Montana Law Week Subject Index- 2018

*Administrative Law

MAPA: (PSC violated NWE’s right to due process by failing to provide reasonable notice that modeling costs would be at issue in the contested case regarding its Electricity Supply Tracker Application… remanded to restore modeling costs… Menahan) NWE v. PSC, 3/24:4

 

*Agency

Non-existent principal: (summary judgment correctly granted that architectural firm was not personally liable to engineering firm pursuant to §28-10-702(1) since — regardless of non-existence of a purported corporation as a separate legal entity — the architectural firm was a disclosed agent for a disclosed principal and did not assent to be personally liable for project work by engineer for benefit of project owner… common law rule that agent who contracts on behalf of non-existent principal is personally liable for the contract not unqualified… Kutzman affirmed) Big Sky Civil & Environmental v. Allen Dunlavy dba Dunlavy Corp., 9/29:1

 

*Appellate Procedure

Contempt: (Pinski’s contempt order which did not alter terms of marital decree or settlement through ancillary order not appealable… appeal fees/costs granted… order) Marriage of Shumaker, 10/13:2

Filing deadlines: (prisoners not treated differently as to filing deadlines, Plaintiff not prejudiced by legal malpractice Defendant’s late filing… order) Belanus v. Hoovestal, 5/19:3; (notice of appeal timely filed within 30 days of denial of motion requesting additional findings regarding the parties’ finances in order to amend the final judgment) Marriage of Rorabaugh, 12/15:5

Justice Court appeal: (by State after oral dismissal of DUI and before written judgment not premature… J. Brown affirmed) State v. Reger, 6/9:8

Mediation: (waived for pro se who cannot afford mediator) Bergstrom v. Marquart, 1/20:2

Municipal court appeal: (properly dismissed for failure to file brief within 15 days despite notice of intent to have transcript of hearing recording prepared… J. Brown affirmed (IOR I-3(c))) Evarts, 4/14:4; (properly dismissed after series of last-minute requests to extend brief deadline… Moses affirmed (IOR I-3(c))) Laedeke, 12/15:8

Overlength brief: (Appellee in house construction/insurance dispute granted overlength brief to 15,000 words… order) Abbey/Land v. Glacier Construction Partners, 7/14:2; (request to file 2 “full length” briefs for Appellee/Cross-Appellant rather than combined limit of 10,000 words denied… order) Community Association for North Shore Conservation v. Flathead Co., 11/24:3

Rule 60(b): (motion not prerequisite to appeal… motion to dismiss quiet title appeal denied (order)) Sheehan v. Frazier, 1/27:1; (motion not prerequisite to appeal… motion to dismiss marital appeal denied (order)) Marriage of Sheehan, 1/27:1

Stay pending appeal: (denied as to Sandler’s ruling that insurer did not have good cause for psychiatric IME in relation to claimed anxiety related to leg injury because it had not first authorized seeing a treating psychologist or psychiatrist… order) Neisinger v. New Hampshire Ins., 10/13:1

Supervisory control: (of Menahan’s denial of corporate emails denied for lack of showing normal appeal inadequate) Madill v. Menahan, 1/13:1; (of Kutzman denied in employment contract case) Warrington v. Kutzman, 1/20:1; (of J. Brown denied as to admission of hospital Medical Executive Committee correspondence vis-à-vis peer review data privilege (order)) Bozeman Deaconess Health Services v. Brown, 3/17:4; (denied as to Cuffe permitting minor to live with grandparents pending adjudication of emancipation petition… order) Sabine v. Cuffe, 5/19:3; (of Hayworth denied as to reopening discovery in slip & fall case on expert disclosure issue) Sisters of Charity of Leavenworth Health System (Holy Rosary Healthcare) v. Hayworth, 7/14:1

 

*Arbitration

Compel: (plaintiffs in housing construction dispute waived right to bifurcate parties and claims it filed in this strategic suit into adjudication by arbitration and jury trial after having seen what evidence Defendant’s discovery will require it to divulge… motion to stay litigation and compel arbitration denied… all parties shall resolve disputes in this judicial forum… Larson) Sage Valley Apartments v. Outback Const., 3/17:6; (investors properly compelled to submit failed investment claims to binding arbitration… Deschamps affirmed) Lenz, Williams, Brady, Hoistad, Vervick, and Horton v. FSC Securities,4/7:1; (“dispute” against tractor manufacturer by ousted dealer principal not incorporated in dealership agreement arbitration clause, motion to compel arbitration properly denied… Deschamps affirmed) Anderson v. Deere & Co., 10/27:1; (arbitration of home construction contract properly compelled… Cuffe affirmed) Peeler v. Rocky Mountain Log Homes, 12/15:1

Dealership: (individual asserting claims for being “pushed out” of implement dealership not bound by arbitration clause between dealership and company as to “disputes” between individual and company as opposed to “Disputes” between dealership and company… motion to compel arbitration denied… Deschamps) Anderson v. Deere & Company, 2/10:4

Maritime policy: (orders finding an arbitration clause in a maritime policy enforceable and compelling arbitration of 2 claims but not 10 others brought against underwriters that denied coverage for a yacht owned by Montanans that ran ashore off Panama affirmed in part and reversed in part… Watters affirmed, reversed) Gallilea LLC v. AGCS Marine Ins., 1/20:6

Vacatur: (of award for bank not warranted by introduction of rebuttal witness as to bank’s statutory duties… Lovell affirmed (unpublished)) Schilling Livestock v. Umpqua Bank (fna Sterling Savings Bank), 1/13:5

 

*Asbestos Claims Court

Additional judges: (6 additional judges appointed… order) Asbestos Litigation, 12/15:4

Cost sharing: (costs of electronic records depository allocated to all parties… Eddy) Asbestos Litigation, 12/8:3

Procedure: (BNSF’s request for leave to take additional depositions denied) Barnes, 11/17:3; (BNSF’s motions for additional time to disclose pathology expert and for expert rebuttal report deadline denied) Barnes, 11/17:4

Quashed subpoena requests: ($57,440.94 fees & costs granted to CARD Clinic & CARD Foundation in relation to Defendants’ quashed subpoena requests… Eddy) Asbestos Litigation, 11/24:4

Settlement conferences: (personal attendance required… Eddy) Asbestos Litigation, 12/8:3

 

*Attorney Fees, Costs

Aborted recall: (fees/costs properly denied town officers in aborted recall action… Bidegaray affirmed) Davis v. Ramey, 3/3:2

Foy: ($20,927.50 fees/costs properly awarded mother’s conservator attorney under Foy for preparing to defend himself for 2 years before being named (never should have been named) and $35,128 for attorneys retained to defend him at trial, also entitled to fees on appeal but not fees-for-fees) Genet McCann v. Sheila McCann et al, 9/1:12

Contract: (“eye-popping” $459,700 attorney fees (less improper fees-for-fees) properly awarded Defendants pursuant to contract including at $600/hr for 2nd-chair out-of-state counsel… costs improperly awarded in excess of §25-10-201 allowables… Cybulski affirmed, reversed) Ferdig Oil v. ROC Gathering, 12/22:1; (awarded fees & costs as prevailing party although losing 4 counterclaims… 2nd-chair Georgia attorney’s rate properly set at $375/hr (reduced from $500 claimed)… J. Brown affirmed) Kenyon Noble v. Dependant Foundations, 12/22:3

 

*Attorney Practice

Attorney discipline: (Robert Myers disbarred for false & reckless statements in part as candidate against Judge Langton) Myers, 1/6:3; (Philip Kleinsmith reciprocally disbarred) Kleinsmith, 1/13:3; (Lucas Foust reinstated with conditions… order) Foust, 2/24:1; (interim suspension of David Bjornson for felony DUI stayed on conditions (order)) Bjornson, 3/3:3; (Brian Kohn suspended for at least 7 months for failure to reimburse fees and his disciplinary history (order)) Kohn, 3/3:3; (Tina Morin to receive public COP admonition for Federal Court filing (order)) Morin, 3/31:3; (Joshua Van de Wetering publicly censured for client funds failings (order)) Van de Wetering, 4/7:4; (Jeffrey Mora to be disciplined in writing for notary violations… COP) Mora,5/5:3; (Ian Christopherson placed on interim suspension upon tax evasion convictions… order) Christopherson, 6/2:4; (Genet McCann, “poster child” of a vexatious lawyer, disbarred based on conduct stemming from representation of her brother which was adverse to representation of her mother in probate of her father’s estate… nunc pro tunc order) McCann, 6/9:6; (Genet McCann suspended concurrent with disbarment for contemptuous actions in COP proceedings… opinion & order) McCann, 6/9:7; (David Bjornson placed on probation for 10 years subject to conditions, publicly censured, following felony DUI… order) Bjornson, 6/16:3; (public censure of Michael Horton in exchange for conditional admission relating to parenting representation… since resigned from bar) Horton, 8/11:3; (retired AUSA James Seykora subjected to public admonition by COP to be delivered in writing for improper handling of Brady and Giglio issues in relation to reduced sentencing of drug defendant in exchange for cooperation against co-defendant) Seykora,9/22:2; (Roberta Cross Guns to receive public admonition before COP for conditional admission for failed appearances that resulted in contempt citations) Cross Guns, 9/29:3; (William Managhan to appear before COP for admonition for failing to withdraw from wrongful discharge case after becoming public defender, resulting in claims now time-barred) Managhan, 9/29:4; ($26,633.75 costs of disbarment of Genet McCann ordered following hearing on objections including $14,038.70 unpaid hearing expenses occasioned by egregious & contentious conduct & statements and over plea of indigency) McCann, 10/6:3; (David Freedman suspended for 7 months for deficient representation… order) Freedman, 11/3:3; (Terry Wallace suspended for 7 months for misconduct in dental collection defamation suit… order) Wallace, 11/3:3

Bar admission: (temporary admission of lawyer with Denver firm pending admission by motion denied… order) Petition for Temporary Admission of Cantrell, 7/14:2

Bar dues: (increased) Dues of the State Bar of Montana, 2/24:2

Disqualification: (supervisory control of Bidegaray to disqualify FELA Plaintiff’s attorneys in bad faith suit following $1.7 million judgment denied (order) Ahern and BNSF v. Bidegaray, 2/24:1

Ethics: (claims against defense attorney in father’s suit alleging that son’s death was by murder rather than suicide properly rejected as time-barred despite “new evidence”… J. Brown affirmed (IOR I-3(c))) Jorgensen v. Stubbs, 10/6:1

Legal malpractice: (gravamen of breach of contract claim against criminal attorney is malpractice, properly found time-barred… Menahan affirmed (IOR I-3(c))) Belanus v. Hoovestal, 7/14:1

Sanctions: ($30,847.68 properly re-imposed against dental suit attorney on remand after excising fees attributed to FDCPA claim… Halligan affirmed (IOR I-3(c))) Serrania v. LPH (Northwest Collectors), 1/13:1

 

*Bench Judgments

Air Force base housing: ($12,543,484.60 against joint venturer in development of former Air Force base housing units… sheriff’s sale of properties ordered… Laird) New St. Marie LLC v. Kelly, 2/10:5

CERCLA: ($28,850,936 plus prejudgment interest and attorney fees as share of East Helena lead smelter Superfund Site response costs on remand from 9th Circuit’s finding of timeliness… Christensen) ASARCO v. Atlantic Richfield Co., 7/7:7

 

*Civil Procedure

Abuse of process: (motion to dismiss attorney’s ski negligence suit as sanction for alleged abuse of process for attempting to coerce ski resort to provide additional benefits to employees denied but future such “troubling and unprofessional conduct” could warrant sanctions… but Plaintiff’s failure to respond to motion to dismiss abuse of process counterclaim constitutes admission to allegations, any recovery on negligence claims must be offset by award from same jury in separate trial on abuse of process counterclaim… separate suit against resort and its attorneys alleging abuse of process for filing abuse of process counterclaim dismissed for failure to assert in original suit… Morris) Meyer v. Big Sky Resort, 12/1:8

Amendment: (to add new misrepresentation against 5th-wheel trailer dealership 2 years after original complaint improperly denied… judgment improperly granted to dealership which never moved for summary judgment… Boucher reversed) Ally Financial v. Stevenson v. Big Sky RV, 11/24:1

Attorney-client privilege: (supervisory control over Moses as to orders involving timing of privilege logs in hip replacement devices case denied… order) Biomet v. Moses, 11/3:2

Class action: (disposition of $227,000 remaining from $5 million consent decree requiring refunds to parties who had paid City “impact fees” properly resolved… Cybulski affirmed) Southwest Montana Building Industry Association v. Bozeman, 3/31:2; (Plaintiff suing background checks firm for “obsolete” information failed to meet 26(b)(3) superiority, certification properly denied… Halligan affirmed) Ascensio and all others similarly situated v. Orion International, 5/19:1

Default: (foreign insurer’s motion to set-aside $5,157,580.10 default judgment improperly deemed-denied in light of doubt as to whether service was properly completed by Commissioner… Manley reversed) Reservations Operations Center (National Parks Reservations) v. Scottsdale Ins., 6/2:2; (“Antonius-Damascus; Raelund” not a party in interest, has no standing to seek to set aside default and default judgment in lease/purchase agreement scam… son or step-son who claimed to have signed the lease only in representative capacity properly denied leave to intervene of right… lease was option to purchase, not contract of sale, subject to LTA remedies including balance of rent due since 8/16, treble damages, attorney fees/costs, interest… Wilson affirmed) Enz v. Raelund, 6/9:3; (default judgment involving property sale for which deed could not be issued upon payoff properly set aside in light of extraordinary circumstances… Parker affirmed (IOR I-3(c))) Brown & Frankos v. Gehring, 6/16:1

