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JURY VERDICT REPORTS September, 2011 MONTANA’S CIVIL LAW BULLETIN In this issue: JURY VERDICTS Stokes vs Ford Motor Company, Overland West, Inc. and Durham ($1,406,005 verdict) Product liability, Negligence , MVA. Nau & Nau vs Soteros ($150,611.17, $10,760.00), MVA . Sager vs Cornerwall Systems (Defense verdict), Property Insurance, Negligence. Malloy vs Chapman, Brown ($374,881.20) MVA, Negligence. Long vs FedEx Ground Package System (Defense verdict) Negligence (Training), Punitive damages. Three Rivers Bank of MT vs H.E. Simpson Lumber Co. (Defense verdict), Receivership / Breach of Contract. SUPREME COURT OPINIONS Weber v. BNSF Railway Co. – FELA, Evidence Boehm v. Cokedale – Trusts, Personal Injury Shattuck v. Kalispell Regional Med. Center – Personal Injury, Insurance Law Lampi v. Speed – Insurance Law, Remedies Miller v. Begley – Contracts, Attorney- Client Relationship Harmon v. Fiscus Realty – Attorney fees, Property Law, Consumer Protection Weiss v. Weiss – Family Law Ratliff v. Pearson – Civil Procedure JURY VERDICT REPORTS September, 2011 MONTANA’S CIVIL LAW BULLETIN is that Ford is liable in strict products liability JURY VERDICTS and negligence because Ford failed to equip the 2002 Explorer at issue with the Safety Canopy. Dennis Stokes Yellowstone The Safety Canopy was optional rather than v. County standard. The Plaintiff’s estate received the Ford Motor Company, following payment for damages ; $205,000 paid Overland West, Inc. and by Durham’s insurer, $965,000 from Rio Todd Durham 9/6/11 Tinto’s insurer in underinsured motorist benefits, $100,000 in Workers’ Compensation VERDICT: benefits, $308,250 from the Luzcnac-AIG $1,409,005.00 Verdict, MVA. Jury not polled policy, and $8,000 received by Mrs. Carter for Workers’ Compensation benefits. PARTIES Plaintiff –Dennis Stokes, as personal CLAIM representative of the Estate of Peter Carter. Demand: $5million, last offer Attorneys; Dennis Conner (Conner & Pinski), Counteroffer: Not disclosed Great Falls. Daniel Bidegaray (Bidegaray Law No Defendant offer of judgment. Firm, LLP), Bozeman. Mediator: Dana L. Christensen (Kalispell) Defendants –Ford Motor Company, Overland West Inc., Todd Durham. TRIAL EXPERTS Attorneys for Ford; Ian McIntosh (Crowley Plaintiff: Stephen Syson (Engineering) Goleta, Fleck, PLLP) Bozeman; Lee Mickus, Vaughn CA. Joseph Burton, M.D. (Forensic Pathology) Crawford (Snell & Wilmer), Denver. Alpharetta, GA. Joseph Kasperick Attorneys for Overland West Inc; Guy Rogers, (Economics) Butte, MT. Officer James Handy Jon Wilson (Brown Law Firm), Billings. (MT Highway Patrol). Sgt. Jay Nelson (MT Attorney for Todd Durham: Donald Harris Highway Patrol). (Harman, Warren & Harris, PLLP), Billings. Defendant: Michael Dobersen, M.D. (Forensic Pathology) Arapohe County, CO. Geoffrey DAMAGES Germane (Accident Reconstruction) Provo, UT. Pain and suffering request: approx. $5 million. Robert Piziali (Kinematics / Biomechanics) San Past wage loss: $1.5 million. Future wage loss: Carlos, CA. Jeffrey Pearson (Collision / $2 million - $5 million. Punitive damages Occupant Restraint) Rochester, MI. Jeffrey sought. Croteau (Failure Analysis / Roof Structure), Natick, MA. BACKGROUND On November 7, 2002, Peter Carter was driving JURY northbound in a rented 2002 Ford Explorer on Plaintiff request: $10,000,000.00 + Highway 287 when a one-ton Chevy truck Defendant request: $0 driven by Todd Durham, heading southbound, Deliberation: 2.5 hrs negligently crossed into the northbound lane. Judge Russell C Fagg Cause # DV-05-1236 Mr. Carter had driven to the extreme shoulder of the road to avoid a collision. His vehicle rolled and Mr. Carter unfortunately died. Mr. Carter was driving approximately 84 mph in a 65 mph posted speed zone. The Court determined that Mr. Durham’s negligence was the sole cause of the accident. The Plaintiff’s primary allegation JURY VERDICT REPORTS September, 2011 MONTANA’S CIVIL LAW BULLETIN CLAIM Demand: $115,000.00 Kenneth Nau and Flathead Sharon Nau County Counteroffer: Not disclosed v. Defendant Last Offer: $38,000.00 Christopher Soteros 9/16/11 Mediator: Robert Sheridan (Missoula) TRIAL EXPERTS VERDICT: Plaintiff: Rodney Brandt-video (Orthopedist), $150,611.17 to Kenneth Nau and $10,760.00 to Kalispell. Collin Carlson (Chiropractor), Sharon Nau. MVA, jury not polled. Kalispell. Defendant:Dr. Patrick Cindrich (Neurosurgeon), PARTIES Missoula. Dr. Michael Righetti (Orthopedic Plaintiffs – Kenneth Nau and Sharon Nau. Surgeon), Polson, Whitefish. Attorneys: Jeffrey Ellingson (Ellingson Law Firm, PLLC), Kalispell. JURY Defendant –Christopher Soteros. Attorney: Plaintiff request: $339,905.00 Scott Gratton, Shane MacIntyre (Brown Law Defendant request: $50,000-$78,000 Firm, PC), Missoula. Defendant Offer of Judgment: $70,000 Deliberation: 3 hours DAMAGES Judge Katherine Curtis Cause # DV-10-1473 Plaintiff seeking $24,492.79 in past medicals and $2,461.65 past wage loss. Injuries include; chronic neck and upper back pain, stiffness. Gary Sager, Gallatin Pauline Sager County Loss of quadriceps strength from injury to right v. knee. Cornerstone Wall Systems David Hoover, owner 9/20/11 BACKGROUND and David Hoover (owner) Kenneth and Sharon, a married couple, were driving westbound on MT Highway 2, VERDICT: approaching the intersection with Dern Road. At Defense Verdict. Negligent fire 12-0 Jury vote. the same time, the Defendant, Soteros, was driving southbound on Dern Road at the PARTIES intersection. Soteros had stopped at a stop sign Plaintiff –Gary Sager, Pauline Sager. Attorneys; but then proceeded to drive across Highway 2 David McLean & Ryan Willmore, Missoula, directly into the path of the Plaintiffs, causing Troy Bentson (Browning, Kaleczyc, Berry & their vehicle to collide into the passenger side of Hoven) Bozeman. Zurich Insurance. the Defendant’s vehicle. The airbag failed to Defendant –Cornerstone Wall Systems, David deploy but seat belts were worn. Kenneth’s right Hoover (owner). Attorneys; James Halverson, knee was forced into the steering column, Thomas Mahlen (Halverson & Mahlen) resulting in a patellar tendon contusion. The Billings. knee was missing the patella due to previous FUMIC Insurance company. surgeries. Liability was admitted by Soteros. Defendant challenged causation and extent of DAMAGES injuries. Defendant also claims Kenneth had The Plaintiffs seeking $1,000,000 for loss of prior conditions which account for the injuries their home and bed & breakfast business. he currently has. JURY VERDICT REPORTS September, 2011 MONTANA’S CIVIL LAW BULLETIN BACKGROUND Defendant: Lonnie Larson, Fire cause & origin The Sagers began construction on their property (Huntley). in Bridger Canyon in 2004, to build their home JURY and bed & breakfast. December 6th, 2005, the Plaintiff request: $1,730,000 cost of project was 90% complete. Cornerstone had construction, plus 10% interest. been applying stucco to the exterior and the Defendant request: $0 work areas were tented with Rhinohide and Deliberation: 3 hours on the 5th day, no jury heated with ―Mr. Heater‖ propane heaters. questions. Plaintiffs contended the heaters were left Judge Mike Salvagni Cause # DV-07-622 unattended, in violation to Fire Code provisions and warnings in the Mr. Heater manual. The Sager family lived in a nearby carriage house, Lindsay Malloy Gallatin and noticed at 6:15 a.m. the west end of their v. County home was on fire. Plaintiffs testified they Danielle Chapman, discovered fire in the immediate vicinity of the Rory Brown 9/26/11 Mr. Heater units. There were competing reports as to whether the fire started inside or outside, the house was determined a total loss. Gallatin VERDICT: County Fire investigator Gregg Heath $374,881.20, MVA. Verdict apportionment: concluded the heater was the cause of the fire. Chapman 100%, Brown 0%. MVA, jury not Cornerstone contended that he jumped to polled. conclusions and a proper investigation was not performed. Experts retained by Sagers and PARTIES Cornerstone’s insurers investigated the scene Plaintiff –Lindsay Malloy. Attorneys; Hillary 12/8/05. Conflicting conclusions came back. Carls, Mark Luebeck (Angel, Coil & Bartlett) The day of the fire, David Hoover apologized, Bozeman. which Sagers claimed was an admission. Defendants –Danielle Chapman, Rory Brown. Plaintiff contends that homeowner covenants Attorney for Chapman: Lyman Bennett, III (), were binding on Cornerstone and required Bozeman. Attorney for Brown: Shawn compliance with National Fire Protection Cosgrove (Parker, Heitz & Cosgrove), Billings. Codes. Judge Salvagni permitted testimony that covenants were binding and required DAMAGES compliance with fire codes which prohibited $10,861.20 for past medicals. Plaintiff had a unattended use of the heaters. traumatic brain injury that resulted in a tonic- clonic seizure disorder. At the time of the trial, CLAIM she had been