBORN, PAUL UITHOVEN, CHRISTINA RIEKENBERG, JOE BATESON, and SHERM VELTKAMP, Defendants and Appellees.     Oral Argument is set for Wednesday, June 8, 2016, at 9:30 a.m. in the Old Supreme Court Chambers, State Capitol Building, Helena, Montana.

Accounting firm JCCS sued the defendant accountants after they left the Bozeman JCCS office to form their own accounting firm. JCCS claims the accountants breached both their fiduciary duties and a covenant not to compete in their employment agreements with JCCS. The District Court determined, as a matter of law, that the covenant not to compete was an unenforceable agreement to agree and an unconscionable contract of adhesion. Following a bench trial, the District Court further concluded that defendants Uithoven, Riekenberg, Bateson, and Veltkamp did not breach any fiduciary duties and that, although defendant Alborn breached a fiduciary duty, JCCS had failed to prove the breach caused it any damages. The District Court awarded attorney fees to the defendant accountants in the amount of $108,355.55. JCCS appeals.

A group of accounting firms has filed an amicus brief in which it points out that covenants not to compete regularly are used in the accounting profession.

AUGUST

-- OP 16-0335  GREAT FALLS CLINIC LLP, Petitioner, v. MONTANA EIGHTH JUDICIAL DISTRICT COURT, Cascade County, The Honorable John A. Kutzman, Presiding Judge, Respondents.  Oral Argument is set for Wednesday, August 31, 2016, at 9:30 a.m. in the Courtroom of the Montana Supreme Court, Joseph P. Mazurek Justice Building, Helena, Montana.

October of 2014, Lisa Warrington accepted an offer of employment from the Great Falls Clinic. On the last business day before her start date, the Clinic notified her that it would not be employing her after all. At that time, Warrington already had resigned her previous job. In this lawsuit she alleges damages from the Clinic’s actions. The Eighth Judicial District Court has held that Warrington’s claims are not governed by the Wrongful Discharge from Employment Act (WDEA) because she was never the Clinic’s employee, she never began a probationary period, and the parties had an enforceable executory contract.

This case meets the standards for this Court’s intervention in a pending district court action under our power of supervisory control. The case presents a threshold legal issue of first impression, the resolution of which will govern the entire theory upon which Warrington’s lawsuit may be allowed to proceed: does the WDEA apply to the undisputed facts of this case?

SEPTEMBER

--DA 15-0533  CLAIMANT: United States of America, (Bureau of Land Management) OBJECTORS: Barthelmess Ranch Corporation; Double O Ranch, Inc.; Lela M. French; William R .French; Conni D. French; Craig R. French; M Cross Cattle Company.    Oral Argument is set for Friday, September 23, 2016, at 10:45 a.m. at the Holiday Inn Great Falls, in Great Falls, Montana, with and introduction to the argument beginning at 10:15 a.m.

A group of Bureau of Land Management permittees challenge a Water Court determination that six stock water claims on the Beaver Creek tributary of Milk River Basin in south Phillips County are owned by BLM. The Water Court determined the existence of the permittees’ senior instream rights neither defeats BLM’s claims based on 5 reservoirs BLM has constructed nor provides legal grounds for declaring the BLM reservoir rights to be owned by the permittees. The permittees object to the determination that BLM is the owner of the claims, because the permittees or their predecessors in interest have been the actual user of the water. The permittees also object to the Water Court’s determination that BLM has validly reserved water rights in a pothole lake—they argue that genuine issues of material fact exist as to the size and recordation of the pothole lake.

--DA 16-0097  ELIZABETH WEST, as Guardian Ad Litem for PETER LEE, Plaintiff and Appellee, v. UNITED SERVICES AUTOMOBILE ASSOCIATION (USAA), an Unincorporated Reciprocal Inter-Insurance Exchange, and USAA CASUALTY INSURANCE COMPANY, Defendants and Appellants.   Oral Argument is set for Wednesday, September 28, 2016, at 9:30 a.m. in the Courtroom of the Montana Supreme Court, Joseph P. Mazurek Justice Building, Helena, Montana.

West is the legal guardian of Peter Lee, who was injured in a one-car automobile accident.  The driver was insured by USAA.  TRICARE, a federal health benefits program for members of the armed forces and their families, has provided benefits for Lee.

In this action, West sued USAA for bad faith in resolving Lee’s claim for compensation from the insurer.  The District Court granted West summary judgment on her claim that USAA acted in bad faith when it refused to settle Lee’s claim against the driver without including TRICARE on the settlement check. As stated by Appellant USAA, the central issue in this appeal is whether (a) an insurer carrier has a legal duty to honor a known TRICARE lien in settlement of a third party liability claim; and (b) if not, whether its belief that it did, and corresponding attempts to do so as part of its settlement offers, was unreasonable as a matter of law.  West maintains that the court’s decision respected customary lien resolution practices.

DECEMBER

--DA 14-0445  STATE OF MONTANA, Plaintiff and Appellee, v. JASMINE NICOLE ESKEW, Defendant and Appellant.    Oral Argument is set for Wednesday, December 7, 2016, at 9:30 a.m. in the Courtroom of the Montana Supreme Court, Joseph P. Mazurek Justice Building, Helena, Montana.

Jasmine Eskew’s 6-month-old daughter was taken to a hospital emergency room for treatment of head trauma that was originally diagnosed as the result of being shaken. Police questioned Eskew at length, and Eskew confessed to shaking her daughter roughly in an attempt to stop her from crying. The little girl later died as a result of her injuries.

Eskew was charged with deliberate homicide. At trial, the defense theory was that it was a man Eskew had been dating, not Eskew, who caused the little girl’s head injuries--an autopsy had revealed that the little girl had died of blunt force trauma to the head. A jury found Eskew not guilty of deliberate homicide but guilty of the lesser included offense of assault on a minor.

Eskew appeals her conviction on three grounds: (1) that officers’ downplaying of the Miranda warning rendered involuntary her waiver of her right to remain silent; (2) that the totality of the interrogation circumstances rendered her confession involuntary; and (3) that the District Court abused its discretion when it refused to allow testimony by her expert witness on false confessions. Eskew maintains she is entitled to a new trial on these grounds.

2015 Oral Arguments

JANUARY 

--DA 14-0015   GREGORY A. CHRISTIAN, et al.,  Plaintiffs and Appellants, v. ATLANTIC RICHFIELD COMPANY, Defendant and Appellee.

A group of citizens of Opportunity, Montana, filed suit against the Atlantic Richfield Company (ARCO) to recover damages for elevated arsenic levels in their soils and other injuries to their properties from ARCO’s former industrial activities in the area. The Second Judicial District Court granted ARCO’s motion for summary judgment on grounds that the statute of limitations had expired—ARCO’s industrial activities in the area ended in 1980.

In this appeal, the citizens argue that whether the statute of limitations has expired turns on a question of fact, not a legal question to be resolved by the court on summary judgment. They maintain that, under this Court’s opinion in Burley v. Burlington Northern & Santa Fe Railway Co., reasonably abatable pollution gives rise to a continuing tort, and the question of whether the pollution in Opportunity is reasonably abatable is a question of fact for a jury to decide.

Oral arguments were held January 14, 2015.

--DA 14-0253   ROBERT W. ANDERSON, Plaintiff and Appellant, v. BNSF RAILWAY, a Delaware Corporation, Defendant and Appellee.  

After 33 years of employment with BNSF, Robert Anderson filed this action against his employer under the Federal Employers Liability Act (FELA). Anderson claims BNSF negligently caused him to suffer cumulative trauma injuries to his back, culminating in a disabling back injury in 2008. The Eighth Judicial District Court submitted to a jury the question of whether the statute of limitations had run on Anderson’s claims, and the jury found that it had, precluding Anderson’s recovery of damages. Anderson appeals both the court’s decision to submit this question to the jury and the jury’s answer to the question. He also claims BNSF’s counsel made improper arguments and statements at the 7-day jury trial. Anderson asks this Court to construe FELA liberally in his favor and grant him a new trial.

Oral arguments were held January 28, 2015.

FEBRUARY

--OP 14-0685   BARRY ALLAN BEACH, Petitioner, v. STATE OF MONTANA, Respondent. 

Barry Beach asks the Court to grant him a writ of habeas corpus on grounds that the 100-year sentence he is serving at Montana State Prison for his 1984 conviction of deliberate homicide is invalid. He sets forth two grounds for relief:

1. At Beach’s sentencing, the court did not consider Beach’s age at the time the crime was committed (he was 17 years old) as a mitigating factor

2. The sentence “leaves no meaningful opportunity for release

Beach asks the Court to vacate his sentence and send the case back to the District Court for resentencing in light of recent U.S. Supreme Court precedent. In the alternative, he asks the Court to strike a provision of his sentence declaring him ineligible for parole. 

Oral arguments were held February 4, 2015. 

MARCH

--OP 14-0786   SHARON MEEK, as Personal Representative of the ESTATE OF JUDY J. MEEK, Deceased, Plaintiff and Petitioner, v. MONTANA EIGHTH JUDICIAL DISTRICT COURT, CASCADE COUNTY, THE HONORABLE JON A. OLDENBURG, Presiding Judge, Respondent.   

Sharon Meek, Personal Representative of the Estate of Judy Meek, asks the Court to take supervisory control over the Eighth Judicial District Court in her action for survival and wrongful death damages arising out of Judy Meek’s injuries from a fall at a Great Falls business. The trial is set for April 13, 2015.

Specifically, Sharon Meek challenges the District Court’s pretrial ruling prohibiting her from presenting evidence of the amounts charged and billed by Judy Meek’s medical providers for treatment of her injuries. The District Court instead limited her to presenting evidence of, and recovering as damages, only the discounted amounts which were paid by Judy Meek’s insurers, Medicare and Blue Cross/Blue Shield

The Montana Trial Lawyers and the Montana Defense Trial Lawyers both have filed amicus briefs.

Oral arguments were held March 11, 2015.

APRIL

--DA 14-0260   MONTANA DEPARTMENT OF REVENUE, Plaintiff and Appellant, v. PRICELINE.COM, INC.; TRAVEL WEB, LLC; TRIP NETWORK, INC.; ORBITZ, LLC; EXPEDIA, INC.; HOTELS, COM, L.P.; HOTWIRE, INC.; TRAVELOCITY.COM, LP; SUITE59.COM, LLC; and DOES 1 through 1000, Inclusive, Defendants and Appellees.    

The First Judicial District Court granted summary judgment to Priceline and other online travel companies (OTCs) in this action for declaratory and injunctive relief concerning the Montana lodging facility use tax and sales tax on lodging and vehicle rentals. The Department of Revenue (DOR) appeals.

DOR raises the following issues on appeal:

  • Whether the District Court erred by upholding the OTCs’ calculation of taxes based on their wholesale cost, instead of on the total amount paid by a hotel guest or car renter.
  • Whether the District Court erred by disregarding the § 15-68-103(1), MCA, a presumption of taxability.
  • Whether the District Court erred by treating the OTCs as taxpayers rather than as tax collectors.
  • Whether the District Court erred when it failed to rule on the OTCs’ practice of keeping all monies, including taxes, in “breakage” transactions (in which the guest or car renter paid for the room or car but then did not make the trip).

Friend-of-the-Court briefs have been filed by the Multistate Tax Commission (in support of DOR) and the Montana Chamber of Commerce and Montana Taxpayers’ Association (in support of the OTCs).

Oral arguments were held April 10, 2015, at the George Dennison Theater at U of M in Missoula.

--DA 14-0089   STATE OF MONTANA, Plaintiff and Appellant, v. ROBERT E. SPADY, Defendant and Appellee.Robert Spady was granted pretrial release on misdemeanor DUI and careless driving charges. Conditions of his release included that he undergo twice-daily breath testing under the 24/7 sobriety program codified at Title 44, chapter 4, part 12, MCA

Spady was later charged with criminal contempt of court based on his failure to comply, on three occasions, with the breath testing requirement. He moved to dismiss the contempt charges on several constitutional grounds, including violation of his rights to substantive due process and equal protection, and violation of the excessive bail clause. The Lincoln County Justice Court rejected Spady’s constitutional challenges, and Spady and the State of Montana entered a plea agreement under which he pled nolo contendere to the contempt charges. Spady then appealed to the Nineteenth Judicial District Court. The District Court concluded the 24/7 statutes on which the breath testing requirement was based (1) are void for vagueness; (2) amount to an unconstitutional delegation of legislative authority; and (3) impose pretrial punishment in violation of due process. The State appeals.

