Montana Law Week Subject Index – 2012
*Administrative Law
Extra-administrative evidence: (properly considered on judicial review) Hobble Diamond Ranch v. MDOT, 1/21:1
*Appellate Procedure
Appealability: (challenge to delegation of judge’s duty to select parenting coordinator improperly raised in reply brief) Marriage of Everett, 1/21:3; (denial of city judge disqualification for cause properly dismissed by Tucker as interim order, Tucker’s orders as partial adjudication also not appealable) Dillon v. Warner,2/11:3; (although husband obtained financing between decree and appeal, Court can still render effective relief, wife’s appeal not moot) Marriage of Caras,2/18:2; (City has no appeal from District Court dismissal for lack of evidence in trial de novo, appeal dismissed with prejudice) Cut Bank v. Hall, 2/18:7; (abatement of judgment ab initio upon defendant’s death rejected, an appeal could involve issues which are not mooted by death, but not the conviction and ineffective assistance claims in this case, appeal dismissed as moot) Benn, 2/25:7; (Plaintiffs’ appeal not such significant change in theory as to constitute waiver)H&H Development v. Ramlow, 3/17:2; (Brady claims could have been reviewed in appeal from Justice Court PFMA trial despite lack of objection, but de novo review by Supreme Court finds no Brady violation) Ellison, 4/7:3; (mootness jurisprudence where judgment has been satisfied clarified, only question is whether this Court can grant effective relief, depends on facts, posture, relief requested, issue (who was driving?) remains, payment to medical providers does not render Court unable to grant effective relief to other party since restitution claim remains should reversal and 2nd trial be granted, appeal not moot, new trial based on alleged improper closing argument properly denied, verdict naming driver in insurance interpleader affirmed) Progressive Direct Ins. v. Stuivenga and Evans,4/14:3; (jurisdiction to hear appeal of postconviction denial precluded by failure to file notice) Wylie, 6/16:3; (temporary order of protection dissolution not appealable until other pending issues including parenting plan are resolved) LeProwse v. Garrett, 12/8:4
Appeal from justice court: (improperly dismissed without opportunity to remedy insufficient undertaking) Cox v. Kobelt, 9/1:1
Appellate Pro Bono Program: (comments invited on proposed program) Matter of Establishing an Appellate Pro Bono Program, 1/28:3
Coram vobis: (abolished by 2011 MRCivP amendments, no alternative writ that might be viable to address prisoner’s challenges to sale of ranch stemming from 1979 divorce and intimidation convictions) Lance v. Langton, 3/17:4
Dismissal: (appeal of summary judgment on defamation liability of blogger who accused lawyer of lying to Court dismissed with prejudice for failure to timely file after 10-day extension, fees/costs assessed as sanctions) Geiszler v. Sayer, 12/15:2
Fees/costs: (Plaintiff entitled to costs of appeal, not to fees as sanction) Olsen v. Milner, 4/28:1; Johnson Farms v. Halland, 10/6:1
Mediation: (appeal of property title summary judgment designated as appropriate for mediation as requested by Appellant and over objection of Appellees)Posselt v. Powers, 6/30:3
Out-of-time appeal: (grant of out-of-time appeal withdrawn after discovery that Appellant misrepresented role of her lawyer’s death in failure to timely appeal)Davis v. Hawkins, 1/28:3
Rehearing: (insufficient grounds for rehearing of opinion affirming Judge Spaulding’s orders settling trust accounts) Testamentary Trust under the Will of Victor Finco, 1/21:2
Reviewability: (lack of written findings & order precludes review, remanded to Tucker for written findings, conclusions, and order addressing issues raised by grandmother’s petition) Grandparent Visitation of MM and Larsen, 1/14:1
Sanctions: (appeal of summary judgment on defamation liability of blogger who accused lawyer of lying to Court dismissed with prejudice for failure to timely file after 10-day extension, fees/costs assessed as sanctions) Geiszler v. Sayer, 12/15:2
Supervisory control: (denied as to Judge Neill’s summary judgment that hospital breached contract when it accepted payment greater than contractual reimbursement rate as to TRICARE MVA beneficiary, request for class certification) Benefis Health System v. Neill, 1/28:1; (denied as to Simonton’s summary judgment that quiet title action not time-barred and any claim to property not foreclosed by bankruptcy plan, question remains as to whether title is “complete” for statute of limitations under doctrine of equitable conversion of contract for deed) Stiles v. Simonton, 1/28:2; (State’s request for supervisory control to reverse Judge Reynolds’s dismissal of assault on an officer due to police mishandling of evidence denied, where other counts remain pending) Reynolds, 3/3:2; (supervisory control of Larson denied as to limitation of Defendant’s time to present vehicle rollover/ejection case at trial to 12 hours) Ford Motor v. Larson,3/10:3; (1st impression issue reviewed, but supervisory control denied) American Zurich Ins. v. Todd, 3/17:1; (denied as to pre-trial rulings by Swandal in railyard pollution suit) BNSF v. Swandal, 4/7:2; (supervisory control of Larson’s summary judgment on liability of blogger who accused lawyer of lying to Court denied) Sayer v. Larson, 4/14:4; (report by outside entity as to ER death and allegedly used by hospital in doctor termination negotiations not “data” under peer review statutes, is an “incident report” created in response to the death, should be disclosed in med-mal case, supervisory control of McKinnon granted) Estate of Wirtz v. McKinnon, 4/21:3; (supervisory control of Phillips denied as to denial of motion to strike affirmative defenses in jail suicide case for inadequate briefing) Estate of Stacy v. Phillips, 8/11:2
Supreme Court website: (briefs are published on Court’s website but appendices are not published, motion to seal unpublished documents denied) Testamentary Trust under the Will of Victor Finco, 1/21:2
*Arbitration
Compel: (motion to compel arbitration of dispute over variable annuities contract granted, sophisticated investor, non-credible witness, Texas law governs, but no different outcome under Montana law because arbitration clause, although contract of adhesion, does not meet Iwen criteria, arbitrability of arbitration clause resolved in favor of arbitration of “insurance” claims as well as of “securities” claims) Bixler v. NEXT Financial Group, 3/24:4; (motion to compel arbitration of annuities dispute against principal granted based on arbitration clause in client agreement with agents, cases consolidated) Bixler v. Jackson National Life Ins.,3/24:6; (arbitration clause contract of adhesion, “I agree” click not waiver of jury, AT&T Mobile/Kortum-Monaghan tension resolved in favor of finding clause unconscionable particularly in light of 780% interest, Defendant’s motion to compel arbitration denied) Kelker v. Geneva Roth Capital, 5/12:2
Home construction: (no recovery on defective construction lien, $256,378.30 damages/$78,176.02 fees/ costs to owners on counterclaim) Beartooth Custom Builders v. Helsper, 1/7:7
*Attorney Fees, Costs
Class settlement: ($1,650,408 fees awarded based on 25% contingency in settlement of wrongful premium retention class action valued at $6,601,633 (constructive common fund) which Plaintiffs contend is minimum payout and Defendant contends is maximum, $300,000 lodestar urged by Defendant rejected as windfall, $54,872.55 costs) Guschausky v. American Family Life Assurance Co. of Columbus, 4/7:7, (reduced from $1,650,408 to $692,881 in light of further analysis of settlement value, not on basis of 60(b)(2) new evidence, but on basis of 60(b)(6) extraordinary circumstances and agreement that fees shall be determined by the Court) 10/20:8
Contingency v. hours: ($98,431 fees based on hours properly awarded Defendants, not $585,966 contingency claim) Shephard v. Widhalm, 12/8:1
Corporate indemnity: (Defendant properly awarded fees/costs under corporate indemnity statute and trust agreement absent objection/argument by Plaintiff)Johnson Farms v. Halland, 10/6:1
Costs: (costs of State survey improperly denied) DNRC v. ABBCO Investments, 9/1:1
Deadlines: (deadlines for motion for fees, bill of costs under FRCivP, LR, EAJA discussed in response to request for clarification, but Court declines to advise which avenue to take) Native Ecosystems Council v. FS, 4/7:7
Ditch easement interference: (properly denied to Plaintiffs who prevailed only on majority but not all claims) Musselshell Ranch v. Seidel-Joukova, 10/13:1
Foy: $25,000 Foy fees/costs properly awarded to neighbors who protested permit, “fees for fees” properly denied) DeVoe v. Missoula, 4/7:1
Prevailing party: (fees properly awarded to neighbors as prevailing party pursuant to boundary agreement, also entitled to appeal fees) Ballard v. Levens, 8/25:3; (Plaintiff not entitled to fees relating to summary judgment motion, both parties entitled to fees for discovery issues they prevailed on) Mears v. Safeco Ins. of Ill.,9/8:5
Private AG/UDJA: ($138,403 fees properly denied prevailing Plaintiffs in challenge of corporate election expenditures ban under both UDJA and private AG)Western Tradition Partnership v. AG, 12/1:1
Waiver: (challenge of $3,135 fees/costs waived by failure to object) Nielsen v. Hornsteiner, 5/26:1
*Attorney Practice
Attorney-client/work product: (employer may not withhold in bad faith action letter from comp insurer’s lawyer written prior to comp mediation, adjuster’s disclosure constitutes waiver of attorney-client privilege, employer as disinterested 3rd-party precluded from participating in adjustment could not support expectation that insurer’s work product would be kept confidential, insurer’s disclosure of letter waives work product, 1st impression issue reviewed, but supervisory control denied because Todd correctly refused to protect letter) American Zurich Ins. v. Todd, 3/17:1
Attorney discipline: (RLDE amendment proposed to provide for trustee to protect clients) Proposed Revision to RLDE 33, 7/14:4
Attorney disqualification: (tax attorney advising Plaintiffs’ counsel in suit against bank failed to withdraw or give notice before moving to bank’s attorney’s firm, clients not “former clients,” prejudice presumed despite claim of minimal involvement, ethical screen, motions to disqualify bank’s firm and for injunction prior to trial improperly denied) Krutzfeldt Ranch v. Pinnacle Bank, 2/4:1; (insurer’s motion to disqualify in bad faith case Plaintiffs’ attorney who was also attorney in MVA liability case granted: she is disqualified from conducting depositions, opening & closing arguments, examining witnesses at trial) Nelson v. Hartford Ins.,3/17:6
Bar admission: (exam/process revised) Petitions to Adopt Uniform Bar Exam and Revise Rules for Admission and Procedure of Committee on Character & Fitness of the Supreme Court, 7/14:4; (50 hours pro bono service before admission proposed) In re Access to Justice Commission, 10/20:1
Legal malpractice: (3-year malpractice statute applies rather than 5-year contract statute despite addition of contract claims grounded in malpractice)H& Development v. Ramlow, 3/17:2: (causation analysis clarified, attorney’s negligence is cause of injury if chain of events uninterrupted from act to injury, causation satisfied by proof that negligence was cause-in-fact, injury would not have occurred “but for” conduct, only when attorney alleges chain severed by intervening cause should there be consideration of “proximate cause” (whether breach “foreseeably & substantially” caused injury)… no proximate cause issue where attorney admittedly missed MLP deadline resulting in dismissal with prejudice of baby death med-mal case… “suit within suit” improperly relied on to conclude that med-mal would not have succeeded, legal expert cannot opine on med-mal merits, sufficient expert testimony to avoid summary judgment in med-mal case, injury is loss of opportunity to present claim capable of surviving summary judgment and thus possibly capable of favorable outcome by settlement or trial… attorney was cause-in-fact of injury… Plaintiffs not required to prove at summary judgment that they would have been successful in med-mal… at trial must establish more probable than not they would have recovered settlement or judgment against doctor and value of claim that was lost) Labair v. Carey, 12/29:1
Mistaken client: ($11,500 sanctions, reference to ODC of attorney who obtained Defendants’ file and discussed case with Defendants’ counsel in mistaken belief that he was retained by insurer to represent Defendants rather than Plaintiff/Counterclaim Defendant, eventually returned file to Court rather than Defendants’ attorneys, then assured at hearing that he had not retained copy of file when in-camera inspection of his file disclosed copy of Defendants’ file… Defendants’ motion to dismiss denied as unfair to innocent parties… Plaintiff’s attorney’s request to withdraw granted based on conflict imputed to him even though he had not received confidential information… substitute attorney brought in by sanctioned attorney required to withdraw or not represent Plaintiff on counterclaim) Renner v. Newman Ayers Ranch, 5/5:4
Non-lawyer: (power of attorney does not authorize non-lawyer to represent inmate) Guill v. MWP Mailroom Clerk, 9/8:4
Pro hac vice fee: Petition to Increase the Pro Hac Vice Fee, 3/31:3, 8/11:3
Rules violations: (Lynch’s recommendations of rejection of contract/bad faith claims addressed and adopted on the merits, but granted alternatively because of repeated violations of Local Rules… counsel ordered to show cause why $1,000 fine should not be imposed… practice of latitude to counsel is over, counsel advised to reflect on lack of professionalism, truculent attitude, “positively hit the books”) Peterson v. Time Ins., 5/19:7
*Banking, Commercial Paper
Debt collection: (secured note improperly foreclosed without compliance with “one action rule”… summary judgment foreclosure of unsecured note failed to state exact amount) Mountain West Bank v. Helena Christian School, 9/8:1; (summary judgment properly granted for credit card company… law clerk’s signature on amended scheduling order on behalf of credit card company’s counsel who appeared telephonically not improper agency) Discover Bank v. Lemieux, 9/15:3; (bankruptcy discharge of alleged debt to brother res judicata to District Court claim) Schuster v. Schuster, 9/15:3
Foreclosure: (foreclosure of subdivision loan in amount of $420,599 plus fees & costs and rejection of counterclaims affirmed for failure of pro se Defendants to file trial transcript or exhibits… jury demand properly denied as untimely) Rocky Mountain Bank-Kalispell v. Culbertson, 9/15:1; (summary judgment for mortgagee family trust on claim of priority over bank trust deed precluded by disputes as to whether loan was not arms length and was treated as gift and concealed from bank, laches, equitable estoppel) W.W. Bankerd as Trustee of Dorothy Bankerd Trust v. Hanks, 10/20:2; (MERS properly acted as beneficiary’s agent under deed of trust, is not a “beneficiary” under STFA… plausible negligence claim stated by claim that mortgage lenders/servicers breached duties by foreclosing on properties when they had right to service the loans but no ownership interest, failing to follow statutory procedures for trustee sales, using improperly executed documents to conceal that they had no authority to institute trustee sale… claim that Defendants misrepresented ownership interest in property allowing them to institute trustee’s sale and used “robo-signed” documents to support ownership representations state plausible claim… Ostby’s recommendations for dismissal accepted, rejected) Joseph individually and on behalf of similarly situated Montanans v. Bank of America, 12/15:6
Lending breach: (claims accrued date of signing loan documents, claim that loans were subject to 3-day rescission right not pled but damages element still existed at signing, statutes not tolled by discovery, summary judgment for bank affirmed) Pederson v. Rocky Mountain Bank, 3/10:2; (foreclosure of subdivision loan in amount of $420,599 plus fees & costs and rejection of counterclaims affirmed for failure of pro se Defendants to file trial transcript or exhibits… jury demand properly denied as untimely) Rocky Mountain Bank-Kalispell v. Culbertson, 9/15:1
*Bankruptcy
Automatic stay: (under unambiguous 362(h) all personal property securing a scheduled debt is released from automatic stay if debtor fails to timely file & comply with statement of intention… combined effect of 362(h) and 521(a)(2) is to lift stay and remove personal property from estate when no timely statement of intention filed and trustee fails to timely move to determine value or benefit of property… result may be harsh but is not absurd) Edra Blixseth, 7/28:4
Barton doctrine: (malpractice and other claims against former attorney for sconduct as UCC chair and against co-defendant lawyers subject to Barton, District Court lacks jurisdiction as Plaintiff did not seek leave from Bankruptcy Court, Bankruptcy Court not barred by Stern from proposed findings & conclusions)Blixseth v. Brown, 3/10:6
Certified question: (bankruptcy courts not authorized to accept certified questions) Stiles v. Simonton, 1/28:2
Property interest: (certified question declined by Bankruptcy Court as to whether Ch. 12 plan which does not provide for secured creditor to retain interest in property, and whose claim is valued at 0, has effect of eliminating any claim in the property) Stiles v. Simonton, 1/28:2
Venue: (Spanish Peaks Ch. 7 cases transferred from Delaware to Montana Bankruptcy Court) Spanish Peaks Holdings, 1/14:8
*Bench Judgments
Construction liens: (liens on failed subdivision have priority over mortgages because they attached prior to filing of lender’s mortgage pursuant to §71-3-542(1), even if liens attached after mortgage recorded, they still have priority because mortgage secures advances to pay for the project pursuant to §71-3-542(4), lienholders entitled to $832,402, $33,900, $125,777, $134,688, plus interest/service charges/fees/costs, lender entitled to $1,250,000 plus interest/fees/costs and foreclosure as 2nd lien junior to construction liens) Williams Civil Division (fka Williams Plumbing, Heating & Utilities) v. ANB Venture, 1/14:2