suffering from seizures for nearly Demand: $1,000,000 4.5 years. Counter offer: $265,000 Mediator: Dee Carestia (Wise River, MT) BACKGROUND Cornerstone offered to settle on a complete Lyndsay Malloy was a passenger in a vehicle mutual release the day of trial, Plaintiffs made driven by Daniel Chapman. She was sitting in no counteroffer. the passenger side, rear seat. Chapman drove across an intersection when he did not have the TRIAL EXPERTS right of way and when it was unsafe to do so. Plaintiff: Lynn Davis, Fire cause & origin Rory Brown collided with the Chapman vehicle (Portland). where Lyndsay was seated. Lyndsay had her JURY VERDICT REPORTS September, 2011 MONTANA’S CIVIL LAW BULLETIN first seizure 40 minutes after hitting her head in BACKGROUND the MVA. The seizures have continued. The Plaintiff, David Long, is qualified and certified to drive longer combination vehicles with triple trailers. Long drove for FedEx CLAIM exclusively under JC Trucking, who contracted Demand: None disclosed with FedEx. FedEx or one of its affiliates was Counteroffer: $70,000 responsible for the training and certification of No offer of Judgment drivers, as well as compliance with all the rules Mediator: R.D. Corette, (Butte). and regulations established by federal law. Marco Kahlm also worked for JC Trucking and TRIAL EXPERTS was hired to drive doubles, not triples. FedEx Plaintiff: Dr. F. Denman Lee (Accident requested Kahlm and Long drive triples from Reconstruction), Dr. Sherry Reid (Neurology). North Dakota to Billings. Since Kahlm was not Defendant: For Brown: Dr. Harry Townes trained on triples, he was sent to a training and (Accident Reconstruction). For Chapman; Dr. certification program, by FedEx. Instead of a Dale Peterson (Neurology), Dr. Rex Deitz two day training course, a one day course was (Neuro-radiology). provided. A rented minivan was rented for JURY testing, rather than a triple trailer in tow. Plaintiff request: $2,400,000 Plaintiff’s claim this constitutes negligence per Defendant request: $0 se and amounted to a reckless disregard for the Deliberation: 4 hours. No questions. safety of persons and property. Kahlm was Judge Holly Brown Cause # DV-09-891 assigned as co-driver with Long on triples from North Dakota to Billings. Kahlm objected due to his lack of experience but FedEx assigned him. While Long slept in the sleeper, Kahlm had David Long Federal difficulty controlling the triple and lost control, v. Billings FedEx Ground resulting in an accident near Hebron, ND. Long Package System 9/29/11 suffered injuries to his kidney, lower back and suffers from paresthesia from his buttocks down through both legs. He is no longer able to drive VERDICT: on long hauls more than 2 hours. He suffers Defense verdict. Negligent training. Jury vote. emotional distress and panic attacks. There were issues not allowed in Court and the case is PARTIES currently under appeal. Plaintiff –David Long. Attorney: Thomas Towe, (Towe Ball Enright Mackey & Sommerfeld) CLAIM Billings. Demand: $1,500,000 Defendant – FedEx Ground Package System, Counteroffer: $90,000 Attorney: Mark Williams, (Williams Law Firm) No offer of Judgment Missoula. Mediator: Keith Strong (U.S. Magistrate), Great Falls. DAMAGES $43,000 past medicals, $50,000 future medicals, TRIAL EXPERTS $800,000 for pain and suffering $1,306,720 in Plaintiff: Dr. Robert Ulrich, Family medicine work loss. $200,000 future course of life, and (Laurel), Dr. Robert Larson, Chiropractor punitive damages to be determined at trial. (Billings), Dr. Lowell Quenemoen, Neurology JURY VERDICT REPORTS September, 2011 MONTANA’S CIVIL LAW BULLETIN (Billings), Lew Grill, Trucking (Billings), Ann liable for amounts H.E. Simpson loaned to Adair (Economist), Billings. North End Timber Productions, LLC under a Defendant: Dr. John Petrisko MD (Billings), Dr. theory of promissory estoppels. The amount Lawrence Splitter, Occupational medicine sought by H.E. Simpson Lumber company was (Billings). approximately $935,000. Jury found that Three JURY Rivers Bank failed to mitigate its damages Plaintiff request: $1,500,000 - $2,000,000 under the 2003 Assignment and found no Defendant request: $0 money was owed to Three Rivers Bank. Jury Deliberation: 3 hours found the H.E. Simpson Lumber did not U.S. Magistrate Carolyn Ostby establish its claim of estoppel by clear and Cause # CV-09-53 convincing evidence. Jury found that H.E. Simpson Lumber was not owed any money for its