Discovery: (pro se rear-end Plaintiffs’ claims properly dismissed for failure to fully answer interrogatories or produce relevant documents… Ortley affirmed) E. Cox and C. Cox v. Majers, 2/17:2; (default on liability & causation granted against RR in bad faith case for discovery abuses, with trial to proceed on damages including punitives… Bidegaray) Dannels v. BNSF

Failure to prosecute: (dismissal of §1983 claims with prejudice too harsh, dismissal without prejudice more appropriate… Haddon reversed (memorandum)) Graves v. Cruzado, 6/23:6; (undisclosed fire damage case properly dismissed without notice despite Plaintiff having received a favorable liability ruling before allowing it to languish in damages stage… Halligan affirmed) ECI Credit v. Diamond S, 7/28:1

IME: (Judge to select physician for psychiatric IME from lists submitted by parties… Deschamps) Rincker v. HW, 6/16:6

Injunction: (permanent injunction in cattle breeding dispute improperly issued before trial… remanded for findings & conclusions on request for preliminary injunction… Larson reversed (IOR I-3(c))) Gould Ranch Cattle Co. v. Irish Black Cattle Association, 5/5:1

Mandamus: (wrongly denied teacher who was non-renewed based on unclaimed notice mailed to old address, did not seek to evade notice to constitute “constructive notice”… teacher who does not receive written notice by 6/1 is “automatically reelected,” District has “clear legal duty” to renew… Langton reversed) Victor Federation of Teachers v. Victor School Dist., 4/7:3; (properly denied to reverse voiding of septic permit… Gilbert affirmed) Boehm v. Park Co., 7/14:1

Order of protection: (supervisory control of Gilbert denied as to interim order limiting contact with HOA Board… order) O’Connell v. Gilbert, 2/24:2; (Justice Court refusal to terminate timely appealed to District Court 2 years after issuance of order (refusal to terminate appealed, not the order itself)… Olson reversed) Marriage of Anderson, 6/30:1; (TOP requested by female Deputy against male Deputy issued in 7/14 terminated, permanent order alleging stalking despite continuation of intimate relations denied… male Deputy previously won wrongful termination claim based on “insubordination” allegation stemming from events in relationship, settled for $400,000… J. Brown) Sprinkle v. Johnston, 8/25:5; (properly granted for 2 years to one cousin against another following disputed who-threatened-whom first altercation… Olson affirmed (IOR I-3(c))) Jerry Boland v. Paul Boland, 12/15:3; (against mother on behalf of father and child properly entered and upheld… Bowen/McElyea affirmed (IOR I-3(c))) Parenting of LGL, 12/29:1

Punitives review: (punitives cap unconstitutional, $749,000 award upheld on review (as opposed to $21,920.31 under 3% cap) in addition to $1,088,000 compensatory damages in house contract suit… Manley) TCH Builders & Remodeling v. Elements of Construction, 3/10:4

 

*Commerce

Auto dealership: (proposed same line-make franchise within mile of existing franchise properly denied for lack of good cause… Orr/Gustafson affirmed) Rimrock Chrysler v. MVD and Lithia Motors, 2/17:2

Fair credit reporting: (Plaintiff alleging identity theft resulting from Park Service printing pass receipt with full debit card expiration date lacks standing to sue NPS because she failed to establish causation… amendment to cure standing defects would be futile because Congress did not waive sovereign immunity (US is not a “person”)… Watters affirmed) Daniel v. NPS, 6/2:6

Mobile home contract: (no private cause of action under RISA… defaulting Plaintiff’s claims dismissed pursuant to Rule 12(b)(6)… Moses) Strauser v. RJC Investment, 4/28:4; (release of defaulting purchaser not violative of UCC… Plaintiff’s claims dismissed on summary judgment… Sousa) Kapor v. RJC Investment, 4/28:5; (defaulting Plaintiff’s claims for accounting from resale of home and to receive any surplus from sale dismissed on summary judgment… Todd) Hulzenbiler v. RJC Investment, 6/30:3

Truck dealership: (good cause properly found for termination… Clerget/Souza affirmed) S&P Brake Supply v. Daimler Trucks NA, 2/17:1

 

*Constitutional Law

Equal protection: (Art. II § 4 general equal protection guarantee requires state action (1st impression), but whether PPAA activity constitutes state action not properly before the Court… uninsured hospital patient failed to properly allege similarly situated classes vis-à-vis patients insured by most favorable PPA insurers, not denied equal protection… insured status not a “social condition” for Art. II §4 analysis… Reynolds affirmed (other grounds)) Gazelka v. St. Peter’s Hospital, 6/23:1

Free speech: (robocall statute not violative of free speech in protecting peace & tranquility of the home, §1983 claim dismissed on summary judgment… robocaller had standing to bring challenge, not barred by door-closing statute… Lovell) Victory Processing v. AG Fox, 2/17:7

Medical Marijuana Act: (provision that employers may ban marijuana not violative of Montana Constitution… Haddon affirmed (memorandum)) Carlson v. Charter Communications, 11/24:6

Open meetings: (school Board wrongly closed hearing part of teacher termination meeting based on unspecified 3rd-party privacy… wrongly excluded teacher and union rep from “executive session” under litigation strategy exception for counsel to explain previously filed discrimination complaint… Cybulski reversed) Raap v. Wolf Point School Dist. Board of Trustees, 3/31:1

Right to know: (blanket challenge to attorney-client and work-product privilege assertions insufficient to compel disclosure of documents related to $1.6 million policeman judgment… Moses affirmed) Nelson v. Billings, 3/3:3

 

*Contracts

Boxing: (dispute over whether boxer who was disqualified after “body slamming” opponent exhibited his skills in “good faith” and therefore entitled to $25,000 purse not amenable for summary knockout by the Judge, but for jury to score the contest following spar in courtroom arena… Newman) Bonsante v. Fischer (Dee Lee Promotions), 2/17:6

Construction supplies: (builders with credit account properly found entitled to presumption that suppliers received letters terminating son’s account authority, suppliers failed to sufficiently rebut with evidence that they did not receive the letters… because suppliers continued to allow son to charge, its attempt to collect $28,798.56 balance from father fails and Defendants properly granted bench judgment on breach of contract counterclaim and awarded fees & costs as prevailing party although losing 4 counterclaims… 2nd-chair Georgia attorney’s rate properly set at $375/hr (reduced from $500 claimed)… J. Brown affirmed) Kenyon Noble v. Dependant Foundations, 12/22:3

Gas line: (Defendants did not breach or repudiate pipeline sharing agreement by declining to reopen interconnection valve pending resolution of safety issues… “eye-popping” $459,700 attorney fees (less improper fees-for-fees) properly awarded Defendants pursuant to contract including at $600/hr for 2nd-chair out-of-state counsel… costs improperly awarded in excess of §25-10-201 allowables… Cybulski affirmed, reversed) Ferdig Oil v. ROC Gathering, 12/22:1

Marketing/sales agreement: (JML improperly granted mid-trial on breach of contract by erroneous interpretation that Agreement lacked minimum purchase term and was modified by performance… spoliation sanctions properly denied… 2nd deposition of a witness properly conditioned on payment of attorney fees… no evidence of judicial bias, but Haddon might consider recusal on remand… Haddon reversed, affirmed (memorandum)) Apex Abrasives v. WGI Heavy Minerals, 6/23:6

Payroll software: (dispute properly resolved on summary judgment in favor of Defendant as to licensing agreement and in favor of Plaintiff on tort and contract counterclaims… Defendant’s 2nd motion to compel discovery properly denied as futile despite Plaintiff’s initial non-descriptive boilerplate and incomplete responses… no abuse of discretion in denying fees to Defendant based on contract or §27-8-313… Gustafson affirmed) Associated Management Services v. Ruff, 7/28:

Ranch sharing agreement: (claims of parties who divided 6,000-acre ranch into parcels designated for hunting, agriculture, and recreation under shared-use agreements properly determined… mutual mistake claims not time-barred, extrinsic evidence properly considered in interpreting and reforming contract… Hayworth affirmed) Platt and Welu v. Held, 2

Release: (of interest in oil/gas entity to attorney/cpa in need of funds for $100,000 in hand as opposed to uncertain $2 million in future not unconscionable… Molloy affirmed (unpublished)) Lence Family Trust v. Christensen, 1/27:3

Rescission: (email exchange properly found to be offer by home builder and acceptance by owners to rescind agreement… $19,977.19 properly awarded to owners after balancing equities… $27,475 attorney fees properly awarded owners as prevailing party despite no finding that builder materially failed to perform… Berger affirmed) Jorgensen v. Trademark Woodworks, 12/8:1

 

*Corporations

Casino lessee eviction: (compensatory (lost profits), punitives, interest awards affirmed, reversed… attorney fees properly awarded under LLA… Seeley affirmed, reversed) DeTienne v. Sandrock, 11/17:1

Corporate oppression: (claims by daughter involving father’s estate’s interests in numerous corporations properly dismissed following bench trial case-in-chief… $20,927.50 fees/costs properly awarded mother’s conservator attorney under Foy for preparing to defend himself for 2 years before being named (never should have been named) and $35,128 for attorneys retained to defend him at trial, also entitled to fees on appeal but not fees-for-fees… Plaintiff not denied a fair trial… disbarred Plaintiff declared vexatious litigant… Fagg affirmed) Genet McCann v. Sheila McCann et al, 9/1:1

LLC: (summary judgment granted and denied as to claims between Class B Members of Yellowstone LLCs relating to distributions of settlement of earlier suit… Berger) Snow v. LeMond, 12/8:5

 

*Courts

Jurisdiction/venue: (Court’s jurisdiction/venue jurisprudence brought into line with overlooked 1967 amendments to 46-3-111(2): defendant waives right to object to county in which a charge is filed if he fails to object before 1st witness is sworn, but prosecution must prove proper jurisdiction at trial… Defendant did not timely object to county in which City filed PFMA charges and therefore waived venue objection… City failed to present any evidence as to where one of 2 PFMAs occurred and thus did not prove jurisdiction… 1 PFMA conviction affirmed, 1 reversed… Menahan affirmed, reversed) Frankforter, 8/11:7; (a foreign corporation does not consent to general personal jurisdiction by registering to do business and conducting activities in Montana… claims against BN by 3 Plaintiffs injured outside Montana properly dismissed for lack of jurisdiction… Fagg and Moses affirmed) DeLeon v. BNSF, 9/15:1; (Ford has requisite “minimal contacts” with Montana for specific personal jurisdiction over tire “detreading” suit stemming from Ford Explorer crash death even though car was initially sold to Washington dealer… Cascade (where PR resides) is a proper venue over Defendants’ advocacy of Missoula (Ford’s registered place of business), Mineral (where the wreck occurred), or Sanders (where many of the witnesses live)… Best) Lucero PR of Estate of Gullett v. Ford Motor, 11/24:5

Jury: (no automatic for-cause exclusion of State employees in suits against State (1st impression)… no abuse of discretion in rejecting for-cause challenge of MHP employee in suit involving rear-end collision with MDOT snow loader… 51/49 defense verdict affirmed… Reynolds affirmed) Bockman-Fryberger, 8/25:1

Venue: (properly changed from L&C to Custer for Insurance Commissioner’s regulatory action against Custer-based Victory under specific v. general statutes… Hayworth affirmed) Rosendale v. Victory Ins., 12/15:2

Vexatious litigant: (disbarred Plaintiff declared vexatious litigant… Fagg affirmed) Genet McCann v. Sheila McCann et al, 9/1:1

 

*Crime, Criminal Procedure

Accomplice testimony: properly allowed to convict burglary Defendant under federal law even if proscribed under Montana law… Morris affirmed (unpublished)) Spotted Wolf, 1/13:6

Aggravated assault: (ER physician’s testimony as to patient’s “verbal history” properly admitted as non-violative of confrontation rights and under Rule 803(4) hearsay exception as statement for purpose of medical treatment, including assessing future health risks for victim of the Intimate Partner Violence public health problem… conviction affirmed… J. Brown affirmed) Porter, 2/10:2; (Prosecutor improperly informed jury that its “job” was to make sure victim was safe and has control returned to her which it can do by finding Defendant guilty of aggravated assault, but in context of entire argument was not plain error warranting new trial… Halligan affirmed) Ritesman, 3/31:5

Aggravated assault/sexual assault/assault on officer/escape/drugs: (claims relating to speedy trial (542 days), ineffective assistance, exculpatory evidence properly rejected… Salvagni affirmed (IOR I-3(c))) Briggs, 10/27:5

Aggravated burglary/assault with weapon: (limited evidence of gang affiliation properly admitted… mistrial based on officer’s mention of active arrest warrant properly denied…. sufficient evidence of apprehension by victim who did not testify… convictions affirmed… Gustafson affirmed) Michelotti,6/30:2

Attorney testimony: (supervisory control of Dayton granted quashing subpoena compelling attorney to testify whether she told former drug client about PTC in bail jumping case… 1st impression… order) Sweeney, 4/28:1