UEF repayment plan: (no “incidental obligation” by employer to provide financial disclosure to UEF, UEF waived right to send indemnity claim to collection based on late payments because it accepted late payments… $198,749 consequential damages properly awarded for business losses stemming from referral to collection… that Plaintiff did not lose dealership as contended at trial does not warrant setting aside judgment… challenge of gross rather than net damages not preserved for appeal, claim of failure to mitigate properly rejected… 10 years of future lost profits properly denied) Elk Mountain Motor Sports v. UEF, 11/24:1
MVA: (claim for $10,000 additional med-pay above $61,291 paid including for 93 chiropractic visits with Plaintiff’s husband rejected, treating physicians’ causation testimony based mostly on Plaintiff’s inaccurate symptom history, missing pre-MVA chiropractic record presumed adverse, MVA not substantial factor in wrist/neck conditions, insurer paid $50,000 on behalf of tortfeasor and $100,000 UIM, because neck injury/surgery did not exceed $150,000, not necessary to resolve dispute as to med-pay, no further amount due under UIM, insurer entitled to $3,200 overpayment) Larson v. State Farm Mutual Auto Ins., 3/3:4
Property: (Quiet title, share in sale of commercial property, note offset, statute of limitations properly resolved in bench trial) Koemans v. Dugerian, 4/28:2
*Civil Procedure
Assumption of risk: (properly applied to excavator operator voluntarily participating in abnormally dangerous activity (working under rock overhang), Matkovicand Restatement of Torts §523 applied rather than Lutz, jury properly instructed per MPI 7.06 modified to condition rather than product, verdict for damaged excavator based on 51% fault by blaster and 49% by operator affirmed) Patterson Enterprises v. Archie Johnson Contracting, 3/10:1
Briefing: (supervisory control of Phillips denied as to denial of motion to strike affirmative defenses in jail suicide case for inadequate briefing) Estate of Stacy v. Phillips, 8/11:2
Class action: (Spaulding’s denial of certification of ag reappraisal dispute reversed in light of DOR’s concession and Diaz, 8/11:2; (“stymied” objectors to auto medical exclusion class action settlement erroneously denied discovery, remanded for discovery and another fairness hearing) Pallister v. BCBSMT, 9/8:1; (certification properly granted as to sick leave buy-back discontinuance where named Plaintiffs are employees of one entity and Defendants are juridically affiliated entities) Chipman v. Northwest Healthcare Corp., 11/3:4
Claim preclusion: (common law bad-faith claim barred by claim preclusion of Federal Court determination that only statutory claim pled under federal pleading rules and thus barred by 1-year statute, failure to amend to assert common law claim (with 3 year statute) defeats arguments under saving statute, equitable tolling, Montana pleading) Brilz v. Metropolitan General Ins., 8/25:1
Consolidation: (cases consolidated) Bixler v. Jackson National Life Ins., 3/24:6
Construction lien: (owner obligated to pay for changes orally ordered during construction, argument that modifications merely executory because owner had not paid for many of them despite contractor’s full performance rejected, $62,650 properly awarded on lien (offset by $10,260 counterclaimed for defects) despite “disheveled” evidence, contractor entitled to fees on lien foreclosure, owner not entitled to contractual fees on counterclaim) Lewistown Miller Const. Co. v. Martin, 1/7:2; (writ of execution against 3rd-party lot purchasers quashed over claim by contractor that developer’s letter of credit was statutorily deficient as a bond and lien was improperly released) JTL Group v. New Outlook, 7/28:3
Contribution/indemnity: (certified question from Utah Federal Judge as to whether airplane insurers who settled Montana crash death claims to which US was not a party have right to contribution against US (traffic controllers) accepted) Metro Aviation v. US, 8/11:1
Damages: (damages for wrecked snowmobile properly awarded pursuant to oral agreement between owner and borrower) Varano v. Hicks, 9/8:2
Default: (properly granted as sanction for Plaintiffs not providing requested discovery to their attorneys for 3 years and multiple hearings and orders. attorney closing practice not blameless but did not totally abandon clients, $74,154 properly awarded in motor coach deal, prejudgment interest should also be awarded)Kraft v. High Country Motors, 4/21:1; (no abuse of discretion in not setting aside entry of default in easement dispute for failure to present meritorious defense)Nielsen v. Hornsteiner, 5/26:1; (dismissal of employment claims granted for discovery abuse) Rapp v. Schlauch Bottcher Const., 5/26:2; (challenge to timeliness of Defendants’ 60(b) motion to set aside waived by failure to raise it below on 3 occasions… prior motions not final judgment on merits, not res judicata, but default judgments should be set aside because person served was not proper person to accept for a corporation, trust or estate) Mountain West Bank v. Glacier Kitchens Inc., 6/30:1; (default judgment on $1,594,282 loans properly not set aside where sophisticated developer who ignored summons claims he “assumed” his attorney was handling the matter) Whitefish Credit Union v. Sherman, 11/24:2
Discovery: (employer may not withhold in bad faith action letter from comp insurer’s lawyer written prior to comp mediation, adjuster’s disclosure constitutes waiver of attorney-client privilege, employer as disinterested 3rd-party precluded from participating in adjustment could not support expectation that insurer’s work product would be kept confidential, insurer’s disclosure of letter waives work product, 1st impression issue reviewed, but supervisory control denied because Todd correctly refused to protect letter) American Zurich Ins. v. Todd, 3/17:1; (fes/expenses to be awarded if parties unable to resolve dispute before hearing… corporate officers ordered to appear at hearing on motion to compel to observe whether motion is reasonable) Hayes v. AMCO Ins., 6/9:7; (fes/expenses to be awarded if parties unable to resolve dispute before hearing… corporate officers ordered to appear at hearing on motion to compel to observe whether motion is reasonable) Gotham Ins. v. Allegiance Benefit Plan Management, 6/9:8; (fes/expenses to be awarded if parties unable to resolve dispute before hearing… Plaintiff and corporate officers ordered to appear at hearing on motion to compel to observe whether motion is reasonable… Plaintiff’s brief not in compliance with font rules Pederson v. ACE American Ins., 6/9:8; (Plaintiff sanctioned for Defendant having to compel discovery over relevance objections)Harris v. Billings Clinic, 7/14:4; (WTP’s challenge of political disclosure/disclaimer statutes/regulations dismissed for dilatory/evasive discovery, fees/costs related to sanctions motion awarded to State) Western Tradition Partnership v. CCP Murry, 12/15:4
Dismissal: (complaint allegations sufficient to survive 12(b)(6) dismissal of adjuster in bad faith case, request to consider new allegations and treat motion as one for summary judgment denied) Nelson v. Hartford Ins., 3/24:6; (confusing pro se complaint against homeowner association improperly dismissed for failure to state claim, alternative motion for more definite statement should have been granted) O’Connell v. Bolen, 11/24:4
Execution: (untimely sale due to Sheriff being unable to conduct it earlier, Defendant not prejudiced, enlargement of time to conduct sale properly granted)Marriage of Cini, 11/24:5
Foreign judgments: (husband precluded by res judicata, full faith & credit doctrine, from repeating challenges to NJ default judgment in Montana courts) Jonas,8/18:4
Forms: (revised to conform with new rules) Matter of MRCivP, 2/11:6
Independent psychological exam: (erroneously ordered for Plaintiff asserting only general claim for “emotional pain, suffering and anxiety” associated with physical injuries in auto/pedestrian accident… supervisory control of Macek granted) Lewis v. Macek, 9/15:1
Interest: (prejudgment interest should be awarded) Kraft v. High Country Motors, 4/21:1
Interpleader: (frivolous claims by one-time attorney/girlfriend to all proceeds of decedent’s investment account over 4 others named in TOD rejected, assessed fees/costs against her share of $2,808,425 funds) Scottrade v. Davenport, 6/16:5, ($349,024 awarded out of ex-girlfriend’s 16% share of $2,808,425 investment account to 4 other beneficiaries, following ruling in interpleader that claims to entire account were frivolous) 8/4:6
Levying sale: (of pending PI cause not allowed under Montana law) Blackmore v. Dunster, 4/7:1
Order of protection: (properly continued against allegedly abusive neighbor) Kendall v. Stambaugh, 5/26:2
Pleading: (insurer’s arguments based on bank’s original answer admitting late notice will not be considered because amended answer is operative pleading, although bank’s lawyer’s belief that notice not given until certain date may be considered despite questionable relevancy as sufficiency of notice is objective determination analyzed under law and policy) BancInsure v. FIB, 5/5:5: (police officer’s litany of complaints of mistreatment and retaliation by Chief for “proactive enforcement style” fails to provide sufficient nexus to any cause recognized in Montana or sufficient information to permit defense) Reddick v. Miles City, 6/23:3
Qualified immunity: (complaint as to FBI agent’s allegedly discriminatory (inadequate) investigation of one Indian homicide victim sufficient to defeat immunity inBivens action, complaint insufficient as to other Indian death, but leave to amend allowed) Cole (PR of Bearcrane) v. Oravec, 1/28:6
Relation-back: (whether corporation (or LLC, etc) should be allowed to relate back an amended complaint signed by a lawyer to its original pro se complaint to be determined case-by-case so complaint will not be declared void for technical reasons and corporations will not take advantage of relation-back, dismissal based on statute of limitations reversed, remanded for relation-back analysis) H&H Development v. Ramlow, 3/17:2
Res judicata: (trial setting or hearing not required before ruling on motion to dismiss based on res judicata or claim preclusion) Forbes v. Great Falls, 1/7:4; (encroachment claims not barred by res judicata of 1st case, equitable estoppel, waiver) Olsen v. Milner, 4/28:1
Sanctions: (assessed against Plaintiffs’ attorney (not against Plaintiffs) under old Rule 11 for unsupported filings in insurance contract/bad faith case, escalating bias, harassment, incivility toward insurer and its attorney, misstatements to Magistrate in related case, reasonable fees in amount to be determined, like amount as fine absent showing of cause for lesser amount, distribution of 111-page findings to all Montana district judges and ODC, retake basic legal research & writing course if feasible, achieve score of 100 on MPRE) West v. State Farm Mutual Auto Ins., 4/21:4, (not feasible for attorney to take Law School research/writing class but feasible to receive instruction from legal writing director… expert provided unilluminating apples-to-oranges analysis as to insurer’s reasonable Rule 11 hours… insurer’s use of 2 attorneys from different firms in underlying litigation and sanctions proceeding reasonable… judicially noticed facts/law in prior Findings reaffirmed… attorney ordered to re-take and pass MPRE with scaled score of 86 (100 previously ordered)… $35,841 fees assessed as Rule 11 sanctions, plus fine equal to insurer’s fees less cost of research/writing training… 111-page Findings not to be distributed to judges as previously proposed, instead these Additional Findings are to be distributed… Findings and Additional Findings to be provided to ODC regardless of whether it is concurrently considering this matter… pertinent equitable factors considered) 7/7:3; ($1,575 fees, $110 mileage to opposing counsel for vacated PPTC for which Plaintiffs’ counsel was unprepared… counsel chose payments over dismissal without prejudice) Nelson v. Hartford Ins. of the Midwest, 5/26:7); (Rule 11 sanctions sought by $1.1 million med-mal settlement Plaintiff against Defendants’ lawyers and insurers rejected on judgment on pleadings as collaterally estopped by J. Brown’s ruling that Defendants had legitimate grounds for unsuccessful attempt to rescind based on alleged fraud… Court shocked by brazen attempt of Plaintiff to supplement ill-gotten gains) Simms v. Crowley Fleck, 7/21:2
Service: (service on Deputy City Attorney insufficient under Rule 4(k), no basis for equitable estoppel, complaint properly dismissed) Cascade Development v. Bozeman, 4/14:1; (default judgments should be set aside because person served was not proper person to accept for a corporation, trust or estate) Mountain West Bank v. Glacier Kitchens Inc., 6/30:1
Settlement agreement: (agreement reached in attorney email exchanges, agreement binding & enforceable, fees for seeking to enforce agreement denied) Williams Civil Division (fka Williams Plumbing, Heating & Utilities) v. ANB Venture, 1/14:5; (parties agreed on amount of thumb injury settlement ($7,500) but not whether release “global” or limited to injury, no mutual consent because no agreement on essential terms, improperly ordered enforced) Murphy v. Home Depot,2/4:3
Statute of limitations: (allegations in unclear/unsupported complaint sound in tort (breach of fiduciary duty or conversion by family farm secretary), not contract, time-barred… statutes not tolled by equitable estoppel or discovery rule as no support for claim of concealment and both parties had same opportunity to determine facts) Johnson Farms v. Halland, 10/6:1; (fact issues as to when guard learned injury likely caused by altercation with trespasser precludes summary judgment for Defendant on statute of limitations) Siebken v. Voderberg, 12/22:2
Trial time limitations: (supervisory control of Larson denied as to limitation of Defendant’s time to present vehicle rollover/ejection case at trial to 12 hours) Ford Motor v. Larson, 3/10:3
*Constitutional Law
Medical marijuana: (MMA does not implicate fundamental right to employment (to sell medical marijuana), right to seek one’s own health, right to privacy (access of medical marijuana), injunction against parts of MMA reversed, remanded for rational basis analysis rather than strict scrutiny) Montana Cannabis Industry Association v. State, 9/15:4
Right to know: (unredacted police reports properly denied) Spreadbury v. Bell, 6/23:1; Albert, 8/4:1; (protective order denied in suit alleging fraudulent double recovery of tank pollution recovery funds) State v. BP, 8/4:6
*Consumer Protection
Attorney fees: ($24,346 fees/costs properly awarded Defendant for claim that lodge was personal residence under CPA) B Bar J Ranch v. Carlisle Wide Plank Floors, 11/3:1
CPA: (following Montana Federal Court and majority of other jurisdictions, privity of contract not required for CPA claim, claim by purchasers of allegedly defective home viable against seller’s engineer) Lechman v. Brien, 3/3:3; (claim by purchasers of allegedly defective home viable against seller’s builder as individual member of contracting LLC under Court’s previous 1st-impression ruling that privity of contract not required for CPA claim against seller’s engineer)Lechman v. Brien, 6/2:6
RCDA: (claim of personal liability by builder viable under RCDA, which does not create new cause, but prescribes pre-litigation dispute resolution procedures (1st impression)) Lechman v. Brien, 6/2:6
*Contracts
3rd-party beneficiaries: (purchasers of property not intended 3rd-party beneficiaries of sellers’ credit line, no standing to enforce release of trust deed after providing payoff funds (bank contends that sellers’ oral request insufficient, seller-wife continued to use credit line after payoff)… buyers failed to establish promissory or equitable estoppel, quitclaim burdened with bank’s recorded security interest) Turner v. Wells Fargo Bank, 9/29:1
Commercial lease: (summary judgment proper to lessor for overdue rent, quiet title to improvements & personal property) BNSF v. Shipley, 7/7:1
Farm lease: (lease to son valid without signature of father’s PR, mother’s half vested immediately upon father’s death including right to continue leasing to son, parents’ PR’s claim of control for administration purposes properly rejected… lessees properly found not to have sublet in violation of lease when they entered seeding arrangement, were entitled to notice of alleged breach, opportunity to cure… $98,431 fees based on hours properly awarded Defendants, not $585,966 contingency claim… damages other than lost crop inputs properly denied following bench trial) Shephart v. Widhalm, 12/8:1
House construction: (owner obligated to pay for changes orally ordered during construction, argument that modifications merely executory because owner had not paid for many of them despite contractor’s full performance rejected, $62,650 properly awarded on lien (offset by $10,260 counterclaimed for defects) despite “disheveled” evidence, contractor entitled to fees on lien foreclosure, owner not entitled to contractual fees on counterclaim) Lewistown Miller Const. Co. v. Martin, 1/7:2
House remodel: (post-appeal amended judgment of $88,320 based on $15,264 verdict affirmed) Loken Builders v. Boyce, 6/2:2
Real estate: (contract enforceable despite changes in construction details, contained clear parameters for determining purchase price, deal fell through because of City resistance to PUD application, developer waived deadline for final agreement on floor plans & specifications and did not terminate for sellers’ failure to satisfy obligations, sellers entitled to retain $250,000 option payment) Hurly v. Lake Cabin Development, 4/14:1; (specific performance of agreement to sell interest in property to sister enforced over claimed oral agreement with brother… rescission rejected, statute of frauds not made inapplicable by letter from brother or payment of earnest money, since no enforceable oral contract with brother, written contract with sister not impossible/impracticable) Olson v. Johnston, 5/19:3