Bypassing several procedural arguments, the Court has agreed to review the constitutional challenges to the 24/7 program under its power of supervisory control. In addition to the arguments raised previously, Spady’s counsel in this appeal argues that pretrial breath testing amounts to an unconstitutional search.

Oral arguments were held April 27, 2015 at the Strand Union Building, Ballroom A, of MSU in Bozeman. 

MAY

DA 13-0763  CODY WILLIAM MARBLE, Petitioner and Appellant, v. STATE OF MONTANA, Respondent and Appellee.  

Cody Marble appeals the denial of his request for a new trial on his 2002 conviction of sexual intercourse without consent. The Fourth Judicial District Court dismissed Marble’s petition for postconviction relief after determining that the victim’s inconsistent statements following Marble’s conviction do not affirmatively and unquestionably establish Marble’s innocence, thus failing to meet the standard necessary to justify a new trial under this Court’s opinion in Beach II. The question on appeal is whether the District Court applied the correct test in its review of Marble’s request for a new trial.

Oral arguments were held May 20, 2015. 

SEPTEMBER 

--DA 12-0600  and DA 12-0278  RONALD L. KOHLER and BARBARA J. KOHLER, husband and wife; THOMAS F. JONES and RITA A. JONES, husband and wife; DENNIS A. ARNOLD and GERALDINE N. ARNOLD, husband and wife; and DEBRA L. SYKES, Plaintiffs and Appellees, v. KELLER TRANSPORT, INC.; WAGNER ENTERPRISES, LLC; AND DOES 1-10, Defendants. WESTCHESTER SURPLUS LINES INSURANCE COMPANY, Appellants. AND WESTCHESTER SURPLUS LINES INSURANCE COMPANY, Plaintiff and Appellant, v. KELLER TRANSPORT, INC.; WAGNER ENTERPRISES, LLC; THOMAS F. JONES and RITA A. JONES, husband and wife; DEBRA L. SYKES; RONALD L. KOHLER and BARBARA J. KOHLER, husband and wife; and DENNIS A. ARNOLD and GERALDINE N. ARNOLD, husband and wife, Defendants and Appellees. 

These appeals arise from an April 2008 trucking accident and gasoline spill near Polson. Keller Transportation and Wagner Enterprises, the two trucking companies involved, both carried primary liability insurance with CCIC and excess liability coverage with Westchester Surplus Insurance.

In Kohler v. Keller, the owners of property damaged by the gasoline spill stipulated with the trucking companies to a $13 million judgment, which judgment the property owners agreed to recover solely from the insurance companies. Westchester moved to intervene in that action, but the Twentieth Judicial District Court denied that motion and ruled that the insurers’ liability would be determined in Westchester v. Keller.

In Westchester v. Keller, the trucking companies and the insurers litigated the extent of coverage provided by the insurance companies. The Fourth Judicial District Court ruled that Westchester’s coverage was double what the insurer argued for; that Westchester’s insurance policy established a duty to defend the insured trucking companies; that, by its actions, Westchester had assumed and breached a duty to defend the trucking companies; and that the insurers were liable for the stipulated judgment, which was reasonable.

Westchester is the appellant in both cases. CCIC settled. The Montana Trial Lawyers have filed an amicus brief regarding the standard of review of the reasonableness of a stipulated judgment.

Oral arguments were held September 11, 2015 in Missoula.

--DA 14-0780  LETICA LAND COMPANY, LLC, a Michigan limited liability company, and DON MCGEE, an individual, Plaintiffs and Appellants, v. ANACONDA-DEER LODGE COUNTY, a political subdivision of the State of Montana, Defendant and Appellee. 

This case arises out of a dispute about whether there is a county road (“Modesty Creek Road”) running across property owned by Don McGee and by Letica Land Company north of Anaconda. Based on evidence presented at trial, the District Court ruled that a public road was created in 1889 across the property now owned by McGee (the “lower branch”) by petition and declaration. The court ruled that a public road was created by prescriptive easement across the land now owned by Letica (the “upper branch”).

On appeal, both Letica and McGee argue that the 1889 conditional declaration of a public road was never satisfied and that, in deciding this case, the District Court considered evidence it should not have considered and failed to consider evidence it should have considered. In addition, they argue that the evidence was insufficient to establish a prescriptive easement and the court employed the wrong standard of proof for a prescriptive easement on the “upper branch,” that any prescriptive easement has been extinguished by locked gates since the 1980s, and that, at any rate, the District Court lacked subject matter jurisdiction because it failed to join the owner of other property across which the “upper branch” runs.

Oral arguments were held September 16, 2015.

--DA 14-0529  GENE R. CURRY, CHERYL S. CURRY, and CURRY CATTLE CO., Plaintiffs, Counterclaim-Defendants and Appellants, v. PONDERA COUNTY CANAL & RESERVOIR COMPANY, Defendant, Appellee and Cross-Appellant. 

This is an appeal from an order regarding water rights in Birch Creek, which arises on the Rocky Mountain Front and then flows northeasterly to the Marias River. The Water Court concluded Pondera County Canal & Reservoir Co. (PCCRC) may claim a service area place of use and that PCCRC’s water rights entitle it to irrigate up to 72,000 acres within the service area. Appellants are other Birch Creek water users. They contend the Water Court erred (1) when it ruled water rights for the purpose of sale or rental are not limited by historic beneficial use; (2) by granting PCCRC a 377,555.5 acre service area rather than a place of use based upon historic beneficial use; (3) by ruling PCCRC’s storage rights were used on the Birch Creek Flats prior to 1973; and (4) by substituting its judgment for the trier of fact’s.

On cross-appeal, PCCRC argues the Water Court erred by not including volume quantifications in its tabulation of PCCRC’s and Appellants’ claims in the Ryan/Lauffer Ditch.

Montana Trout Unlimited has filed an amicus brief in support of Appellants, and the Montana Water Resources Association has filed an amicus brief in support of PCCRC.

Oral arguments were held September 30, 2015.

NOVEMBER 

--DA 15-0055   MONTANA CANNABIS INDUSTRY ASSOCIATION, MARC MATTHEWS, SHELLY YEAGER, JESSE RUMBLE, JOHN STOWERS, M.D., POINT HATFIELD, and CHARLIE HAMP, Plaintiffs, Appellees and Cross-Appellants, v. STATE OF MONTANA, Defendant, Appellant and Cross-Appellee.

In this action, the Montana Cannabis Industry Association (MCIA) challenges the 2011 Montana Medical Marijuana Act. The State of Montana appeals the First Judicial District Court’s rulings that three provisions of the Act are unconstitutional: the prohibition of commercial sales of marijuana, the provision subjecting physicians who certify more than 25 patients per year to review by the Board of Medical Examiners, and the ban on advertising by medical marijuana providers. MCIA cross-appeals the court’s decisions that the Act’s ban on access to medical marijuana by probationers and its authorization of unannounced inspections of providers’ premises pass constitutional muster

Oral arguments were held November 4, 2015.

DECEMBER  

--DA 14-0181   STATE OF MONTANA, Plaintiff and Appellee, v. JAMES MORRIS COLBURN, Defendant and Appellant.

Montana’s “rape shield law” prohibits admission at trial of evidence concerning the sexual conduct of the victim except for “evidence of the victim’s past sexual conduct with the offender or evidence of specific instances of the victim’s sexual activity to show the origin of semen, pregnancy, or disease that is at issue in the prosecution.”

In this case, James Colburn appeals his conviction of incest, sexual intercourse without consent, and sexual assault of two 11-year-old girls. The Court has granted oral argument on the issue of whether the District Court erred in ruling that the rape shield law prohibited Colburn from introducing evidence that one of the victims had been sexually abused by another man—her biological father. Colburn argues such evidence could explain the young victim’s advanced sexual knowledge, and that the rape shield law must yield where its application deprives a defendant of his constitutional right to present a defense.

Oral arguments were held December 2, 2015.

--DA 14-0825 KELLI TYRRELL, as Special Administrator for the Estate of BRENT T. TYRRELL (deceased), Plaintiff and Appellee, v. BNSF RAILWAY CO., a Delaware corporation, Defendant and Appellant. ROBERT M. NELSON, Plaintiff and Appellant, v. BNSF RAILWAY CO., a Delaware corporation, Defendant and Appellee. 

Several Montana district courts have recently faced the question of whether they have jurisdiction to decide Federal Employers’ Liability Act (FELA) claims filed by out-of-state plaintiffs against BNSF Railway. The district courts’ answers have not been uniform. The question has two parts: Do Montana statutes authorize our state courts to exercise personal jurisdiction over BNSF in such situations, and does the Due Process Clause of the U.S. Constitution allow our state courts to exercise personal jurisdiction over BNSF in such situations? The Montana Chamber of Commerce has filed a friend-of-the-court brief in this consolidated appeal of two such cases, in which the district courts reached opposite conclusions.

Oral arguments were held December 9, 2015.

2014 Oral Arguments

JANUARY 2014

DA 12-0453  STATE OF MONTANA, Plaintiff and Appellee, v. NINA M. DEMONTINEY, Defendant and Appellant.

   When Nina Demontiney was arrested for shoplifting, a detention officer conducted a warrantless search of her purse and its contents.  The officer found drugs, money, and paraphernalia within several small closed containers in the purse.  Based on that evidence, the State of Montana charged Demontiney with several felony drug offenses.

   Demontiney moved to suppress the evidence from her purse on grounds that the warrantless search violated her privacy rights.  The Twelfth Judicial District Court denied her motion to suppress based on this Court’s Opinion in State v. Pastos, 269 Mont. 43, 887 P.2d 199 (1994).  In that case, this Court authorized routine inventory searches of belongings in the immediate possession of arrestees, for safety purposes.  Demontiney subsequently pled guilty to the drug charges, reserving her right to appeal the court’s denial of her motion to suppress.

   In this appeal, Demontiney asks the Court to reconsider Pastos, which she maintains is too broad, and to reverse the District Court’s denial of her motion to suppress evidence.

Oral arguments were held January 29, 2014.

APRIL 2014

DA 13-0472   LYLE PHILLIPS, ANNE DEE RENO, TURNER ASKEW, and BEN WHITTEN, Plaintiffs and Appellees, v. CITY OF WHITEFISH, Defendant, Third-Party Plaintiff, and Appellant, and THE BOARD OF COMMISSIONERS OF FLATHEAD COUNTY, Defendant, Third-Party Defendant and Appellee, and DAN WEINBERG and ED McGREW, individually and on behalf of LET WHITEFISH VOTE, a ballot committee lawfully organized under the laws of Montana; MARY PERSON and MARILYN R. NELSON, Intervenors and Appellants.

This case arises from long-term issues between the City of Whitefish and Flathead County regarding land use regulation in a 2-mile-wide “donut” surrounding Whitefish city limits. In this case, the District Court invalidated a 2011 City referendum which repealed a city-county resolution on the subject. The City appeals, arguing that (1) the post-election challenge to the referendum was filed too late; (2) the District Court erred when it determined that the resolution was an administrative act that was not repealable through the referendum process; and (3) the effect of the repeal of the referendum should be to return the City and County to a 2005 interlocal agreement under which the City had zoning and planning jurisdiction for the “donut.”

Oral arguments were held April 11, 2014 at the George Dennison Theater, University of Montana, Missoula.   

OP 14-0096   STATE OF MONTANA, Petitioner, v. MONTANA NINTH JUDICIAL DISTRICT COURT, TETON COUNTY, THE HONORABLE ROBERT OLSON, DISTRICT JUDGE, Respondent. 

In this case, the State of Montana asks the Montana Supreme Court to take supervisory control over the 18th Judicial District Court in a pending deliberate homicide case. The defendant in that case, Martin Vincent Lau, has raised the defense of justifiable use of force in defense of self. The question is whether Lau may present that defense based on a written statement he has made, in conjunction with testimony of other witnesses or, as the State argues, he must personally testify in support of his defense.