Assault with weapon: (speedy trial claims involving timing of arrest, warrant for bond violations, and incarceration due to revocation of prior sentence properly rejected… sentencing rights not violated by anonymous jailhouse informant letter… 2 IT fees improperly imposed… Spaulding affirmed, reversed) Snider, 10/27:4

Assault with weapon/drugs: (conviction of Lorazepam charge after reconsideration of mid-trial dismissal constituted double jeopardy… Defendant failed to adequately invoke right to self-representation… judgment improperly contained conditions not in pronouncement… Lorazepam conviction reversed, other convictions affirmed… Wheelis reversed, affirmed) Barrows, 8/25:2

Assault with weapon/PFMA: (cases properly joined based on feedback from mistrial of 1st case and despite State’s initial waiver… jail letters to fiancée properly admitted… mistrial properly denied after Deputy revealed fiancée’s fear based on prior violence… convictions affirmed… Langton affirmed) Ankeny, 4/21:1

Attempted deliberate homicide: (conduct-based instructions improperly given on purposely and knowingly, but harmless as substantial rights not affected… State should have confirmed existence of crime scene photos which detective “believed” he had taken shortly after shooting and provided them to the Defense, but the Brady violation was harmless as no reasonable probability of different outcome… convictions affirmed… Wheelis affirmed) Ilk,8/4:1

Attorney substitution/ineffective assistance: (claims by homicide Defendant properly denied on remand for development of complaints… Dayton affirmed) Schowengerdt, 1/20:2

Bail jumping: (bounty hunter’s unsolicited comment that former polygamist “more or less devoted his entire life to indoctrinating and brainwashing his family” insufficiently prejudicial to warrant mistrial… McMahon affirmed (IOR I-3(c))) Sliwinski, 12/29:3

Child endangerment: (conviction of mother who was alone with child while highly intoxicated after babysitter left affirmed… Bolstad/Kutzman affirmed (IOR I-3(c)) Wagner, 6/23:3

Child endangerment by DUI: (Defendant was entitled to DUI lesser-included instructions… conviction reversed… Reynolds reversed) Freiburg, 6/23:2

Child kidnap/rape: (sufficient evidence properly found to convict abductor of 4-year-old… Morris affirmed (memorandum)) Lieba, 7/14:4

Child sexual assault: (1991 false reporting convictions properly admitted… evidence of Defendant’s ability to see properly admitted in light of non-specific objection and appearance at trial with cane and dark glasses… prosecution and jury costs improperly imposed without indigency finding… IT fees improperly charged on each of 3 counts… Lympus affirmed, reversed) Frey, 9/29:5

Collateral attack: (of rape conviction by civil suit barred by collateral estoppel… Dayton affirmed (IOR I-3(c))) Pierce, 3/31:6

Child pornography: (restitution to victim’s mother requires apportionment as to exacerbation of preexisting condition… finding of no indigence for JVTA assessment affirmed… Lovell reversed, affirmed (memorandum)) Saari, 9/22:8; (brief disputed comment by witness not sufficient to overturn conviction… Morris affirmed (memorandum)) Horner, 12/15:9

Criminal forfeiture: (Utah drug charges filed 9 months after Montana charges improperly admitted to prove that money seized in Montana case was intended for distribution of drugs… conviction reversed, remanded for new trial… Hayworth reversed) Buckles, 6/23:4

Criminal trespass: (non-paying “guest” living in hotel storage closet properly convicted based on common hotel practices, no need for testimony from owner… erroneous judgment may be corrected by Justice Court to conform to pronouncement without need for remand… Ulbricht affirmed (IOR I-3(c))) Steinhorst, 9/1:5

Deliberate homicide: (statements by victim provided evidence of state of mind immediately preceding drunken altercation over whether Army or Marines are better, tended to show why Defendant used force, improperly precluded as hearsay… inquiry into pathologist’s credibility based on letter accusing him of misconduct and false testimony improperly precluded… cumulative errors require reversal, remand for new trial… Judge within discretion in resolving jury’s concerns about being photographed by media by assuring that media respects their privacy although would have been better to question jurors… Knisely reversed) Cunningham, 3/24:2; (Prosecutor’s closing comments on justifiable force not prejudicial to fair trial warranting plain error review… Olson affirmed) Lau, 4/28:1; (new trial properly denied based on assertion that State withheld impeachment evidence as to pathologist’s testimony as to how far victim was when shot and number of bullets which struck her… evidence of Defendant’s prior false police report properly admitted to rebut his claim of character & truthfulness in support of self-defense claim… conviction affirmed… Knisely affirmed) Reinert, 5/12:4; (evidence of meth use by sole eye-witness should have been allowed to potentially impugn her perception of the event and for impeachment of her credibility, conviction reversed, remanded… “first aggressor” instruction properly given along with justifiable force instruction… failure to locate gun insufficient to support tampering… Knisely affirmed, reversed) Polak, 7/21:5; (supervisory control of H. Brown granted allowing State to present psychological rebuttal to Defendant’s expert as to mitigating circumstances pursuant to case law and notwithstanding §45-5-103 (1997) amendments making mitigated deliberate homicide no longer affirmative defense) Collins, 8/11:6; (conviction affirmed over challenge to interview videos with Defendant in jail clothes and restraints shown to jury, State’s failure to disclose witness’s change in story when it learned of the change the morning of trial… Manley affirmed (IOR I-3(c))) Whitford, 9/1:4; (Defendant properly sentenced to MSP rather than DPHHS for beating death of 2-year-old over claim of inability to conform to law due to Fetal Alcohol Spectrum Disorder… Menahan affirmed) Coburn, 10/13:2

Double jeopardy (conviction of Lorazepam charge after reconsideration of mid-trial dismissal constituted double jeopardy) Barrows, 8/25:2; (conviction of son whose missing father’s only part found was partial skull affirmed over claims of violation of right of presence at unrecorded conferences and error in allowing officers to testify multiple times on direct… Krueger affirmed) Hatfield, 9/22:6

Drugs: (trooper had reasonable suspicion of drug activity to extend traffic stop beyond initial mission of checking sobriety, addressing swerving… suppression of meth properly denied… Watters affirmed (unpublished)) Johnson, 3/3:8; (evidence of passenger’s plea agreement for impeachment purposes improperly excluded in trial of driver in whose vehicle drugs were found… conviction reversed, remanded for new trial… Langton reversed) Flowers, 4/28:2; (consent to search vehicle after speeding stop ripened into drug investigation properly found based on totality of circumstances… Simonton affirmed (IOR I-3(c))) Lenoir, 5/19:4; (purity of meth properly extrapolated to quantity found by jury in imposing sentence… Watters affirmed) Whitehouse, 9/15:7; (series of “indicators” insufficient particularized suspicion to extend stop for expired registration into drug investigation… conviction reversed… Laird reversed) Wilson, 11/17:4

Drugs/firearm: (anonymous 911 tip which provided some uncorroborated historical information about alleged drug dealer who had previously been involved in a bar shooting, easily observable facts & conditions of the person at a bar, and zero predictive information insufficient for stop and search… money, drugs, firearm found in search of car suppressed as fruit of illegal search… Watters

DUI: (sufficient particularized suspicion for DUI investigation after stop for malfunctioning trailer light… IAC claim more amenable to postconviction… Townsend affirmed (IOR I-3(c))) Offenkrantz, 1/6:7; (due process not violated by failure to provide Intoxylizer COBRA data… motion to suppress test properly denied… Jenks/Larson affirmed) Jeffries, 2/10:3; (spoliation, due process claims for failure to make COBRA evidence accessible online rejected… Orzech/Larson affirmed (IOR I-3(c))) Williams, 2/10:3; (circumstantial “reasonable interpretation” instruction did not relieve State of burden in light of instructions as a whole… counsel costs improperly imposed on low-income Defendant… Ortley affirmed, reversed) Iverson, 2/24:3; (highly intoxicated Defendant not denied independent blood test by Trooper taking her home 10 miles away from hospital when she could not arrange transportation… Gilbert affirmed) Neva, 4/14:4; (late-disclosed testimony of co-occupant of vehicle that crashed into ditch properly allowed… Swingley/Menahan affirmed (IOR I-3(c))) O’Malley, 4/14:5; (particularized suspicion for administering field tests following speeding stop… Defendant improperly precluded from introducing or referencing trooper’s 29 cut & paste reports for impeachment purposes… prior DUIs improperly presented to jury to show aggravating element when judicial notice would suffice… conviction reversed… Reynolds affirmed, reversed) Zimmerman, 4/28:4; (particularized suspicion to stop vehicle with unlit tail lights and erratic driving… jury waived by failure to appear at confirmation hearing… lab analyst properly disclosed, allowed to testify by video… conviction affirmed… Cantin/Gilbert affirmed (IOR I-3(c))) Onofrey, 5/5:6; (testimony about Intoxilyzer certification properly allowed from deputy who had not personally performed the certifications… Cantin/Gilbert affirmed (IOR I-3(c))) Erickson, 5/5:6; (due process not denied by failure to finish reading advisory as to right to independent blood test under “substantial circumstances” including Defendant’s impeding of the reading… Haynes affirmed) Moore, 5/12:5; (sufficient basis to stop vehicle with continuously lit brake light despite 2 other functioning brake lights… Sullivan/Eddy affirmed (IOR I-3(c))) Costa, 9/15:6; (vague 2007 order dismissing 2001 deferred sentence applied only to endangerment, not DUI, 2001 DUI properly predicate for felony enhancement… Langton affirmed (IOR I-3(c))) Windsor, 9/15:6; (no abuse of discretion in giving Norquay instruction after 3 hours of deliberation on whether graveled area was way of state… conviction affirmed… Souza affirmed) Sweet, 11/10:4; (811 days speedy trial claim properly denied… blood draw by EMT at jail properly upheld… J. Brown affirmed) Heath, 12/29:1; (determination of Deputy’s credibility as to traffic stop and arrest not disturbed on appeal… license reinstatement properly denied… Boucher affirmed (IOR I-3(c))) Jorgenson,12/29:2; (driver who changed into right lane in front of speeding MHP car properly stopped for unsafe lane change… Troopers’ speeding has no bearing on whether Defendant properly changed lanes… suppression/dismissal of DUI properly denied… Souza affirmed (IOR I-3(c))) LaTray, 12/29:2

Dynamite instruction: (properly given deadlocked jury… Norquay-Allen reaffirmed… rape conviction following prior deadlocked mistrial affirmed… Fagg affirmed) Santiago, 2/3:2

Endangered species: (claim of self-defense shooting of grizzly improperly analyzed under “objectively reasonable” rather than “subjectively reasonable” standard, conviction reversed, remanded… improper burden of proving nonexistence of a taking permit on US not grounds for reversal… Defendant not entitled to jury trial… Lynch/Christensen affirmed, reversed) Charette, 6/30:5

Entrapment: (dismissal of felony attempted prostitution (with minors) stemming from sting properly denied because of conflicting facts as to mens rea (but entrapment would have been tough sell to jury based on the facts, Defendant pled guilty in plea agreement)… Kutzman affirmed) Lindquist, 3/10:2

Escape: (placing security officer near Defendant at trial without analysis was error but not prejudicial… ineffective assistance claims for failing to object to statements by the Prosecutor or request instructions relating to investigative detention v. arrest more amenable to post conviction… violent offender registration improperly imposed on escape Defendant… treatment recommendations in pronouncement should be included in judgment… Larson affirmed, reversed (IOR I-3(c))) Brown, 10/13:2

Failure to yield: (Defendant in roundabout car-motorcycle collision waived appeal of conviction by failing to raise same issues as argued below, but sufficient evidence in any event… Moses affirmed (IOR I-3(c))) Spear, 12/15:7

Firearms: (suppression of evidence seized in searches of probationer’s vehicle following DUI stop properly denied… Watters affirmed (unpublished) Reinke, 3/24:6

Fraud: (postal worker’s conviction of fraudulent disability benefits affirmed… Morris affirmed (memorandum)) Durand, 12/1:7

Habeas: (denied as to 10 claims by sexual abuse of children prisoner in over-length petition) Tucker, 1/13:4; (denied Petitioner who committed sexual servitude of child prior to repeal of statute (order)) Johnson, 1/27:1; (properly denied as to IAC claims by deliberate homicide Defendant… Molloy affirmed (unpublished)) Miller, 2/24:7; (claims of juror bias and ineffective assistance related to child sex victim’s inconsistencies properly rejected… Ostby affirmed (unpublished)) Passmore, 5/19:6

Harboring fugitive: (challenge to warrantless search of home where fugitive was found in crawlspace properly rejected… failure to inquire into potential conflict of Federal Defenders office representing Defendant and fugitive for several days requires remand for hearing as to an “actual conflict”… Morris affirmed, reversed (memorandum)) LittleDog, 8/18:7

Incest: (challenge of “humiliate, harass, or degrade” in “sexual contact” statute and instruction as unconstitutionally vague waived by failure to raise until day after trial when juror expressed concern about being misled… statutory 100 years with no parole for 25 years for incest with minor proper based on finding that “the ultimate protection of the victim and society” exception not applicable… judgment improperly imposed 2 consecutive sentences by default when pronouncement imposed concurrent… Cybulski affirmed, reversed) Hamilton, 10/20:2

