JURY VERDICT REPORTS

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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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