The District Court has made a pretrial ruling that Lau may place his defense at issue by making an offer of proof to the court, outside the jury’s presence, and raising the issue in his opening statement. The court also has ruled that Lau may elicit information about his knowledge of the victim’s past specific acts of violence through cross-examination of a State investigator who interviewed him after the homicide. The defense argues these rulings reflect the enhanced rights of Montana citizens to defend themselves under changes made to Montana law in 2009 in HB 228, “An Act Preserving and Clarifying Laws Relating to Self-Defense and the Right to Bear Arms."

Oral arguments were held April 28, 2013 in the Strand Union Building, Ballroom A on the campus of MSU, Bozeman.   

MAY 2014

DA 13-0610  TINA MALCOMSON, Petitioner and Appellee, v. LIBERTY NORTHWEST, Respondent and Appellant.

Section 39-71-604(3), MCA, allows a workers compensation insurer to communicate privately with an injured worker’s health care providers in relation to the worker’s claim for benefits, without prior notice to the injured worker. In this case, injured worker Tina Malcomson convinced the Workers’ Compensation Court the communication allowed under that statute violated her constitutional rights to privacy and due process of law.

The issues presented on appeal are whether, in declaring § 39-71-604(3), MCA, unconstitutional as applied in Malcomson’s case, the Workers’ Compensation Court (1) failed to apply the proper two-part test for determining whether Malcomson had a constitutionally-protected privacy interest and (2) failed to require Malcomson to prove unconstitutionality beyond a reasonable doubt and to look to every possible legitimate legislative purpose that would support the statute’s constitutionality.

Oral arguments were held May 6, 2014 at the Auditorium of the Library/Auditorium Building, Montana Tech, Butte.   

DA 12-0638  STATE OF MONTANA, Plaintiff and Appellee, v. KARLYLE STEVEN LEE PLOUFFE, Defendant and Appellant. 

Since 2005, Montana has used drug treatment courts to assist participants with ending their addictions to drugs and ceasing criminal behavior associated with drug use and addiction. This case concerns the extent to which information revealed in a drug treatment court setting may be used in bringing new criminal charges against a participant.

Plouffe, a drug treatment court participant, was charged with new criminal offenses based, in large part, on information he gave to a drug court team member. Plouffe moved to suppress that information on grounds that its use violated his right to counsel and his privilege against self-incrimination, and also disregarded Montana statutes regarding unlawful obtainment of incriminating evidence. The Fourth Judicial District Court denied Plouffe’s motion to suppress, and Plouffe was convicted of the criminal charges against him. He appeals.

Oral arguments were held May 14, 2014.  

JUNE 2014

DA 12-0742  STATE OF MONTANA, Plaintiff and Appellee, v. JAMES PILLER, Defendant and Appellant.

In 1988, Piller was convicted of sexual intercourse with a 3-year-old child. He was sentenced to 30 years in prison, with 10 of those years suspended on conditions.

In 2011, the District Court revoked the suspended portion of Piller’s sentence based on his violations of conditions of probation. The court resentenced Piller to 10 years in prison, with all time suspended, and added 14 new conditions to his suspended sentence. The new conditions require Piller to complete sex offender treatment at his own expense, to be subject to employment restrictions, to remain in aftercare unless released by his probation officer and therapist, to reenter treatment if directed to do so by his probation officer and therapist, and to submit to annual polygraph testing. The conditions also require him not to reside with children without written approval, access 900 number telephone lines or have a cell phone with Internet capacity, or align himself with children. Piller argued to the District Court that the additional conditions are punitive and an unlawful increase of his sentence, but the court did not accept that argument, and Piller eventually agreed to abide by the conditions.

In March of 2012, the State petitioned to revoke the suspended portion of Piller’s sentence for a second time. Piller was resentenced to 10 years in prison with 5 years suspended, and the court reimposed all of the original plus 14 conditions of probation. Pillar appeals.

On appeal, Piller argues that the statutes under which he originally was sentenced did not grant the District Court authority, upon revocation, to impose conditions on his suspended sentence that were not conditions of the original suspended sentence. He maintains that his constitutional right to be free from ex post facto laws has been violated. In response, the State asserts that the 14 additional conditions do not result in a longer sentence or a greater punishment for Piller.

Oral arguments were held June 25, 2014.    

SEPTEMBER 2014

DA 14-0113  MASTERS GROUP INTERNATIONAL, INC., Third-Party Plaintiff and Appellee, v. COMERICA BANK, Third-Party Defendant and Appellant.

The founders of Masters Group International, Inc., (Masters) began development of a multi-million-dollar international office products assembly and distribution facility in Butte, Montana, in 2004.   Over the next few years, Comerica Bank (Comerica) and the Butte Local Development Corporation (BLDC) provided funding for the project.  Comerica’s loan agreement with Masters provided that it would “be governed by and construed and enforced in accordance with the laws of the State of Michigan.”  Larry Pratt and the Larry F. Pratt Living Trust and Dr. Dr. Michael Vlahos provided guarantees for the Comerica loan and increases in that loan.

In October of 2011, BLDC filed a complaint in the Second Judicial District Court alleging that Masters had failed to pay its obligations on its loan agreement with BLCD.   The following month, Masters filed an answer and third party complaint against Comerica alleging breach of contract, breach of the implied covenant of good faith and fair dealing, constructive fraud, deceit, wrongful offset, and interference with and loss of prospective economic opportunity.  Masters also requested punitive damages.

The District Court did not rule on a motion by Comerica to sever the third party complaint, which was then was deemed denied pursuant to Rule 19 of the Second Judicial District Court Rules.  In addition, the court denied Comerica’s motion for partial summary judgment on the applicability of Michigan law as provided under the Comerica loan agreement, determining that Montana law should apply because Comerica had not affirmatively raised the issue in a timely manner.

A jury found Masters liable to BLDC for $275,251.09.  The jury also found Comerica liable to Masters for a total of $52,037,593.  Comerica appeals.

The Court has limited oral argument to the following issues:
1. Whether the judgment should be reversed because the District Court failed to grant Comerica's motion to sever the Third Party Complaint.
2. Assuming for the sake of argument that Michigan law should have been applied to the contract claims, whether it also should have applied to the tort and implied covenant claims and what effect, if any, that would have had on resolution of those claims.
3. Whether Comerica was entitled to summary judgment on its claim that its February 2009 Forebearance Agreement with Masters, Pratt, and Vlahos was not an enforceable contract.
4.  Whether the cap on punitive damages imposed by § 27-1-220(3), MCA, is unconstitutional. 

Oral arguments were held September 26, 2014 at the Huntley Convention Center in Big Sky.   

OCTOBER 2014

DA 14-0013   T THE MILKY WHEY, INC., Plaintiff and Appellant, v. DAIRY PARTNERS, LLC, a limited liability company, and SCOTT STEFAN, Defendant and Appellee.

The Milky Whey, Inc., (TMW) is a Montana distributor of dairy products. Dairy Partners, LLC, is a Minnesota dairy products supplier. TMW and Dairy Partners entered a contract for 10,000 pounds of a product known as “Swiss trim.” Dairy Partners delivered the product to TMW’s warehouse in Salt Lake City, Utah, but 4,475 pounds of it were moldy. Although TMW initiated several email contacts with Dairy Products concerning a refund, no refund was ever paid.

TMW sued Dairy Partners in Montana’s Fourth Judicial District Court for breach of contract, breach of warranty, unjust enrichment, and breach of obligation to pay. Dairy Partners filed a notice of appearance and then moved to dismiss the action on grounds that the court did not have personal jurisdiction over it. The District Court ruled that (1) the notice of appearance did not amount to a waiver of personal jurisdiction, and (2) the court’s exercise of long-arm jurisdiction over Dairy Partners would offend due process notions of fair play and substantial justice. The District Court therefore granted Dairy Partners’ motion to dismiss the action. TMW appeals. 

Oral arguments were held October 29, 2014.  

DA 13-0589    STATE OF MONTANA, Plaintiff and Appellee, v. MARK NICHOLAS WHITE, Defendant and Appellant.

The issue in this appeal is whether Mark Nicholas White’s conviction of assault with a weapon must be vacated under the plain error doctrine because (1) he was not advised of his rights at his initial appearance, and (2) he was not present at all critical stages of the proceedings against him.

At the beginning of White’s initial appearance, his attorney told the court that informing White of his rights would “be of no benefit” and requested an evaluation of White’s fitness to proceed. The court committed White to Montana State Hospital and agreed to review the matter in 60 days. During the following months, the court granted several continuances for the evaluation. After the evaluation was completed, the court declared White unfit to proceed to trial, at a hearing at which White was not present.

At a later date, the court declared White fit to proceed to trial, and found him guilty of the assault with a weapon charge. White appeals.

Oral arguments were held October 29, 2014.   

NOVEMBER 2014

DA 13-0644   THE ESTATE OF JUDITH K. GLEASON, and JAN GREGSON and JAMES GLEASON, as Personal Representatives of the Estate of Judith Gleason, Plaintiffs and Appellants, v. CENTRAL UNITED LIFE INSURANCE COMPANY, HELENA SCHOOL DISTRICT #1, GAIL MOONEY and DOES 1-10, Defendants, Appellees, and Cross-Appellant. CENTRAL UNITED LIFE INSURANCE COMPANY, Counter-Plaintiff, and Cross-Appellant, v. THE ESTATE OF JUDITH K. GLEASON, and JAN GREGSON and JAMES GLEASON, as Personal Representatives of the Estate of Judith Gleason, Counter-Defendants.

Judith K. Gleason held a Central United Life Insurance (CUL) policy that included benefits for cancer treatment. In March of 2002, Gleason was diagnosed with and treated for breast cancer. Although the cancer went into remission, it returned in 2006 and took her life. Gleason never notified CUL of her diagnoses, nor did she submit any claims.

Gleason’s Estate notified CUL of her illness and death, and filed claims under the insurance policy. Citing a policy provision requiring notification within 15 months after a covered loss began, CUL paid only for medical expenses incurred within the previous 15 months. The Estate then filed this lawsuit, alleging that CUL had breached the insurance contract and violated the Unfair Trade Practices Act (UTPA). It also requested punitive damages. A jury found that CUL owed no additional contract benefits and that, while CUL had violated the UTPA, there was no damage. The court awarded CUL its costs of suit but also awarded the Estate its attorney fees and costs under the terms of the insurance contract.

The Estate raises 4 issues on appeal, and CUL raises 5 issues on cross-appeal. At issue are several of the District Court’s rulings on the UTPA claim, and its rulings regarding the notice condition, application of the statute of limitations to some claims, prerequisites for punitive damages, and the awards of costs and fees.

Oral arguments were held November 18, 2014.   

DA 14-0057   CLOUD PEAK ENERGY RESOURCES, LLC, Plaintiff, Appellee and Cross-Appellant, v. STATE OF MONTANA, DEPARTMENT OF REVENUE, Defendant and Appellant.

A DOR audit resulted in a determination that Cloud Peak Energy owed an additional $1,925,074 in Montana coal production taxes for the years 2005-2007 for the Spring Creek Coal Mine in Big Horn County. Cloud Peak requested a declaratory judgment to the contrary from the First Judicial District Court.

Judge Sherlock determined that DOR had incorrectly imputed prices on non-arms-length coal sales transactions as of the dates of shipment, instead of as of the dates of the sales contracts. DOR appeals that determination. On cross appeal, Cloud Peak argues the District Court erred in allowing DOR to tax freeze-proofing and dust-suppressing additives to coal mined before June 30, 2009. Cloud Peak contends the tax on such additives should apply only to coal mined after that date.

Oral arguments were held November 25, 2014.   

DECEMBER 2014

DA 14-0183   ALLSTATE INSURANCE COMPANY, Plaintiff and Appellee, v. POSNIEN, INC., Defendant, Counterclaimant and Appellant.

Kalispell Allstate Insurance agent Posnien, Inc., sold its business to Baird 7 in 2007. As part of the deal, Baird 7 gave Posnien a security interest in the “book of business” (ongoing commissions on customer accounts). Allstate later terminated the agency after Baird 7 made a fraudulent insurance claim. Allstate brought this declaratory judgment action to have the District Court determine the rights to, and allocation of, ongoing commission payments.