UEF replayment plan: (no “incidental obligation” by employer to provide financial disclosure to UEF, UEF waived right to send indemnity claim to collection based on late payments because it accepted late payments… $198,749 consequential damages properly awarded for business losses stemming from referral to collection… that Plaintiff did not lose dealership as contended at trial does not warrant setting aside judgment… challenge of gross rather than net damages not preserved for appeal, claim of failure to mitigate properly rejected… 10 years of future lost profits properly denied) Elk Mountain Motor Sports v. UEF, 11/24:1
Vehicle sale: (claim of sale of truck by non-owner directed at wrong person) Saxon v. Saxon, 1/21:2
*Corporations
Conflict-of-interest: (Conflict-of-interest bonus that lacks consideration and would be void under Montana common law can be reviewed under 35-1-462(2)(c) safe harbor, business judgment rule does not apply to director’s conflict of interest, Daniels test does not apply to director’s role in conflict of interest transaction (that claim is governed by safe harbor), but does apply to breach of fiduciary duties, certified questions from 10th Circuit involving closely held Montana farm corporation with principal place of business in New Mexico) Warren v. Campbell Farming Corp., 1/7:1
Merger: (RightNow/Oracle merger challenges based on breach of fiduciary duty, inadequate proxy disclosures, unfair price ($43), board conflict/ bad faith rejected under Delaware law, business judgment rule, Certificate of Corporation exculpatory provision… relief for valuation claim more proper through appraisal rights statute… race to courthouse/strike suit/boilerplate allegations rapped) Davie Police Officers Retirement System v. RightNow Technologies, 10/13:5
*Courts
Access to Justice Commission: (established) Access to Justice Commission, 6/2:4
Appellate Pro Bono Program: (established) Appellate Pro Bono Program, 6/2:4
Contempt: ($78,692 fees/costs awarded in Animal Foundation discovery dispute) Overfield v. Great Falls, 4/21:7
Judge disqualification: (denial of city judge disqualification for cause properly dismissed by Tucker as interim order, Tucker’s orders as partial adjudication also not appealable) Dillon v. Warner, 2/11:3; (disqualification of Judge waived after Plaintiff objected to offer to withdraw) Spreadbury v. Bell, 6/23:1
Judge substitution: (30 days for motion began when Defendant appeared in Plaintiff’s action to transfer toxic suit from Tribal Court to District Court, not from new complaint after transfer action was dismissed without prejudice, motion untimely) LaPlante v. Town Pump, 3/17:2; (as in youth court cases, “initial appearance” for substitution time in abuse/neglect proceedings is the hearing at which the parties appear to answer petition allegations, not appearance of counsel) AC v. Phillips, 5/26:3
Judicial immunity: (McNeil immune for alleged acts/omissions in pretrial conference) Hartsoe v. McNeil, 10/20:1
Jurisdiction: (personal jurisdiction exercised over payday loan website entity with specific Montana page, not over separate entity) Kelker v. Geneva Roth Capital, 5/12:2
Jury: (mistrial/new trial granted following class action work comp bad faith defense verdict due to extraneous information during deliberations (employee handbook, information that class member had other comp claims) which prejudiced Plaintiffs) Gonzales v. MPC, 5/26:4; (no misconduct by juror bringing gas station experience as to water contamination into jury room, Plaintiff was on notice of possible relationship with gas station industry despite her not specifically stating on questionnaire) Horn v. Bull River Country Store, 11/3:2
Reasonable control over proceedings: (“asked & answered” basis for overruling objection not abuse of discretion in exercising reasonable control over proceedings) Hardman, 4/14:5
Substitute JP: (regardless of whether JP was “absent” due to conflicting trials, statutory procedures not followed in calling in retired district judge as substitute… supervisory control of Orzech accepted, MIP trial conducted by Harkin void ab initio) Blodgett v. Orzech, 6/30:3
Venue: (improperly changed from Plaintiff’s county to Montana Defendant’s under Nelson and §25-2-122(2) where co-Defendant is out-of-state corporation… Defendant-Appellee’s argument that application of venue statutes infringes equal protection considered despite no AG notice… permitting Plaintiff to file in her county does not deprive Montana Defendant with out-of-state co-Defendant of equal protection) Ward v. Johnson, 5/5:2
Wilton/Billhart: (fFirst-filed insurance declaratory action by insurer dismissed in favor of Plaintiffs’ later State Court action (little significance attached to timing in light of other factors)) Atlantic Casualty Ins. v. Bridger Contracting, 3/24:4
*Crime, Criminal Procedure
Abatement of judgment upon death: (abatement of judgment ab initio upon defendant’s death rejected, an appeal could involve issues which are not mooted by death, but not the conviction and ineffective assistance claims in this case, appeal dismissed as moot) Benn, 2/25:7
Aggravated burglary: (State concedes that revision of aggravated burglary instruction during deliberations from “and” to “or” should be reversed… rape affirmed, aggravated burglary reversed) Longjaw, 11/10:3
Allen instruction: (plain-error review of instruction declined) Edward, 9/1:2
Assault: (evidence that victim was “cutter” properly excluded character evidence, not relevant to justifiable force defense that altercation was caused by Defendant walking in on her cutting herself and she came at him with a knife, Defendant not precluded from justifiable force defense) Hauer, 6/9:1; (45-3-112 does not impose any new/independent duty for law enforcement to investigate cases involving justifiable force) Mitchell, 10/13:4
Assault of federal officer: (challenge of instructions on self-defense properly rejected) Peppers, 10/20:6
Assault on officer: (sufficient evidence that officers had reasonable apprehension of serious injury by use of weapon even though they did not see shotgun Defendant held behind him until he dropped it in a chair, conviction affirmed) Kirn, 4/14:5
Assault with weapon: Clary, 2/18:6; (veteran waived right to appeal exclusion of PTSD diagnosis by failing to reserve it prior to entering guilty plea… 10 years suspended for threatening to shoot engineer if he did not move train legal, supported… challenge of conditions waived by failure to timely object) Carr, 12/22:5
Attempted rape: (alleged sexual conversations, semi-nude phone photos properly excluded on relevancy, hearsay grounds over claim that they should have been admitted under “sexual conduct” exception to rape shield law… conviction affirmed) Bishop, 11/17:4
Attorney conflict: (no active conflict between OPD standby counsel and former client in “tangentially” related case) Longjaw, 11/10:3
Burglary: Clary, 2/18:6
Confrontation: (drug sting officer’s testimony that monitored conversations between Defendant and CI were “consistent with my understanding of a drug deal” not inadmissible hearsay, not violative of Confrontation Clause, under narrow reading of Crawford… broader Roviaro/McCray standard seems inapplicable, but reasonable jurists could disagree, so COA granted) Foston, 7/21:5; (ineffective assistance claims alleging failure to petition for cert as to “forfeiture by wrongdoing” hearsay exception as to note by murder victim properly rejected) Sanchez, 9/8:3
Costs: (of defender, prosecution, jury awarded without proper consideration of ability to pay, rights of indigent to jury trial) Moore, 5/5:3
County attorney disqualification: (CA’s Office disqualified from prosecuting sheriff’s deputy charged with mistreating prisoner because of conflict of interest, appearance of impropriety… dismissed without prejudice to new information by AG) Madsen, 6/16:4
Deliberate homicide: (evidentiary rulings in claimed accidental shooting in struggle over gun affirmed) Hardman, 4/14:5, (rehearing denied, minor changes to opinion) 5/5:3; (statements by panelists, if established as fact, would at most be internal influences, precluded by Rule 606(b)… possible aggressive effects of Paxil in decedent’s blood properly excluded as unscientific… law enforcement not required to conduct independent investigation for justifiable force evidence… Defendant not entitled to new trial because of Prosecutor’s closing comments… conviction affirmed… Spaulding affirmed… Defendant’s wife improvidently allowed to intervene in appeal to raise restitution issues) Cooksey, 10/13:3; (statutory intoxication instruction did not violate due process right to defense… conviction affirmed) Myran, 11/17:3
Dismissal: (State’s request for supervisory control to reverse Judge Reynolds’s dismissal of assault on an officer due to police mishandling of evidence denied, where other counts remain pending) Reynolds, 3/3:2
Double jeopardy: (Sentence illegally imposed on sexual assault charge as to one girl that was dismissed for double jeopardy of federal exploitation prosecution… charge involving other girl not duplicative of federal indictment, properly not dismissed for double jeopardy) Fox, 8/18:4; (does not prevent re-prosecuting after conviction overturned on postconviction relief for prosecutorial misconduct and ineffective assistance, expansion of doctrine declined) Duncan, 11/3:6
Drugs: (convictions reversed, remanded for new trial, on AG’s concession that CI statements wrongly admitted through trial testimony of detectives) Saechang,1/28:4; (possession of 2 or more listed precursors with intent to make meth required to convict of felony possession of precursors, based on plural “precursors” and “combination of”, conviction reversed) Booth, 3/3:1; Anders, 4/7:4; (medical marijuana cardholder may only obtain marijuana from caregiver, Defendant properly convicted of possession of less than ounce not obtained from caregiver) Johnson, 5/19:2; (inquisitive trooper had particularized suspicion of wrongdoing of nervous speeder with conflicting explanation of where he was heading and why, subsequent criminal check which indicated drug dealing, and subsequent speeding stop by deputy who had been alerted by trooper) Burgad, 6/2:5; (mere presence during failed transaction insufficient to prove accountability for later sale… distribution accountability conviction reversed) Davis, 6/23:2; (hashish not “useable marijuana” per MMA… lenity not applied in light of clear statutes… felony possession affirmed) Pirello, 7/28:3; (motions to dismiss federal marijuana prosecution based on MMA denied) Washington, 8/25:7; (initial consensual search of medical marijuana patient’s house proper based on neighbor’s tip, need for probable cause determination for subsequent warrant obviated by consent, warrant validly supported by agent’s initial observation of more plants than patient allowed… suppression/dismissal properly denied) Deshaw, 12/22:5
DUI: (911 report of suspected DUI contained sufficient indicia of reliability to support particularized suspicion as to pickup spotted parked 50 minutes later, sufficiently corroborated by officer, suppression properly denied) Gill, 3/3:2; (trooper properly qualified as HGN expert, trooper’s reference to “felony DUIs” did not warrant mistrial, 5th DUI conviction affirmed) Bollman, 4/7:3; (“existing circumstances” including report of near collision, vehicle and driver matching description, and driver appearing intoxicated outside camper trailer justified warrantless arrest per §46-6-311(1), license reinstatement properly denied) Muller,4/14:6; (probable cause to arrest, license reinstatement properly denied) Schwandt, 5/26:4; (rights to appeal, speedy & public trial, object to illegal evidence referenced in Knox is dicta, prior DUIs not infirm for failure to advise of those rights, properly used to enhance 4th DUI) Otto, 9/29:5; (officer’s testimony that Defendant crossed double yellow centerline sufficient support for particularized suspicion for stop) Yeoman, 10/6:4; (indirect evidence of PBT and HGN test results through video on which Defendant and officer could not be seen but dialogue could be heard improperly admitted, but officers’ testimony of observations and Intoxilyzer test sufficient for felony conviction) Chavez-Villa, 11/10:4; (Idaho’s statute similar enough to Montana’s to allow enhancement of Montana DUI)Young, 11/24:6; (Defendant claiming impairment by “date rape” drug may put on automatism defense if able to make out prima facie case) Paffhausen, 12/1:2
Evidence disposal: (firearm accessories should be released to imprisoned highway shooter’s parents, firearms, weapons, ammunition should be sold by State and proceeds given to Defendant’s father as agent) Fadness, 1/28:3; (caretaker doctrine properly applied to checking on vehicle stopped in driving lane for 4 minutes with engine running and brake lights on) Tracy, 6/9:2; (failure to challenge Crime Lab reports prior to trial does not result in forfeiture of right to do so at trial, Defendant improperly precluded from challenging Intoxilyzer, but trooper’s observations relevant to finding of per se DUI by .081 test result over 5% margin-of-error argument) Gai, 10/27:2
Ineffective assistance: (sparse record not clear that an “initial inquiry” was made into initial ineffectiveness claim, that dismissal was not due to counsel’s failure to notify him, and that counsel was properly relieved of continuing obligation to represent, remanded for inquiry) Redfern, 1/7:5; (insufficient record of lawyer’s trial preparation for review on direct appeal claim that he was ineffective for spending only 30 minutes with Defendant) Clary, 2/18:6; (Defendant being tried for assault on officer not prejudiced by officers’ reference to un-charged DUI, claim of ineffective assistance for not seeking mistrial rejected) Miner, 2/25:6; (opening & closing comments on credibility of accuser and accused, reference to sidestepping on direct, and invocation of God insufficient for plain error review) Lacey,3/31:3; (not established by failure to consult rebuttal expert as to scar on teen’s hymen, anticipate/object to other bad acts, not request Mazurek hearing to introduce prior alleged false allegation of sex abuse…. no prejudice by not appealing refusal to dismiss juror for cause… postconviction petition by incest/ SIWC Defendant properly denied) St. Germain, 4/28:3; (failure to establish that lawyer was ineffective in, inter alia, allegedly intimidating Defendant into guilty plea to sex abuse of children is also failure to present good cause to withdraw plea… postconviction relief properly denied) Burns, 5/12:1; (SD DUI “suspended imposition” followed by vacation of sentence and expungement was not “conviction” or “sentence” for Montana enhancement purposes, felony DUI improperly not dismissed) Cleary, 6/2:4; (claims against trial and appellate counsel by deliberate homicide Defendant properly rejected postconviction) Miller, 6/23:2; (stabbing Defendant not prejudiced by lawyer not seeking to suppress post-Miranda statements) Briscoe, 7/21:1; (counsel adequately resisted testimony of family therapist based on SVA of purported child sexual assault victim with no in-person interview or verbatim transcript of police interview… failure to produce promised medical evidence of no injury did not prejudice outcome… postconviction petition properly denied) Bomar, 8/4:3; (claims by burglary defendant against trial and appellate counsel properly rejected without a hearing) Sartain, 8/4:4; (claims relating to failure to object to psychologist’s alleged bolstering or introduce answering machine tape of girl claiming “boastfully” to have had sex with man not prejudicial to outcome, properly rejected) Ariegwe, 8/18:5; (claims by deliberate homicide Defendant against trial and appellate counsel properly rejected) Rosling, 8/25:5; (claims alleging failure to petition for cert as to “forfeiture by wrongdoing” hearsay exception as to note by murder victim properly rejected) Sanchez, 9/8:3; (claim by uncooperative Defendant sentenced in excess of statutory minimum for incest with stepdaughter rejected) Peart, 12/8:4
Judge substitution: (“initial appearance” of youth for triggering time to file for substitution of district judge is appearance to answer allegations, not department assignment (which is triggering date for State to file for substitution)… no right to substitute district judge in appeal on the record from justice court) DH, 5/19:2
Jury: (Failure of DUI Defendant and lawyer to appear at pretrial conference (miscalendared by lawyer) despite multiple warnings in multiple continuance orders waived right to jury) Trier, 5/12:1; (statements by panelists, if established as fact, would at most be internal influences, precluded by Rule 606(b)) Cooksey,10/13:3
Justifiable force: (victim’s violent/threatening tendencies unknown to Defendant at time of fight properly excluded in justifiable force defense, prior Supreme Court statements that identity of aggressor is essential element of justifiable force overruled) Branham, 1/7:4; (evidence that victim was “cutter” properly excluded character evidence, not relevant to justifiable force defense that altercation was caused by Defendant walking in on her cutting herself and she came at him with a knife, Defendant not precluded from justifiable force defense) Hauer, 6/9:1; (law enforcement not required to conduct independent investigation for justifiable force evidence) Cooksey, 10/13:3, Mitchell, 10/13:4
Medical marijuana: (constitutional challenges of federal prosecutions of Montana growers & distributors rejected) Montana Caregivers Association, 1/28:7; (hashish not “useable marijuana” per MMA… lenity not applied in light of clear statutes… felony possession affirmed) Pirello, 7/28:3; (Defendant required to have card at time of offense, not entitled to dismissal based on card obtained after) Stoner, 8/4:5
Miranda: (Defendant not in custody at time of interaction with officers, Miranda not necessary, statements properly not suppressed) Labbe, 4/14:6
Mitigated deliberate homicide: Branham, 1/7:4
Order of protection violation: (Sufficient evidence to support conviction under State’s mens rea instructions, failure to object or propose alternatives not ineffective assistance… 3rd-offense conviction affirmed) Meyer, 9/29:3
Outrageous government conduct: (agent’s lying to obtain driver’s license, medical marijuana card, using false identity to buy excessive medical marijuana not outrageous under federal standard of malum in se or engineering/direction of enterprise, drug charges improperly dismissed) Firtzpatrick, 12/29:7