claim of estoppel. Three Rivers Bank Flathead of Montana County CLAIM v. Demand: $150,000 H.E. Simpson Lumber Co Counteroffer: $0 9/30/11 No offer of Judgment Mediator: Don Snavely (Missoula) VERDICT: Defendant not liable / Counter-defendant not TRIAL EXPERTS liable. Jury vote: 12-0. Plaintiff: Randy Kjos, Lumber (Kalispell), Ahern Spilker, Lumber (Columbia Falls). PARTIES Defendant: Michael Richards, Banking Plaintiff (and Counter-Defendant) – Three (Manhattan). Rivers Bank of MT. Attorney: Charles JURY Hansberry (Garlington, Lohn & Robinson) Plaintiff request: $525,000 on its claim of Missoula. breach of the assignment agreement; $0 on Defendant (and Counter-Claimant) – H.E. Defendant’s claim of promissory estoppels. Simpson Lumber Co. Attorney: Quentin Defendant request: $650,000 on its claim of Rhoades, Nathan Wagner (Sullivan, Tabaracci promissory estoppels; $0 on Bank’s claims. & Rhoades, P.C.) Missoula. Deliberation: 4 hours Judge Katherine Curtis Cause # DV-06-341 DAMAGES / BACKGROUND H.E. Lumber was looking to hold Three Rivers Bank liable for money it loaned to North End Timber (NET), and the bank in turn, was MONTANA SUPREME COURT looking to hold H.E. Simpson liable for money SUMMARIES it loaned to NET. Three Rivers Bank sought to recover on certain assignment agreements whereby the assignor, North End Timber Weber Yellowstone Productions, LLC, assigned its rights to receive v. County payments from defendant H.E. Simpson Lumber BNSF 9/13/11 Co. The amount sought was the amount of North End Timber’s remaining debt to Plaintiff, approximately $525,000. H.E. Simpson Lumber Company sought to hold Three Rivers Bank JURY VERDICT REPORTS September, 2011 MONTANA’S CIVIL LAW BULLETIN Weber v. BNSF Railway Co., 2011 MT 223, and that doctor’s work to form his diagnosis, but Thirteenth Judicial District, Yellowstone the district court kept the PET scan out, granting County, Judge Baugh. BNSF’s motion in limine. With regard to the two federal statutes—the Locomotive Inspection District court order granting judgment as a Act and the Safety Appliance Act—the district matter of law and order in limine REVERSED court ruling is not entirely clear, but it clearly AND REMANDED. did not instruct the jury on the LIA or SAA or provide the jury with Weber’s verdict form PARTIES including questions related to those acts. The Jason Harkins, Harkins Law Firm, for Plaintiff jury returned a verdict indicating that BNSF was Heather Weber, Appellant not negligent. Jeff Hedger, Michelle Friend, and Ronald Youde, Hedger Friend, for Defendant BNSF, ANALYSIS Appellee The Supreme Court held that Weber’s locomotive inspection act claim was sufficient BACKGROUND to require submission to the jury. The safety Weber was an engineer for BNSF. She forgot to acts supplement FELA which provides that the prep the train by disabling the distributive railroad is liable for injuries resulting in whole power system—a way of using the engines on or in part from carrier negligence. The LIA the front and back of a train in tandem—for a absolutely requires that BNSF provide its tunnel and made a quick ―sloppy‖ stop to workers with working equipment to prevent correct this problem. She corrected the problem unnecessary peril to life or limb. A worker need and was attempting to get the train going again only prove that a locomotive or its parts failed when a knuckle broke. The train remained to perform properly in their intended purposes, stopped while assistance came to fix the broken and this proof serves to satisfy the negligence knuckle. When the knuckle broke the controller element of the worker’s FELA proof. There screen for the locomotive displayed a default was sufficient evidence at trial that the train code that remains until the problem is found and should have had sufficient power without resort corrected. Unknown to Weber or anyone on to the back engines. Further, the brakes on the site, the displayed code referenced a brake distributive power system were being applied problem in the distributive power system. In without instruction to do so. The standard for order to get the train moving, Weber was causation is also different in FELA cases, where instructed to reengage the distributive power remote causation replaces the traditional notions system and then disengage before she entered of proximate cause. It was error to exclude this the tunnel. Weber complied, but the train lost theory on the basis of proximate cause—as the