The District Court granted summary judgment in favor of Allstate on Posnien’s counterclaim of conversion of money for Allstate’s failure to pay Posnien the ongoing commissions. Posnien contends that was an error of law. Resolution of the issue hinges on the nature of Posnien’s security interest—did the security interest attach to the ongoing commissions, or to Baird 7’s interest in the commissions, which has terminated?

Oral arguments were held December 10, 2014.  

2013 Oral Arguments

FEBRUARY 2013

DA 12-0346    KATHLEEN C. FISHER, a Limited Conservator for the Estate of SHARON McCARTNEY, a protected person, SHARON McCARTNEY, and LESLIE D. McCARTNEY, Plaintiffs and Appellees, v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, a Delaware Corporation, and STATE FARM FIRE AND CASUALTY COMPANY, Defendants, Cross-claim Defendants and Appellants.

Sharon Fisher was severely injured in a car accident as a result of her husband’s negligence. The couple carried both automobile liability insurance and personal liability umbrella insurance with State Farm. State Farm has paid the $250,000 policy limit from the automobile liability insurance. In addition, the conservator of Sharon’s estate seeks to recover damages under the umbrella policy. The 18th Judicial District Court ruled that a “family member exclusion clause” in that policy, under which State Farm has denied coverage, is unconscionable and unenforceable. State Farm appeals, arguing that the “family member exclusion clause” in the umbrella policy is unambiguous and violates neither Montana’s mandatory motor vehicle insurance statutes nor public policy.

Oral arguments were held February 20, 2013. 

APRIL 2013

DA 12-0306  CITIZENS FOR BALANCED USE; SEN. RICK RIPLEY; VALLEY COUNTY COMMISSIONERS, DUSTIN HOFELDT; VICKI HOFELDT; KEN HANSEN; JASON HOLT; SIERRA STONEBERG HOLT; ROSE STONEBERG; UNITED PROPERTY OWNERS OF MONTANA; and MISSOURI RIVER STEWARDS, Plaintiffs and Appellees, v. JOSEPH MAURIER; MONTANA DEPARTMENT OF FISH, WILDLIFE & PARKS; and MONTANA FISH, WILDLIFE & PARKS COMMISSION, and DEFENDERS OF WILDLIFE and NATIONAL WILDLIFE FEDERATION, Defendant Intervenors and Appellants.

The Seventeenth Judicial District Court has halted the Montana Department of Fish Wildlife and Parks’ (FWP) bison translocation program with the Fort Peck Tribes by issuing a preliminary injunction. The Defenders of Wildlife, the National Wildlife Federation, and FWP appeal. The District Court ruled that FWP needs to create a better management plan, including guaranteeing liability protection for damages caused by escaped bison. Appellants argue entry of the preliminary injunction was error as a matter of law. They also argue that the District Court abused its discretion when it ruled that the Fort Peck Tribes (who have filed an amicus brief) are not necessary parties to this action.

Oral arguments were held April 12, 2013 at the George Dennison Theater, University of Montana, Missoula.  

DA 12-0343  L. REED WILLIAMS, Plaintiff and Appellee, v. BOARD OF COUNTY COMMISSIONERS OF MISSOULA CO., the governing body of the County of Missoula, acting by and through Michelle Landquist, Bill Carey and Jean Curtiss, Defendants and Appellees, LIBERTY COVE, INC., PAUL ROSSIGNOL, NORMA ROSSINGNOL, and PONDEROSA DEVELOPMENT, INC., Intervenors and Appellants.

This case is about public protest of proposed zoning regulations. Montana law allows a plurality of local landowners to protest and invalidate, for one year, any new local zoning restriction. Missoula District Judge Karen Townsend issued a judgment declaring that the law is an unconstitutional delegation of legislative power that also violates the equal protection and voting rights of local landowners who are in favor of the new zoning restriction. The appellants are landowners who protested new Missoula-area zoning regulations under § 76-2-205(6), MCA. The Land Use Clinic of the University of Montana School of Law has filed an amicus (friend-of-the-court) brief urging the Montana Supreme Court to affirm Judge Townsend’s decision. The Montana Attorney General has filed an amicus brief in support of upholding the statute.

Oral arguments were held April 17, 2013.  

DA 12-0312  PUBLIC LANDS ACCESS ASSOCIATION, INC., Petitioner and Appellant, v. THE BOARD OF COUNTY COMMISSIONERS OF MADISON COUNTY, STATE OF MONTANA, and C. TED COFFMAN, FRANK G. NELSON and DAVID SCHULTZ, constituting members of said Commission; and ROBERT R. ZENKER, in his capacity as the County Attorney for Madison County, State of Montana, Respondents and Appellees. JAMES C. KENNEDY, MONTANA STOCKGROWERS ASSOCIATION and HAMILTON RANCHES, INC., Respondent/Intervenor and Cross-Appellant.

The Public Lands Access Association (PLAA) sought declaratory judgment and a writ of mandamus against Madison County regarding public access to the Ruby River from Madison County roads and bridges. Others, including cross-appellant landowner Kennedy, intervened. The District Court issued split rulings as to whether and to what extent prescriptive easements for public use exist at three river access points. PLAA appeals a determination that, at Seyler Lane, Madison County has a prescriptive easement between existing fences for maintenance purposes, but the public does not have a prescriptive easement to access the river for recreational purposes.

Kennedy cross-appeals the court’s ruling that the public has an easement to pass over his land at Lewis Bridge to wade, fish, hunt, and float in the Ruby River. Kennedy’s arguments include one that Montana’s Stream Access Law constitutes an uncompensated taking of his property.

Oral arguments were held April 29, 2013 in the Strand Union Building, Ballroom A, at MSU, Bozeman.    

MAY 2013

DA 12-0130   ROBERT JACOBSEN, and all others similarly situated, Plaintiff and Appellee, v. ALLSTATE INSURANCE COMPANY, Defendant and Appellant.

Jacobsen was injured in an automobile accident. He entered a settlement agreement with Allstate, the insurer for the at-fault driver. When his injuries then proved more serious than initially diagnosed, Jacobsen claims Allstate delayed reopening his claim, causing him emotional distress.

In the order from which this appeal is taken, the District Court certified a class of plaintiffs, represented by Jacobsen, who claim Allstate’s “fast track” claim settlement system maliciously violates the rights of all claimants who are not represented by legal counsel. Noting that Jacobsen has not challenged the fairness of his settlement, Allstate states the issue on appeal as whether a court may certify a class to pursue claims that are different and distinct from the individual claims of the named plaintiff.

United Policyholders has filed a “friend of the court” brief, as has the United States Chamber of Commerce.

Oral arguments were held May 8, 2013.

OP 12-0429   METRO AVIATION, INC., et al., Plaintiffs, v. UNITED STATES OF AMERICA, Defendant.

This case arises out of a crash of an air ambulance plane near Bozeman, in which the pilot and both passengers were killed. One of the victim’s survivors settled with Metro, the owner of the plane, without litigation. Another sued Metro and the pilot in state court. That case settled before trial.

Metro then filed suit in federal district court against the United States of America, arguing that the negligence of United States air traffic controllers was the sole proximate cause of the accident. The federal judge has asked the Montana Supreme Court to answer three questions of law regarding the effects of the above two settlements on Metro’s rights under Montana’s contribution statute, § 27-1-703, MCA, and Montana’s common law of indemnification.

Oral arguments were held May 14, 2013. 

SEPTEMBER 2013

 DA 12-0139   STATE OF MONTANA, Plaintiff and Appellee, v. JILL MARIE LOTTER, Defendant and Appellant.

A jury found Jill Lotter guilty of attempted deliberate homicide by repeatedly striking her husband in the head with a hammer. Before trial, the First Judicial District Court had ruled that Lotter could not present expert testimony regarding her own credibility as an emotionally battered spouse or as to her state of mind. Then, following Lotter’s testimony at trial, the court refused to allow any expert testimony on the subject of emotionally battered spouses, on grounds that Lotter had failed to provide an adequate foundation that she was one. Lotter appeals those rulings.

Lotter also appeals the court’s admission of an emergency responder’s testimony that, after the attack, her husband whispered “[T]his is the third time she’s tried to kill me.” The court admitted that testimony as a prior inconsistent statement—Lotter’s husband later had no recollection of having said it.

Oral arguments were held September 20, 2013 at the Red Lion Colonial Hotel, 2301 Colonial Drive, Helena.  

DA 12-0519  LINCOLN COUNTY PORT AUTHORITY, Plaintiff and Appellee, v. ALLIANZ GLOBAL RISKS US INSURANCE COMPANY, a California corporation;  Defendant and Appellant.

This is an insurance coverage dispute arising from a February 2010 fire that destroyed the remnants of a “Plywood Plant Building” in Libby, Montana, owned by the Lincoln County Port Authority. The District Court entered summary judgment in favor of the Port and against Appellant Allianz Global Risks US Insurance Company. The judgment totals $10,047,387, plus post-judgment interest accruing at the statutory rate.

On appeal, Allianz argues the District Court erred in ruling that the Port is an insured under the policy, which was issued to the Montana Association of Counties and its “subsidiary, associated or allied” companies, corporations, firms, and organizations. Alliance also appeals the court’s dismissal of its counterclaim to reform the insurance contract to reflect that the Plant Building was not covered, the court’s valuation of the loss, and the court’s determination of the date on which prejudgment interest began to accrue.

Oral arguments were held September 20, 2013 at the Red Lion Colonial Hotel, 2301 Colonial Drive, Helena.

DA 12-0569   BRESNAN COMMUNICATIONS, LLC, Plaintiff and Appellee, v. STATE OF MONTANA, DEPARTMENT OF REVENUE, Defendant and Appellant.

This appeal involves the Montana Department of Revenue’s property tax assessment of Bresnan Communications’ properties for tax years 2007 through 2010. Bresnan appealed DOR’s assessments to the Thirteenth Judicial District Court, which adopted Bresnan’s arguments in large part. DOR appeals.

On appeal, DOR argues the District Court erred in ruling that Bresnan’s video and internet property and its voice services property are subject to local, not central, assessment. DOR also argues the court erred in concluding that, because the assessments result from an exercise of appraiser judgment, Montana case law precludes DOR from issuing revised assessments for tax years 2007 through 2009. DOR’s position is that Bresnan constitutes a centrally-assessed Class 13 telecommunications services company for purposes of § 15-6-156(1)(d), MCA, and that DOR has authority to issue revised assessments for centrally-assessed taxpayers, even when the assessment results from appraiser judgment.

Oral arguments were held September 25, 2013. 

DA 12-0629   TROY A. PILGERAM and TERESA A. PILGERAM, husband and wife, Plaintiffs and Appellants, v. GREENPOINT MORTGAGE FUNDING, INC., a California corporation; COUNTRYWIDE HOME LOANS, INC., Texas corporation; MANN MORTGAGE, LLC, a Montana limited liability company; and MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., an Iowa Corporation, Defendants and Appellees.

In 2006, the Pilgerams executed a deed of trust (DOT) to Mann Mortgage to secure a $512,000 loan on their home. The Mortgage Electronic Regulating Systems (MERS) was identified as a beneficiary under the DOT.

The Pilgerams filed this action in 2009 to prohibit GreenPoint, Countrywide, and MERS from proceeding with a non-judicial foreclosure action on the home, pursuant to the Small Tract Financing Act of Montana. The Pilgerams contend MERS is “nothing more than an electronic tracking entity” and that it lacked authority to endorse the note or to assign the deed of trust. As a result, they maintain, assignees GreenPoint and Countrywide did not have a right to enforce the DOT, either. The Flathead County District Court disagreed, concluding that, as a beneficiary, MERS had authority to transfer its interests to GreenPoint, GreenPoint had authority to transfer its interests to Countrywide, and Countrywide has authority to foreclose. The court granted MERS, GreenPoint, and Countrywide summary judgment. The Pilgerams appeal.

On appeal, the parties cite opposing cases from a split in authority in federal and state case law as to whether MERS may qualify as a beneficiary under a deed of trust.

Oral arguments were held September 25, 2013.  

NOVEMBER 2013

DA 13-0241  ABRAHAM B. MORROW and BETTY JEAN MORROW, Plaintiffs and Appellants v. BANK OF AMERICA, N.A., BAC HOME LOANS SERVICING, LP, fka COUNTRYWIDE HOME LOANS SERVICING, LP, Defendants and Appellees.