Incest/sexual assault: (polygraph supportive of innocence properly excluded as invading province of jury, consistent with well-established precedent… argument that offer to take polygraph should be admitted not preserved for appeal… expert testimony that psychosexual profile revealed no sexual interest in children comparable to favorable polygraph similarly invades province of jury to determine truthfulness of a witness… alleged victim’s alleged prior sexual conduct properly excluded under Rape Shield Law and also as questionable hearsay… convictions of assaults of step-daughters affirmed… Langton affirmed) Walker, 12/22:5

Ineffective assistance: (appointed lawyer’s violation of duties of loyalty & confidentiality by questioning Defendant’s entrapment defense with improper email disclosure did not affect outcome, thus no prejudice… suspended license/no insurance convictions affirmed… Wheelis affirmed) Hubbard, 1/6:6; (claims by sexual abuse of children Defendant who received better sentence than he bargained for properly rejected postconviction… Best affirmed (IOR I-3(c)) Bullshoe, 2/24:5; (claims by rape Defendant rejected… Pinski affirmed (IOR I-3(c))) Beauchman, 4/14:3; (claims related to refusal to move for over-length appeal brief properly rejected as omitted issues not stronger than those presented… Cooney affirmed (IOR I-3(c))) MacGregor, 4/21:2; (failure to move to suppress drugs found incident to arrest for bond violation not addressed on direct appeal as it is not clear whether bond order allowing “immediate arrest” for forbidden contacts was proper, but counsel ineffective for advising Judge that he had no authority to suspend or defer PFO drug Defendant’s sentence, remanded for resentencing… Boucher affirmed, reversed) Larsen, 9/8:2; (claim attacking validity of guilty plea not waived by guilty plea, but nonetheless time-barred… Jones affirmed (other grounds) (IOR I-3(c))) Ortega, 9/15:7

Initial appearance: (24 days after arrest constituted “unnecessary delay,” holidays and homicide not justification… criminal forfeiture conviction dismissed without prejudice… Hayworth reversed (IOR I-3(c))) Gribble, 5/5:5

Investigative stop: (campus police had sufficient suspicion to prolong investigative stop of suspected underage drinker at football game after database checks returned no record of name and birth date, but subsequent custodial interrogation without Miranda advisory & waiver mandates suppression of age, birthdate, and that she gave false information… Jenks/Halligan affirmed, reversed) Kroschel, 6/16:3

Involuntary manslaughter: (new trial properly denied… Morris affirmed (memorandum)) Henderson, 7/21:7

Juror challenge: (juror with experience with DUI drivers properly seated despite State’s improper and unnecessary rehabilitative questions as to “fairness”… felony DUI conviction affirmed… H. Brown affirmed) Russell, 2/17:4

Leading questions: (corporate fraud conviction affirmed over challenge to extensive leading of key witness CFO against CEO… Christensen affirmed (memorandum)) Manlove, 11/17:5

Mandate: (to require Spaulding to expedite sex assault defendant’s postconviction petition and recuse denied… order) Aguado, 11/3:4

Medical marijuana: (non-cardholder caring for absent cardholder’s grow operation not exempt from prosecution of marijuana charges… McKeon affirmed) Sutton, 6/16:5

No-contact: (violation not properly charged under §45-5-209 including notice requirement, conviction reversed… Halligan reversed) Ritesman, 3/31:5

PFMA: (Tribal Court convictions cannot be used to charge felony PFMA… Christopher reversed (order)) Hammer, 1/27:2; (Court’s jurisdiction/venue jurisprudence brought into line with overlooked 1967 amendments to 46-3-111(2): defendant waives right to object to county in which a charge is filed if he fails to object before 1st witness is sworn, but prosecution must prove proper jurisdiction at trial… Defendant did not timely object to county in which City filed PFMA charges and therefore waived venue objection… City failed to present any evidence as to where one of 2 PFMAs occurred and thus did not prove jurisdiction… 1 PFMA conviction affirmed, 1 reversed… Menahan affirmed, reversed) Frankforter, 8/11:7

Plea agreement: (reoffer of original plea agreement proper habeas remedy for counsel’s failure to inform Defendant of a favorable plea offer… Lynch/Molloy affirmed (unpublished)) Rose, 4/28:7; (ineffective assistance not established by failure to object to Judge McCarter urging Defendant in 2009 to accept plea offer, which Defendant now contends impermissibly coerced him into accepting offer and pleading nolo to assault with weapon and felony burglary when he really wanted to go to trial on attempted deliberate homicide and aggravated burglary… postconviction petition properly denied… Reynolds affirmed (IOR I-3(c))) McDowell, 12/15:6

Plea withdrawal; (properly denied as Defendant got exact sentence bargained for… new mental claim waived and contrary to colloquy… Cuffe affirmed (IOR I-3(c))) Marozzo, 6/2:4; (by child sex assault Defendant properly denied for failure to present material facts supporting claims of influence of marijuana, persuasion of attorney, breakdown of attorney relationship… Jones affirmed (IOR I-3(c))) Heitkemper, 10/13:3

Postconviction: (petition challenging revocation of sex offender’s suspended sentence and resentencing to balance of original 30-year MSP sentence properly summarily denied… Dayton affirmed (IOR I-3(c))) Eva, 1/20:4; (petition by Defendant sentenced to 75 years in prison for going on ranch that he claims is still his due to void 1979 divorce decree and sheriff’s sale properly rejected… Defendant properly precluded from collaterally attacking decree and sale in criminal case… “optional” overlength section of brief challenging “short-shrift disposition” opinions not addressed… Langton affirmed (IOR I-3(c))) Lance, 2/17:5; (victim’s latent recollection that he swerved his bike in front of Defendant’s van rather than Defendant running him down not “newly discovered evidence” of “actual innocence” of attempted mitigated homicide… counsel not ineffective for not interviewing victim based on belief that he had no recollection… Larson affirmed) Guillen, 4/14:2

Prisoners: (habeas denied for prisoner ordered by Parole Board to complete SOP Phase 2 although Court only ordered Phase 1… order) Sparkman, 2/24:4

Protective order: (no showing that 2006 predicate order was constitutionally invalid… Cybulski affirmed) Huffine, 7/21:5

Rape: (all elements of SIWC found in masseur’s digital penetration of vagina and rubbing of clitoris over client’s protests… Bidegaray affirmed) Lerman,1/13:3; (2007 statute of limitations amendment is retrospective to 1987 child rape, but prosecution based on 2014 DNA match-up violative of ex post facto under Stogner… Knisely reversed on supervisory control) Tipton, 7/7:1; (Defendant opened door to testimony about assault on brother to explain why 16-year-old step-daughter and mother did not leave home after girl disclosed Defendant’s digital penetration… not established that jurors watched interview video that was sent into jury room or gave undue consideration to contents in which girl described penetration on 3 nights while testifying at trial to only 1 night… conviction (as to that 1 night) affirmed… Seeley affirmed) Clemens, 8/4:pp; (Defendant waived right to closing argument in bench trial by failing to request one… Haynes affirmed) Chaplin, 11/10:4

Rape/burglary/assault: (challenge of Lab’s blood/DNA processing properly rejected… apprehension of “death” properly included in aggravated assault instruction… restitution for damages to victim’s home properly awarded based solely on her testimony… convictions affirmed… Todd affirmed) Williams,8/18:5; (25-year parole restriction under Jessica’s Law properly imposed on “guilty but mentally ill” DPHHS commitment… Fagg affirmed (IOR I-3(c))) Degele, 9/8:5

Resisting arrest/obstruction: (convictions affirmed… Dayton affirmed (IOR I-3(c))) Nordholm, 5/19:4

Restitution: (for DUI-damaged highway equipment improperly imposed without affidavit or testimony regardless of MDT invoice and ledger entry being “business records”… Allison reversed) Boyd, 1/6:5; (modification or satisfaction of criminal endangerment restitution judgment to reflect civil settlement properly denied, but factual error as to amount received in victim’s civil settlement relative to the restitution he was ordered to receive (may have been prompted by Defendant’s inadequate factual showing) requires remand… Boucher affirmed, reversed) Erickson, 1/20:3; ($1,600 for lost wages by assault with weapon victim properly imposed… Ortley affirmed (IOR I-3(c))) Turnidge, 6/16:4; (restitution for damages to victim’s home properly awarded based solely on her testimony… convictions affirmed… Todd affirmed) Williams, 8/18:5; (improperly awarded without affidavit or testimony of victims specifically describing their losses… Jones reversed) Cleveland, 8/18:6; (elder theft Defendant’s 6 years deferred properly revoked and replaced with new 6 years deferred for failure to make good-faith effort to pay $87,339.50 restitution and fees (paid $3,799 restitution, 0 fees)… Townsend affirmed) Johnson, 11/24:4

Revocation: (right against self-incrimination not violated by use of admissions to sex offender’s therapist to revoke supervised release… Watters affirmed) Hulen, 1/13:7; (revocation proper even if US did not establish criminal trespass… Molloy affirmed (unpublished)) Schwindt, 1/13:7; ($42,264.06 restitution properly ordered stalking victim… Larson affirmed) Weik, 9/8:3; (challenge by polygamist who absconded to Mexico for 10 years properly rejected… Cooney affirmed (IOR I-3(c))) Sliwinski, 9/15:5; (Defendant improperly sentenced based on PO’s confidential recommendation of 20 months as opposed to Magistrate’s recommended 5 months and without opportunity to respond in person before Judge… Lovell reversed) Gray, 10/13:4; (Defendant received insufficient notice of alleged violations… remanded for new petition and hearing… Molloy reversed (memorandum)) Guy, 12/1:7

Right to jury: (failure to appear at jury confirmation hearing not excused by Defendant’s misreading of order and misunderstanding need for a 2nd confirmation hearing following mistrial, properly found to have waived jury for DUI/obstruction trial… Swingley/Seeley affirmed) Sherlock, 4/28:3

Sentencing: (fines, fees, surcharges, costs including $5,829 for defender properly imposed for felony DUI after “scrupulous & meticulous” examination of ability to pay… $15 surcharges for no insurance, driving on wrong side improperly included in judgment when not in pronouncement… 3 $10 technology fees improperly imposed when only 1 authorized per user… Haynes affirmed, reversed) Reynolds, 1/6:4; (details of felony DUI Defendant’s ability to pay costs of imprisonment, probation, alcohol treatment as condition of suspended part of sentence properly deferred to DOC… Haynes affirmed) Daricek,3/3:4; (Phases I & II sex treatment at MSP wrongly imposed in conjunction with DOC commitment for sex sting Defendant… remanded for resentencing… Kutzman reversed) Day, 3/24:3; (prison alternatives to PFO mandatory minimum properly considered and rejected… unobjected imposition of fees/costs not considered on appeal, counsel’s failure to object more amenable to postconviction… meth conviction affirmed… Moses affirmed) Hinshaw, 3/24:4: (revoked sentence improperly ordered consecutive to federal sentence… error to revoke without discussing elapsed time, but challenge waived by failure to object… Jones affirmed, reversed (IOR I-3(c))) Stewart, 3/31:7; (no-contact conditions properly imposed on PFMA Defendant… Todd affirmed) Parkhill, 4/14:2; (delay of 301 days not substantially prejudicial where the only prejudice was paying for 10 months of wearing alcohol bracelet… dismissal of assault with weapon properly denied… Dayton affirmed (IOR I-3(c))) Moffett, 4/21:3; (plain-error review declined over claim that Prosecutor undermined incest plea agreement at sentencing… Kutzman affirmed (IOR I-3(c))) Downs, 4/21:3; (revocation sentence failed to consider federal sentence… Pinski reversed) Youpee, 5/5:5; (1 year properly added to plea agreement to allow additional time for alcohol treatment because of delay caused by continuances requested by Defendant… remanded for consideration of ability to pay defender fees… technology fee improperly imposed per count… Larson affirmed, reversed) Clawson, 7/7:3; (drug sentence not PFO-enhanced by disputed number of prior felonies… jury costs improperly imposed on Defendant unable to pay… Eddy affirmed, reversed (IOR I-3(c))) Johnston, 7/7:4; (fines, costs, fees, charges improperly imposed on insurance fraud Defendant without consideration of statutory criteria for ability to pay… issue preserved for appeal by general objection, not necessary to again object after imposition of sentence… $500 felony surcharge exceeds 10% maximum on a $2,500 fine… McMahon reversed (IOR I-3(c)) Hamilton, 9/8:4; (25-year parole restriction under Jessica’s Law properly imposed on “guilty but mentally ill” DPHHS commitment… Fagg affirmed (IOR I-3(c))) Degele, 9/8:5; (no authority to impose $25 “administrative fee” on disorderly conduct Defendant to fund City Attorney’s Office… Jenks/Halligan reversed) Franklin, 9/15:4; (Defendant convicted of killing ex-girlfriend who maintains innocence not improperly sentenced to life plus 10 for failure to disclose body or show remorse… Best affirmed (IOR I-3(c))) Johnston, 10/20:5; (large quantity of meth attributable to co-conspirators properly considered on remand in recalculating Guidelines range based on less than 50 grams of meth attributable to Defendant… Haddon affirmed (memorandum)); (as-applied constitutional challenge to probation condition limiting cell phone access waived by failure to object… Fagg affirmed) Walter, 12/8:4

Speeding; (Patrolman’s testimony of visual observation and radar reading sufficient particularized suspicion and corroboration… Defendant’s contention that 2 witnesses required properly rejected… but retrial required by Prosecutor’s comment that Defendant had been convicted in Justice Court… Deschamps affirmed, reversed) French, 12/1:2