power in the middle of the tunnel, where she district court did—and when there was was stuck for 10-40 minutes. Weber started to sufficient evidence to support the theory. suffer from different distressed symptoms over the following weeks and months. She alleges The Court also held that it was not error to limit that BNSF is responsible for these ailments the expert testimony recounting third-party because the train was in violation of several testimony regarding the PET scan. An expert federal statutes. Her doctors concluded that her may rely on out of court testimony as part of his symptoms were consistent with carbon opinion, so long as he is not simply transmitting monoxide poisoning, which they posit occurred the same information, but adding something to while she was in the tunnel. One doctor it. Weber was provided with a preview that the performed a PET scan, but this doctor was not district court viewed this testimony skeptically, disclosed. A disclosed doctor relied on this test but she did not attempt to have the third-party JURY VERDICT REPORTS September, 2011 MONTANA’S CIVIL LAW BULLETIN actually testify as to the results. It was not basis that there was no trust and that a trustee arbitrary to exclude this testimony. could not maintain the personal injury claims alleged in his trust capacity. It wanted Boehm JUSTICE BAKER for CHIEF JUSTICE to be named as the real party in interest and the McGRATH, JUSTICES COTTER, WHEAT, complaint modified, or the cause be dismissed. and MORRIS. Boehm argued that it was a valid trust and refused to amend the complaint. The district court determined that there was no trust which Boehm Park satisfied the statutory requirements and granted v. County summary judgment to Cokedale. It also Cokedale 9/13/11 determined that Boehm needlessly obfuscated litigation, forcing innocent defendants to incur considerable defense costs. As a result, it Boehm v. Cokedale, 2011 MT 224, Sixth ordered attorney fees to Cokedale after the Judicial District, Park County, Judge Phillips request for a more definite statement. District court grant of summary judgment ANALYSIS AFFIRMED. District court grant of attorney The Supreme Court held that Boehm’s fees REVERSED. discovery admissions make clear that there was no valid trust. Boehm failed to satisfy the PARTIES statutory trust requirements and did not support Robert Jovick for Plaintiffs Carter Boehm, his potential claims for a resulting or Trustee, Appellant constructive trust. It was his burden to prove Leanne Schraudner, Schraudner & Hillier, for these things, and he failed in that burden. Defendant Cokedale, Appellee Boehm also cited no authority for a trustee Susan Swimley and Ryan Jackson, Jackson maintaining a personal injury claim. Rule 17, Law, for Defendant Allen Carter, Appellee M.R.Civ.P., requires that suits be carried out in the name of the real party in interest. This rule BACKGROUND protects finality in legal proceedings, and carries Boehm bought a property, and then transferred a warning to courts not to grant a motion on this that property to himself as a trustee. Cokedale, basis too early. Boehm was provided with his neighbor, was constructing a road when ample opportunity to name the real party in some rocks slid down into a creek and onto interest and did not. Based on Boehm’s failure Boehm’s property. Boehm sued for damage to to prosecute in his actual name, the grant of the property. Boehm amended this claim to summary judgment was proper. include personal injury damages on a number of theories, after he alleges that Carter and others The Court also held the district court erred in knocked off his glasses and pushed him, granting attorney fees. The district court did not knocking his cell phone out of his hands. support its conclusion with factual analysis or Cokedale requested a more definite statement to legal analysis under the narrow exceptions to determine whether the trustee was the actual the American Rule. Those exceptions are party in interest. Boehm responded that the suit designed to be narrow, and the underlying suit was personal, and putting the land in the name was not frivolous. of the trustee was in anticipation of forming a trust, not yet formed. Boehm did not amend his JUSTICE BAKER for JUSTICES WHEAT, complaint to make himself the actual plaintiff. RICE, MORRIS, and COTTER. Cokedale requested summary judgment on the JURY VERDICT REPORTS September, 2011 MONTANA’S CIVIL LAW BULLETIN