This case presents the question of whether an alleged oral modification of a written real estate loan contract is actionable under tort law and the Montana Consumer Protection Act.

Bank of America (BOA) serviced the Morrows’ mortgage on their home in White Sulphur Springs, Montana.  In this action, the Morrows argue BOA wronged them by (1) inducing them to skip a mortgage payment, thus placing them in default; (2) telling them that they received a modification with new, reduced terms, but then never honoring it; and (3) accepting their modified loan payments and treating them as partial payments.  The Morrows filed claims against BOA under the Montana Consumer Protection Act, as well as for fraud, negligent misrepresentation, negligence, and breach of contract.  

The First Judicial District Court granted summary judgment for BOA.  The court accepted BOA’s argument that the Morrows’ claims were barred by the Statute of Frauds, which requires that real estate loans must be in writing. 

Montana Legal Services and the Montana Banking Association have filed friend-of-the-court briefs.

Oral arguments were held November 13, 2013.  

DECEMBER 2013

DA 13-0127   NEW HOPE LUTHERAN MINISTRY, a non-profit corporation, and THE MINORITY MEMBERS OF THE CONGREGATION OF FAITH LUTHERAN CHURCH OF GREAT FALLS WHO VOTED TO REMAIN AFFILIATED WITH THE ELCA, an unincorporated association, Plaintiffs, Appellees and Cross-Appellants, v. FAITH LUTHERAN CHURCH OF GREAT FALLS, INC., and THE FOUNDATION FOR ENDOWMENT OF FAITH LUTHERN CHURCH, INC., and JOHN DOES 1-25, Defendants and Appellants.

A majority of the congregation of Faith Lutheran Church in Great Falls voted to leave the Evangelical Lutheran Church in America Synod.  A minority of the congregation then renamed itself New Hope Lutheran and filed this action against the majority and the Foundation for Endowment of Faith Lutheran Church, seeking to be awarded church property, pursuant to church rules.  The Eighth Judicial District Court entered summary judgment in which it determined that, under church rules, the New Hope group is entitled to the property.

Issues on appeal and cross-appeal include whether this dispute is one in which courts may intervene in church matters, whether the property owned by the Foundation is church property, whether the District Court erred in ruling that Foundation owes a fiduciary duty to the church, whether New Hope has standing and, on cross-appeal, whether New Hope is entitled to pre- and post-judgment interest and attorney fees.  The Montana Attorney General has filed an amicus brief on the issue of transfer of assets from one nonprofit corporation to another.

Oral arguments were held December 11, 2013.   

OP 13-0430   ROBERT VAN ORDEN, Plaintiff, v. UNITED SERVICES AUTOMOBILE ASSOCIATION; USAA CASUALTY INSURANCE COMPANY; USAA GENERAL INDEMNITY COMPANY; and GARRISON PROPERTY AND CASUALTY INSURANCE COMPANY, Defendants.    

The United States District Court for the District of Montana has asked the Montana Supreme Court to clarify Montana law concerning subrogation and the “made whole” doctrine, for purposes of a class action now pending before the federal court.

Robert Van Orden suffered personal injuries and his vehicle was damaged in an accident for which he was not at fault.  Van Orden’s insurer paid for repair of his vehicle under his collision coverage, and then sought subrogation for those payments from the insurer of the at-fault driver.  In the federal court action, Van Orden maintains his insurer’s failure to wait until he had been “made whole” as to all of his damages, including his personal injuries, violated Montana’s Unfair Claim Settlement Practices Act, constitutes both a breach of contract and constructive fraud, and is cause for forfeiture of the insurer’s subrogation rights.  The insurer argues that, because Van Orden has been made whole under his separately-elected collision coverage for his property damages, the insurer was entitled to assert its subrogation rights under Montana law.

Oral arguments were held December 11, 2013. 

2012 Oral Arguments

January 2012

OP 11-0526  American Zurich Ins., Petitioner, v. 13th Jud. Dist. Ct., Respondent

American Zurich Insurance Company asks the Montana Supreme Court to take supervisory control over the District Court for Yellowstone County in relation to a discovery dispute in an action pending there.

Phillip Peters had previously filed a workers’ compensation claim against his former employer, Roscoe Steel. Zurich--Roscoe Steel’s insurer--handled the claim with the assistance of a claims adjuster, EBMS. Peters has now filed a lawsuit alleging that Zurich acted in bad faith in handling his workers compensation claim. As part of discovery in the bad faith action, Peters asked Roscoe Steel to provide him with copies of “any and all correspondence . . . with Zurich, EBMS and the Crowley Law Firm regarding Mr. Peters.”

Zurich asked the District Court to invalidate that discovery request as to a copy of a certain letter in Roscoe Steel’s possession. In that letter, Zurich’s workers’ compensation case attorney provided advice and opinion about Peters’ claim to an EBMS claims adjuster. The copy of the letter in Roscoe Steel’s possession also includes the claims adjuster’s handwritten notes. Zurich argues that giving Peters a copy of the letter as part of discovery, as the District Court has ordered Roscoe Steel to do, violates rules protecting attorney-client communication and attorney work products. Zurich claims the District Court is proceeding under a mistake of law that will cause a gross injustice and cannot be remedied under the normal appeal process.

Oral arguments were held January 18, 2012.  

February 2012

DA 11-0275  CANDICE BRILZ, Plaintiff and Appellant, v. METROPOLITAN GENERAL INSURANCE COMPANY, Defendant and Appellee. 

Brilz was injured and her vehicle was damaged in a 1998 auto accident; the at-fault driver was insured by Met. General. In 2002, after settling her claim against the at-fault driver, Brilz filed an action in the Fourth Judicial District Court alleging that Met. General had acted unreasonably in investigating the claim. Met. General had the action removed to federal court on the basis of diversity jurisdiction. The federal court dismissed the lawsuit on grounds that Brilz’s complaint was time-barred.

Brilz then asked the Fourth Judicial District Court to issue a declaratory judgment allowing her to proceed with her claims in state court. She contended that her complaint included a claim for common law bad faith which, although not in compliance with federal pleading requirements, complied with state pleading requirements and was not time-barred. The District Court denied Brilz’s request.

Brilz appeals, arguing she has never been able to litigate the merits of her claims and is entitled to pursue her action in state court under both Montana’s “saving statute” (§ 27-2-407, MCA) and the doctrine of equitable tolling. Met. General says that any state court action on the claims dismissed in federal court is now precluded by both collateral estoppel and res judicata.  

Oral arguments were held February 22, 2012.   

March 2012

OP 11-0463  BNSF RAILWAY COMPANY, a Delaware Corporation, Petitioner, v. ERIC FEIT, Respondent.

This is a certified question from the United States District Court for the District of Montana. BNSF has petitioned that court for review of a decision of the Montana Human Rights Commission that BNSF illegally discriminated against Feit because of his obesity, in violation of the Montana Human Rights Act. The federal court has asked this Court to answer the following question:

Is obesity that is not the symptom of a physiological condition a “physical or mental impairment” as it is used in Montana Code Annotated § 49-2-101(19)(a)?

BNSF urges us to answer the question “no,” based on cases interpreting federal discrimination law. Feit, on the other hand, urges us to reformulate the question and to answer that the Montana Human Rights Act prohibits discrimination based on a perception of disability from extreme, morbid, or class II obesity as classified by National Institute of Health standards.

Oral arguments were held March 14, 2012.     

DA 11-0325 STATE OF MONTANA, Plaintiff and Appellee, v. DEREK JOEL BISHOP, Defendant and Appellant.

Derek Bishop appeals from his December, 2010 conviction for attempted sexual intercourse without consent in Carbon County, Montana. Bishop contends that the District Court erred by excluding evidence he offered concerning conversations he had with the victim and text messages and images that she sent to him. Bishop contends that this evidence was relevant to his defense that any sexual contact he had with the victim was consensual. The District Court excluded some of the evidence offered by Bishop based upon the Rape Shield Statute, § 45-5-511, MCA, which, in a prosecution for sexual intercourse without consent, excludes evidence “concerning the sexual conduct of the victim.” The law does allow evidence of the victim’s past “sexual conduct with the offender.”

Bishop contends that the statute should be construed according to “modern society’s perception of what constitutes ‘sexual conduct’” which he contends was “inconceivable” only ten years ago. The State contends that the Rape Shield Statute must be construed according to its purpose to protect victims of sexual crimes and to prevent the victim’s past conduct becoming the issue at trial. The State contends that flirtatious interactions do not constitute “sexual conduct” and that “talking about sex is not the same as having sex or consenting to sex.”

Bishop also contends that his attorney at trial provided him ineffective assistance by not offering an alternative jury instruction under which he could have been found guilty of the lesser offense of sexual assault. The State contends that the failure to offer the instruction was part of a trial strategy in which Bishop contended that he was innocent and hoped that the jury would not convict him of the more serious offenses.

Oral arguments were held March 21, 2012.    

April 2012

DA 11-0537 MONTANA WILDLIFE FEDERATION, NATIONAL WILDLIFE FEDERATION, Plaintiffs and Appellants, v. MONTANA BOARD OF OIL & GAS CONSERVATION, Defendant and Appellee, and FIDELITY EXPLORATION & PRODUCTION COMPANY, Intervenor, and MONTANA

The cumulative impact of the development of 23 infill oil and gas wells in Fallon and Carter counties on the native population of sage grouse is at issue in this appeal. Two environmental groups--the Montana Wildlife Federation and the National Wildlife Federation--filed suit in the 16th Judicial District seeking to have the defendant Montana Board of Oil and Gas Conservation (MBOGC) do a Programmatic Environmental Impact Statement rather than 23 individual Environmental Assessments. Judge Hegel ruled for MBOGC after hearing cross-motions for summary judgment. The environmental groups appeal the summary judgment order, asserting that the District Court erred in not finding that MBOGC’s actions were arbitrary, capricious or unreasonable. Points of contention on appeal are whether the agency took a sufficiently “hard look” at the facts, and whether a specific statutory standard of judicial review should apply to MBOGC.

Oral arguments were held April 4, 2012.   

DA 11-0431 TYSON S. PALLISTER, KEVIN BUDD, and JESSICA NORMANDEAU, Class Members and Appellants, v. BLUE CROSS AND BLUE SHIELD OF MONTANA, INC., AND MONTANA COMPREHENSIVE HEALTH ASSOCIATION, Defendants and Appellees, v. BRITTANY C. SMITH, RENEE NEARY, as parent and guardian of Dylan Dallaserra; KRISTA LUCAS and ALICE JEAN SPEARE; each individually and as representative members of a class of similarly situated plaintiffs, Class Representatives and Appellees.

This appeal arises from a class action suit to settle claims arising out of the Court’s decision in Blue Cross v. Montana State Auditor,2009 MT 318, 352 Mont. 423, 218 P.3d 475 (“Morrison”). In Morrison, the Court invalidated health insurance policy exclusions limiting coverage for medical expenses in cases where there is automobile or premise liability insurance--meaning that claims by certain groups of insured customers were underpaid. Here, a group of plaintiffs from the class action claim there is a conflict between class members and the class counsel/representatives appointed by Judge Newman of the Second Judicial District Court. They ask the Montana Supreme Court to reverse the District Court’s approval of a class settlement and to direct the District Court to appoint new class counsel. BCBSMT and MCHA respond that the applicable standard of review is abuse of discretion, and the District Court did not abuse its discretion.

Oral arguments were held April 11, 2012.    

DA 11-0451

Six same-sex couples filed this action in the First Judicial District Court, seeking declaratory judgment that Montana’s exclusion of same-sex couples from the benefits provided to opposite-sex married couples constitutes discrimination based on sexual orientation. They also argue that this disparate treatment violates Montana’s Constitutional rights to privacy, individual dignity, and the pursuit of safety, health, and happiness. The District Court dismissed the lawsuit as an effort to get the court to direct the legislature to enact a set of statutes in violation of separation of powers; it ruled that no judgment of the court could effectively remedy the wrong asserted. The plaintiff couples appeal. As the appellee, the State’s position focuses on the “Marriage Amendment” to the Montana Constitution. Nine groups have filed “Friend of the Court” briefs.

Oral arguments were held April 13, 2012. 