Stalking: (right to confront victim not infringed by limited view of her due to courtroom configuration… $42,264.06 restitution properly ordered… Larson affirmed) Weik, 9/8:3

Supervised release: (“long condition” pertaining to alcohol and associations permissible… “controlled substances” vague as could apply to legally obtained controlled substances, remanded for clarification… Molloy affirmed, remanded (memorandum)) McIntee, 8/18:8

Tampering: (Defendant’s prior involvement with Detective whom he was accused of framing for staged arson properly admitted for context… convictions for tying door shut and planting knife with detective’s name “included” in each other, counsel ineffective for failing to raise multiple conviction statute resulting in 2 sentences of 10 years each instead of 1, remanded for re-sentencing… Jones affirmed, reversed) Ellison, 10/20:1

Theft: (good faith claim of right for caretaker to remove property to leverage payment of purported contract debt properly submitted to jury, which had sufficient evidence to convict of theft… attorney legal opinion improperly allowed but harmless error… Oldenburg affirmed) Mills, 10/20:3

Theft by deception: (parties improperly stipulated that stipulation to mistrial would not waive right to move for dismissal based on speedy trial violation, but speedy trial right nevertheless not violated… jury properly instructed as to “residence,” Defendant properly convicted of fraudulently accepting housing assistance for apartments she lived in only part-time and letting sister & brother live in them… Manley affirmed (IOR I-3(c))) Cummings, 7/7:2

Sex abuse of minor: (testimony by victim’s sister as to uncharged sex abuse by Defendant properly admitted… Watters affirmed (unpublished) Deputee,3/24:6

Sex registration: (Defendant stopped on downtown sidewalk in early morning with scantily clad wife for “welfare check” by several officers prior to arrest for failure to register not in “custody” for Miranda purposes… Defendant allowed to present defense of confusion over duty to register but made tactical decision not to do so in light of ruling that State could counter with prior convictions… Judge did not improperly rule on element of offense by considering legal question of duty to register… Defendant improperly designated Tier I sex offender… Larson affirmed, reversed (IOR I-3(c))) Brooks, 12/22:6

SIWC against minor/sexual assault: (computer search terms related to incest or sex with children properly admitted to show identity of Defendant as perpetrator as opposed to another… appellate counsel had no duty to inform retrial counsel that remittitur had issued from first appeal resulting in lost opportunity to timely substitute Judge… SIWC/sex assault conviction affirmed… Haynes affirmed) Colburn, 6/16:5

Speedy trial: (erroneous calculation of pretrial delay resulted in erroneous ruling that 200-day trigger had yet to lapse… Cybulski reversed) Huffine,7/21:5; (811 days speedy trial claim properly denied… J. Brown affirmed) Heath, 12/29:1

Theft of water services: (motions to suppress properly denied for failure to meet filing deadline, no good cause for waiver… Defendant failed to show grounds to reverse conviction… Laird affirmed (IOR I-3(c))) Terry-Lee, 1/20:5

Transcript correction: (misstatement ordered corrected) Wittal, 3/17:5

Trespass: (claim of right to enter property purchased in good faith from ex-wife and possessed by buyers not a defense in criminal case… Hummel/Allison affirmed (IOR I-3(c)))

Vehicle search: (traffic stop properly based on speeding… anonymous tip provided sufficient basis to prolong based on suspicion of narcotics trafficking… Christensen affirmed (unpublished)) Browne, 4/21:8

Vehicle search/speedy trial: (claims properly rejected… Watters affirmed (unpublished)) Morris, 4/21:8

Vehicle stop: (particularized suspicion to stop based on improperly working license light… suppression of drug evidence properly denied… Moses affirmed (IOR I-3(c))) Bernick, 3/17:4

Witness vouching: (claim by sex offender registration Defendant rejected… Watters affirmed (memorandum)) Crosby, 9/15:7

Work comp theft: (ineffective assistance claims including failure to object to Prosecutor’s “were they lying?” rejected… wage garnishment properly admitted as probative of motive to stage “accident”… $70,680.34 restitution for faked claim properly imposed… Seeley affirmed) State v. Ailer, 2/10:1

 

*Discrimination

Disability: (discrimination claims by jailer with fragrance sensitivity properly rejected on summary judgment… Halligan affirmed) Borges v. Missoula Co. Sheriff’s Office, 2/3:1; ($289,499.94, police lieutenant fired after back surgery and not re-hired… Administrative Decision, Caroline Holien) Smies v. Town of Fairview, 3/24:8; (training of Boxer to assist person with mental conditions not established as “service dog” as opposed to “typical obedient dog,” claim of discrimination for limited library access dismissed… Jeff Rhoa/HRC) Fuson v. Montana State Library and Conrad Public Library, 8/25:8; (complaint against hotel in relation to response to barking service dogs in room properly dismissed… DLI affirmed… HRC) Fahlsing v. Red Lion Hotel & Convention Center, 9/1:7; (angry refusal to remove hat legitimate business reason (insubordination) to fire cashier, not related to unknown depression/anxiety disorder… Spear/HRC/Townsend affirmed) Jackson v. Costco, 11/3:1; (claim by injured MDC employee who failed to cooperate in finding alternative position properly rejected… Berger affirmed) Alexander v. MDC, 11/17:3; (Claimant who represented to SSA that he is disabled and unable to work is not a “qualified individual” vis-à-vis ADA and MHRA… Christensen affirmed (memorandum)) Dicomitis v. UPS, 6

Employment retaliation: (for filing (unsuccessful) sex discrimination complaint, $399,726.71 (3 years back pay, 4 years front pay, emotional distress) plus attorney fees for acrimonious ending of 17-year career as operator with silicon materials producer… Caroline Holien) Maciag v. REC Advanced Silicon Materials, 7/14:5

Race: (claim by Native teacher passed over for tutoring position properly rejected… Holien/HRC affirmed… Halligan) Schneiter v. Arlee School Dist.,6/2:5

Race/retaliation: ($91,180.16, offensive slurs by Indian’s supervisor, inadequate remedy after notice of discrimination, discharge in retaliation for complaint… numerous facts established as true as sanction for untimely disclosure of Employee Warning Notice… Caroline Hollien)

Sex discrimination: (VP pay/transfer disparity claims rejected… correct evidentiary standard applied… Caroline Holien (Administrative Decision)/HRC) Lenhardt v. Sysco Corp., 9/1:7

Sexual harassment: (gravamen of dispatcher’s allegations against officer of repeated and unwanted sexual advances sound in discrimination rather than tort, HRA provides the exclusive remedy… dismissed for failure to exhaust HRA… Berger) Timm v. Stillwater Co., Town of Columbus, 3/3:5; (HO failed to explain how homeowners’ testimony in support of painting owner overcame testimony of employee’s corroborating witnesses, remanded for reconsideration… owner properly dismissed for failure to properly add as party… Holien/McMahon reversed, McMahon affirmed as to dismissal of employer) Jones v. All Star Painting, 4/7:2

 

*Elections

Ballot: (Reynolds’s removal of Green Party from ballot affirmed, full opinion to issue in due course… order) Larson v. Montana Democratic Party, 8/25:2

Contribution limits: (en banc rehearing of panel upholding Montana contribution limits denied) Lair v. CPP, 5/5:7

Initiative: (whether I-186 delegates rulemaking and therefore violates effective date requirement is outside AG’s legal-sufficiency review and Court’s pre-election review) Montana Mining Association v. AG and SOS, 6/23:1; (I-185 tobacco tax ballot statement legally sufficient… opinion & order) Montanans Against Tax Hikes v. AG, 8/18:5

 

*Employees

ERISA: (disability insurer improperly changed injury causing disability designation from MS to below-knee amputation to take advantage of med-mal settlement as deductible source of income… beneficiary entitled to reinstatement of full amount of settlement offset… attorney-client privilege not applicable to documents pre-dating denial of appeal… beneficiary entitled to attorney fees… Molloy) Rustad-Link v. Unum Group, 2/3:5

 

*Endangered Species

Pallid sturgeon: (challenges to irrigation dam bypass (as opposed to dam removal and installation of large pumps) to accommodate pallid sturgeon rejected on summary judgment on remand from 9th Circuit reversal of preliminary injunction… Morris) Defenders of Wildlife v. Army Corps of Engineers,7/28:6

 

*Environment

Gravelly Range domestic sheep grazing: (appeal of Morris’s partial summary judgment dismissed for lack of jurisdiction (memorandum)) Gallatin Wildlife Association v. FS, 8/18:6

Lonesome Wood Vegetation Project: (injunction properly dissolved on summary judgment… Morris affirmed) Native Ecosystems Council v. FS, 2/24:6

Restoration damages: (Bidegaray’s order denying summary judgment for ARCO on Property Owners’ restoration damages claim related to the Anaconda Smelter Superfund site as barred by CERCLA and granting summary judgment for Property Owners on ARCO’s CERCLA preemption defenses affirmed on petition for supervisory control… opinion & order) ARCO v. Bidegaray, 1/6:2

Snag density: (East Deerlodge snag density challenge properly rejected… Christensen affirmed (unpublished)) Native Ecosystems Council v. FS, 4/28:7

Yellowstone River dam: (preliminary injunction vacated for failure to show irreparable harm to sturgeon… Morris reversed (unpublished)) Defenders of Wildlife v. Army Corps of Engineers, 4/14:9

 

*Evidence, Civil

Spoliation: (supervisory control of Reynolds granted reversing default judgment against MSU as spoliation sanction for failure to preserve emails related to student’s claim of sexual misconduct by professor) MSU-Bozeman v. Reynolds, 9/15:2; (Defendants in body shop fire death who destroyed or failed to object to destruction of evidence to be sanctioned with adverse instruction and preclusion of contributory… Halligan) Hall v. Flying B Properties, 12/29:4

 

*Evidence, Criminal

Search & seizure: (officer with anticipatory search warrant did not violate 4th Amendment by entering screened patio porch to deliver package which Defendant accepted without “re-entering” residence with the package… felon in possession of firearms conviction affirmed, but sex offender conditions of release improperly imposed… Watters affirmed, reversed (unpublished)) Matthew, 2/24:6; (reasonable basis for stopping suspect leaving what informant believed was drug house and subsequent search of backpack of which suspect disavowed ownership… Watters affirmed (unpublished)) Wright, 2/24:7; (probationer had no expectation of privacy in vehicle not owned by him in which he was a passenger, motion to suppress drug evidence found in glasses pouch properly denied… Hayworth affirmed) Conley, 4/14:6

Subpoena duces tecum: (supervisory control of Ulbricht denied as to denial of subpoenas for records pertaining to victim in justifiable force homicide case, statewide inconsistent construction/application of §§ 46-15-101 & 106 (subpoenas issued by judge v. clerk of court) more appropriate on appellate review… order) Quen v. Ulbricht, 10/13:4

 

*Family Law

Child custody: (8-9 months in Minnesota was a “temporary absence” from Montana, Montana properly found to be home state with jurisdiction… Townsend affirmed) BK, 9/8:2; (Father’s right to parent violated by placing son with maternal grandmother and denying Father placement after completing treatment plan… Manley reversed) AJC, 9/22:6

Child support: (motion to set aside $100,000 child support and attorney fees judgments untimely granted after Rule 60(c)(1) deemed-denied date… Halligan reversed (IOR I-3(c))) Stratford, 5/5:3

Contempt: (contempt and decree modification orders affirmed… Ulbricht affirmed (IOR I-3(c))) Hobart, 1; (cert or supervisory control of Bowen and McElyea denied in challenge of marital contempt order and judgment for $75,234.56 and 6 days jail… order) Taylor v. Bowen, 2/24:2; (husband properly held in contempt for failing to refinance loans and clear wife’s titles… Murnion affirmed (IOR I-3(c))) Tronstad, 5/5:4

Contempt/order of protection: (husband properly removed from contempt/order of protection hearing 5 minutes before end of hearing… sufficient evidence of threats/aggression and violation of decree’s no-contact order to issue permanent order of protection… Gilbert affirmed (IOR I-3(c))) Stone,7/21:4

Grandparent visitation: (improperly awarded without specific consideration of mother’s fitness and finding that presumption in favor of mother’s wishes had been rebutted… Oldenburg reversed) LRS, 3/24:1

Maintenance: (property and maintenance properly awarded in dissolution of long-term marriage with $5,747,302 estate… Desmond/Deschamps affirmed) Hollamon, 3/10:2; (absent maintenance modification details in settlement agreement, modification properly denied unemployed corporate attorney under §40-4-208 “unconscionable” framework… wife properly awarded attorney fees for enforcement of agreement… Langton affirmed) Toenjes, 8/11:4

Maintenance, support, fees: (“profoundly” delayed Standing Master decree as to support, maintenance, attorney fees properly upheld… motion to reopen to admit further financial evidence properly denied… Bowen/McElyea affirmed (IOR I-3(c))) Rorabaugh, 12/15:5

Parental termination: (rights improperly terminated without conclusive tribal determination of child’s status as Indian child… Kutzman reversed) LD,3/31:4; (parents’ drug tests improperly admitted through CASA, but harmless error as termination still warranted for failure to complete treatment plans… Olson affirmed) IM, 3/31:5; (Indian mother’s rights improperly terminated without conclusive tribal determination of children’s membership/eligibility… Newman reversed) DE, 8/18:5