Kalispell Medical would not release the lien on the basis that release would jeopardize its Shattuck Gallatin payment. Shattuck challenged the lien’s v. County validity and Kalispell Medical’s conduct in Kalispell Regional 9/14/11 court, under a number of theories. Among Medical Center others, Shattuck’s mother asserts that Kalispell Medical and the CHIP provider have conducted themselves in a way designed to avoid Shattuck v. Kalispell Regional Med. Center, application of the common law including the 2011 MT 229, First Judicial District, Lewis & ―made whole‖ rules of personal injury. Clark County, Judge McCarter Kalispell Medical sought summary judgment on this claim on the basis that CHIP is not an District court grant of partial summary judgment insurer. The district court determined that CHIP AFFIRMED IN PART, REVERSED IN PART, was an insurer per the Montana Insurance AND REMANDED. Code—which is intentionally broad—and that the ―made whole‖ doctrine should apply to PARTIES CHIP payments, and granted partial summary Geralyn Driscoll, Special Assisstant Attorney judgment to that effect. The district court also General, Office of Legal Affairs, and Robert determined that Blue Cross—the administrator Lukes, Garlington, Lohn & Robinson, for of CHIP—was not an insurer under the code. Defendant Montana Department of Health and This order was certified as final. After that Human Services (―Department‖), Appellant order, Shattuck sought to include the Jacqueline Lenmark, Keller, Reynolds, Drake, Department in the complaint, and, after it was Johnson & Gillespie, for Defendant Blue Cross included, the Department requested that this and Blue Shield of Montana, Appellant ruling be revisited. The district court Sean Morris, Worden Thane, for Defendant reconsidered its holding, but the decision Kalispell Regional Medical Center, Appellant remained the same. Alan Lerner and Linda Semrow, Lerner Law Firm; and Michael Viscomi and Judah Gersh, ANALYSIS Viscomi & Gersh, for Plaintiffs Gail Shattuck, The Montana Supreme Court held that CHIP is the Estate of Dane Shattuck, and others not an insurer. CHIP is a government benefit similarly situated, Appellees and Cross- designed to provide low income children with Appellants health care. The Department is a government agency formed for the purpose of allocating BACKGROUND funds to public assistance programs enacted by This lawsuit is the result of a car collision which the legislature. CHIP enrollment, akin to the killed a minor, Dane Shattuck. Shattuck’s Underinsured Employers’ Fund (―Fund‖), does medical care cost $2,365.75, and he was insured not create an entitlement to benefits. Rather, through CHIP at the time of the collision and his benefits are allocated based to a certain degree death. For its services to Shattuck, Kalispell on the availability of funds. The Court had Medical was paid $2,005.85, through the CHIP previously held that the Fund was not an program. Kalispell Medical also asserted a insurer. Also similar to the Fund, there are no medical lien for the entire amount of cost. premium payments, this program is provided by Shattuck’s estate recovered $100K for his the legislature, and there is a fund-based interest injuries and death, and requested that the lien be to assure coverage to the largest number removed as Kalispell Medical had already possible. Casual use of the term ―insurance‖ received payment in full for its services. does not change the nature of this assistance JURY VERDICT REPORTS September, 2011 MONTANA’S CIVIL LAW BULLETIN program. CHIP is not an insurer, and not The parties could not agree what was the subject to the statutory ―made whole‖ doctrine. measure of Lampi’s damages. Lampi wanted Similar to those considerations regarding the the replacement cost, which he argued exceeded Fund, CHIP is also not subject to a common law the loss in economic value of his property from ―made whole‖ requirement. the fire, and because he had no intention of selling the land, this value was irrelevant to him. The Court also held that Blue Cross, as third- Experts were called by each party to testify to party administrator for CHIP, is not an insurer. the restoration costs. The district court left the Because CHIP is not an insurer, third-party measure of damages in the jury’s hands, administration of its services cannot be instructing it that it could award restoration insurance either. damages if it found the diminished market value