OP 11-0558 BILLIE L. REDDING, Petitioner v. MONTANA FIRST JUDICIAL DISTRICT COURT, THE HONORABLE DOROTHY McCARTER, Presiding, Respondent.

In 2004, Billie Redding invested the proceeds of the sale of her cattle ranch in Tenant in Common (TIC) property transactions, based on the advice of her long- standing accountant. The investments failed with the fall of the real estate market in 2008. Redding filed a multi-count complaint in the First Judicial District Court against various defendants with whom she entered the investment transactions. In this original proceeding, Redding asks the court to exercise its power of supervisory control to review a summary judgment order from Judge McCarter holding that Redding’s TIC investment in DBSI Housing, Inc., is not covered by the Montana Securities Act because it did not satisfy the requirement of being an investment in a common enterprise, an “investment vehicle.” Redding claims that ruling represents a clear mistake of law with a statewide impact on regulation of securities fraud in the state of Montana. The State Securities Commissioner has filed an invited Amicus Brief in support of Redding’s position. In response, the defendants below--the accountant, the accounting firm and those involved in the TIC--take the position that the investment was a real property sale with a fixed rate of return and therefore not an “investment vehicle.” In the alternative, they maintain that even if the TIC was an investment vehicle, it was not classed as a security in 2004 when Redding purchased it, and that the investment’s status at the time it was purchased controls. This is a case of first impression in Montana as to TIC transactions.

Oral arguments were held April 25, 2012. 

DA 11-0572 BIG SKY COLONY, IC., and DANIEL E. WIPF, Petitioners and Appellees, v. MONTANA DEPARTMENT OF LABOR AND INDUSTRY, Respondent and Appellant.

The Montana Department of Labor and Industry (DLI), appeals a 9th Judicial District Court judgment declaring HB 119 (2011) unconstitutional. HB 119 amended workers’ compensation statutes to require religious organizations and their members receiving remuneration from non members for agricultural production, manufacturing, and construction to be treated in the same way as other organizations and individuals in regards to workers’ compensation laws. The effect of these amendments is to require Hutterite colonies to provide workers’ compensation coverage for their members. Big Sky Colony, Inc., and Daniel Wipf, a member of the Colony, filed the declaratory judgment action claiming the statutory amendments violate their rights under the Establishment Clause and Equal Protection provisions of the U.S. and Montana constitutions. After a summary judgment hearing, Judge McKinnon ruled in favor of the Colony, holding that HB 119 impermissibly targets the Hutterites because of their communal lifestyle. DLI, the respondent and appellant, argues that the effect of the law is to regulate the Hutterites’ external commercial relationships, not the internal relationships with their members, therefore it does not violate the Establishment Clause or the constitutional rights to free exercise of religion and equal protection.

Oral arguments were held April 25, 2012.  

DA 11-0351

Leigh Paffhausen appeals her DUI conviction. The main issue is whether the trial court abused its discretion when it granted the City’s motion to preclude Paffhausen from introducing evidence that she had been given a “date-rape” drug on the night she was arrested for DUI. Paffhausen wanted to introduce that evidence to support her position that she was not voluntarily driving a motor vehicle. The City successfully argued to the trial court that whether a driver’s intoxication was involuntary is immaterial in a DUI case. Paffhausen argues on appeal that Montana should follow other states’ leads by allowing such evidence under an automatism defense in DUI cases.

Oral arguments were held April 26, 2012 at the Red Lion Colonial Hotel, 2301 Colonial Drive, Helena.   

DA 11-0458

Raul Sanchez claims he was not afforded effective assistance of counsel in his appeal from a 2005 deliberate homicide conviction, and therefore he should get a new trial.

The parties agree that, in a criminal case, there is no right to counsel for “second-tier” discretionary appeals to the United States Supreme Court. But, where counsel admittedly made the decision to file such a second-tier appeal, and then did not follow through, does that constitute a violation of the constitutional right to effective assistance of counsel? In a petition for postconviction relief filed in the Twentieth Judicial District Court, Sanchez argued that it does. The District Court denied Sanchez’s petition. In response to Sanchez’s appeal of the denial of his petition for postconviction relief, the State of Montana argues that Sanchez’s ineffective assistance claim is barred on several threshold and procedural grounds, as well as being substantively without merit.

Oral arguments were held April 30, 2012 in Ballroom A of the Strand Union Building on MSU campus, Bozeman.

May 2012

DA 11-0413  

     This action was filed in 1999 by various owners of property on the shores of Flathead Lake and a section of the Flathead River north of the lake. The landowners seek damages for erosion and land loss they claim to have suffered as a result of the defendants’ practice of using Kerr Dam to hold the level of Flathead Lake high through the summer months and into the fall. The action has come before this Court twice before.

     On the most recent remand from this Court, the District Court decertified the case as a class action and ordered that the claims must proceed on an individual-by-individual basis. The court ruled, under M. R. Civ. P. 23, that there is no question of law or fact common to the class and that individual issues predominate. The landowners appeal, arguing that the common question is whether the defendants acted reasonably in holding the lake at full pool into the fall season.

Oral arguments were held May 9, 2012.  

DA 11-0626  MONTE GIESE, STEVEN KELLY, and WILLIAM REICHELT, Petitioners and Appellants, v. LEONARD BLIXRUD in his capacity as former Water Commissioner for the Perry v. Beattie Decree, Cause No. 371, Montana Ninth Judicial District Court; BEN HOGE in his capacity as current Water Commissioner for the Perry v. Beattie Decree, Cause No. 371, Montana Ninth Judicial District Court; and JOHN DOES 1 through 5, Respondents and Appellees.

     Appellants are water users on the Teton River. Upstream irrigators have diverted the river into an irrigation ditch (the Bateman Ditch) at a point where the river would normally go underground for 4 or 5 miles. The appellant downstream users claim this diversion damages their access to water and use of their water rights. The District Court dismissed Appellants’ petition for relief, ruling

  • it is without power to issue a writ of prohibition to stop the water commissioner from diverting water,
  • the decreed upstream irrigators have preference in distribution over the Appellant non-decreed users, and
  • Appellants failed to state a question that could be certified to the Water Court.

Appellants maintain the District Court was wrong on all three counts. An important underlying issue is the relative powers of the district courts and the water court over water distributions controversies.

Oral arguments were held May 16, 2012.  

 DA 11-0340  CHARLES E. FELLOWS, an Individual, Plaintiff and Appellant, v. THE OFFICE OF WATER COMMISSIONER for the Perry v. Beattie Decree Case No. 371, and all JOHN DOE WATER USERS, Defendants and Appellees.

The District Court dismissed Charles E. Fellows’ dissatisfied water user complaint based on lack of standing, and Fellows appeals.

  
Fellows has a water right on Spring Creek, which he claims is tied to the Teton River via an underground aquifer.  He claims the Water Commissioner on the Teton River illegally changed the point of diversion for the senior water rights holder on the Teton River to avoid the Springhill Reach--a gravelly section of the Teton River that feeds an underground aquifer.  Fellows claims that this aquifer, in turn, feeds Spring Creek.


The District Court determined it could not grant relief to Fellows without tinkering with the water decree for that portion of the Teton River.  The court instead directed Fellows to seek relief from the Water Court as part of the final adjudication process.  Fellows claims that the adjudication process could take years and he could be out of business by then due to the loss of his water.

Oral arguments were held May 23, 2012.   

DA 11-0460 

Oral arguments were held May 30, 2012.  

AUGUST 2012

 DA 11-0618  TONY BEEHLER, individually and as Co-representative of the Estate of Katherine Ann Beehler-Goodson; ROBERT GOODSON, individually and as Co-representative of the Estate of Katherine Ann Beehler-Goodson, and as natural guardian and next friend of E.G. and R.G., minors, Plaintiffs and Appellants, v. EASTERN RADIOLOGICAL ASSOCIATES, P.C.; ANNE GUILIANO, M.D.; and ST. VINCENT HEALTHCARE, Defendants and Appellees

This wrongful death suit was filed by survivors of Katherine Goodson, who died from spinal meningitis following a routine myelogram (a radiologic procedure in which a needle is used to inject dye into the spine so that a detailed spinal x-ray can be obtained).  The defendants are the radiologist who performed the myleogram and the hospital in which the myleogram was performed.  The District Court granted summary judgment to the defendants on grounds that the survivors failed to establish genuine issues of fact regarding (1) whether the applicable standard of care was breached by the radiologist’s failure to wear a face mask and (2) causation.  On appeal, the survivors claim the court erred in excluding from evidence the opinion of their offered expert witness.  They also argue that the court erred in granting costs to the defendants for depositions that the court did not consider.

Oral arguments were held August 1, 2012.    
                                    

DA 11-0510  HELENA SAND AND GRAVEL, INC., A Montana Corporation, Plaintiff and Appellant, v. LEWIS AND CLARK COUNTY PLANNING AND ZONING COMMISSION, and THE LEWIS AND CLARK COUNTY BOARD OF COUNTY COMMISSIONERS, Defendants and Appellees.

In this action, Helena Sand and Gravel, Inc. (HSG) challenges Lewis and Clark County's adoption of a development pattern and zoning regulations for Special Zoning District 43, north of East Helena. HSG owns approximately 421 acres in that area.  The First Judicial District Court granted summary judgment in favor of the County. 
On appeal, HSG argues (1) the regulations prohibiting sand and gravel operations in SZD 43 violate Montana zoning law by failing to adequately consider existing land use and other relevant provisions of the area’s Growth Policy; (2) the regulations prohibiting sand and gravel operations in SZD 43 constitute illegal “reverse spot zoning,” and (3) the illegal zoning constitutes a legally compensable “taking” of HSG's property.

Oral arguments were held August 15, 2012.    

DA 12-0050  SHEILA CHIPMAN, DEBORAH WALLEN, and ELLEN HAMES, individually and on behalf of all others similarly situated, Plaintiffs and Appellees, vs. NORTHWEST HEALTHCARE CORPORATION, and KALISPELL REGIONAL MEDICAL CENTER, Defendants and Appellants.

Employees of Kalispell Regional Medical Center (KRMC) claim KRMC breached its contracts with them when it discontinued a benefit which had allowed employees with 25 or more years of service to receive payment for their unused sick leave when their employment ended.  The defendant owners of KRMC and related businesses appeal the Eleventh Judicial District Court’s order certifying this as a class action.   
The defendants first argue the employees do not have standing to bring this action, because they have no vested right in the discontinued sick leave benefit.  Defendants also maintain the court defined the certified class too broadly--because only KRMC employees are named plaintiffs, defendants argue the class should not include employees of the other related businesses.  The defendants argue that inclusion of the sick leave benefit in the employee handbook provided to all employees did not establish a contractual right to the benefit, because the handbook stated that the policies described therein could be modified or discontinued at any time.  Finally, defendants claim class certification was improper because the issues presented in this action are not common to all members of the class, but instead require individual treatment by the court.
The employees contend that class certification was proper and the Montana Supreme Court should affirm.

Oral arguments were held August 29 2012.    

September 2012

 DA 11-0681  CHARLES KELLY KLUVER; KARSON KLUVER; and GENIE LAND COMPANY, Plaintiffs and Appellants, and DOUGLAS & KIM McRAE; and GREENLEAF LAND & LIVESTOCK COMPANY, Plaintiffs and Appellees, vs. PPL MONTANA, LLC, as a Successor in Interest to the Montana Power Co.; PUGET SOUND ENERGY, INC.; NORTHWESTERN CORPORATION; THE CLARK FORK AND BLACKFOOT, LLC.; THE MONTANA POWER COMPANY, LLC.; AVISTA CORPORATION; PACIFICORP; PORTLAND GENERAL ELECTRIC COMPANY and JOHN DOES 1-20, Defendants and Appellees.  

In 2007, Rosebud County ranching families Kluver and McRae filed an action alleging that the defendants, who owned or operated the Colstrip power facility, had polluted area groundwater.  On July 14, 2010, a mediation was held at the Crown Plaza Hotel in Billings. At the conclusion of the day-long mediation, plaintiffs’ counsel emailed a memorandum of understanding (MOU) created by the parties to all other counsel.  The MOU referenced future documents and land transactions by which the Kluvers would convey land to defendants, lease that and other land back, and receive an option to purchase the land back.  The Sixteenth Judicial District Court has entered an order enforcing the MOU as a valid settlement agreement.
The Kluvers unsuccessfully argued to the District Court, and again argue to the Montana Supreme Court, that the MOU is an unsigned, unenforceable tentative draft.  They contend the District Court erred by allowing parol evidence and by re-writing the draft MOU to change an “option” to a right of first refusal.  The Kluvers also contend the court erred by admitting evidence in violation of the attorney-client and mediation privileges, and by drawing an inference adverse to them because they did not waive those privileges.