Parenting: (extensive changes in stipulated plan due to child’s diagnosis of rare genetic disease supported by the record in part, not supported in part… Olson affirmed, reversed (IOR I-3(c))) Mills, 1/6:4; (husband’s move 300 miles away constitutes changed circumstance warranting hearing as to amendment of parenting plan… Townsend reversed) Schilling, 3/31:4; (Mother’s proposed amendment to parenting plan to allow children to move with her to South Carolina properly adopted… Haynes affirmed (IOR I-3(c))) Milliken and Mangold, 6/16:2; (no abuse of discretion in requiring children to live primarily with father after mother moved 2 hours away… Jones affirmed) Williams, 9/15:4; (supported by substantial evidence despite some erroneous findings… Dayton affirmed) Kesler, 9/22:5

Parenting/paternity (jurisdiction/venue issues properly resolved… Cybulski affirmed (IOR I-3(c))) PRF, 6/16:2

Post-decree motions: (properly granted to effectuate terms of Decree… Larson affirmed (IOR I-3(c))) Konopatzke, 6/30:1

Property: (4-year delay in issuing decree when estate was well-depleted was abuse of discretion, but final decree including money judgment to wife equitably divided the assets & debts with 2 exceptions… Ortley affirmed, reversed (IOR I-3(c))) Low, 1/13:1; (property and maintenance properly awarded in dissolution of long-term marriage with $5,747,302 estate… Desmond/Deschamps affirmed) Hollamon, 3/10:2; (Nevada pre-nup with Nevada choice of law improperly analyzed under Montana law, but findings support validity under Nevada law… estate of Missoula physician and homemaker properly apportioned including dog to husband… Halligan affirmed) Hutchins, 11/24:2; (reconsideration of business division required after sale for 10 times the Court’s valuation less than month after decree finalized… Rule 60 motion improperly deemed denied… J. Brown reversed) Remitz, 12/15:5

Settlement agreement: (decrees with settlement agreements with non-modification clauses may be modified if they are unconscionable (harmonizing conflicting statutes)… agreement properly found unconscionable and modified to terminate $10,000/mo maintenance to wife… wife’s fees properly limited to contempt proceeding (75% of requested $35,937.50) as husband prevailed on some issues… Gustafson affirmed) Simpson, 9/22:3; (Opinion affirming Gustafson’s finding settlement agreement unconscionable and modifying it to terminate $10,000/mo to wife replaced with Opinion with same conclusion on petition for rehearing asserting that payment was property division, not maintenance… order) Simpson, 12/1:2; (husband obligated to reimburse wife for $10,500 insurance proceeds on wife’s destroyed vehicle which she paid to credit union under settlement agreement provision making husband responsible for debt… Jensen/Best reversed (IOR I-3(c)) Johnson, 9/29:4

Standing Master: (objections to Standing Master’s order incorrectly found to lack specificity… H. Brown reversed) Scrantom and Masters, 5/12:3

Youth in need of care: (due process not violated by limiting/allocating time in adjudicatory hearing involving alleged sex abuse by father and false allegations by Mother… sufficient evidence that child suffered psychological abuse by Mother’s likely Factitious Disorder… Pinski affirmed) GW, 8/11:5

 

*Federal Government

Illegal aliens: (motion to dismiss illegal reentry indictment as untimely properly denied even assuming constructive knowledge of “found in” US… Christensen affirmed (memorandum)) Diaz-Hinojos, 6/2:7

 

*Homeowners Association

Covenants: (LTA claims against Plaintiff’s neighbor that provides assisted living services properly dismissed for lack of standing… HOA business and quiet use restriction claims improperly dismissed under 12(b)(6)… Ulbricht affirmed, reversed) Cossitt v. Flathead Industries, 4/14:1

 

*Indians

Jurisdiction: (Tribal Court has personal and subject jurisdiction over MVA fatality involving School Dist. employee… John Robinson) Shoulderblade v. Whiteman, 2/17:10

Parental rights: (Indian mother’s rights improperly terminated without conclusive tribal determination of children’s membership/eligibility… Newman reversed) DE, 8/18:5

Sovereign immunity: (purchase of insurance by Tribal nursing home insufficient to waive tribal sovereign immunity against suit by terminated employee… individual Defendants also protected… Watters) Wilhite v. Awe Kualawaache Care Center, 10/27:7

 

*Insurance

Advance pay: (request for declaration that insurer’s advance pay obligations only apply to medical bills not paid by another insurer or source denied… allowing exception to Ridley would diminish purpose of the rule by making it more complicated for innocent party to recover what is owed… McElyea) Fuchs v. Old Republic Ins., 6/16:7

Arbitration: (policy arbitration clause unenforceable after insurer breached duty to defend & indemnify transportation company officers resulting in $3,121,758.45 consent judgment in favor of risk retention group… Christensen) American Trucking & Transportation Ins. v. Nelson, 4/28:8

Bad faith: (3rd-party bad faith claims stemming from 2009 MVA accrued from judgment on $15,000 verdict awarded by recalled jury that was affirmed by the 9th Circuit and USSC, properly dismissed as time-barred… Lovell affirmed (unpublished)) Dietz v. Geico General Ins., 5/19:5; (insurers given deadline to affirm whether they intend to irrevocably assert attorney-client privilege v. advice-of-counsel defense… Johnston) Park Plaza Condo Association v. The Travelers Indemnity, 7/7:5; (discovery compelled in part, denied in part… document “dump” prohibited, must be searchable and indexed, no “confusing and evasive” responses to broader requests… Plaintiff awarded 1/2 fees/costs incurred on motion… Molloy) Nei v. The Travelers Home & Marine Ins., 8/4:6

Collateral source: (MVA Plaintiff sufficiently pled independent UTPA claims following settlement of underlying case to survive 12(b)(6) motion… applicability of collateral source reduction statutes more appropriate for summary judgment… Gilbert reversed) Marshall v. Safeco Ins., 3/17:1

Coverage: (disputed facts as to whether log home builder knew of industry practice of treating logs with insecticide and chose not to treat them and whether beetle infestation could have been expected preclude summary judgment for insurer on coverage… also remanded as to whether any coverage was lost when homeowner and builder settled for $328,824 without insurer’s consent… Christensen reversed (unpublished)) Northland Casualty v. Northwest Log Homes, 3/3:7; (efficient proximate cause of loss from collapsed deck was repeated seepage or leakage of water over extended time, an excluded peril… coverage denial reinforced by anti-concurrent clauses clause… Molloy) Oltz v. Safeco Ins., 3/10:5; (fact issues to be resolved at trial preclude summary judgment as to coverage of alleged sexual assault by FWS officer of allegedly sleeping FWS employee at overnight stay in FWS cabin while on work trip… insurer has duty to defend officer… Christensen) American Reliable Ins. v. Lockard, 4/7:5; (fact issues to be developed at trial preclude summary judgment as to coverage of neighbor harassment/nuisance claims… insurer following prudent course by defending under reservation while pursuing dec action… Christensen) American Reliable Ins. v. Vlieland, 4/7:7; (AD&D policy coverage of death from meds overdose improperly denied on summary judgment based on miscellaneous casualty insurance rather than “disability insurance”… Watters reversed (unpublished)) Ghiorso v. American General Life Ins., 4/21:7; (no UM/MP coverages in alleged phantom motorcycle accident as personally owned motorcycle was not covered by closely held business’s policy and only evidence that it was a phantom accident is motorcyclist’s affidavit… UTPA allegations likewise rejected on summary judgment as it was clear from the outset that motorcyclist was not driving a covered vehicle… J. Brown) Gunderson v. Liberty Mutual Ins., 12/22:7

Defense costs: (primary insurer responsible for defense costs of premises liability suit pursuant to “Other Insurance” provisions in primary and excess policies… duty to defend not implicated since excess insurer did not abandon its insured… primary insurer required to reimburse excess insurer its fees & costs for defending insured from date defense tendered… Manley) Atain Specialty Ins. v. Farmers Union Mutual Ins., 11/3:5

Duty to defend: (insurer of State against Libby asbestos claims 7/73-7/75 breached duty to defend, liable for all defense costs incurred after 7/05, amounts of completed settlements as of date each was approved, pre-judgment interest on those amounts, attorney fees/costs incurred by State in this dec action… H. Brown) National Indemnity v. State, 3/17:5

False representation: (summary judgment granted that adjuster made false representation as to defense under reservation that was pertinent to coverage of claims by missionary rendered quadriplegic in MVA that ultimately settled for $26 million, denied as to other alleged misrepresentations… Plaintiff must still prove misrepresentation caused actual damages… Kutzman) Vangsnes (by GAL W. William Leaphart) v. National Union Fire Ins. of Pittsburgh and Continental Casualty, 4/21:4

Legal malpractice: (improperly rescinded, voided ab initio, as to innocent partner of partner who stole from clients… ruling upholding rescission understandable as based on erroneous precedent that insurers had statutory right to rescission without equitable considerations… stare decisis does not require perpetuation of incorrect precedent… 3rd-party claims properly barred because they were lodged after policy canceled or under criminal exclusion… Haynes reversed, affirmed) ALPS Property & Casualty Ins. v. McLean & McLean, 8/11:1

Service on foreign insurer: (foreign insurer’s motion to set-aside $5,157,580.10 default judgment improperly deemed-denied in light of doubt as to whether service was properly completed by Commissioner… Manley reversed) Reservations Operations Center (National Parks Reservations) v. Scottsdale Ins., 6/2:2

Title insurance: (policy adequately noticed excluded road easement, no obligation to list all documents referencing an encumbrance… summary judgment for title company affirmed with reservations as to performance… McMahon affirmed (IOR I-3(c))) Parks v. Stewart Title Guaranty, 3/10:1

UIM offset: (passenger’s insurer not entitled to offset dollar-for-dollar its UIM obligation by vehicle insurer’s excess UIM payment instead of 2/3 pro rata provided in policy, but is entitled to offset its UIM by its med-pay pursuant to non-duplication provision… Plaintiff entitled to fees on issues she prevailed on, not required to prevail on all claims… Deschamps reversed, affirmed) Cramer v. Farmers Ins. Exchange, 8/18:1

 

*Landlord/Tenant

Neighbors: (LTA claims against Plaintiff’s neighbor that provides assisted living services properly dismissed for lack of standing… HOA business and quiet use restriction claims improperly dismissed under 12(b)(6)… Ulbricht affirmed, reversed) Cossitt v. Flathead Industries, 4/14:1

Securities Deposit Act: (landlord complied with Securities Deposit Act before deducting cleaning cost from deposit… 2nd inspection not required if cleaning not completed prior to agreed inspection date… Swingley reversed, Menahan affirmed) Hines v. Topher Realty, 3/17:1

Social invitation: (offer for son to live in residence was “social invitation” which was revoked, no evidence of oral or written contract… $11,128.06 attorney fees properly awarded… Parker affirmed (IOR I-3(c))) Bergstrom v. Marquart, 11/10:3

 

*Local Government

County road: (landowners failed to satisfy claim preclusion vis-à-vis 1984 denial of County’s request for order directing removal of gate by previous landowners… request for declaratory judgment as to where County road ends and private road begins properly rejected for failure to petition for writ of review upon Commissioners’ denial of petition… Langton affirmed (other grounds) Bugli v. Ravalli Co., 7/21:3

Water system condemnation: (facial constitutional challenge to §70-30-306 limitation to Property Owners’ “actually incurred” expenses and to reductions for inadequate bookkeeping & duplication properly rejected… as-applied challenge improperly rejected, remanded for discovery of City’s legal bills for context & comparison to Property Owners’ expenses… fees properly allowed for out-of-state attorneys… Townsend affirmed, reversed) Missoula v. Mountain Water and Carlyle Infrastructure Partners, 6/9:1; (litigation fees incurred after sale of interest in condemned city water system improperly awarded… Townsend reversed) Missoula v. Mountain Water and Carlyle Infrastructure Partners, 10/6:1

 

*Medicare/Medicaid

Incontinence supply orders: (physician affidavits correctly held not to cure technical violations of incontinence supply orders, DPPHS entitled to $670,152 reimbursement… whether 2- or 8-year statute applies is irrelevant as DPHHS did not “commence an action” for recovery by filing a complaint… Frankino/Pinski affirmed, reversed) Independence Medical Supply v. DPHHS, 3/31:2

 

*Mental Commitment

Rights advisory: (plain error review of failure to provide advisory of rights declined as to person who interrupted Judge’s attempts to advise and no risk of substantial prejudice… J. Brown affirmed) BH, 12/1:1

Sufficiency of evidence: (person properly committed to 5 additional days at mental health center after swimming 100 yards into lake and refusing to return… psychiatrist’s opinion based in part on review of admission records properly considered… Ulbricht affirmed (IOR I-3(c))) CG, 2/24:3; (person properly committed to MSH rather than lesser restrictive placement… including chemical/substance abuse as mental disorder harmless error in light of bipolar finding… involuntary medication properly authorized… assessment for developmental/cognitive delays improperly required… Haynes affirmed, reversed (IOR I-3(c))) CS-S, 5/5:2

Transport: (no abuse of discretion in denying committed person’s request not to be handcuffed during transport to Warm Springs… J. Brown affirmed) JJ,7/28:4

Waiver of hearing: (waiver signed by person and attorney in court and supported by order not violative of due process… Wilson affirmed) SD, 7/21:3