damages inadequate to compensate Lampi’s The Court declined to review some procedural loss. questions raised in the briefs. ANALYSIS JUSTICE RICE for a unanimous Court. The Montana Supreme Court held that restoration was the correct measure of damages from Lampi’s fire loss. The Court reviewed its decision in Sunburst v. Texaco, 2007 MT 183, Lampi Carbon v. County 338 Mont. 259, 165 P.3d 1079, adopting Speed 9/14/11 restoration as a measure of damages. In cases where the damages are temporary and the plaintiff has personal reasons for restoration, the plaintiff may elect restoration damages. The Lampi v. Speed, 2011 MT 231, Twenty-Second Court does not adopt a separate element for this Judicial District, Carbon County, Judge Jones election of genuine intent to restore the property, but this consideration factors into the District court denial of summary judgment and ―reasons personal‖ element. The parties appear order in limine REVERSED AND to agree that the injury is temporary. Lampi REMANDED FOR A NEW TRIAL. presented evidence of personal reasons for restoration which Speed more or less did not PARTIES dispute. Generally these are factual questions Randall Bishop, Jarussi & Bishop, and Alex for a jury to decide, but in this case there was no Rate, Rate Law Office, for Plaintiff Rohnn challenge to Lampi’s evidence of the two Lampi, Appellant factors. Under these circumstances, restoration Randall Nelson, Nelson & Dahle, for Defendant is the appropriate measure of Lampi’s damages, Allen Speed, Appellee and it was error for the district court to conclude otherwise and leave the matter to be determined BACKGROUND by a jury. Speed negligently caused a wildfire which burned significant portions of Lampi’s property. JUSTICE MORRIS for a unanimous Court. Lampi bought the property for vacation and retirement specifically for its aesthetic qualities and setting. He was personally attached to the land. He intends to restore the land to its pre- Miller Carbon v. County fire condition, including restoring 481 pine trees Begley 9/19/11 and 687 aspens, of which he was very fond. JURY VERDICT REPORTS September, 2011 MONTANA’S CIVIL LAW BULLETIN judgment on fraudulent deceit. He believes that Miller v. Begley, 2011 MT 230, Twenty-Second Miller did produce sufficient evidence that Judicial District, Carbon County, Judge Begley promised to perform specific discovery Gustafson work, which he did not perform. District court grant of summary judgment JUSTICE WHEAT for CHIEF JUSTICE AFFIRMED. McGRATH, JUSTICES COTTER, and MORRIS. PARTIES Plaintiff John Miller, pro se, Appellant Penelope Strong for Defendant Patrick Begley, Appellee Harmon Yellowstone v. County Fiscus Realty 9/20/11 BACKGROUND In 1991, Miller was convicted by pleading guilty to two counts of deliberate homicide. Jim Goetz represented Miller regarding his parole restrictions, and, unhappy with the outcome, Harmon v. Fiscus Realty, 2011 MT 232, Miller sued Goetz. Miller had a limited Thirteenth Judicial District, Yellowstone representation agreement with Begley to obtain County, Judge Fagg discovery in this case, but this relationship also deteriorated. Goetz obtained summary District court denial of attorney fees judgment in that matter and the cause was AFFIRMED. dismissed. Miller sued Begley for breach, breach of good faith and fair dealing, and PARTIES fraudulent deceit. The district court granted Jock West, West Law Firm, for Defendant summary judgment to Begley on the basis that Fiscus Realty, Appellant he had reasonably assisted with the claim Benjamin LaBreau, LeBreau Law Firm, for against Goetz. Plaintiffs Frederick and Madelena Harmon Appellee ANALYSIS The Supreme Court held that reasonable minds BACKGROUND could not differ that Begley assisted Miller with The Harmons were in the market for a house. discovery per the contract. Because the contract They went to a friend, Dianne Burright, who was for assistance, Begley retained the right to worked at Fiscus Realty. She showed them exercise his professional judgment. The some houses, including one being built by her contract did not require the six specific services husband, which the Harmons bought. There that Miller asserts on appeal. No reasonable were multiple problems with the house that the person could find that Begley made Harmons could not resolve with her husband, misrepresentations to Miller in an attempt to and they sought relief from Fiscus and the swindle Miller and his