Oral arguments were held September 21, 2012 at the Crowne Plaza Hotel, 27 North 27th St, Billings.    

 DA 11-0559  STATE OF MONTANA, Plaintiff and Appellant, v. DELAINE MINNIE FITZPATRICK, and MALISA LYNN FITZPATRICK, Defendants and Appellees.

 In this case, the Twelfth Judicial District Court dismissed criminal charges against the Fitzpatrick sisters, Delaine and Malisa, on grounds that the State of Montana’s investigation of them constituted outrageous government conduct in violation of the federal Due Process Clause.  The State appeals.  
The Fitzpatrick sisters operated a medical marijuana caregiver business known as “Gonja Gardens” out of their home in Havre.  Following an investigation, the State charged the Fitzpatricks with criminal distribution of marijuana to persons other than their registered medical marijuana patients and in amounts exceeding those allowed by law.  The sisters successfully moved to dismiss the charges on grounds that the State’s investigation--in which the State used an undercover drug enforcement officer with a fake drivers license and a fake medical marijuana card--constituted outrageous government conduct.  On appeal, the State argues that, although its agents did engage in some illegal conduct during the investigation, that conduct did not rise to the level of outrageous government conduct.          

Oral arguments were held September 21, 2012 at the Crowne Plaza Hotel, 27 North 27th St, Billings.    
 

OCTOBER 2012

 DA 11-0755  HOLLY LABAIR and ROBERT LABAIR, Individually and on behalf of DAWSON R. LABAIR, deceased minor child, Plaintiffs and Appellants, v. STEVE CAREY, Esq., and CAREY LAW FIRM, and JANES DOES 1-4, Defendants and Appellees. 

The Lebairs’ newborn son died the day after he was born. The Lebairs hired attorney Steve Carey to file malpractice claims against their doctors, but because Carey failed to timely file a complaint with the Montana Medical Legal Panel (MMLP), the Lebairs were precluded from filing any legal action against the doctors. The Lebairs then filed this action for legal malpractice against Carey. The Fourth Judicial District Court granted Carey’s motion for summary judgment, ruling the Labairs had failed to adequately support their complaint against Carey because they did not produce a lawyer with an expert opinion that their medical malpractice claim would have had merit.

On appeal, the Lebairs maintain such expert testimony was not necessary to support their complaint because (1) Carey has admitted that he missed the deadline for filing a claim with the MMLP, and (2) the only expert necessary to support their claim is a medical expert -- which they produced.

Oral arguments were held October 22, 2012.    

NOVEMBER 2012

  

 DA 11-0494  STATE OF MONTANA, Plaintiff and Appellee, v. RANDALL JAY DUGAN, Defendant and Appellant

 During a telephone call, Randall Dugan told a Gallatin County Sheriff’s Office Victim Services representative she was a “f*****g c**t,” and then hung up on her. Based on that phone call, Dugan was charged with a misdemeanor under the “Privacy in Communications” statute, § 45-8-213, MCA, which prohibits the use of electronic communication to offend another person with obscene, lewd, or profane language. Dugan pled no contest, but reserved his right to appeal on grounds that the statute is unconstitutional.

On appeal, Dugan argues he has been punished for pure speech without a compelling justification, and that the Privacy in Communications statute is facially overbroad and unconstitutionally vague. The State responds that not only is the statute constitutional, but that Dugan’s slur constituted “fighting words” not protected by the First Amendment and was also unprotected under the “captive audience” doctrine.

Oral arguments were held November 13, 2012.  

2011 Oral Arguments

January 2011

DA 10-0102 GASTON ENGINEERING & SURVEYING, P.C., Plaintiff and Appellant, v. OAKWOOD PROPERTIES, LLC, and YELLOWSTONE BANK, Defendants and Appellees.

Oral arguments were held January 19, 2011.

OP 10-0280 UNITED STATES OF AMERICA, Petitioner v. JUVENILE MALE, Respondent.

Oral arguments were held January 19, 2011.

DA 10-0051 DEBBIE PATCH, as Personal Representative of the Estate of BRANDON PATCH, Deceased, and DEBBIE AND DUANE PATCH, Plaintiffs and Appellees,  v. HILLERICH & BRADSBY CO., d/b/a LOUISVILLE SLUGGER, Defendant and Appellant.

Oral arguments were held January 26, 2011.

February 2011

DA 10-0382 MONTANA TROUT UNLIMITED, v. BEAVERHEAD WATER COMPANY, GARRISON RANCHES, INC., PAUL H. CLEARY, JR. TRUST, MONTANA BOARD OF LAND COMMISSIONERS, HAIRPIN LC, SPENCO LLC, Appellees. 

Oral arguments were held February 2, 2011.  

DA 10-0169 ROHNN LAMPI, Plaintiff and Appellant, v. ALLEN SPEED, Defendant and Appellee.

Oral arguments were held February 16, 2011.  

March 2011

DA 10-0231 TERRY BLANTON, individually and on behalf of himself and all others similarly situated, Plaintiffs, Appellees, and Cross-Appellants, v. THE DEPARTMENT OF PUBLIC HEALTH AND HUMAN SERVICES, a department of the State of Montana, Defendant and Appellant.

Oral arguments were held March 2, 2011.   

April 2011

DA 10-0351 STEPHEN G. STEADELE AND DAWN R. STEADELE, Plaintiffs and Appellants, v. COLONY INSURANCE COMPANY, Defendant and Appellee. 

Oral arguments were held April 6, 2011.   

DA 10-0427 HAROLD CALDWELL, Plaintiff and Appellee, v. MACO WORKERS' COMPENSATION TRUST, Respondent and Appellant.
                                      AND

DA 10-0348 KALISPELL EDUCATION ASSOCIATION, MEA-MFT, and WILLIAM HARTFORD, Petitioner and Appellee,  v. BOARD OF TRUSTEES, KALISPELL
HIGH SCHOOL DISTRICT NO. 5, Respondent/Counter Claimant and Appellant
.

Oral arguments were held April 15, 2011 at the University Theater, University of Montana.   

MAY 2011

DA 10-0260 STATE OF MONTANA, Plaintiff and Appellee, v. MILES CASSIDY KINGMAN, Defendant and Appellant.
                                      AND

DA 10-0533 LEONARD (DUKE) BROWN, Plaintiff and Appellant, v. YELLOWSTONE CLUB OPERATIONS, LLC, a Montana limited liability company,    Defendant and Appellee.

Oral arguments were held May 2, 2011 in Ballroom A of the Strand Union Building, MSU.

DA 10-0394 PUGET SOUND ENERGY, INC., Petitioner and Appellee, v. STATE OF MONTANA, DEPARTMENT OF REVENUE, Respondent and Appellant.   

Oral arguments were held May 17, 2011.   

June 2011

OP 11-0212

Oral arguments were held June 28, 2011. 

August 2011

DA 11-0048 JEFFERSON COUNTY, a political subdivision of the State of Montana, by and through its Board of Commissioners, Petitioner and Appellee, v. DEPARTMENT OF ENVIRONMENTAL QUALITY, an agency of the State of Montana, Respondent and Appellant, and NORTHWESTERN CORP, d/b/a NORTHWESTERN ENERGY, Intervenor and Appellant.

      In this appeal, the Montana Department of Environmental Quality (DEQ) and Northwestern Energy want the Montana Supreme Court to rule that DEQ does not have a duty to further consult with and solicit comments from the Jefferson County Commission about the Jefferson County portion of the Mountain State Transmission Intertie (MSTI) transmission line before DEQ finalizes the draft Environmental Impact Statement (EIS) on the project. The 5th Judicial District Court ruled that DEQ could not continue with the EIS process until it complied with various state and federal environmental laws, because the MSTI project could cause irreparable damage which could not be fixed if the process was allowed to continue. .

Oral arguments were held August 2, 2011.    


DA 10-0486 GAIL A. SHATTUCK, Individually and as Personal Representative for the ESTATE OF DANE M. SHATTUCK, and on Behalf of Others Similarly Situated, Plaintiff, Appellee and Cross-Appellant, v. KALISPELL REGIONAL MEDICAL CENTER, INC., a Montana Corporation and BLUE CROSS AND BLUE SHIELD OF MONTANA, INC., a Montana Corporation, STATE OF MONTANA, DEPARMENT OF PUBLIC HEALTH AND HUMAN SERVICES, and DOES 1 to 99, Defendants and Appellants.       

     The question presented in this appeal is whether Kalispell Regional Medical Center is entitled to assert a lien against a 3rd party settlement to recover the full cost of its services to Dane Shattuck, a child covered by Montana’s Children’s Health Insurance Plan (CHIP). The District Court for the 1st Judicial District determined that CHIP is an insurance plan but that Blue Cross/Blue Shield of Montana (BCBSMT), as the plan administrator, is not an insurer under the Montana Insurance Code. The District Court’s decision that CHIP is an insurance plan triggers the ”made whole doctrine,” which would affect the amount of the third party settlement payable to Shattuck’s surviving parents. The Department of Public Health and Human Services, BCBSMT, and Kalispell Regional Medical Center all ask the Court to overturn the District Court’s ruling that CHIP is subject to the Insurance Code and the “made whole” doctrine. Shattuck’s mother cross-appeals, asking the Court to rule that the “made whole” provision applies to CHIP administrator BCBSMT, as well.

And

DA 09-0682 JEANETTE DIAZ, LEAH HOFFMAN- BERNHARDT, RACHEL LAUDON, individually and on behalf of others similarly situated, Plaintiffs and Appellants, v. BLUE CROSS AND BLUE SHIELD OF MONTANA, NEW WEST HEALTH SERVICES, MONTANA COMPREHENSIVE HEALTH ASSOCIATION, STATE OF MONTANA, AND JOHN DOES 1-100, Defendants and Appellees. 

The plaintiffs in these proceedings were injured in automobile accidents for which other drivers were clearly liable. They are suing their employer-- the State of Montana--and the third party administrators (TPAs) of their state employee health insurance plans, because the TPAs have refused to pay their medical claims until their claims against the other drivers are resolved. The plaintiffs argue this is wrong; the TPAs should be treated as insurers and be subject to the “made whole” provisions of Montana insurance law--requiring them to pay the medical claims under the health benefit plans up-front. The First Judicial District Court ruled the TPAs are not subject to the “made whole” provisions.

Oral arguments were held August 12, 2011.  

September 2011

DA 10-0615 THE BILLINGS GAZETTE, a division of LEE ENTERPRISES, Plaintiffs and Appellees, v. THE CITY OF BILLINGS, Defendant and Appellant.

This appeal pits the privacy rights of a City of Billings employee against the public’s right to know under the Montana Constitution. Andrews, an employee of the Billings Police Department, was suspected of using a City-issued credit card for her own personal benefit. The Billings Gazette asked the City to provide it with a copy of Andrews’ “due process letter” relating to an administrative investigation. The City denied the Gazette’s request, saying it could not do so without violating Andrews’ right to privacy and because it would interfere with an ongoing criminal investigation. The District Court for the 13th Judicial District held that as a person in a position of trust, Andrews had no reasonable expectation of privacy concerning an investigation into her actions while carrying out her job duties. The City of Billings appeals. The Yellowstone County District Court ordered the letter released immediately, but that order has been stayed during this appeal. The City also asks the Court to determine whether release of the “due process” letter must be delayed until a criminal investigation and/or possible criminal prosecution of Andrews have been completed.

AND

OP 11-0021 

 

    The US District Court for the District of Montana has asked the Montana Supreme Court to answer a question of unsettled Montana law that has arisen in a case pending before the federal court. The plaintiffs in the federal court case own property near the Livingston rail yard. They contend pollutants BNSF released into the rail yard and surrounding environment over 20 years ago continue to migrate onto and damage their properties. They have filed tort claims against BNSF under theories of nuisance and trespass. At issue is whether it is too late for the landowners to file suit for damages under the applicable statute of limitations and the “continuing tort doctrine” as applied to “abatable” ongoing pollution.