PFMA: (old forgery charge against victim properly excluded… 5 years to DOC properly imposed based on PFO and threat to community) Thompson, 9/29:4; (“partners” unconstitutionally defined as including relationships “with a person of the opposite sex” so as to preclude application to homosexual partners, remanded for striking offending phrase and reinstating charge against heterosexual which JP Langston had dismissed on equal protection grounds) Miller, 10/27:5
Plea withdrawal: (withdrawal of 1999 guilty pleas to raping hitchhiker procedurally barred) DeAvila, 4/21:4; (failure to establish that lawyer was ineffective in, inter alia, allegedly intimidating Defendant into guilty plea to sex abuse of children is also failure to present good cause to withdraw plea… postconviction relief properly denied) Burns, 5/12:1; (as to fine properly denied after being raised a year after sentencing hearing when DOC garnished gift to pay part of fine, Defendant voluntarily pled guilty in agreement which was silent as to fine) Burns, 5/12:2; (withdrawal by law office theft defendant properly denied) Wylie, 6/16:3; (claims waived when deliberate homicide defendant entered guilty plea and by direct appeal) Petersen, 7/7:3
PFMA: Ellison, 4/7:3; (Defendant not in custody at time of interaction with officers, Miranda not necessary, statements properly not suppressed, fair trial not violated by likening reasonable doubt to whether jurors would hire Defendant as babysitter, conviction affirmed) Labbe, 4/14:6
Postconviction: (claim time-barred, time not extended by discovery of destruction of OPD file) Plebst, 5/26:4; (relief by felony indecent exposure defendant properly denied) Ommundson, 6/16:4; (Petitioner supplied firearm in return for drugs, “used” it for §924(c) purposes per Smith, not covered by later Watsonreceipt of firearm, not actually innocent… conflict between indictment and plea agreement resolved by Defendant’s colloquy statements… filing properly construed as §2225 motion, COA of postconviction relief denial properly denied below, also denied on appeal) Muth, 6/23:4; (original petition properly dismissed for failure to submit fee or obtain waiver, subsequent filing untimely and lacked verification, proper petition untimely) Anderson, 9/1:4; (petition mailed to State officials but not to Clerk before deadline properly rejected as untimely and also on the merits) Roberts, 10/27:3
Prisoners: (power of attorney does not authorize non-lawyer to represent inmate, but petition addressed anyway… petition seeking to prevent MWP from withholding mail from husband pursuant to “no contact” order dismissed) Guill, 9/8:4
Pro bono: (Defendant properly allowed to proceed pro se without separate hearing into complaints about lawyer) Clary, 2/18:6
Prosecutorial misconduct: (opening & closing comments on credibility of accuser and accused, reference to sidestepping on direct, and invocation of God insufficient for plain error review) Lacey, 3/31:3; (fair trial not violated by likening reasonable doubt to whether jurors would hire Defendant as babysitter, conviction affirmed) xxxxxxx, xxxxxx; (Defendant not entitled to new trial because of Prosecutor’s closing comments) Cooksey, 10/13:3
Rape: (Prosecutor’s opening & closing comments on credibility of accuser and accused, reference to sidestepping on direct, and invocation of God insufficient for plain error review, failure to object not ineffective assistance, “incapable of consent” theories not impermissibly changed from sleep to sleep or intoxication, conviction affirmed) Lacey, 3/31:3; (evidence that stain on girl’s shirt was from a male other than Defendant properly excluded under rape shield… sufficient indirect evidence that offenses were committed in county alleged) Patterson, 12/15:3
Restitution: (amount for assault concededly erroneous, remanded for hearing to determine correct amount) Schnabl, 1/7:6; (restitution for gratuitous $50 reward following arrest of tire slasher improper, rest of after-insurance $547.50 proper) Brown, 1/21:5 Right to be present: (8th Judicial Dist. omnibus hearing not critical stage requiring Defendant’s presence) Clary, 2/18:6; (comparative negligence of officer should be applied in considering restitution for damage to police vehicles in pursuit of suspected mental case charged with eluding) Jentile, 9/1:2; (sufficient evidence that Defendant convicted of failure to remain at scene and report accident was also cause of injury to bicyclist, Defendant waived comparative negligence of bicyclist illegally riding on sidewalk… sufficient evidence for award for lost wages, glasses, accident report, mileage) Edward, 9/1:2; (properly ordered for ring which Defendant did not admit to taking and was not convicted of taking)Corbino, 5
Revocation: (Stiffarm prospective only, authority to revoke where petition filed prior to suspension period, revocation of sexual assault defendant proper over claim that violations not willful, new and reimposed conditions designed to protect children properly imposed, but GPS monitoring impossible in Montana) Cook,2/25:5; (plain error review of claimed procedural defects declined… reliance on PO’s testimony alone may have been sloppy practice, but sufficient evidence for revocation… Defendant entitled to 95 days additional jail credit) Evans, 6/2:5
Search & seizure: (probable cause to seize binder & notebooks based on plain view of contents during 1st authorized search) Covington, 2/25:4; (unconscious woman’s purse properly gone through in search of medical information under community caretaker doctrine, drug residue and paraphernalia not illegally seized)Anders, 4/7:4; (officers legally entered apartment by permission of Defendant’s roommate, but illegally entered sleeping Defendant’s bedroom without consent or exigency, Defendant’s later consent to ATF agent to inspect shotgun seen in room by officers invalid… Defendant who did not ask officers to leave and who voluntarily accompanied them to station was not seized… shotgun and shells officers observed while illegally in bedroom and statements to ATF agent are excluded along with agent’s subsequent search & seizure of sawed-off shotgun… statements to intruding officers and statements while alone in interview room not suppressed) Wohlmaker, 7/28:6; (authorities had reasonable belief that probationer still lived at house that was searched during which contraband was discovered in successor occupant’s room) Romero, 10/6:5; (initial consensual search of medical marijuana patient’s house proper based on neighbor’s tip, need for probable cause determination for subsequent warrant obviated by consent, warrant validly supported by agent’s initial observation of more plants than patient allowed… suppression/dismissal properly denied) Deshaw, 12/22:5
Sentencing: (sufficient reasons for no parole for 40 years for mitigated deliberate homicide) Branham, 1/7:4; (ban on medical marijuana card proper for DUI Defendant who was never “qualifying patient” under MMA) Lease, 1/21:4; (alleged indigence/inability to afford bail not a factor in revocation sentence which imposed time for chemical treatment and pre-release, but sole reason for sentence — that State recommended it — insufficient) Smith, 1/21:4; (burglary/vehicle trespass Defendant who stole women’s undergarments and wore them to school under clothes wrongly required to register as sex offender) TML, 1/21:5; (written judgment properly amended to conform to Judge’s intent in oral pronouncement as to parole eligibility restriction following “confusing” proceedings in which incest Defendant had opportunity to object) Woods, 1/28:4; (jury determination of prior convictions not required for 3-strikes enhancement, homicide/robbery convictions and life without parole affirmed; (limitation on contact with children other than Defendant’s proper for SVORA conviction, based on underlying statutory rape 12 years earlier… restriction on going where children congregate, even with own children, proper) Melton, 4/28:6; (sufficient nexus between alcohol restrictions and non-drinker who assaulted wife in light of history of violence toward women, anger, mental issues) Green, 4/28:7; (4-level enhancement properly applied to wife’s misprision of felony in connection with husband’s use of belt in beating death of child… 2 level enhancement properly applied for use of a minor to commit a crime for knowing that husband would use teenaged son to help conceal the murder by telling him to lie that child fell from tree (1st impression)… 37 months for misprision exceeds 36 months maximum) Goodbear, 5/26:6; (2-level enhancement properly imposed for abusive sexual contact on finding that child was in uncle’s “custody, care, or supervisory control”… 1st impression) Swank, 5/26:7; (claim of failure to consider prison alternatives waived by failure to object, maximum of 10 years at Women’s Prison for tampering by wife who destroyed pornographic materials related to husband’s incest affirmed) Kruse, 6/2:6; (sex treatment/evaluation, HIV testing, employment restrictions lawful conditions of burglary sentence, properly imposed on Defendant charged with rape who plea bargained to burglary with purpose to sexually assault, sex offender designation improper… restrictions on contact with minors, frequenting places where children congregate, TV shows or movies based on sexualization of children, Internet access, and cell phone properly imposed based on nexus to Defendant or burglary offense) Leyva, 6/16:2; (petition for “remission” of fines/surcharges in light of “slave wages” at MSP properly denied) Lufborough, 6/16:3; (offer to undergo castration in exchange for shorter sentence rejected) Richards, 6/16:6; (partial parole restriction imposed by Deschamps affirmed, habeas denied) Fahlgren,7/14:4; (MSP sentence illegally based in part on finding of lack of remorse without reference to supporting evidence) Briscoe, 7/21:1; (parole restriction did not violate plea agreement, which was silent as to parole… Prosecutor did not violate agreement by responding to motion for specific performance… Lenihan not applied to address argument that restriction illegal for failure to state specific reasons, could have been imposed had the findings been made) Lewis, 8/4:2; (no parole for homicide Defendant not illegal or cruel/unusual) Paulsrud, 8/25:4; (Defendant entitled to credit only once for 66 days served prior to sentence in 3 separate cases, received that credit… subsequent Ravalli revocation sentences improperly ordered consecutive to Missoula DUI) Adams, 9/1:3; (claim that DOC commitment based on indigence rejected) Corbino, 9/15:5; (“vulnerable victim” enhancement improperly applied to sentence for coercion/enticement of sexually active 12-year-old… juvenile sex assault adjudication improperly used as basis for repeat/dangerous sex offender enhancement (1st impression)… 480-months vacated, remanded for resentencing) Nielsen, 9/15:5; (adjudication of Indian as juvenile delinquent, 18 months detention plus 12 months supervision, for assisting cousin in aggravated sex abuse affirmed) HB, 9/15:6; (treatment center time should be credited against revoked drug sentence) Gruendemann-Labrie, 10/6:4; (enhancement of revocation sentence for persistent violation of pornography condition affirmed… prohibition against patronizing “any place” where sexually explicit materials are “available” unreasonably overbroad, remanded to permit patronizing grocery stores, convenience stores, gas stations) Little Dog, 10/6:5; (Defendant who attempted sex with 16-year old improperly barred upon supervised release from association with his daughters absent individualized review and explicit findings supported by evidence that conditions necessary for deterrence, protection of public, rehabilitation, minimal liberty deprivation… record contains no evidence supporting such limitations, remanded for resentencing with more narrowly drawn restrictions if such are deemed necessary… assignment to different judge denied) Wolf Child, 12/1:4
SORNA: (registration properly imposed upon revocation of obscenity conviction as result of prior colloquy admission to child pornography) Becker, 7/28:6; (5 years to DOC properly imposed based on PFO and threat to community) Thompson, 9/29:4; (ex post facto, due process challenges properly rejected, failure-to-register conviction affirmed) Elk Shoulder, 10/20:6; (violent offender registration for arsonist not violative of privacy right) Brooks, 12/22:5
Speedy trial: (claim denial supported by implicit findings as stated in Prosecutor’s argument over claim of failure to analyze Ariegwe factors… unlawful restraint conviction affirmed) Sisneros, 12/22:6
Supervised release revocation: (no jurisdiction under 3583(e)(3) to revoke based on newly discovered violations of previously revoked supervised release… 1st impression) Wing, 7/28:6
Youth: (Youth Court jurisdiction properly retained after turning 18) TML, 1/21:5; (probation properly extended to 21 upon revocation even though not in original disposition) SMK-SH, 12/15:3
*Debt Collection
Exemptions: (hearing on request for exemptions properly denied for failure to show applicability of exemption statute… FCRA claims improperly asserted in exemption proceeding) CBM Collections v. McCrea, 8/18:3
*Discrimination
Age: (investigator failed to consider all available information before finding no support for allegations, remanded for hearing) Seefeldt v. Western States Ins.,1/21:8; Albert, 8/4:1
Disability: (obesity not symptom of physiological disorder may be “physical or mental impairment” per MHRA if outside “normal range,” affects body system per EEOC… certified question from Molloy) BNSF v. Feit, 7/14:1; ($176,242, Iraq veteran with PTSD… separate fees/costs settlement) Kreilaus v. Colorado Tubular Aztec Pipe, 7/21:8; Albert, 8/4:1; ($30,000, denial of use of electric wheelchair by Warm Springs patient under HRA & GCFPA) Jaqueth v. WSSH,8/4:7; ($15,000 for emotional distress from refusal to allow seizure alert dog in motel where it had previously been allowed) Hansen v. C’Mon Inn, 12/1:7; (MSC analyzed obesity in terms of actual body weight in determining that it might constitute disability, MHRA analyzed it in terms of BMI, no way to determine whether conductor applicant regarded as having weight “more than 100% over the norm,” remanded to HRA for findings consistent with certified question answer) BNSF v. Feit, 12/8:6; (TRO granted staying MHRB’s proceeding on airline passenger’s complaint pending decision on airline’s motion for preliminary injunction and question of federal preemption) Compass Airlines v. MHRB, 12/22:7
Disability/age: (HO failed to properly recognize nature of direct evidence and apply appropriate analysis to undisputed facts surrounding termination of RR conductor trainee for purported safety reasons, remanded for further analysis of Plaintiff’s direct evidence and RR’s defenses) Reinhardt v. BNSF, 2/11:7
Disability/age/retaliation: (claims rejected on rare summary judgment, hearsay statements allegedly made by supervisor to other employees precluded) Thompson v. Community Medical Center, 1/21:7
Educational Services: (emotional distress inflicted by placing back of developmentally disabled child’s head under running water merits $150,000 emotional distress damages, not $2 million requested, order on remand from HRC following 0 award) Schilling obo GS v. Great Falls Schools Dist., 3/24:8
Hospital rates: (worker with no health insurance allegedly due to poverty allowed to pursue claim that hospital discriminates based on “social condition” per Art. II §4 by charging her more than insured patients… §4 self-executing, authorizes private action not limited by HRA, hospital’s motion to dismiss denied) Gazelka v. St. Peter’s Hospital, 10/20:4
Procedure: (49-2-505(3)(c) is statutory time prescription, “good cause” for excusing requires circumstances beyond reasonable control, misplacement of HO’s order insufficient good cause for missing deadline for judicial review of $368,240 HRC award to obese track laborer applicant) BNSF v. Cringle, 7/14:1
Race/disability: (failure to provide timely medical care for a prisoner is failure to provide “Government Service”… prisoner with DTs which proved fatal was entitled to adequate medical care and was “otherwise qualified”… failure of jailers to return prisoner to hospital after he had become non-responsive was adverse action, but not adverse action taken because of race (Indian) or disability (alcoholism)… complaint dismissed) Stricker (PR of Longsoldier) v. Blaine Co. and Hill Co., 5/12:7, (failure to provide medications to jail inmate who died from DTs violated 49-2-308(1) and 49-3-205(1)… Spear reversed) 9/29:6
Same sex couples: (general challenge of denial of protections/benefits to same-sex couples that are available to different-sex married couples rejected as overly broad, but Plaintiffs allowed to amend to challenge specific statutes) Donaldson v. State, 12/22:4
Sex discrimination in public accommodation: (sexual harassment of prospective art gallery tenant not covered by HRA, 1st impression) Neva v. Bates, 1/28:8
Sexual harassment/retalition: (insufficient evidence that supervisor’s offensive language/conduct was unwelcomed by employee who participated in “casual joking & flirting,” no grounds for harassment complaint, but reasonable cause to believe appraisal/termination were retaliatory) Gorski v. Off the Beaten Path, 12/1:6
*Elections
Campaign finance & election laws: (preliminary injunction granted against enforcement of 13-35-225(3)(a) voter reporting and 13-37-131 political civil libel as unconstitutionally vague, denied as to contribution limits for individuals, political committees, political parties, and as to corporate contribution and independent expenditure provisions) Lair v. CCP Murry, 3/3:7; (Montana limits on contributions that individuals and political committees may make to candidates unconstitutional under 1st Amendment… permanent injunction following bench trial on expedited schedule with complete findings & conclusions to follow) Lair v. CPP Murry, 10/6:6, (Montana limits on contributions by individuals and political committees to candidates unconstitutional under 1st Amendment… permanent injunction following bench trial on expedited schedule and prior summary ruling… stay denied, but temporary stay granted by 9th Circuit) 10/13:8, (stay pending appeal granted as to Lovell’s ruling that contribution limits by individuals and political committees to candidates unconstitutional) 10/20:5