family. Miller’s Burrights under the Unfair Trade Practices Act, assertion that Begley promised to depose Goetz the Consumer Protection Act, and Real Estate is supported only by his own self-serving Licensing Act. A jury returned a verdict against affidavit. the realtor and her husband for breach in the amount of $80,000.00, but found in favor of Justice Rice concurs, in part, and dissents, in Fiscus on the RELA claim and the Burrights on part. He would affirm the grant of summary the UTPA and CPA claims. Fiscus and the JURY VERDICT REPORTS September, 2011 MONTANA’S CIVIL LAW BULLETIN Burrights requested attorney fees on these marriage was dissolved and this loan was claims, which the district court denied. determined to be an interest free loan by the district court. Rayna appealed this ANALYSIS determination and the Supreme Court The Supreme Court held that the district court previously determined that interest was owed on did not abuse its discretion in finding that the the $280,000.00 loan at a rate of 10%. The Harmons’ claims were not unreasonable. The Court remanded for a determination of interest district court carefully considered its decision, by the district court. That court determined that and there is no error. the accrued interest amounted to $49,954.79. Rayna argues that the actual payments should CHIEF JUSTICE McGRATH for JUSTICES have been applied to interest first, leaving a BAKER, WHEAT, MORRIS, and RICE. remainder of about $81,000.00. ANALYSIS Weiss Yellowstone The Supreme Court held that the loan v. County repayments applied to the principal and not to Weiss 9/27/11 the interest. The Supreme Court previously determined that the principal of the loan was repaid. The repayment schedule did not contemplate interest payments. The facts Weiss v. Weiss, 2011 MT 240, Thirteenth suggest an implicit agreement that the payments Judicial District, Yellowstone County, Judge were all applied to the principal. The Gustafson calculation by Scott adopted by the district court is reflective of this implicit understanding. District court order requiring payment and interest AFFIRMED. JUSTICE COTTER for JUSTICES NELSON, BAKER, MORRIS, and RICE. PARTIES Kenneth Tolliver and Matthew Gallinger, Tolliver Law Firm, for Respondent Rayna Weiss, Appellant Ratliff Teton Corbin Howard for Petitioner Scott Weiss, v. County Pearson 9/28/11 Appellee BACKGROUND Scott and Rayna were married, but with a Ratliff v. Pearson, 2011 MT 241, Ninth Judicial premarriage agreement entitling each to District, Teton County, Judge Phillips whatever was in their own names at dissolution. During the marriage, Scott borrowed money District court denial of motion for substitution from Rayna and her parents to acquire an REVERSED. interest in a business. Later, Scott borrowed more money from Rayna to buy a larger interest PARTIES in the business in the amount of $280,000.00. Norman Newhall, Newhall, Martin & Schulke, The purchased interest was solely in Scott’s for Defendant Dale Schwanke, Appellant name. Scott repaid the loan in nine payments Devlan Geddes, Goetz, Gallik & Baldwin, for accompanied by repayment schedule sheets, Plaintiff Jay Ratliff, Appellee which Rayna accepted without protest. The JURY VERDICT REPORTS September, 2011 MONTANA’S CIVIL LAW BULLETIN BACKGROUND The parties were in a contract for the sale of Pearson’s land. The deal fell through, and Ratliff sued for breach. Pearsons substituted one judge. Then, Ratliff substituted one judge. A new judge recused himself and then Judge Phillips assumed jurisdiction. Ratliff was allowed to amend his complaint to include Schwanke who moved to substitute Judge Phillips. The district court denied this request on the basis that the time to substitute had elapsed. ANALYSIS The Supreme Court held that all adverse parties have one right to substitute, including Schwanke. Though judicial economy counsels against constant, repetitious substitutions of judges, a party with true adversity of interest between already joined parties is entitled to a right of substitution. The Amended Complaint alleged separate claims of fraud by Schwanke on Pearson’s behalf. Each party has possible reasons to contest the factual allegations between them, and thus, the interests do not align. These parties are adverse, and Schwanke’s request for substitution was timely. JUSTICE MORRIS for CHIEF JUSTICE McGRATH, JUSTICES WHEAT, RICE, and NELSON.
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