Oral arguments were held September 14, 2011.   


OP 10-0493 H. ROBERT WARREN; JOAN CROCKER, Plaintiffs, v. CAMPBELL FARMING CORPORATION; STEPHANIE GATELY; ROBERT GATELY, Defendants.

     The Montana Supreme Court has been asked by the U.S. Court of Appeals, 10th Circuit, to interpret sections of state’s Model Business Corporations Act having to do with corporate governance, the “business judgment rule” and conflicts of interest, and to rule on how those sections fit with existing Montana case law. These are state law issues of first impression. The conflict of interest involved the defendant, Ms. Gately, in her roles as a director of a small corporation and as a majority shareholder of the corporation. At issue was approval of a “1.2 million dollar bonus” to be paid to an employee, Robert Gately , her son. The two minority shareholders were opposed to the action. The US District Court of the District of New Mexico had upheld the payment of the bonus and the minority shareholders appealed to the 10th Circuit.

AND

DA 10-0359 RICHARD A. HILL and BETTI C. HILL, HILL, et al., Plaintiffs and Appellants, v. JACK RAY SAUTHER, CHRISTOPHER JAMES NOLT, et al.,  Defendants and Appellees.

     A group of securities purchasers, the plaintiffs below, are appealing a First Judicial District Court order compelling them to participate in pre-dispute arbitration rather than filing suit directly in the District Court. The securities purchasers assert that their acceptance of the pre-printed broker-dealer account agreement constituted a contract of adhesion which should not be enforced because it was unconscionable, not within their reasonable expectations and caused them to unknowingly waive their constitutional rights to a jury trial. The State Commissioner of Securities and Insurance has filed an Amicus Curiae brief advocating the position of the securities purchasers.

Oral arguments were held September 16, 2011 in the Red Lion Hotel, 20 North Main Street, Kalispell.   


DA 11-0081 WESTERN TRADITION PARTNERSHIP, INC., a corporation registered in the State of Montana, and CHAMPION PAINTING, INC., a Montana corporation, MONTANA SHOOTING SPORTS ASSOCIATION, INC., a Montana corporation, Plaintiffs, Appellees, and Cross-Appellants v. ATTORNEY GENERAL of the State of Montana, and COMMISSIONER OF THE COMMISSION FOR POLITICAL PRACTICES, Defendants, Appellants and Cross-Appellees.

     A group of business organizations led by Western Tradition Partnership filed suit challenging the constitutionality of Montana’s Corrupt Practices Act of 1912 following the United States Supreme Court’s 2010 decision in Citizens United v Federal Elections Commission. Section 13-354-227, MCA, prohibits corporate campaign contributions in Montana political campaigns. The First Judicial District Court ruled that the Act was a ban of “corporate political speech” and therefore the Act violated the First Amendment of the U.S. Constitution. Having declared the Act unconstitutional, the District Court permanently enjoined the enforcement of the Act. The Montana Attorney General and Commission on Political Practices appeal. A side issue is whether there should have been an allowance of attorneys’ fees and costs to the plaintiffs. Numerous entities have filed friend-of-the court briefs

Oral arguments were held September 21, 2011.               


DA 10-0368 ROBERT FLYNN and CARL MILLER, Individually and on Behalf of Others Similarly Situated, Petitioners and Appellants, v. MONTANA STATE FUND, Appellee and Cross-Appellant, and LIBERTY NORTHWEST INSURANCE CORPORATION, Respondent /Insurer and Appellee.  

    Oral argument will be heard regarding a Workers’ Compensation Court decision determining the extent of retroactive application of new Montana Supreme Court case law to existing Workers’ Compensation claims. The Court will have to define when a claim has been ‘paid in full’, the point after which the new rule could not be applied to a previously filed claim. The decision in this case will affect the rights of the named parties as well as others similarly situated.

Oral arguments were held September 28, 2011.   

November 2011

DA 11-0209 IN RE THE MARRIAGE OF: BERNITA FUNK, Petitioner and Appellee, and KEVIN FUNK, Respondent and Appellant.

In this case, the Court is asked to clarify the law regarding the distribution of assets in a dissolution of marriage when one party has inherited property during the marriage. The district court awarded the wife a substantial sum of money based on the market value of Flathead Lake property that the husband had inherited. The husband appeals, arguing that the court failed to follow a line of Montana cases which would require that the inherited property be awarded solely to him. In response, the wife argues that those cases do not square with the statute on distribution of property . She maintains that, under § 40-4-202, MCA, the job of the court is to make an “equitable” distribution of property, without regard to title or marital misconduct, but taking into consideration the situation of each party and the non-monetary contributions of the wife as home-maker and mother.

Oral arguments were held November 9, 2011.  

DA 11-0231 IN THE MATTER OF THE GUARDIANSHIP AND CONSERVATORSHIP OF M.A.S. and C.M.S., An Incapacitated and Protected Person.

In this appeal, the Supreme Court must decide whether a parent can be ordered to pay support for severely handicapped children after they become adults. Section 40-6-214, MCA, provides “It is the duty of the father, the mother, and the children of any poor person who is unable to provide self-maintenance by work to maintain that person to the extent of their ability.”

The parties are the divorced parents of now-adult twin sons who are seriously physically and mentally disabled and live with their mother. The father met his court-ordered child support obligation until his sons turned eighteen but did not continue to provide support after that. The First Judicial District Court has ordered him, under § 40-6-214, MCA, to continue to provide support for his sons. The father contends that under all circumstances a divorced parent’s support obligation ends when the child reaches majority unless the parties have agreed otherwise. In this case, the parents have not agreed otherwise. If the Supreme Court finds that there is a duty to support, the parties want to know how the amount should be calculated.

Oral arguments were held November 9, 2011.    

December 2011

DA 11-0049  PATTERSON ENTERPRISES, INC., Plaintiff and Appellant, v. ARCHIE JOHNSON, d/b/a ARCHIE JOHNSON CONTRACTING, Defendant and Appellee.  

A road construction company, Patterson Enterprises, appeals the verdict in a jury trial involving the liability of a blasting contractor, Archie Johnson Contracting, for damage to Patterson’s equipment. Patterson’s excavator was destroyed when an overhanging rock ledge Johnson had created during a blast three days earlier fell on the excavator. The District Court ruled that blasting is an “inherently dangerous” activity, for which there is strict liability. One defense to such liability is “assumption of the risk” of harm, the legal standard for which is in question. Patterson argues there was not enough evidence to allow the District Court to present to the jury the question of whether Patterson assumed the risk. It also argues the jury was improperly instructed regarding the assumption of the risk defense.

Oral arguments were held December 12, 2011.   

DA 11-0213   Krutzfeldt Ranch, LLC; William Krutzfeldt, and Julie Krutzfeldt, Plaintiffs and Appellants, v. Pinnacle Bank, Defendant and Appellee

In this case, Plaintiffs Krutzfeldt sued Pinnacle Bank over a $5 million real  estate development loan deal gone bad. The question before the Supreme Court is whether the Krutzfeldts and their trial attorneys, Harman, Warren and Harris, were “current” or “former” clients of Hoskins, an attorney they had used as a consultant. Two months before trial, Hoskins went to work for the law firm representing the defendant Bank. If the Krutzfeldts were “current” clients of Hoskins then the Rules of Professional Conduct would prohibit the Bank from being represented by Crowley Fleck, the firm which hired Hoskins. The rule is that a law firm must be disqualified from cases where concurrent clients are directly adverse. Krutzfeldts asked the District Court to disqualify Crowley Fleck and to prohibit it from further representation of the bank. The District Court denied Krutzfeldts’ motions, ruling that Crowley Fleck had acted properly by screening Hoskins from any further contact with this case. Krutzfeldts appeal.

Oral arguments were held December 13, 2011.   

2010 Oral Arguments

April 2010

DA 09-0429  CHRISTIAN C. HOHENLOHE and NORA R. HOHENLOHE, Petitioner and Appellee, v. STATE OF MONTANA, DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION,    Respondent and Appellant.

Oral arguments were held April 7, 2010.

DA 09-0389  BRET McKENNEY and NORTH STAR AMUSEMENTS, INC., Plaintiffs and Appellants, v. COOPER POWER SYSTEMS,  Defendant and Appellee.

Oral arguments were held April 7, 2010.  

 DA 09-0489 MATTHEW SUMMERS and HEIDI AMES, Plaintiffs and Appellants, v.  CRESTVIEW APARTMENTS, LH RESIDENTIAL, LLC, and SCOTT HACKER,   Defendants, Appellees,  and Cross-Appellants.

Oral arguments were held April 9, 2010 at the University Theater, Univeristy of Montana, Missoula.    

DA 09-0500  LON PETERSON, Plaintiff and Appellant, v.  ST.PAUL FIRE AND MARINE, INSURANCE COMPANY, Defendant, Appellee and Cross-Appellant.,  

Oral arguments were held April 21, 2010.    

DA 09-0556  and DA 09-0605   STATE OF MONTANA, Plaintiff and Appellee, v. DONNIE MACK SELLERS, Defendant and Appellant.

Oral arguments were held April 21, 2010.    

DA 09-0280 STATE OF MONTANA, Plaintiff and Appellee, v. VAUGHN DAVID JAMES, Defendant and Appellant.

Oral arguments were held April 30, 2010 at the Mother Lode Theater, Butte.

May 2010

DA 09-0091 STATE OF MONTANA, Plaintiff and Appellee,  v. BRIAN HAYDEN ALLEN, Defendant and Appellant.

Oral arguments were held May 3, 2010 in Ballroom A of the Strand Union Building, MSU, Bozeman.

DA 08-0499 STATE OF MONTANA, Plaintiff and Appellee,  v. DAVID W. GUNDERSON, Defendant and Appellant.

Oral arguments were held May 14, 2010.   

June 2010

DA 09-0404 and DA 09-0405 WESTERN SECURITY BANK and GLACIER BANCORP, INC., Plaintiffs and Appellants,  v. EIDE BAILLY LLP, Defendant and Appellee.

Oral arguments were held June 10, 2010.

OP 10-0158 GERALD PENN, Relator, v. DISTRICT COURT OF THE THIRD JUDICIAL DISTRICT OF THE STATE OF MONTANA, IN AND FOR THE COUNTY OF ANACONDA-DEER LODGE and THE HONORABLE RAY J. DAYTON, Respondent.

Oral arguments were held June 10, 2010.   

July 2010

DA 09-0284 STATE OF MONTANA, Plaintiff and Appellee,  v. ANTHONY ROY ST. DENNIS, Defendant and Appellant.

Oral arguments were held July 28, 2010.   

DA 09-0659 C.A. GRENZ, Petitioner and Appellee, v. MONTANA DEPARTMENT OF NATURAL RESOURCES AND CONSERVATION, Respondent and Appellant, and JOHN AND ANGELA HEITZ, Respondents.

Oral arguments were held July 28, 2010.   

September 2010

DA 10-0109 RENEE GRIFFITH, Plaintiff and Appellant, v. BUTTE SCHOOL DISTRICT NO. 1, CHARLES UGGETTI and JOHN METZ, Defendants and Appellees.

Oral arguments were held September 14, 2010.   

DA 10-0029 PEGGY L. STEVENS, Plaintiff, Cross-Appellant and Appellee, v. NOVARTIS PHARMACEUTICALS CORPORATION, Defendant and Appellant.

Oral arguments were held September 23, 2010.

November 2010

DA 10-0099 IN THE MATTER OF THE ESTATE OF: WILLIAM F. BIG SPRING, JR., Deceased.

JULIE BIG SPRING and WILLIAM BIG SPRING, III, Appellants, v. ANGELA CONWAY, DOUG ECKERSON, and GEORGIA ECKERSON, Appellees

Oral arguments were held November 10, 2010.    

December 2010

DA 10-0185 CAROL A. WALTERS, individually as the Mother to her deceased son, Timothy Dwayne Walters and as Personal Representative of the Estate of Timothy Dwayne Walters, Plaintiff and Appellant,   v.  FLATHEAD CONCRETE PRODUCTS, INC., a Montana Corporation and its successors, and DOES 1-100, Defendant and Appellee. 

Oral arguments were held December 8, 2010.