 

*Oil/Gas

Lease: (land was not pooled and lease not extended by drilling during primary term, pooling order properly not applied retroactively… Cavan affirmed (memorandum)) Northern Oil & Gas v. Continental Resources, 12/29:7

 

*Minerals

Dinosaur fossils: (“rare and exceptional” dinosaur fossils are “minerals” pursuant to Montana law and terms of Deed and belong to owners of the mineral estate… Watters reversed) Murray v. BEJ Minerals, 11/10:6

 

*Probate

Default estate closure: (PR’s motion to set aside default estate closure properly denied… Laird affirmed (IOR I-3(c))) Hader, 10/27:3

Dram shop settlement: ($204,866.39 net from $325,000 for death of 19-year-old properly allocated $194,136.43 to survival action and $10,729.96 to wrongful death damages with $7.51 wrongful death damages and 0 survival/consortium damages to father who spent only 5 days with daughter… Pinski affirmed (IOR I-3(c))) Estate of Boushee, 11/17:2

Special administrator: (properly appointed where siblings designated as beneficiaries and PRs in mother’s will were in ongoing litigation with each other over Estate’s primary asset… Gustafson affirmed (IOR I-3(c))) Elliot, 7/14:2

Testamentary trust: (anti-lapse statute not applicable to ranch Trust which clearly provides contrary intent, not necessarily equal distribution to children and grandchildren… Hayworth affirmed) Tonn (William Heirs) v. Sylvis (Elizabeth Heirs), 3/3:1

Will: (4 children’s inheritance properly limited to $1 under “no contest” provision of Mother’s Will as they lacked probable cause to contest validity of Will… PR properly awarded fees/costs for defending… Wheelis affirmed (IOR I-3(c))) Carpenter, 1/6:2

 

*Property

Airstrip easement: (for 1 airplane properly not extended to nearby owners… $53,385.08 fees/costs properly awarded Defendant, Defendant also entitled to appeal fees… Langton affirmed (other grounds)) Hudson v. Irwin, 1/20:1

Condemnation: (post-summons interest properly denied in City’s condemnation of private water system… Townsend affirmed) Missoula v. Mountain Water, 5/12:3

Cotenancy adverse possession: (possessory cotenants established ownership of entire property (except minerals) by adverse possession after entry under color of title via a recorded deed that purported to convey entirety… Cybulski affirmed) Nelson v. Davis, 5/12:2

Cul-de-sac parking: (dispute properly resolved on summary judgment… McMahon affirmed (IOR I-3(c))) Ardary v. Paris, 5/5:1

Easement: (express easement correctly found for Plaintiffs over shared driveway as depicted on Correction COS signed by surveyor but not owner… additional prescriptive easement properly found over Defendant’s property… Eddy affirmed) Walker v. Phillips, 9/29:2

Foreclosure: (homeowners’ challenge of foreclosure properly found time-barred… Christensen affirmed (unpublished)) Knight v. Wells Fargo Bank,4/14:7; (negligence/CPA claims properly dismissed, pass-through certificate assignment declaratory judgment request properly disposed of by judgment on pleadings… Molloy affirmed (memorandum)) Burrington v. Ocwen Loan Servicing, 6/9:9; (attempt to stop sale of property properly rejected per 12(b)(6) and summary judgment… Lynch affirmed (memorandum)) Bertelsen v. CitiMortgage, 11/24:6

Landlord/tenant: (lease provisions that allow placing unpaid balance or damages with collection agency and charging $50 fee for any violation of lease illegal under RLTA… no evidence that landlord included lease terms knowing they were illegal… claims subject to 8-year statute for actions founded on instrument but would also be timely under 2-year statute for liability created by statute… Halligan) Galbraith v. Professional Property Management,8/25:3

Possession: (supervisory control of hearing denial by Eddy denied… order) Perkins Family Holdings v. Eddy, 8/25:2

Road easement: (fact issues preclude summary judgment that easement encompasses a “farm house”… properly found to not provide access to after-acquired property… Jones reversed, affirmed) Quarter Circle JP Ranch v. Jerde, 4/7:1

Trail easement: (over ranch properly found… Haddon affirmed (memorandum)) Wonder Ranch v. FS, 6/30:4

 

*Railroads

Common carrier duty of care: (Amtrak liable for damages to passenger raped by sleeper car attendant under Montana duty of care to passengers… Amtrak’s reliance on general course & scope rule rejected… Johnston/Morris) Shepherd v. Amtrak, 8/18:9

FELA: (ARD defense verdict affirmed over evidentiary, trial misconduct, discovery misconduct claims… Ulbricht affirmed) Daley v. BNSF, 8/18:2

 

*Schools

IDEA: (claim of failure to evaluate child for special ed until 2013 time-barred for claims before 2012, District otherwise allowed parents to participate in developing education plan, had not “predetermined” placement… Anderson affirmed (unpublished)) JK & JC for KK-R v. Missoula Co. Public Schools,3/3:7

 

*Settlements

Dram shop: ($204,866.39 net from $325,000 for death of 19-year-old properly allocated $194,136.43 to survival action and $10,729.96 to wrongful death damages with $7.51 wrongful death damages and 0 survival/consortium damages to father who spent only 5 days with daughter… Pinski affirmed (IOR I-3(c))) Estate of Boushee, 11/17:2

Special ed services: ($1,141,000 ($925,000 for educational services, $35,000 damages, $181,000 attorney fees), alleged failure to serve special education student for 4 years including isolation in church basement) RC v. OPI and OPS, 10/27:6

Water easement: ($400,000 from subdividers to water district and $225,000 to lot owners on appeal of $666,533.11 water easement trespass/nuisance judgment) Berg v. Gardiner-Park Co. Water Dist., 5/5:4

 

*Social Security

SSD: (claim properly rejected) Yanchar, 1/6:7; (claim properly rejected) Deluca, 1/20:7; (denial affirmed in part, reversed in part, remanded for reassessment of RFC including all relevant physical and mental impairments… Johnston affirmed, reversed (unpublished)) Loader, 2/3:4; (denial affirmed) Smith, 2/10:6; (denial properly affirmed despite ALJ improperly discounting treating doctor’s opinion… Christensen affirmed (unpublished)) McFadden,2/24:6; (medical marijuana patient’s claim properly denied… Lynch affirmed (memorandum)) Green, 12/15:8

SSD/SSI: (claims properly rejected) Koch, 1/13:6; (claim properly denied… Morris affirmed (unpublished)) Doney, 4/28:6; (mental impairment claim improperly rejected without benefit of written report of neuropsychological evaluator… Hartford reversed, remanded for further proceedings… Lynch) Hill, 9/1:5; (properly denied for schizoaffective disorder… Lynch affirmed (memorandum)) Price, 9/22:8

 

*State Government

FWP conservation easements: (AG Opinion precluding FWP from finalizing easements without Land Board approval overruled… full opinion to follow… order) Bullock v. Fox, 12/15:4

Liquor: (use of 1994 sales data per 1995 statute to calculate reimbursements for store sales of unbroken cases not violative of substantive due process or equal protection, $34,875,215.53 class action award ($8,718,803.88 attorney fees) reversed… Pinski reversed) Kohoutek v. DOR, 5/19:2; (SB 193 restructure of agency store commissions does not implicate Contracts Clause, but Plaintiff is entitled to relief on breach of contract claim under state law… Haddon affirmed, reversed) Lolo Liquor v. Montana, 12/29:6

Medicaid: (physician affidavits correctly held not to cure technical violations of incontinence supply orders, DPPHS entitled to $670,152 reimbursement… whether 2- or 8-year statute applies is irrelevant as DPHHS did not “commence an action” for recovery by filing a complaint… Frankino/Pinski affirmed, reversed) Independence Medical Supply v. DPHHS, 3/31:2

State employee ethics: (use of loaned FWP fur animal trailer to advocate against anti-trapping initiative not a violation by FWP employees of prohibition against public officer or employee from using state resources for political advocacy, CPP finding to contrary properly reversed… McMahon affirmed) FWP v. Trap Free Montana Public Lands, 5/19:2

 

*Taxes

Oil pipeline: (gathering systems properly classified as class 8… DOR reversed, Menahan affirmed) Hiland Crude v. DOR, 7/7:1

Religious schools credit: (religious schools tax credit violates Art. X §6… DOR exceeded rulemaking authority in attempting to cure constitutional deficiency… Ulbricht reversed) Espinoza v. DOR, 12/15:3

Tax deed: (mandamus properly denied where quiet title action suffices for claim that tax deed should have issued… Wilson affirmed) O’Brien v. Flathead Co. Treasurer, 8/11:3

Tax Injunction Act: (deprives Federal Courts of jurisdiction over challenge to Montana regulation that denies tax credit for donations applied to religious education… Haddon affirmed (memorandum)) Armstrong v. Montana Dept. of Revenue, 7/21:6

 

*Torts

Child sex abuse: (supervisory control over Manley denied as to partial summary judgments against church in suit for failure to report child sex abuse) Watchtower Bible & Tract Society v. Manley, 9/22:1

Computer cooling unit failure: (negligence/contract claims against general contractor relating to failure of cooling unit at State data center resulting in $1.5 million damage rejected on summary judgment… Reynolds) Lexington Ins. a/s/o State of Montana v. KyotoCooling, 7/28:5

Dispatcher timecard investigation: (abuse of process, defamation, Anti-Intimidation Act claims of dispatch supervisor investigated but not prosecuted for timecard fraud dismissed on summary judgment… Hayworth) Roos v. Miles City, 8/4:4

Gravamen of claims: (gravamen of claims that hydrants violated plumbing cross-connection regulation sounds in tort, not contract, time-barred, no justiciable controversy to support declaratory judgment request… complaint dismissed with prejudice… Jones) Fort Smith Water & Sewer Dist. v. Great West Engineering, 1/27:2

Malicious prosecution: (claims asserted following failed prosecution of game and insurance fraud charges properly dismissed on summary judgment… Christensen affirmed (unpublished)) Fratzke v. Montana Fish, Wildlife, and Parks, 4/21:7

Medical malpractice: (claims properly dismissed for lack of expert… Allison affirmed (IOR I-3(c)) Richards v. KRMC; Prompt Care, 1/20:1; (non-surgical spine physician not qualified to opine about standard for spinal fusions… Souza affirmed) Melton v. Speth, 9/8:1

Negligence: (35% contributory negligence properly applied in awarding $154,356.15 fiber optic cable strike judgment with no prejudgment interest… Morris affirmed (memorandum)) AT&T v. Jackson Utilities, 6/9:8

Negligent spoliation: (claim that insurer had duty to retain salvage death vehicle in anticipation of potential tie rod suit against manufacturer rejected under Montana (not ND) law… Cavan) Underberg v. Employers Mutual Casualty, 3/24:7

Podiatrist malpractice: (any error in not instructing on loss of chance was harmless as jury found no negligence, did not consider causation… no abuse of discretion in prohibiting Plaintiffs from asking treating physician if Defendant breached standard or by limiting impeachment on redirect (offer of proof following verdict is too late)… new trial properly denied based on Defense counsel’s alleged misconduct including inappropriate sarcasm… defense verdict affirmed… Krueger affirmed) Steffensmier as PR of the Estate of Bushong et al v. Huebner and Great Falls Clinic, 7/21:1

Police rape: (claims against City and County for drug officer’s alleged rape of CI barred by statute of limitations, lack of vicarious liability… Menahan) Fleming, PR for TF v. Helena and L&C Co., 12/1:3, SH v. Helena and L&C Co., 12/1:4

Product liability: (parameters set and proposed for retrial of Mazda passive seat belt case following reversal of defense verdict… Molloy) Speaks v. Mazda,5/19:7

Prosecutorial immunity: (special deputy entitled to absolute prosecutorial immunity in concluding that Sheriff’s Office incident report without forensic interview established probable cause to believe that boy had raped another boy, an allegation by father that was subsequently dismissed as greatly exaggerated… immunity properly extended to County and State… claims against County also precluded by public duty doctrine and lack of evidence of negligence in forwarding report for further investigation… Seeley affirmed) Renenger v. State, 9/15:4

Public duty doctrine: (does not shield an officer from negligence liability where he is the sole cause of the plaintiff’s harm… certified question in appeal from contrary ruling by Haddon) Bassett v. Lamantia, 5/12:1

Sovereign immunity: (USPS entitled to sovereign immunity from claim of stolen sapphire… Watters affirmed (unpublished)) Smith v. USPS, 1/13:6

Wrongful discharge/whistleblower: (claims by probationary PO properly rejected on summary judgment… Eddy affirmed (IOR I-3(c))) Blodgett v. State,10/6:2; (termination of superintendent for refusing to follow directives to safeguard heavy equipment properly upheld on summary judgment over employee’s contention that reasonableness of refusal was jury issue… Todd affirmed (IOR I-3(c))) Schulz v. JTL Group dba Knife-River, 12/8:3

 

*Trusts

Capacity: (summary judgment properly granted to successor trustee company on trust creator’s incapacity warranting assumption of trusteeship… §37-61-421 sanctions improperly awarded against creator’s attorneys where no costs were incurred by Special Master and response to motion was voluntary… Larson affirmed, reversed) Valentine Weisz Living Trust v. DA Davidson Trust Co., 11/10:1