Corporate expenditures: (constitutionality of 1912 initiative prohibiting independent corporate campaign expenditures upheld, Citizens United distinguished)Western Tradition Partnership Inc. v. AG, 1/7:3; (stay of MSC’s ruling upholding 1912 initiative prohibiting independent corporate campaign expenditures pending petition for cert granted) Western Tradition Partnership Inc. v. AG, 2/25:2
Initiative: (challenge to I-166 explanatory statements rejected) Montanans Opposed to I-166 v. AG, 8/11:1
Judicial: (political committee’s challenge of §13-35-231 prohibition against endorsing judicial candidates (so it can transform nonpartisan elections into partisan elections and attack “left-leaning state judges”) unlikely to succeed on merits given present factual record, preliminary injunction denied, trial set… challenge justiciable even though Committee has not adopted by-laws allowing such endorsements) Sanders Co. Republican Central Committee v. Bullock, 6/30:4, (stay pending appeal denied), 7/14:8, (§13-35-231 ban on political party endorsements of judicial candidates unconstitutional under 1st Amendment on its face, State enjoined forthwith from enforcing it or otherwise interfering with a political party’s right to endorse judicial candidates and expend monies to publicize endorsements… Lovell reversed (subsequently ordered the case closed)) 9/22:7, (briefs requested on en banc call of Panel ruling) 10/6:4
Referendum: (Sherlock’s order declaring LR-123 unconstitutional affirmed, analysis & rationale to follow in due course) MEA-MFT v. SOS, 8/18:3, (analysis & rationale following summary decision) 9/29:2
Supreme Court justices: (Reynolds’s order invalidating LR-119 (election of Supreme Court justices by district) affirmed on expedited appeal, opinion to follow)Reichert v. McCulloch, 4/14:2, (LR-119 to provide for election of Supreme Court justices by district properly invalidated… non-retiring Justices not required to recuse… challenge justiciable… 60-page opinion explaining prior decision) 5/26:1
*Employees
Wage claim: (truck driver improperly precluded from additional evidence to support claim that he should have been paid wages rather than “load rate”… transportation of logs did not involve interstate commerce, wages not exempted from overtime) Arlington v. Miller’s Trucking, 5/5:2
Wrongful discharge: (at-will insurance agent properly terminated for violating policy against unapproved advertising materials) Kaszmaul v. Sterling Life Ins.,7/28:2; (MSC would likely find that courts should consider whether employer was at fault for poor performance… disputed fact issues as to whether employer provided sufficient training, tools, resources to satisfactorily perform preclude summary judgment as to good cause for termination… 90-Day Performance Management Plan, although unique to fired employee, could be found by jury to be personnel policy… jury could find that employer’s alleged perversion of 90-Day Plan constituted violation of Employee Handbook) Weber v. Delta Dental Ins., 8/18:6
*Endangered Species Act
Wolfe de-listing: (refusal to enjoin 2011 Appropriations Act rider requiring Interior to de-list certain wolves affirmed) Alliance for the Wild Rockies v. Interior Dept., 3/17:5
*Environment
Bison management: (plan to manage Yellowstone bison as free-ranging while reducing brucellosis risk to cattle properly approved) Western Watersheds Project v. Interior Dept., 9/1:8
Ettien Ridge Fuels Reduction Project: (properly approved) Native Ecosystems Council v. FS, 9/29:6
Rock Creek: (DEQ approval of general permit to allow storm water discharges from mine project roads failed to properly consider bull trout impacts in Rock Creek which is of “unique ecological significance,” properly reversed) Clark Fork Coalition v. DEQ, 11/3:5
SO2 emissions: (challenges to EPA’s Montana SO2 actions rejected) Montana Sulphur & Chemical v. EPA, 1/21:5
*Evidence, Civil
Discovery: (report by outside entity as to ER death and allegedly used by hospital in doctor termination negotiations not “data” under peer review statutes, is an “incident report” created in response to the death, should be disclosed in med-mal case, supervisory control of McKinnon granted) Estate of Wirtz v. McKinnon, 4/21:3
Experts: (treating chiropractor’s causation opinions obtained post-treatment excluded for failure to provide expert disclosure) Mears v. Safeco Ins. of Ill., 9/8:5; (CEO of eye center whose staff treated child following treatment by Defendant excluded as Defendant’s expert based on apparent conflict of interest, unfair prejudice, jury confusion… 1st impression in Montana) Shea v. Noble, 9/22:2; (late disclosure of tax expert properly allowed in support of challenge of CPA personal residence claim after Defendant failed to timely produce records) B Bar J Ranch v. Carlisle Wide Plank Floors, 11/3:1
*Evidence, Criminal
Brady: (Brady claims could have been reviewed in appeal from Justice Court PFMA trial despite lack of objection, but de novo review by Supreme Court finds no Brady violation) Ellison, 4/7:3; (suppression of interviews based on 5-minute discrepancy between unpreserved digital recording metadata and CD copy denied over claim that allegedly missing minutes prevented Defendant from corroborating claim that he had asked for an attorney at start of 2nd interview) Saksa,9/29:4
Cutter: (evidence that victim was “cutter” properly excluded character evidence, not relevant to justifiable force defense that altercation was caused by Defendant walking in on her cutting herself and she came at him with a knife, Defendant not precluded from justifiable force defense) Hauer, 6/9:1
Experts: (possible aggressive effects of Paxil in decedent’s blood properly excluded as unscientific) Cooksey, 10/13:3
Hearsay: (DUI Defendant’s mother should have been allowed to give testimony as to alleged statement against interest by co-Defendant who invoked 5th that Defendant was driver of disabled car) Wing, 8/18:5
*Family Law
Attorney fees: (properly awarded to wife) Caras, 2/18:2; (parties’ resources and husband’s litigation behavior properly considered in awarding fees to wife)Lewton, 6/2:3; (wife properly denied 37-61-421 fees & costs, but husband’s lawyer properly cautioned against further protraction of multi-state litigation without good cause) Jonas, 8/18:4
Custody: (GAL’s parenting report improperly relied on without GAL present to testify) Puccinelli, 4/7:2; (GAL recommendations erroneously adopted without hearing) Wendlandt, 5/5:3; (husband may request final parenting plan which Court failed to enter after DN case resolved) Nordwick, 5/26:3; (change of residential custody to father, failure to enforce GAL order, parenting plan that may cause child to miss school, award of fees to father affirmed) Lloyd, 7/7:2; (parenting plan for child adopted by husband and denial of request to change child’s surname affirmed) King, 7/7:2; (husband failed to prove that children’s best interests would be better served by requiring wife to return to Billings from Utah or by granting primary custody to husband) Hood, 8/4:1; (wife moving to Boston properly awarded primary custody of children) Wheeldon, 9/29:2; (wife properly awarded custody) Stindt, 11/24:5
Economic restraining order: (husband’s attempt to contest findings with which he agreed including Clerk’s failure to enter economic restraining order rejected)Smith v. Barger, 10/27:2
Foreign judgments: (husband precluded by res judicata, full faith & credit doctrine, from repeating challenges to NJ default judgment in Montana courts… wife properly denied 37-61-421 fees & costs, but husband’s lawyer properly cautioned against further protraction of multi-state litigation without good cause) Jonas,8/18:4
Grandparent visitation: (lack of written findings & order precludes review, remanded to Tucker for written findings, conclusions, and order addressing issues raised by grandmother’s petition) MM and Larsen, 1/14:1
Jurisdiction: (no abuse of discretion in declining to exercise jurisdiction in favor of Virginia… order issued without notice was not in nature of summary judgment)Falcone, 5/26:4
Maintenance: (properly denied) Caras, 2/18:2; (properly awarded) Stapleton, 9/29:3; (lifetime properly awarded) Stindt, 11/24:5
Parental interest: (if nonparents can establish child-parent relationship Court will have jurisdiction to hear parenting plan petition even though mother’s rights not terminated) MMG, 10/20:1
Parenting: Tummarello, 2/11:4; (insufficient evidence of changed circumstances to amend long-standing parenting plan to switch child to father at 6th grade, child improperly allowed to determine residence in future) Whyte, 3/17:3
Property: (pre-acquired property clarification, §40-4-202 obligates court to equitably apportion all assets and property of either spouse regardless of by whom and when acquired, notion that non-acquiring spouse entitled only to share of appreciated or preserved value attributable to non-acquiring spouse’s efforts rejected, remanded for further evaluation and for determination of net worth at time of divorce) Funk, 2/11:3; (husband’s pre-acquired houses properly distributed to both parties in light of wife’s contributions to marriage, no maintenance award, and unique facts including adding wife’s name to deed in exchange for foregoing California career) Tummarello, 2/11:4; (properties properly valued despite no final disclosure by husband prior to trial, wife bound by her filings which essentially allocated to husband certain premarital properties, $71,900 difference between husband’s ballpark figure for art and wife’s $28,100 appraised value properly attributed to husband, distribution of husband’s premarital assets not inconsistent with Funk, wife basically received what she asked for (debt-free residence and income property), husband received businesses to continue his career and manage the parties’ substantial debt, errors unlikely to have altered outcome in context of large & complicated estate) Caras, 2/18:2; (husband properly required to sell his premarital house to reduce wife’s debt on her premarital house… husband entitled to credit for principal part of mortgage payments on wife’s house, not to interest part) Alderson, 4/28:3; (property division including inheritance equitably divided despite reliance in part on overturned case law) Loi, 5/5:3; (support, home equity issues between non-practicing physicians properly resolved) Nordwick,5/26:3; (ranch property settlement agreement properly enforced) Kelleher, 5/26:3; (complicated estate of renowned taxidermist/safari videographer with antique auto collection properly distributed despite failure to specifically value some items… greater distribution to wife in lieu of maintenance) Lewton, 6/2:3; (property properly re-distributed based on proceeding in equity to address property not disclosed in settlement years earlier… embryo issue not properly before the courts in this proceeding, order donating them to science reversed, to be addressed in appropriate proceeding) Johnson, 7/7:2; (statutory divorce TRO precludes change of retirement account beneficiary) Briese v. MPERB, 9/8:2; (debt to repair roof of house for sale properly assigned to husband… time rule properly used to divide sheriff’s retirement account where husband not yet retired) Wheeldon, 9/29:2; (distribution of estate affirmed) Kellerman, 11/10:3; (property properly valued at time of separation when wife left home and parties thereafter had separate finances, other findings also affirmed, but remanded for clarification that debt to be divided as of separation) Swartz, 11/24:5; (distribution equitable despite apparent unawareness of Funk) Reum, 12/1:2
Support: ($90,000/yr properly imputed to husband for support purposes over $11,000-$26,000 taxable income) Everett, 1/21:3; Tummarello, 2/11:4; (support, home equity issues between non-practicing physicians properly resolved) Nordwick v. Fernandez, 5/26:3; (back support properly awarded) Lewton, 6/2:3; (support reduction cannot be extended to before husband gave notice of motion to wife… remand required to clarify seemingly conflicting support orders stemming from hopelessly convoluted support arrangement that festered for 20 years and involved sharp increase in payments upon discovery of unique dinosaur on husband’s farm) Wyrick, 11/10:2
Visitation: (no abuse in denying “make up” visitation for days missed by husband while out of town) Everett, 1/21:3
*Guardianship
Grandfather: (grandfather’s guardianship properly terminated based on best interests of child rather than parent-child termination guidelines, due process not violated by exclusion from pre-termination hearings… determination of issues in show-cause hearing may go beyond 20-day limit for “conducting” hearing) DBJ,10/13:2
*Indians
“Indian:” (Defendant is “Indian” despite claim that he does not identify and is not socially recognized as Indian) US v. Juvenile Male, 1/28:6
Juveniles: (SORNA registration properly imposed over FJDA confidentiality and constitutionality challenges) US v. Juvenile Males, 1/28:7
*Insurance
Allstate’s CCPR program: (class action certified as to following remand) Jacobsen v. Allstate Ins., 2/4:5
Bad faith: (complaint allegations sufficient to survive 12(b)(6) dismissal of adjuster) Nelson v. Hartford Ins., 3/24:6; (Lynch’s recommendations of rejection of contract/bad faith claims addressed and adopted on the merits, but granted alternatively because of repeated violations of Local Rules) Peterson v. Time Ins.,5/19:7; (common law bad-faith claim barred by claim preclusion of Federal Court determination that only statutory claim pled under federal pleading rules and thus barred by 1-year statute, failure to amend to assert common law claim (with 3 year statute) defeats arguments under saving statute, equitable tolling, Montana pleading) Brilz v. Metropolitan General Ins., 8/25:1; (UTPA/common law bad-faith claims against auto insurers time-barred) Nelson v. Hartford Ins., 11/24:6
Beneficiary: (certified question accepted from 9th Circuit as to whether §72-2-814 (1993) revokes ex-spouse as beneficiary of life policy where divorce prior to enactment and policyholder died after enactment) Thrivent Financial For Lutherans v. Andronescu, 7/21:1
Claim timeliness: (8-year statute for cancer death claim runs from date insurer received written notice per proof of loss provision, not from date complaint filed)Estate of Gleason v. Central United Life Ins., 10/20:3
Coverage/duty to defend/indemnity: (coverage of injured farm worker who was eligible to receive work comp excluded, comp not encompassed by “Employer’s Liability” coverage which is separate option) Mountain West Farm Bureau Mutual Ins. v. Tutvedt, 2/4:7; (insurers had duty to defend entity purporting to find boarding school placements for troubled teens, coverage not barred by “professional” exclusion in light of non-professional conduct including panicked school employee failing to aid potentially suicidal teen found hanging but still alive, insurers that refused to defend liable for $3 million stipulation to judgment, $1,188,399 fees, $568,767 interest) Newman v. Scottsdale Ins., 3/31:4; (builders’ commercial liability insurer has duty to defend against homeowners’ claims of misrepresentations as to cost and failure to complete job, resulting in “property damage” in form of loss of use of house, factual disputes underlying duty to indemnify to be resolved in State Court) Penn-Star Ins. v. Coyote Ridge Const., 3/31:8; (coverage by MMIA/GEM of $3 million verdict to developer for lost industrial park opportunity due to City’s wrongful takeover of property excluded as “financial gain” to which City not legally entitled) Bozeman v. MMIA, 5/19:5; (Allianz, not MACo/JPIA, was insurer of Port Authority, policy covered burned buildings within 1,000 of listed buildings, reformation not available to drafter of contract of adhesion (1st impression), fire loss $6,060,980 per appraisers & stipulation, $1,474,560 interest, $2,511,847 fees) Lincoln Co. Port Authority v. Allianz, 8/11:3; (murder of employee by husband at work did not “arise out of” employment, no coverage under employer’s liability part of work comp policy, no duty to indemnify) State Fund v. Town Pump, 9/8:4; (no duty to defend claim of anxiety over tax liability) Conley (for Estate of Stolp) v. First National Ins.,9/29:5; (unattended Motor Vehicles statute not applicable to vehicle stolen while warming up in private driveway (1st impression)… declaratory action not appropriate for determining whether coverage under owner’s policy for damages incurred by driver of vehicle rear-ended by stolen vehicle, may be asserted in negligence claim against owner) Lang v. State Farm Mutual Auto Ins., 10/20:3; (driver killed in single-vehicle crash properly excluded under family member exclusion, insurer had no duty to defend estate, not liable for $3 million default judgment against estate… negligence, common law bad faith, fraud, negligent misrepresentation claims time-barred, not tolled until discovery that insurer had paid $50,000 policy limits to deceased passenger’s parents after previous denials of coverage per exclusion (insurer reassessed when it learned of letter from another passenger that driver had been drinking and using prescription drugs and was “pretty certain” parents knew he was driving their car)… 1st-party UTPA claims also time-barred) Schwan v. State Farm Mutual Auto Ins., 10/27:4
Failure to procure: (negligence/fiduciary duty claims alleging failure to procure UIM/med pay in excess of $5,000 in transfer of policy from Oregon rejected on summary judgment) Bailey v. State Farm Mutual Auto Ins., 3/24:2; (insurer has duty under CGL and umbrella policies to defend/indemnify sellers of landslide lots in suit resulting in $2,789,914/$2,883,080 awards including $545,443/$565,707 verdicts trebled under CPA and $384.528/$395,320 interest, plus attorney fees/costs yet to be determined in this declaratory action (in addition to $300,000 stipulated in underlying action)) Cincinnati Ins. v. Spanish Peaks Holdings,9/1:4
Homeowner’s insurance: (Trustee of trust which owned house damaged by fire not liable to gratuitous tenants for failure to insure or expedite repairs) Joseph v. Wilmerding, 7/14:7
Notice: (insurer’s arguments based on bank’s original answer admitting late notice will not be considered because amended answer is operative pleading, although bank’s lawyer’s belief that notice not given until certain date may be considered despite questionable relevancy as sufficiency of notice is objective determination analyzed under law and policy… fact issues preclude summary judgment as to whether litigation update letter attached to renewal application for “claims made” policy was sufficient to satisfy notice of suit that resulted in $2,623,396 verdict against bank, other fact questions include whether pleadings sent “as soon as practicable,” whether pleadings were required for notice, whether email to a director in underwriting instead of claims department was sufficient notice)BancInsure v. FIB, 5/5:5
Reimbursement contract: (supervisory control denied as to Judge Neill’s summary judgment that hospital breached contract when it accepted payment greater than contractual reimbursement rate as to TRICARE MVA beneficiary, request for class certification) Benefis Health System v. Neill, 1/28:1(claim for compensatory damages equal to difference between what 3rd party insurers were charged for medicals and amount they would have paid pursuant to BCBS reimbursement rate rejected as windfall, failure to show detriment) Harris v. Billings Clinic, 7/14:4, (alter/amend judgment rejecting claim for difference between what 3rd-party insurers were charged for medicals and amount they would have paid pursuant to BCBS reimbursement rate denied for failure to allege in complaint compensable injury of being deprived of settlement proceeds, amendment would be futile as clinic had no obligation under PPA to bill insurers at BCBS rate) 9/22:5
Settlement: (summary judgment as to rescission of pedestrian/auto settlement release precluded by possible mutual mistake of fact as to back problems not known at time of release… summary judgment for insurer as to medical intoxication, undue influence, economic duress, leveraging… oral settlement agreement and deposited check with release language not vague or ambiguous) Mears v. Safeco Ins. of Ill., 9/8:5
Title insurance: (examiner not negligent for excepting access in preliminary commitment even if old book in Clerk & Recorder’s vault is “public record” since it has not been maintained since 1916, contains no survey, legal description, or map of road, does not definitively resolve status of road… statement that search revealed that road was not officially dedicated and no recorded easement establishing it not undermined by CA’s opinion based on maps & documents obtained by Plaintiff from outside County… final rulings dismissing claims stemming from lost property sale) Harpole v. Powell Co. Title, 8/25:6; (undisputed facts show Bank failed to provide proper notification of possible litigation over construction liens or provide sworn statement of losses, but declaratory judgment precluded by disputed extent of prejudice to title company) Rocky Mountain Bank v. First American Title Ins., 9/22:4
UM stacking: (precluded by policy, compliance with statute) Parish v. UFC, 6/2:1
*Irrigation
Lateral ditch: (Summary judgment properly granted that ditch company not obligated to maintain private lateral) Rohrer v. Ponder Co. Canal & Reservoir Co.,3/3:1
*LLC
Dissolution: (summary judgment dissolution supported by substantial undisputed facts… tort claims precluded by OA arbitration clause) Gordon v. Kuzara,9/22:1
Valuation: (Estate’s interest properly valued at time of trial rather than member’s death per oral agreement to continue until casino realized a profit, statutory 10% improperly applied to $682,442 judgment, should be IRC rate per Agreement, and only to valuation that is not part of members’ capital accounts, $272,975 fees/$9,481 costs improperly awarded under Agreement’s indemnity provision, fees not otherwise warranted, costs untimely requested) Pastimes LLC v. Clavin,2/25:2, (supervisory control denied), 4/14:4
*Local Government
Billboards: (Board of Adjustment ignored value of signs and cost to repair damaged signs in relation to ordinance requiring removal of signs damaged or destroyed by more than 50% of value, abused discretion in denying permission to rebuild signs) The Lamar Company v. Billings, 6/30:5
Business license: (nandamus properly denied citizens objecting to medical marijuana business license) Matter of Deer Lodge Ordinances 130 & 136, 8/11:3
City negligence: (no duty as to privately owned walking path in subdivision on which skateboarder was killed simply because of proximity to City owned bike path… public duty “detrimental reliance” exception, Recreational Use Statute, negligence per se, nuisance claims fail… “willful and wanton misconduct” wrongful death claim survives because not addressed by summary judgment motion) Kent v. Columbia Falls, 12/1:3; (public duty doctrine not applicable to fall from City park slide, summary judgment for City improperly granted based on PDD… City had duty of reasonable care in maintaining park… recreational use statute applies to park, claim of willful/wanton misconduct by not providing soft fall zone to be decided at trial) Gatlin-Johnson v. Miles City, 12/29:6
City water: (summary judgment improper for City on contract/tort claims arising from loss of service due to frozen main, “illegal object” element improperly applied to implied contract where lot owner’s water derived from tap on subdivider’s service, ordinance’s bar of liability for City shutting off water not applicable where main froze, not necessary to reach constitutionality, act of God defense not reached) Conner v. Dillon, 2/18:1
Library: (disruptive patron’s privileges properly terminated… officer entitled to qualified immunity in investigating criminal trespass on library property… no showing of standard of care or that it was breached by library and officers reacting to banned patron’s aggressive conduct) Spreadbury v. Bitterroot Public Library,6/30:6
Police termination: (Commission affirmance of termination, affirmed on judicial review, precluded WDA trial) Rooney v. Cut Bank, 7/14:3
Septic permit: (County had duty to maintain septic permit records, damages relating to failed sale due to failure to produce permit reserved for trial) Slattery-Lott v. L&C Co., 8/11:4
Subdivision/zoning/PUD: (claims properly resolved in summary judgments) Grant Creek Heights v. Missoula Co., 8/18:1; (summary judgment properly granted upholding denial of subdivision based in part on wildlife, information from prior hearings properly considered by Board, “extraneous evidence” properly denied, no duty to defer to proposed mitigation when application denied outright based on inadequate mitigation… regulatory taking claim properly rejected) Richards v. Missoula Co., 10/27:1
Tax increment financing: (use of TIF funds to discharge stadium debt to effect acquisition by City was proper exercise of urban renewal powers) Dilley v. Missoula, 8/25:3
Zoning: (Board of Adjustment properly revoked Planning Office permit for large building for storing property from rentals, not “accessory” to existing single-family rental, $25,000 Foy fees/costs properly awarded to neighbors who protested permit, “fees for fees” properly denied) DeVoe v. Missoula, 4/7:1; (special district zoning pattern & regulations prohibiting sand & gravel mining properly adopted over claim of citizen petition gerrymandering, reverse spot zoning… no established property right to apply for new permit or amendment to existing permit, but remanded for consideration of takings claim as to claimed diminished value of property) Helena Sand & Gravel v. L&C Co., 12/8:3; (partly built horse barn properly ordered removed based on sales documents, regulations, covenants, no need to apply “negative easement” analysis… modification of CUP properly denied as detrimental to “health, safety, peace, morals, comfort, general welfare”… undeveloped takings claim not addressed) Botz v. Bridger Canyon Planning & Zoning Commission, 12/22:3
*Mental Commitment
Friend: (CA not obligated to provide possible friend under current statute, plain error review declined as to contention that a friend could have advocated for independent evaluation) CR, 11/17:2
Ineffective assistance: (lawyer was vigorous advocate, not ineffective for not obtaining evaluation) CR, 11/17:2
Hearing without presence: (hearing without presence or waiver of presence concededly invalid, remanded for new hearing, detention remains in effect) JJW, 1/7:4
Testimony by respondent: (commitment reversed for failure to allow Respondent to testify) NA, 12/8:4
*Oil/Gas
Gas permits: (MBOGC permits for 23 gas wells in Cedar Creek Anticline affirmed… evidence outside administrative record properly considered, checklist EAs adequate under MEPA in light of previous extensive impact analyses, programmatic EIS not required) Montana Wildlife Federation v. MBOGC, 6/23:1
*Partnerships
Medical partnership: (psychologists engaged in “practice of medicine” under terms of agreement, subject to reduction in interest upon separation and continued practice in county) Krajavich v. Great Falls Clinic, 4/21:2
*Probate
Insurance beneficiary: (certified question accepted from 9th Circuit as to whether §72-2-814 (1993) revokes ex-spouse as beneficiary of life policy where divorce prior to enactment and policyholder died after enactment) Thrivent Financial For Lutherans v. Andronescu, 7/21:1
Jurisdiction: (old glasses and questionable “contracts” insufficient to establish Montana jurisdiction over estate of decedent who was domiciled and died in California… costs but no fees to Appellees) Du Lac, 6/2:3
Nonexoneration: (husband’s estate not required to pay half the outstanding security interest in motor home that became wife’s sole property upon husband’s death under nonexoneration policy… 1st impression) Afrank, 12/22:3
PR removal: (PR properly removed for cause) Hannum, 8/18:1
*Property
Assets division: (unmarried couple) Clark v. Szegedy, 10/6:3
Boundary: (challenge of corrected COS, septic system agreement, order to pay half of surveyor’s fees properly rejected) Boundary Relocation for Amending COS 29807, 8/25:2; (no meritorious defense to order requiring restoration of sloughing open-pit gold mine boundary despite sale of mine, primary issues precluded by law of case from prior appeal, takings argument raised first time on appeal, fees properly awarded to neighbors as prevailing party pursuant to boundary agreement, also entitled to appeal fees) Ballard v. Levens, 8/25:3
Contract for deed: (supervisory control denied as to Simonton’s summary judgment that quiet title action not time-barred and any claim to property not foreclosed by bankruptcy plan, question remains as to whether title is “complete” for statute of limitations under doctrine of equitable conversion of contract for deed) Stiles v. Simonton, 1/28:2; (seller who elected to terminate contract, retain money paid on purchase price, and repossess precluded by election of remedies from suing for unpaid taxes, damage to building, attorney fees, sale expenses, interest) Kaufman Bros. v. Home Value Stores, 6/9:1
Covenants: (fence not in violation of covenants against blocking river view, eaves and deck extension claims barred by laches) Wagner v. Woodward, 2/4:4; (partly built horse barn properly ordered removed based on sales documents, regulations, covenants, no need to apply “negative easement” analysis… modification of CUP properly denied as detrimental to “health, safety, peace, morals, comfort, general welfare”… undeveloped takings claim not addressed) Botz v. Bridger Canyon Planning & Zoning Commission, 12/22:3
Easement: (no abuse of discretion in not setting aside entry of default in easement dispute for failure to present meritorious defense… permanent injunction against interference with easement, harassment of Plaintiffs… challenge of $3,135 fees/costs waived by failure to object) Nielsen v. Hornsteiner, 5/26:1; (subdivider’s Declaration of Easements and COS together reserved access easement over off-survey property… Oregon rule adopted that express easement may be appurtenant to property not adjacent to servient property… Plaintiffs have access rights along road crossing Defendants’ lots, whether they have right to continue across State land to their property remains to be resolved) Davis v. Hall, 6/16:1; (finding that disputed subdivision road was in existence since 1970 and available to all parties, with damages to both sides for interference and remediation, affirmed) Axelson v. Wineteer, 10/6:2; (summary judgment properly granted on easement between ranch properties, included residential and recreational uses secondary to trailing cattle but remanded for limitation to historical uses and for requirement to use best efforts to keep cattle close to road as reasonably possible rather than within 20) Brown & Brown v. Raty, 11/24:3
Inverse condemnation: (use of right-of-way to maneuver vehicles out of driveway did not establish compensable property interest that was taken by highway widening, summary judgment should have been granted to MDT rather than proceeding to trial (which resulted in verdict for MDT)… JML/new trial properly denied) Malpeli v. State, 8/25:1
Real estate sale: (treble damages under CPA to Plaintiffs who recovered purchase price of high-end lots on undisclosed active landslide following verdicts of $545,443 and $565,707… attorney fees awarded under contract and CPA, amount to be determined at hearing… other fees/costs including courtroom electronic presentation awarded pursuant to PSAs including extra-statutory costs… costs under CPA limited by statute… prejudgment interest of $384.528 and $395,320 awarded based on purchase price paid at closing, included in trebling… total damages, $2,789,914 and $2,883,080) Harbaugh v. Spanish Peaks Holdings,6/9:3
Road access: (no damages for blocking access to mining claims) Robertson v. Steele, 6/16:2
*Railroads
FELA: (evidence of termination and PLB report affirming it inadmissible hearsay, irrelevant to whether RR negligently caused conductor’s claimed injuries… defense verdict reversed, remanded for retrial… untimely/ purportedly dishonest injury report relevant to RR’s contention of exaggeration of collision, attempt to recover for preexisting injury) Boude v. UP, 5/5:1
Shortline: (federal case affirming arbitration award against shortline operator res judicata as to State Court case brought by State on behalf of operator, Supreme Court’s interpretation of BN’s obligations following arbitration is law of case, BN’s repudiation of per-car payments in favor of arrangement by which BN and shortline operator separately set their own shipping rates law of case pursuant to arbitration and Supreme Court, summary judgment for BN on all issues on remand from Supreme Court reversal) State v. BNSF, 4/7:5
*Schools
Procedure: (summary judgment by a county superintendent appropriate where there are no disputed material facts) Anaconda School Dist. v. Whealon, 1/28:1
Superintendent benefts: (summary judgment proper that district superintendent not entitled to payment of insurance premiums after retirement) Anaconda School Dist. v. Whealon, 1/28:1
*Securities
Securities: (tenants-in-common investments are securities) Redding v. McCarter, 7/14:2
*Settlements
Contamination: ($36 million including $16 million for remediation trust, Livingston rail yard contamination, mid-trial settlement) Livingston v. BNSF, 5/12:4
Insurance: ($1,650,408 fees awarded based on 25% contingency in settlement of wrongful premium retention class action valued at $6,601,633 (constructive common fund) which Plaintiffs contend is minimum payout and Defendant contends is maximum, $300,000 lodestar urged by Defendant rejected as windfall, $54,872.55 costs) Guschausky v. American Family Life Assurance Co. of Columbus, 4/7:7; ($100,000 UM limits, $5,000 med-pay limits, plus $25,000, disputed “family member” status of minor daughter of divorced father) Hale v. Safeco Ins. of Ill., 6/30:3
Jail death: ($2 million, alleged failure to provide medical care, common law negligence/§1983) Leibrock-Josephs v. Gallatin Co., 3/24:3
Lease termination: ($3 million, State’s termination of leases for office building that was never built, eve of trial) SBC Archway LLC v. State, 4/14:7
Police pursuit: ($400,000, alleged (disputed) police pursuit death) Stahl v. Yellowstone Co., 5/12:4
*Social Security
SSD: (ALJ Hartford improperly ignored or discounted significant evidence supporting panic disorder disability… remanded for reconsideration) Hill, 8/25:7
SSI: (claim based on visual impairments properly denied) Cole, 10/6:5
*State Government
Billboard permit: (entire unzoned 270 acres of gravel/excavation businesses properly found to be used for “commercial or industrial activity” justifying 2 sign permits, applications “substantially complete”, extra-administrative evidence properly considered on judicial review) Hobble Diamond Ranch v. MDOT, 1
Medical marijuana: (2009 MMA does not permit exchange, cultivation, manufacture of marijuana among caregivers… issues justiciable under UDJA, not mooted by 2011 amendments, as Plaintiffs charged or could be charged under 2009 MMA) Medical Marijuana Growers Association v. Corrigan, 7/14:3
Personnel appeals: (personnel Div. and DOC failed to follow policies in redoing rather than approving reclassification… recommended, retroactive implementation of reclassification with retroactive salary) Duncan v. HRD, 11/10:7
PSC: (original complainants lacked standing in seeking to require PSC to require NWE to replace sodium street lights with LEDs, not “directly affected” under §69-3-321(1) by climate “weirding,” payment of taxes, inferior lighting, and protecting others who lack scientific or ratemaking expertise, case-or-controversy, prudential standing requirements not required to litigate before PSC, which is administrative agency with no judicial powers, amendment to add “directly affected” complainants improperly denied following dismissal for lack of standing) Williamson v. PSC, 2/25:3
Quasi-judicial immunity: (immunity for Board of Real Estate Appraisers and member dismissing malicious prosecution and abuse of process claims following improper license suspension) Seipel v. Moore, 1/21:2