Trust v. TOD: (TOD designations controlled distribution of investment accounts, decedent’s failure to follow through with stated intent to transfer accounts to Trust made them nonprobate transfers to designated beneficiaries, Trustee’s claim of unjust enrichment properly rejected… Larson affirmed) Darty v. Cornish, 6/2:1

 

*Utilities

Electric coop: (claims that coop breached “contract” by not refunding capital annually properly dismissed as barred by 8-year statute… Eddy affirmed) Wolfe v. Flathead Electric Coop, 11/24:2

PPA: (ICE properly found as reasonable market substitute to DOW for pricing options… McMahon affirmed) Boulder Hydro v. NWE, 10/13:1

PSC: (PSC acting outside authority in engaging in discovery in waste disposal application by submitting data requests to opponents… TRO issued… Reynolds) Big Foot Dumpsters, 5/12:5; (PSC improperly issued “data requests” to opponents of waste disposal application… staff attorney appointed to resolve discovery disputes improperly engaged in ex parte communications with applicant… PSC ordered to appoint independent hearing examiner to hear application… Reynolds) Big Foot Dumpsters, 7/14:3

Taxis: (taxi operators’ challenge of SB 396 (2015) authorizing internet-based ride-sharing properly rejected based on good-faith immunity and legislative prerogative… Reynolds affirmed (IOR I-3(c))) Pintar (Amazing Taxi) v. State, 12/22:4

 

*Verdicts

Auto: (new trial granted following $13,684.18 MVA verdict based on failure to supplement Defense expert’s disclosure to reflect opinion that Plaintiff had reached MMI within 6 weeks of MVA)… Menahan) Feist v. Taylor, 1/20:5; ($10,000 for pain & suffering, admitted negligence MVA, claimed multiple injuries including MTBI resulting in forced sale of insurance agency) Reisbeck v. King, 2/3:3; (defense, rear-end MVA death) Rose v. Feltus, 5/12:6; ($3,519.61 past medicals only, low-speed rear-end MVA) Yerger v. Soelter, 7/21:6; (no automatic for-cause exclusion of State employees in suits against State (1st impression)… no abuse of discretion in rejecting for-cause challenge of MHP employee in suit involving rear-end collision with MDOT snow loader… 51/49 defense verdict affirmed… Reynolds affirmed) Bockman-Fryberger, 8/25:1; (defense, rear-end MVA, admitted negligence not cause of knee injury) Grohman v. Sales, 11/3:6

Campground business: (defense, campground business claims following breakup of 40-year romantic relationship) Johnson v. Glorvigen, 12/15:8

Commercial property: ($123,739.03 plus attorney fees, breach of contract/negligence, sale/lease of and failure to remove materials from commercial property) WR Properties v. Webb, 9/22:7

Construction lien: ($941,537.62, tank farm subcontractor) Willbros Const. (US) v. Fedco Const., 3/31:8; ($16,380 compromise amount to landscaper on construction lien (entitling landscaper to attorney fees)… defense verdict on homeowners’ breach of contract, negligence, CPA, breach of warranty counterclaims) Land Escapes v. McLaren, 11/3:5

Dog in road: (defense, driver who collided with dog not liable in death of driver who rolled vehicle in reaction to seeing dead dog in road) Vohs v. Clark,1/13:4

Employment contract: ($220,000, nurse whose contract for new job was pulled because of false malicious gossip by former co-worker) Warrington v. Great Falls Clinic, 3/3:6

Failure to report child sex abuse: ($34,960,000 net for one Plaintiff, Defense verdict as to one, church failure to report) Nunez and McGowan v. Watchtower Bible & Tract Society of New York, 10/6:3

FELA: (ARD defense verdict affirmed over evidentiary, trial misconduct, discovery misconduct claims… Ulbricht affirmed) Daley v. BNSF, 8/18:2

High school football player: (defense, hospital not negligent in connection with severe brain injury… $750,000 settlement with school district) Back v. Benefis Health System, 4/7:5

House construction: (punitives review: (punitives cap unconstitutional, $749,000 award upheld on review (as opposed to $21,920.31 under 3% cap) in addition to $1,088,000 compensatory damages in house contract suit… Manley) TCH Builders & Remodeling v. Elements of Construction, 3/10:4

Insurance: (defense, insurance bad faith, negligent misrepresentation, insurance by estoppel, stemming from denial of coverage for accident of plumbing subcontractor employee on excluded “new-construction condo”… suit by plumbing employee & wife as assignees of insured’s claims) Dominguez v. Preferred Contractors Insurance Company PRG, 6/30:3

Landslide: (defense, negligence/nuisance claims relating to landslide that altered course of creek affecting nearby landowners’ properties… $100,000 settlement by one landowner) Thompson v. Stovall, 4/14:7

Medical malpractice: (defense, tonsillectomy complications) DeMoney v. Kaufman, 4/21:6; (defense, L5-S1 fusion with OptiMesh and unilateral pedicle screws, informed consent) Howard v. Replogle, 11/10:5

Mining claims trespass: ($3,325,000 for trespass to owners of unpatented mining claims crossed by tunnel constructed to access patented claims of proposed Montanore mine) Mines Management Inc. v. Bakie, 12/1:6

Mistaken property inspections, wrongful posting of foreclosure notice: ($20,000 for mistaken property inspections and wrongful posting of vacancy and foreclosure notices… no intentional trespass, no invasion of privacy) Moore v. Wells Fargo Bank, 7/7:5

Mobile home contract: (defense, UCC/RISA claims by mobile home contract purchasers who moved out while behind on payments and home was re-sold to a 3rd party) Christman v. Clause, 4/21:6

Mountain fish pond breach: ($313,230.40 for driveway construction costs and property damage resulting from strict liability breach of mountain fish pond) Covey v. Brishka, 4/21:6

Negligent cremation: ($50,000) Yeager v. Miser Mortuaries, 6/23:5

Podiatrist malpractice: (any error in not instructing on loss of chance was harmless as jury found no negligence, did not consider causation… no abuse of discretion in prohibiting Plaintiffs from asking treating physician if Defendant breached standard or by limiting impeachment on redirect (offer of proof following verdict is too late)… new trial properly denied based on Defense counsel’s alleged misconduct including inappropriate sarcasm… defense verdict affirmed… Krueger affirmed) Steffensmier as PR of the Estate of Bushong et al v. Huebner and Great Falls Clinic, 7/21:1

Railroad: ($2,171,154.50 net including $249,999 punitives, termination of RR conductor who claimed injury on locomotive over RR’s contention that he falsified report of off-work injury) Wooten v. BNSF, 11/17:7

Slip & fall: (defense (40/60), icy parking lot slip & fall, fractured rib) Reichelt v. Burlington Square LP, 3/17:7

Trust: ($305,000, family trust breaches) Ralph Anderson Family Trust, 7/28:6

Underground pipeline strike: (defense, insurer’s claim for reimbursement of damages incurred in underground salt water pipeline strike) Mid Continent Casualty v. Engelke, 11/24:7

 

*Water

Bateman Ditch: (permanent injunction against using Bateman Ditch as a Teton River water management tool… Olson) Fellows v. Perry Water Commissioner, 2/24:6

Stockwater: (absent express language in grazing agreement granting right to stockwater reservoir, it remains appurtenant to the land… Ritter affirmed (IOR I-3(c))) Salsbery Family Partnership v. Korman, 2/24:2; (stockwater claims in reservoirs forfeited for failure to file with DNRC… BLM wildlife claims valid… Ritter affirmed) BLM v. Korman, 9/22:1

Teton River rights: (properly adjudicated on remand… Ritter affirmed) Teton Coop Canal Co. v. Teton Coop Reservoir Co., 2/17:4; (Teton Reservoir’s rights under 1902 Notice properly adjudicated… Ritter affirmed) Teton Cooperative Reservoir (Claimant), 4/7:4

 

ARD: (exposure to Libby asbestos at LP lumber mill makes LP liable for ARD OD and resulting death despite earlier and larger exposures elsewhere and 50 years of smoking… no penalty or fees as LP’s interpretation of last injurious exposure rule was not unreasonable… Sandler) Atchley v. Louisiana Pacific, 9/29:7

Evidence: (admissibility of employer’s written statements recounting that Petitioner said she hurt her shoulder when she tripped over her dogs reserved for trial… Sandler) Heichel v. Liberty Mutual Ins., 2/17:8

Exclusivity: (trucking company was an “immediate employer” (employer-in-fact) of driver assigned by PEO (employer-at-law) which paid comp premiums… PEO Act not violative of Art. II §16 full redress… trucking company entitled to immunity from tort claims by injured driver… Townsend affirmed) Ramsbacher v. Jim Palmer Trucking, 5/12:2

Extraterritorial: (Montana worker temporarily left Montana incident to his employment and was injured in Texas in course of his employment, entitled to benefits under §39-71-402(1)(a) extraterritorial statute… attorney fees/penalty denied… Sandler) Kunz v. Electric Ins., 2/10:6

Fight with co-worker: (Claimant who instigated fight with co-worker not entitled to TTD after termination from job… Sandler) Griffin v. Associated Loggers Exchange, 8/11:8

IME: (orthopedic IME properly ordered because Claimant’s condition has arguably changed… psychiatric IME improperly ordered without treating psychiatrist or psychologist first authorized… DLI affirmed, reversed… Sandler) Neisinger v. New Hampshire Ins., 6/16:7; (stay pending appeal denied as to Sandler’s ruling that insurer did not have good cause for psychiatric IME in relation to claimed anxiety related to leg injury because it had not first authorized seeing a treating psychologist or psychiatrist… order) Neisinger v. New Hampshire Ins., 10/13:1; (constitutional challenge to §605 permitting insurers to obtain multiple IMEs properly rejected… McMahon affirmed) Robinson v. MSF, 10/27:2

Injury: (no compensable physical “injury” by aide hit & pinched by special needs student… anxiety, depression, PTSD, pseudoseizures non-compensable mental-mental or mental-physical… Sandler) TG v. MSGIA, 1/27:5

Interim TTD: (Claimant with TBI from semi rollover made prima facie case for interim TTD where doctor had insufficient knowledge of approved light driving jobs as to whether Claimant could perform them and his restrictions were vague… insurer failed to convince that Claimant does not want to work… DLI award of interim benefits affirmed… Sandler) Clark v. Arch Ins., 10/20:6

Libby Medical Plan: (Estate of worker who died of ARD properly denied “reimbursement” of $95,846 paid by Libby Medical Plan after comp insurer paid all benefits… Shepard (1985) similar, still good law… Sandler affirmed) Moreau v. Transportation Ins., 1/6:1

Lockhart lien: (perfected by sufficient work (far more than merely “initiating a process”) in obtaining 2 years of additional medical after termination under 60-month rule despite conflict in DLI Retainer Agreement and fee rule… no penalty/fees as this is issue of 1st impression… Sandler) Webster v. Liberty Northwest Ins., 9/22:9

Medical benefits: (terminated for failure to use for 60 months, approved bone spur surgery delayed too long, not saved by prothesis exception… Sandler) Mellinger v. MSF, 8/18:10; (60-month rule not implicated by doctor’s failure to bill for treatment… no penalty or fees as issue not squarely addressed previously… Sandler) Westre v. Liberty Northwest Ins., 8/25:7

Multiple insurers, single employer: (liability for recurrence of OD while working for same employer remains with initial insurer… Sandler reversed) MSF v. Liberty Northwest Ins., 8/4:1

Notice: (Petitioner failed to give notice of alleged accident within 30 days, claim not compensable… Sandler) Heichel v. Liberty Mutual Ins., 3/17:8; (summary judgment on notice of claimed injury denied… Sandler) Richardson v. INA, 6/23:7; (entry in Daily Activity Report of ER security officer being hit by patient did not indicate injury, not sufficient notice of injury… even if waiver of 12-month deadline applicable, claim submitted beyond 36-month absolute deadline… Sandler) Richardson v. INA, 9/29:6

Penalty: (penalty claim to be decided when WCC decides merits, not on motion for partial summary judgment… Sandler) Selley v. Acuity Ins., 3/3:8; (no penalty or fees as LP’s interpretation of last injurious exposure rule was not unreasonable… Sandler) Atchley v. Louisiana Pacific, 9/29:7

Procedure: (Fleming incorrectly held that WCA procedural statutes in effect date of injury apply, Blythe correctly held that definition of “physician” is the one in statutes in effect at time of trial (includes chiropractors)… Sandler “reversed” albeit correctly applying most recent holding) Murphy v. Westrock,3/24:1

Progression v. aggravation: (inability to work not result of progression of 1994 back injury, new job aggravated Petitioner’s back condition and he has not returned to baseline, not entitled to TTD or PTD from time he quit job… Sandler) Bright v. MSF, 11/3:6

SS offset: (MSF entitled to SSD offset from PTD under §702(4) “because of the injury” despite Claimant having suffered 2 injuries… no WCC jurisdiction over tort claim alleging violation of due process by taking offset without hearing… Sandler) Robinson v. MSF, 4/7:8

Statute of limitations: (medical benefits time-barred under 2-year statute at §29-05(2)… Sandler) Simpson v. MMIA, 8/11:8

Waiver: (Petitioner waived right to PTD after retirement age for 1977 injury by his declarations and conduct including accepting PTD at 1983 rate for nearly 13 years… Sandler) McCrary v. Liberty Mutual Fire Ins., 3/10:8