Riverbeds: (MSC’s ruling that Montana owns and may charge for use of riverbeds underlying dams is based on infirm legal understanding of USSC’s rules of navigability for title under equal-footing doctrine under which separate segments must be examined for navigability at time of statehood, some clearly not navigable due to portage, Honzel/MSC reversed) PPL Montana v. PPL, 2/25:1
Sheriffs’ Retirement System: (statutory divorce TRO precludes change of retirement account beneficiary… widow’s challenge not mooted or waived by application for and acceptance of benefits for children) Briese v. MPERB, 9/8:2
State lands: (accreted islands in Missouri are school trust lands… State erroneously sua sponte ordered to pay for taxes & improvements under unjust enrichment (Defendants may claim tax refund from County)… costs of State survey improperly denied) DNRC v. ABBCO Investments, 9/1:1; (coal leases EIS properly deferred pending specific proposal) Northern Plains Resource Council v. Land Commissioners, 10/27:2
*Taxes
Agricultural: (Spaulding’s denial of certification of ag reappraisal dispute reversed in light of DOR’s concession and Diaz, 8/11:2
Business travel: (oil worker’s employment “indefinite,” “tax home” in oil field, not Billings residence, business travel properly disallowed) Robison v. DOR, 7/21:1
*Torts
Accountant malpractice: (tax liability claim time-barred) Draggin’ Y Cattle v. Addink, 12/29:8
Autopsy negligence: (medical examiner statutorily immune from reporting that “manner of death” of child was homicide based on babysitter’s later recanted claim that she collapsed while he held her hand crossing the street when later investigation disclosed that she was run over by bus, public duty challenge not addressed)Kichnet v. BSB Co., 3/31:1
Book fraud: (RICO claims that purported nonfiction books (Three Cups of Tea, Stones Into Schools) about humanitarian efforts in Pakistan are actually fiction and part of scheme to defraud purchasers implausible… fraud/ deceit claims implausible for lack of reliance on some particular statement by Defendants outside text of books… contract/implied contract claims fail for lack of privity between purchasers of books and authors/publisher… unjust enrichment, injunction, accounting, publisher liability as principal, punitives claims also dismissed… further amendment would be futile in light of imprecise, flimsy, speculative nature of 5th pleading) Pfau v. Mortenson, 5/5:7
Continuing tort: (contamination that has stabilized as to quantity or concentration but continues to migrate will toll statute until harm no longer reasonably can be abated, certified question from Cebull) Burley v. BNSF, 2/11:1
Defamation: (supervisory control of Larson’s summary judgment on liability of blogger who accused lawyer of lying to Court denied) Sayer v. Larson, 4/14:4
Equine liability: (horse kick claim precluded by equine liability statute, attempt to amend to allege comp liability denied as untimely, in conflict with complaint assertion that Plaintiff was guest) McKiddie v. Loranger, 12/29:8
Excessive force arrest: (although flight justified some force in stopping Plaintiff sitting by sidewalk with pill box with leafy substance (which turned out to be marijuana), jury may determine that government interest in stopping him may not be sufficient to justify tasing under Montana Constitution… all other federal and state claims dismissed on summary judgment… insufficient evidence of severe emotional distress to go to the jury… negligence claim precluded by public duty doctrine as Plaintiff was not in custody at time of tasing… assault/battery claims time-barred… officers in course & scope, immune under MCA 2-9-305) Todd v. Baker, 6/9:4; (eidentiary/testimonial rulings including allowing “shaky” SPECT scans in support of claimed head injury) Todd v. Baker, 6/9:6
False arrest/imprisonment: (for deliberate homicide, precluded by probable cause based on comprehensive affidavit) Kichnet v. BSB Co., 3/31:1; (placement in DOC programs & facilities without specific order not unlawful restraint, within Judge’s discretion to not credit probation time, claim properly rejected on judgment on the pleadings) Sirucek v. State, 9/15:3
Hospital negligence: (OB with hospital privileges not agent for 1-time delivery, no joint venture… only acts or practices in conduct of entrepreneurial, commercial, or business aspects of hospital actionable under CPA (1st impression), negligent credentialing not actionable under CPA, but recognized as a cause in Montana (1st impression)… negligent credentialing requires expert testimony, properly rejected for lack of expert in claim stemming from brain damage related to delivery by OB who had been convicted of sex abuse of minor… Rule 6 excusable neglect and Rule 16 good cause reconciled, extension of discovery properly based on good cause) Brookins v. Mineral Community Hospital, 12/15:1
Medical malpractice: (treating physician as non-retained expert improperly precluded from testimony as to standard of care of infant with low glucose, Defendant cannot claim surprise or prejudice from alleged insufficient notice as to opinions, while Plaintiff was unfairly prejudiced by mid-trial exclusion of testimony after relying on prior judge’s ruling, compounded by instruction to not consider any personal practice as relevant to standard of care and Defendant’s emphasis on instruction, defense verdict reversed, remanded for retrial) Norris v. Fritz, 2/11:1; (emergency physician qualified to opine that internist failed to timely diagnose & treat emergent ischemic bowel in ER, standard not only “substantially similar,” but identical across specialties in this context) Zody v. Fink, 3/10:4; (CEO of eye center whose staff treated child following treatment by Defendant excluded as Defendant’s expert based on apparent conflict of interest, unfair prejudice, jury confusion… 1st impression in Montana) Shea v. Noble, 9/22:2; (non-radiologist infection specialist qualified on whether failure of radiologist to wear mask during myelogram violated infection control standard as to radiologist and hospital, not precluded by §26-2-601 (1st impression), post-myelogram meningitis death claim improperly dismissed) Beehler v. Eastern Radiological Associates, 11/17:1
Negligence: (suit against MDT properly dismissed for lack of expert as to standard of care as to road closure decisions where driver died from tree blown onto car by high wind) Dubiel v. MDT, 2/18:1; (negligent firefighting) Albert, 8/4:1; (no prejudice from Defendant’s reliance on settled-party defense in light of finding of no negligence by Defendant on claim of catastrophic engine damage by alleged water in diesel fuel, no need to address constitutionality of amended statute… acquiescence in ruling that Plaintiff could be questioned as to prior insurance claims resulted in waiver of right to argue that motion in limine precluded past claims… failure to object to Defendant’s alleged attempt to cast complaints as against insurer’s claims handling which resulted in inability to pay for machine repairs waived argument on appeal… no misconduct by juror bringing gas station experience as to water contamination into jury room, Plaintiff was on notice of possible relationship with gas station industry despite her not specifically stating on questionnaire… defense verdict affirmed) Horn v. Bull River Country Store, 11/3:2; (no duty owed by City as to privately owned walking path in subdivision on which skateboarder was killed simply because of proximity to City owned bike path… public duty “detrimental reliance” exception, Recreational Use Statute, negligence per se, nuisance claims fail… “willful and wanton misconduct” wrongful death claim survives because not addressed by summary judgment motion) Kent v. Columbia Falls, 12/1:3; (equal protection challenge to §39-71-413(2) comp exclusivity vicarious liability shield as to corporations and related instructions mooted by defense verdict as to owner/managers in CO poisoning case… evidence of cause of death (CO v. alcohol) properly admitted… defense verdict affirmed) Alexander v. Bozeman Motors, 12/22:1; (fact issues as to when guard learned injury likely caused by altercation with trespasser precludes summary judgment for Defendant on statute of limitations) Siebken v. Voderberg, 12/22:2; (substantial evidence supported jury’s conclusion by $27,000 verdict that Plaintiff not entitled to full amount of alleged MVA-related injures requested as result of admitted liability MVA) Murray v. Whitcraft, 12/29:3
Nuisance/trespass: (naturally growing tree that obstructs view not nuisance under Montana law, but allegation that roots have entered on property states claim for trespass) Martin v. Artis, 11/10:1
Prosecutorial immunity: (shields City from malicious prosecution suit stemming from dismissed charge of endangering welfare of child) Wagner v. State and Kalispell, 10/27:5
Public duty doctrine: (argued but not addressed) Kichnet v. BSB Co., 3/31:1
Recreational Use: (fishing venture not liable for power line injuries sustained by anglers who were allowed to access site at no charge) Lutton v. NWE, 9/22:6
Respondeal superior: (accounting firm employee’s transaction with lender was purely personal, outside scope of employment… use of company email to communicate with lender during business hours for convenience does not render conduct within course & scope) Tvetene v. Anderson ZurMuehlen, 11/17:6
Safe workplace: (project manager responsible for overseeing maintenance of walkways at generating station project, owed duty to employee of other subcontractor who slipped & fell on icy walk) Kirby v. NWE, 2/11:6
Slander: Albert v. Billings, 8/4:1
Suicide liability: (foreseeability evidence improperly limited to what troubled student knew; what operator of tough love boarding school and entity providing program policy knew and whether it was designed to treat suicidal teens also relevant, settlement of school did not settle remaining Defendants’ negligence, remanded for new trial following defense verdict, summary judgment as to joint liability properly precluded by fact issues) Newman v. Lichfield, 3/31:2
Surveyor malpractice: (purchasers of land only incidental beneficiaries of prior surveys, no standing to sue for breach of contract on 3rd-party beneficiary theory, but properly awarded $140,344 for negligent misrepresentation of boundary… principal improperly found personally liable) Kurtzenacker & Kittleson v. Davis Surveying, 5/19:1
Trespass/nuisance: ($10,000 for reckless disregard of property rights by encroaching addition) Olsen v. Milner, 4/28:1
Wrongful discharge: (trooper’s employment ended in 1962 when he failed to report for duty (over claim that he was only placed on leave without pay), 2010 complaint time-barred) Spear v. State, 9/15:4; (termination for medical marijuana use upheld on summary judgment over claim of no good cause, violation of personnel policies) Lake v. Plum Creek Northwest Lumber, 11/3:7
*Trusts
Constructive: (imposed on 200-year-old flag given to Indian “Keeper” and passed down to descendants in “charitable trust” until acquired innocently by estate of last trustee who had not appointed successor, 5 co-trustees appointed… District Court has jurisdiction where tribal member trustee died off Reservation, flag found in safe deposit box off Reservation) Estate of Gopher, 11/10:4
“Lawful blood descendant:” (daughter “lawful blood descendant” of adoptive family under trust, not of natural father, not entitled to distribution) Cecilia Kincaid Gift Trust, 6/2:1
*Unemployment Insurance
Employee/contractor: (County cemetery caretaker may have satisfied AB test, but is not independent contractor for purposes of UI claim as she had no comp on herself or exemption certificate… summary judgment for ICCU) McCone Co. v. ICCU, 6/23:6\
Misconduct: (BLA’s findings that dislike of new boss and sharing misinformation within workplace did not amount to misconduct affirmed, denial of UI by HO properly reversed) Somont Oil v. King, 9/22:1
Voluntary quit: (employee who had concerns about renewing 1-year contract due to health of mother even before new contract was offered voluntarily quit, employer not chargeable for share of UI paid after she was laid off from subsequent job) SC&F v. DLI, 6/30:2
*Verdicts
Auto: (defense, semi-pickup collision, 4 Plaintiffs, rotator cuff, soft-tissue neck/back, mild traumatic brain) Mann v. Redman Van & Storage, 2/4:8; (defense, head-on, death) Howard v. Bradford, 2/25:8; ($71,680 net (36/0/64), MVA, soft-tissue neck, cervical disk bulge, fibromyalgia aggravation) Rogers v. Clise,3/31:6; (new trial based on alleged improper closing argument properly denied, verdict naming driver in insurance interpleader affirmed) Progressive Direct Ins. v. Stuivenga and Evans, 4/14:3; (defense (43.25% Defendant, 56.75% Plaintiff), uncontrolled intersection MVA, DUI Defendant, mid-back) Finley v. Jennison, 7/14:6; (defense (negligence but no causation), motorcycle/truck, pelvis/hip) Jones v. Plute, 10/6:4; (defense, icy “T” MVA, neck/shoulder/ back pain by passenger, admitted liability, disputed causation) Edwards v. Crawford, 12/8:8; (substantial evidence supported jury’s conclusion by $27,000 verdict that Plaintiff not entitled to full amount of alleged MVA-related injures requested as result of admitted liability MVA) Murray v. Whitcraft, 12/29:3
Auto/pedestrian: (defense ($55,000 damages, 90/10 negligence), off-duty hospital employee hit while crossing street to employee parking lot, facial laceration, road rash, broken zygoma, rib fracture, compression fracture, disputed mild traumatic brain… Safety Act claim dismissed on summary judgment) Lee v. Benefis Healthcare System, 5/12:3; (defense, backup MVA, admitted negligence, disputed injury causation, knee) Anderson v. Eller, 9/1:7
Banking: (lumber wholesaler owed nothing to lender for alleged violation of assignments between mill and lender, lender owed nothing to wholesaler under estoppel theory for allegedly inducing wholesaler to continue advancing funds to failing mill) Three Rivers Bank of Montana v. Simpson Lumber, 2/4:7
Bear attack: (defense, negligence by guide service but no causation as to bear attack, massive facial trauma, loss of eye) Massey v. Montana Guide Service,11/17:7
Boat ramp: (defense, alleged misrepresentation as to extent of County boat ramp on developer’s donated land) Carver v. Flathead Co., 7/14:6
Bus routing software: ($28,409,512, software breaches) Education Logistics v. Laidlaw Transit, 11/24:7
\ Catastrophic engine failure from water in diesel: (no prejudice from Defendant’s reliance on settled-party defense in light of finding of no negligence by Defendant on claim of catastrophic engine damage by alleged water in diesel fuel, no need to address constitutionality of amended statute… acquiescence in ruling that Plaintiff could be questioned as to prior insurance claims resulted in waiver of right to argue that motion in limine precluded past claims… failure to object to Defendant’s alleged attempt to cast complaints as against insurer’s claims handling which resulted in inability to pay for machine repairs waived argument on appeal… no misconduct by juror bringing gas station experience as to water contamination into jury room, Plaintiff was on notice of possible relationship with gas station industry despite her not specifically stating on questionnaire… defense verdict affirmed) Horn v. Bull River Country Store, 11/3:2
CO poisoning: (equal protection challenge to §39-71-413(2) comp exclusivity vicarious liability shield as to corporations and related instructions mooted by defense verdict as to owner/managers in CO poisoning case… evidence of cause of death (CO v. alcohol) properly admitted… defense verdict affirmed)Alexander v. Bozeman Motors, 12/22:1
Defective flooring: (late disclosure of tax expert properly allowed in support of challenge of CPA personal residence claim after Defendant failed to timely produce records… $24,346 fees/costs properly awarded Defendant for claim that lodge was personal residence under CPA… defense verdict affirmed) B Bar J Ranch v. Carlisle Wide Plank Floors, 11/3:1
Destroyed excavator: (assumption of risk properly applied to excavator operator voluntarily participating in abnormally dangerous activity (working under rock overhang), Matkovic and Restatement of Torts §523 applied rather than Lutz, jury properly instructed per MPI 7.06 modified to condition rather than product, verdict for damaged excavator based on 51% fault by blaster and 49% by operator affirmed) Patterson Enterprises v. Archie Johnson Contracting, 3/10:1
Donation default: ($2.3 million, failure of upscale housing developer to pay endowment for using Museum of Rockies and dinosaur expert in marketing materials)Museum of the Rockies v. Dokken, 5/19:6
Dog bite: ($94,742.51, nose scarring) Jelich v. Robinson, 2/18:8
Employee termination/failed business sale/purchase: ($648,508 to Defendant employee, employee termination/failed business sale/purchase… finding of punitives against Plaintiff, which Defendant declined to pursue against former good friend) Northwest Fuel Systems v. DeSpain, 7/21:4
FELA: (evidence of termination and PLB report affirming it inadmissible hearsay, irrelevant to whether RR negligently caused conductor’s claimed injuries… defense verdict reversed, remanded for retrial… untimely/ purportedly dishonest injury report relevant to RR’s contention of exaggeration of collision, attempt to recover for preexisting injury) Boude v. UP, 5/5:1
Hail insurance: ($10,000, hail insurance contract/UTPA, $20,298 stipulated fees/costs) Zoanni v. Mountain West Farm Bureau Mutual Ins., 8/18:6
House sale rescission: (rescission of $350,000 home purchase plus $15,000 incurred for repairs or other expenses, undisclosed defects) DeKaye v. Beckberger,1/28:5
Insurance: ($34,250,000 ($32 million punitives), LTC insurance contract/bad faith) Hull v. Ability Ins., 4/14:7; (defense, insurance bad faith, violation of UTPA and common law but reasonable basis for handling whiplash claim and not rescinding settlement) Lucht v. United Financial Casualty, 9/22:6
Jail suicide: ($79,295 net (53/47)) Stacy (by Walter) v. Fergus Co., 11/10:5
Justifiable force in defense of property: (justifiable force assault of Plaintiffs by Defendants in defense of property (shotgun blasts, disputed spring access), $241,000 to Defendants on IIED/interference with business advantage counterclaims, fees) Kaestner v. Masten, 1/28:5
Lending breach: ($4,725,000, subdivision loan breach, $1,890,000 fees based on 40% appeal contingency and successful appeal to disqualify bank’s original counsel, $2,194 costs, $58,278 interest) Krutzfeldt Ranch v. Pinnacle Bank, 12/22:7
Medical malpractice: (treating physician as non-retained expert improperly precluded from testimony as to standard of care of infant with low glucose, Defendant cannot claim surprise or prejudice from alleged insufficient notice as to opinions, while Plaintiff was unfairly prejudiced by mid-trial exclusion of testimony after relying on prior judge’s ruling, compounded by instruction to not consider any personal practice as relevant to standard of care and Defendant’s emphasis on instruction, defense verdict reversed, remanded for retrial) Norris v. Fritz, 2/11:1; (defense, nurse anesthetist malpractice, claimed awareness during surgery, failure of hospital to refer to counseling following surgery, PTSD) Winslow v. Edwards, 4/28:7; (defense, medical malpractice, alleged mammogram misreading leading to double mastectomy) Moody v. Hill, 6/2:7; ($282,000 or $187,500 net against hospital (depending on how 15% loss of chance is applied to non-economic damages cap), defense as to doctor, TTP death) Estate of Schafer v. St. James Healthcare, 8/11:5
Mining subsidence: (defense, claimed apartment house damage by historic underground mining subsidence) Barile (Tripp & Dragstedt Apartments) v. Atlantic Richfield, 12/15:5
Poker chair collapse: (defense, shoulder) Wentz v. BPO Elks Lodge 2/11:394, 2/11:6
Product liability: (hung jury, alleged ATV axle assembly defect resulting in loss of steering control and crash over cliff, cervical fractures/traumatic brain/wrist/ACL)Johnson v. American Honda Motor Co., 12/15:7
Real estate sale: (treble damages under CPA to Plaintiffs who recovered purchase price of high-end lots on undisclosed active landslide following verdicts of $545,443 and $565,707… attorney fees awarded under contract and CPA, amount to be determined at hearing… other fees/costs including courtroom electronic presentation awarded pursuant to PSAs including extra-statutory costs… costs under CPA limited by statute… prejudgment interest of $384.528 and $395,320 awarded based on purchase price paid at closing, included in trebling… total damages, $2,789,914 and $2,883,080) Harbaugh v. Spanish Peaks Holdings,6/9:3
Water tank construction contract: ($89,088.12 to earthwork subcontractor against prime contractor, City not liable for unjust enrichment) Sandry Const. v. Kalispell, 12/8:5
Wildfire: ($730,000, ranch burned in Ryan Gulch Fire, claimed backfiring negligence) Weaver v. DNRC, 5/5:5
Work comp bad faith: (defense, interest damages. emotinal distress, punitives, class action) Gonzales v. MPC, 3/10:6, (mistrial/new trial granted following class action work comp bad faith defense verdict due to extraneous information during deliberations (employee handbook, information that class member had other comp claims) which prejudiced Plaintiffs) 5/26:4
Wrongful discharge: ($160,279, Board of Nursing Executive Director) Swehla v. DLI, 3/10:5; (defense, lead assistant store manager, sexual affair) Cartwright v. Sheels All Sports, 4/28:8; (defense, MSP case manager) Hust v. DOC/MSP, 5/19:7; ($532,000, wages/constructive discharge, farm cooperative education director) Harrell v. The Farmers Educational & Cooperative Union of America, Montana Division, 10/13:6
*Water
Appropriation: (while purpose at time of diversion was erosion control, application evinces intent to appropriate water channeled through Defendants’ property for beneficial uses (stock watering, fish/wildlife, recreation), pond evaporation loss also an appropriation, Defendants had no rights permitting impoundment, violated WUA (1st impression), seller of property under contract settled for $32,000 penalties, buyer required to remove dams, pay penalty) DNRC v. Bouma, 3/10:4
Diversion: (certification to Water Court, injunctive relief, in challenge to Commissioner’s diversion of Teton River improperly denied) Giese v. Water Commissioner for Perry Decree, 8/18:2
Hydrological connectivity: (declaratory ruling on hydrological connectivity between river and creek charged by seepage improperly denied) Fellows v. PerryWater Commissioner, 8/18:2
Municipal: (DNRC entitled to pre-73 “historic information” in Town’s application for changed uses, but no more than necessary for statutory requirements… incomplete application not ripe for review) Manhattan v. DNRC, 4/28:2
*Workers’ Compensation
“Accident:” (Petitioner did not prove job “accident” from alleged overhead door falling on shoulder) Peterson v. UEF, 3/17:8
Aggravation: (claim against subsequent insurer of knee/back aggravations not proven, not subsequent insurer’s responsibility to accept liability and then seek indemnity from initial insurer) Erving v. Hartford Accident & Indemnity, 1/21:6; (Petitioner reached OD MMI for previous injury, permanent aggravation with new employer, unable to work, entitled to indemnity… fees/penalty against subsequent insurer for refusal to pay in dispute between insurers as to undisputed work-related condition) Cornelius v. Lumbermen’s Underwriting Alliance, 5/12:5 (new trial/amendment/reconsideration denied) 8/11:7
Attorney fees/costs: (parties may charge 10¢/page plus $25/hr for copying complex documents, UEF bill reduced from $1,012 to $327) Dostal v. UEF, 12/8:6
Causation: (cerebellar hemorrhage causally related to job MVA 2 years earlier, insurer liable but denial not unreasonable) Bjorgum v. MSF, 1/7:6; (original injury and resulting surgeries related to ongoing pain, prior ruling to contrary based on treating physician’s inability to define the relationship not res judicata to present claim) Stewart v. Liberty Northwest Ins., 4/14:8; (work slip & fall after earlier MVA injuries compensable, causation established) Koch v. Employers Ins.,5/12:6; (Petitioner established through formal appointments and informal conversations with doctor and PA-C at her workplace that ongoing back problems are related to the initial job injury aggravated by toenail painting incident) Taylor v. MSF, 5/26:8; (correct standard for causal connection between claimed injury and job accident is “more probable than not,” correct result despite use of “reasonable degree of medical certainty”… injury and causation must be established through objective medical findings… treating physicians properly accorded greater weight than other experts, more probable than not that Claimant suffered cervical strain injury and surgery necessary to address preexisting spine condition rather than injury or condition resulting from accident… TTD not supported by preponderance of objective medical findings) Ford v. Sentry Casualty, 7/28:1; (Petitioner failed to prove current condition causally related to job injury) Gary v. MSF, 11/3:8; (Claimant established that herniated disks and current disability are causally related to job accident, entitled to TTD as of 4/11 when doctor reported she could no longer perform duties, not retroactive to when benefits terminated in 12/08) Tuttle v. First Liberty Ins., 11/10:6; (Claimant established that spinal conditions revealed in MRI caused by fall at work 10 months earlier) Hardie v. MSF, 12/1:5
Claim reporting: (Petitioner reported accidents to employer, employer mislaid paperwork for one injury, failed to prepare report for 2nd… employer’s actions imputed to insurer, equitable estoppel applies, Petitioner entitled to additional 24 months to file claim, 2nd accident within additional time, compensable) Morse v. Liberty Northwest Ins., 5/12:6, (new trial/amendment of findings denied) 7/21:7
Course & scope: (employee claiming non-credibly to be “on-call” when injured in camper explosion not in course & scope under Courser or “remote worksite” rule, injury not compensable) McCollom v. MSF, 3/10:8
Disability: (insufficient evidence to support PTD, Petitioner with no interest in voc-rehab not entitled to TTD, indemnity correctly based on part-time hours)Holmes v. Safeway, 3/17:8; (TTD not supported by preponderance of objective medical findings) Ford v. Sentry Casualty, 7/28:1; (Petitioner established entitlement to PTD over treating physician’s contrary conclusion) Drivdahl v. Zurich American Ins., 12/1:5
Disclosure: (MSF disclosed relevant facts of expert testimony, no surprise or unfair advantage, motion to compel disclosure or limit testimony as to MMI denied)Taylor v. MSF, 5/26:8
Discovery: (insurer who claims delay in answering interrogatories due to change of adjusting companies ordered to supplement answers to 4 interrogatories within 10 days… request for information as to complaints in unrelated claims in attempt to build fee/penalty case irrelevant to instant claim, motion to compel denied… fees/costs to Claimant for pursuing motion to compel) Baldwin v. Old Republic Ins., 6/23:5
Employee: (Petitioner who had not satisfied conditions precedent to employment at time he broke leg while moving into ranch house was not “employee,” insurer not liable) Erhard v. Liberty Northwest Ins., 8/11:5
Exclusivity: (no evidence from which a jury could infer that employer intended to cause amputation of employee’s hand in grain auger when he activated switch as the employee was clearing the auger… constitutional challenge rejected) Hartung v. Tutvedt, 7/21:3; (summary judgment precluded by fact issues as to whether employer failed to properly maintain/repair/replace truck brakes with actual knowledge that injury to driver was certain… Plaintiff allowed to assert punitives based on alleged malicious/fraudulent conduct) Glover v. MacKenzie Disposal, 9/22:3; ((equal protection challenge to §39-71-413(2) comp exclusivity vicarious liability shield as to corporations and related instructions mooted by defense verdict as to owner/managers in CO poisoning case) Alexander v. Bozeman Motors,12/22:1
Impairment award: (payment of impairment awards concurrently with TTD permitted under current statute, argument based on prior statutes and case law devoid of merit, UEF’s suspicion 5 years after refusing to pay impairment awards that Claimant may have returned to work unreasonable) Dostal v. UEF, 11/17:7
Injury during treatment: (judgment on pleadings denied as to insurer’s contention tht injury by ASTYM tool during OD treatment precludes liability) Keller v. MUSSFWCP, 8/18:8
Injury notice: (employer had actual notice of back injury from lifting boat motor within 30 days despite no claim filed until after 30 days) Delong v. MSF, 1/21:6
Last injurious exposure: (properly applied to OD from concurrent jobs, no liability by insurer of job which Claimant quit while continuing at other job) Banco v. Liberty Northwest Ins., 1/14:1
Medical benefits not used for 60 months: (seeking authorization for necessary treatment related to an accepted injury within 60 months of the last treatment constitutes “use” under 704(1)(e)… Claimant had legitimate reason for seeking follow-up for neck surgery and DDD, request within 60 months of last treatment satisfied statute of repose… because adjuster believed sole reason for requesting authorization was to extend 60 months, acted reasonably in denying benefits)Dauenhauer v. MSF, 7/7:7
OD: (truck driver’s duties, compared to all other contributing causes, were leading cause of worsening of osteoarthritis leading to inability to drive, OD compensable under 2009 WCA) Grande v. MSF, 3/24:1; (work ranked 4th out of 5 factors does not constitute “leading cause,” Petitioner failed to prove OD while employed by subsequent employer… nurse’s deposition opinion that OD a permanent aggravation excluded as inconsistent with prior deposition opinion)Clapham v. Twin City Fire Ins., 10/27:6; (shoulder/back claim untimely, cervical claim timely… major contributing cause analysis goes to compensability, not statute of limitations… no continuing tort) Romine v. NWE, 10/27:7; (Claimant should have known she had OD when she began using prescription pain medication for “repetitive motion” condition, claim untimely) Dvorak v. MSF, 10/27:8
Penalty/fees: (insurer reasonably disputed further pain medication based on prior ruling, paid under reservation of rights, penalty/fees denied) Stewart v. Liberty Northwest Ins., 4/14:8; (penalty/fees against subsequent insurer for refusal to pay in dispute between insurers as to undisputed work-related condition) Cornelius v. Lumbermen’s Underwriting Alliance, 5/12:5; (no fees or penalty as MSF did not know of undocumented treatment at work) Taylor v. MSF, 5/26:8; (because adjuster believed sole reason for requesting authorization was to extend 60 months, acted reasonably in denying benefits) Dauenhauer v. MSF, 7/7:7l; (Petitioner entitled to fees/penalty against UEF under 1991 WCC) Dostal v. UEF, 11/24:8; (entitled to fees/penalty for unreasonable refusal of referrals, not as to copy charge dispute) Dostal v. UEF, 12/8:6
Petition timeliness: (petition timely within 2 years of claim denial, considering tolling from filing for mediation through 25 days following mediator’s report) Hardie v. MSF, 1/21:5
Privacy: (MSF correctly authorized to disseminate CCJI from surveillance videos of comp claimant) MSF v. Simms, 2/4:2
Procedure: (motion to strike testimony untimely) Bjorgum v. MSF, 1/7:6; (Petitioner provided sufficient information of claims to satisfy notice pleading, additional information requested by insurer best sought through discovery rather than motion for more definite statement, un-served insurer, TPA “Does,” improperly named, additional contentions in response to motion should be stated in amended petition) Cissell v. Employers Compensation Ins., 4/21:8; (joinder/class action certification by Petitioner alleging wrongful denial of PPD while incarcerated denied) Gerber v. MSF, 6/30:8; (leave granted to add MSF as party and add issue of UEF’s claim for reimbursement, over UEF’s objection that amendments time-barred, do not relate back to original pleading, claim not re-mediated each time UEF made decision) Cleek v. UEF, 8/18:8
Penalty: (insurer at time of settlement acted unreasonably in adjusting, but successor MIGA not unreasonable, not “insurer” subject to penalty/fees) Pearson v. MIGA, 1/14:6; (payments unreasonably withheld, oral argument to be heard on fees/penalty) Dostal v. UEF, 2/25:8; ($39.78 penalty on $198.90 late-paid bills)Baker v. Fireman’s Fund, 4/7:7
Procedure: (Claimant was injured while MSF was insurer at risk, but defense cannot be raised in this insurer v. insurer case because Claimant is not a party… Hartford not liable, but did not prove that MSF should be equitably estopped from refusing to indemnify for benefits paid to Claimant in relation to 30-day officer notice defense) Hartford Ins. v. MSF, 8/11:7; (new trial/amendment/reconsideration denied in finding insurer liable for OD/fees/penalty) Cornelius v. Lumbermen’s Underwriting Alliance, 8/11:7
Reservation of rights: (Petitioner not entitled to acceptance of claim for insurer’s failure to obtain consent to make payments for more than 90 days under reservation of rights, but entitled to penalty if claim found compensable… insurer must pay medicals incurred during time it placed claim under 39-71-608)Clapham v. Twin City Fire Ins., 8/11:6
Settlement reopen/rescission: (brain injury Claimant “of unsound mine,” settlement subject to rescission, timely filed to rescind within 5-year extension for mental illness, settlement set aside for lack of competency) Pearson v. MIGA, 1/14:6; (Petitioner able to, and did, return to work following job accident regardless of whether she drew wage or had income, not entitled to reopen settlement despite determination of SSD retroactive to job accident) McGlinchey v. MSF, 1/14:7; (Petitioner delegated unconditional authority to lawyer to settle claim prior to firing lawyer) Baker v. Fireman’s Fund, 4/7:7
Statute of repose: (Petitioner received treatment and made demands for payment within statute) Schellinger v. St. Patrick Hospital, 3/31:8
Subsequent insurer: (not subsequent insurer’s responsibility to accept liability and then seek indemnity from initial insurer) Erving v. Hartford Accident & Indemnity, 1/21:6; (summary judgment as to which insurer is liable precluded by disputed cause of neck complaints) Liberty Ins. v. Travelers Indemnity (in re Kuran), 9/1:8
Tort claims (no jurisdiction to hear tort claims by 3rd-party employer, fraud counterclaim and request for indemnity dismissed… sanctions against employer denied, but counsel for employer and Claimant advised to better familiarize themselves with WCC practices & law) Chippewa v. UEF, 11/10:7
Travel: (ARM time limit for travel claim exceeds scope of statute, travel not unreasonable for authorized treatment, denial of travel reimbursement unreasonable)Dostal v. UEF, 11/17:7
Treatment referral: (Petitioner entitled to referral to orthopedist of choice and to a pain specialist, not for lumbar MRI) Dostal v. UEF, 12/8:6
TTD termination: (Petitioner who received no wages in any form for occasional “favor” labor for ex-husband’s lawn business has not returned to work, insurer not in compliance with Coles notice prior to termination of TTD, obligated for retroactive TTD) Dostal v. UEF, 2/25:8
UEF: (Petitioner entitled to fees/penalty against UEF under 1991 WCC) Dostal v. UEF, 11/24:8
Uninsured employer: (no standing to seek indemnification/contribution from 3rd-party insurer) Jacobsen Ranch v. Dix, 10/20:8
Wages: (Petitioner who received no wages in any form for occasional “favor” labor for ex-husband’s lawn business has not returned to work, insurer not in compliance with Coles notice prior to termination of TTD, obligated for retroactive TTD, payments unreasonably withheld, oral argument to be heard on fees/penalty) Dostal v. UEF, 2/25:8; (wge calculation for seasonal farm worker) Gundermann v. MSF, 6/9:8; (time for calculating average weekly wage of full-time carpenter should not include 4 months of “idleness” while off work due to previous injury in the prior 1-year period, more appropriate to use the previous 9 months and include other periods of idleness) Marjamaa v. Liberty Northwest Ins., 7/7:8
*Youths
Youth in need of care: (children have standing to appeal dismissal of petition, their lawyer acted properly in advocating for adjudication despite their desire to return to mother… sufficient evidence that children not in substantial risk of harm) KH, 8/18:3